BOARD DATE:	  11 August 2009

		DOCKET NUMBER:  AR20090005181


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, award of the Bronze Star Medal (BSM).

2.  The applicant states, in effect, that he recently received information indicating he may be entitled to the BSM for his service in the European theater of operations with the 101st Combat Battalion, 26th Infantry Division, during World War II.  

3.  The applicant provides a self-authored statement and the eight documents identified on the statement as enclosures in support of his application.  

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.


2.  The applicant's military record is not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center (NPRC) in 1973.  It is believed that the applicant's records were lost or destroyed in that fire.  However, the applicant submitted sufficient documents for the Board to conduct a fair and impartial review of this case.  This case is primarily being considered using the applicant's DD Form 214 (Report of Separation from the Armed Forces of the United States).

3.  After having had prior enlisted service, the applicant was appointed a commissioned officer in the Army of the United States and entered active duty on 15 September 1943.  He was trained in, awarded, and served in military occupational specialty (MOS) 7130 (Facilities Engineer).

4.  The DD Form 214 confirms that the applicant served on active duty 6 years, 7 months, and 16 days before being honorably released from active duty on      30 April 1950 in the rank of captain.  It also shows that he completed 7 months and 18 days of foreign service.

5.  The DD Form 214 also shows, in Item 27 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized), that the applicant earned the following awards during his tenure on active duty: Purple Heart with 1st Oak Leaf Cluster (2nd Award), Army Good Conduct Medal, European-African-Middle Eastern Campaign Medal with two bronze service stars, and World War II Victory Medal.

6.  There are no documents in the applicant's NPRC file or that he provides that indicate he was ever recommended for or awarded the BSM during his active duty tenure.  

7.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy.  Paragraph 3-1 states, in pertinent part, that the decision to award an individual a decoration and as to which award is appropriate are both subjective decisions made by the commander having award approval authority.  Paragraph 3-14 contains guidance on award of the BSM.  It states, in pertinent part, that it is awarded for heroic or meritorious achievement or service, not involving participation in aerial flight, in connection with military operations against an armed enemy.  

8.  Paragraph 3-14d(2) of the awards regulation provides for awarding the BSM to members who were cited in orders or awarded a certificate for exemplary conduct in ground combat against an armed enemy between 7 December 1941 and 2 September 1945 and that for this purpose an award of the Combat Infantryman Badge (CIB) or Combat Medical Badge (CMB) is considered a citation in orders. 
9.  Title 10 of the U. S. Code, section 1130 (10 USC 1130) provides the legal authority for consideration of proposals for decorations not previously submitted in timely fashion.  It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or a unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he may be entitled to the BSM for his service during World War II has been carefully considered.  However, there is insufficient evidence to support this claim.  By regulation, in order to support award of the BSM for exemplary conduct in ground combat during World War II, there must be evidence that the member was cited in orders or awarded a certificate for exemplary conduct in ground combat, and that a CIB or CMB is considered a citation in orders for this purpose.  

2.  The available evidence in this case is void of any orders or other documents that indicate the applicant was ever recommended for or awarded the BSM by proper authority while serving on active duty, or that he was ever cited in orders (CIB/CMB) or received a certificate for exemplary conduct in ground combat against an armed enemy during World War II.  Since he was an Engineer and not an Infantryman, he would not have been eligible for award of the CIB.  Therefore, absent any evidence confirming his eligibility for the BSM, the regulatory criteria necessary to support award of the BSM has not been satisfied in this case and it would not be appropriate or serve the interest of all those who served during World War II and who faced similar circumstances to grant the requested relief in this case. 

3.  While the available evidence is insufficient for awarding the applicant the BSM, this in no way affects his right to pursue his claim for the BSM on behalf of the applicant by submitting a request through his Member of Congress under the provisions of 10 USC 1130.  

4.  The applicant and all others concerned should know that this action related to award of the BSM in no way diminishes the sacrifices made by the FSM in service to our Nation.  The applicant and all Americans should be justifiably proud of the FSM’s service in arms.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ____x___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   __x_____   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090005181



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ABCMR Record of Proceedings (cont)                                         AR20090005181


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