IN THE CASE OF:	

		BOARD DATE:	28 July 2009  

		DOCKET NUMBER:  AR20090005815 


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 Distinguished Service Cross and the Bronze Star Medal and their addition to his WD AGO Form 53-98 (Military Record and Report of Separation – Certificate of Service).

2.  The applicant provides no statement in his own behalf. 

3.  In support of his application, the applicant provides copies of three letters from the National Personnel Records Center (NPRC), St. Louis, Missouri, and his WD AGO Form 53-98. 

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 records are not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that the applicant’s records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record and documentation submitted by the applicant for the Board to conduct a fair and impartial review of this case.  

3.  The applicant's available military records show that he was commissioned in the Army of the United States, Infantry Branch, as a second lieutenant, on 13 March 1943, with prior enlisted service.  He served as an Infantry Unit Commander.  He served overseas in the European Theater of Operations (ETO) from 23 May 1944 to 23 December 1944.  He served with Company K, 313th Infantry Regiment, 79th Infantry Division. 

4.  The applicant was honorably discharged from active duty, as a first lieutenant, on 28 December 1945.  He was credited with 2 years, 1 month, and 23 days continental service and 7 months and 22 days foreign service in the ETO.

5.  Entries on the applicant's WD AGO Form 53-98 do not show award of the Distinguished Service Cross and the Bronze Star Medal.  Item 29 (Decoration and Citations) lists the following awards: the European-African-Middle Eastern Campaign Medal with three bronze service stars, the Purple Heart, the Asiatic- Pacific Campaign Medal, the American Theater Service Medal, the Combat Infantryman Badge, three Overseas Service Bars, the American Defense Service Medal, and the World War II Victory Medal.   Item 43 (Remarks) lists the Honorable Service Lapel Button, World War II. 

6.  There is no evidence in the applicant's available records to show any orders were published or other evidence to indicate authorization for award of the Distinguished Service Cross.

7.  The applicant's available records contain and he submits copies of letters from the NPRC, dated 31 July and 30 August 2006 respectively, wherein a Member of Congress was advised of the applicant's entitlement to the following awards:  the Distinguished Service Cross; the Bronze Star Medal; the American Defense Service Medal; the American Campaign Medal; the Asiatic-Pacific Campaign Medal; the European-African-Middle Eastern Campaign Medal with three bronze service stars; the World War II Victory Medal; the Combat Infantryman Badge, the Honorable Service Lapel Button, World War II; and the Purple Heart.  The letter dated 31 July 2006 also advised that the Bronze Star Medal was based on the award of the Combat Infantryman Badge.

8.  The applicant's available records contain and he also submits a copy of a letter from the NPRC, dated 4 March 2009, wherein he was advised that the NPRC had no authority to review and approve amendments or corrections to military records and, in effect, he needed to apply to the ABCMR for that purpose.

9.  Army Regulation 600-45 (Decorations), paragraph 12, governed award of the Distinguished Service Cross at the time in question.  The regulation stated that the Distinguished Service Cross was awarded to any person who, while serving in any capacity with the Army of the United States, distinguished himself or herself by extraordinary heroism in connection with military operations against an armed enemy.  Paragraph 12b stated the standards for this award as “The act or acts of heroism performed must have been so notable and had involved the risk of life so extraordinary as to set the individual apart from his or her comrades.

10.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Presidential Unit Citation (known as the Distinguished Unit Citation until 3 November 1966) is awarded for extraordinary heroism in action.  A unit must display such gallantry, determination, and esprit de corps in accomplishing its mission as would warrant award of the Distinguished Service Cross to an individual.  This regulation also specifies that the Presidential Unit Citation is awarded to units of the Armed Forces of the United States for extraordinary heroism in action against the enemy occurring on or after 7 December 1941.  This award will normally be earned by units which have participated in single or successive actions covering relatively brief time spans.  

11.  Army Regulation 600-8-22 also provides, in pertinent part, that the Bronze Star Medal is awarded for heroism and for meritorious achievement or service in military operations against an armed enemy.  An award of the Combat Infantryman Badge or the Combat Medical Badge is considered to be a citation in orders.  This means, in effect, that the Bronze Star Medal is to be awarded to individuals who were authorized either badge for service during World War II.

12.  Department of the Army Pamphlet 672-1, Unit Citation and Campaign Participation Credit Register, dated 6 July 1961, shows the applicant's unit was cited for award of the Distinguished Unit Citation, by War Department Orders Number 54, dated 1945; the Meritorious Unit Commendation, for the periods from 1 January to 30 June 1944 and 1 July to 31 December 1944, by Department of the Army General Orders Number 113 and 64, dated 2 December 1944 and 29 April 1945, respectively.  

13.  Department of the Army Pamphlet 672-1 also shows that the applicant's unit was cited for award of the French Fourragere, for the periods from 19 June to 27 August 1944 and 21 to 24 November 1944, by Department of the Army General Orders Number 43, dated 1950.

14.  Title 10, U. S. Code, section 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 evidence of record confirms that the applicant was awarded the Combat Infantryman Badge.  The applicant is eligible for award of the Bronze Star Medal based on award of the Combat Infantryman Badge for his service during World War II.  Therefore, it would be appropriate to correct his WD AGO Form 53-98 to show award of the Bronze Star Medal.

2.  General orders confirm the applicant is entitled to wear the Presidential Unit Citation, two Meritorious Unit Commendations, and the French Fourragere foreign unit award, and to have these unit awards added to his WD AGO Form 53-98.

3.  To be awarded the Distinguished Service Cross, a person must have distinguished themselves by extraordinary heroism while engaged in an action against the enemy.  The act required notable heroism and an extraordinary risk of life that set the individual apart from his/her comrades.  While the applicant’s unit was awarded the Distinguished Unit Commendation, there is no evidence his actions individually met the criteria for award of the Distinguished Service Cross.  

4.  Notwithstanding the letters from the NPRC, there is no evidence in the available records and the applicant has not provided sufficient evidence which shows that he was recommended and subsequently approved for award of the Distinguished Service Cross.  Based on the foregoing, there is insufficient evidence to grant the applicant's request for award of the Distinguished Service Cross and its addition to his WD AGO Form 53-98.

5.  While the available evidence is insufficient for awarding the applicant a Distinguished Service Cross, this in no way affects the applicant's right to pursue his claim for this award by submitting a request through his Member of Congress under the provisions of Title 10, U. S. Code, section 1130.  If he does have orders awarding him this decoration, he may request reconsideration along with a copy of the award orders.

6.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

_____X___  _____X___  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

     a.  awarding the applicant the Bronze Star Medal, based on award of the Combat Infantryman Badge; and

     b.  adding the Bronze Star Medal, the Presidential Unit Citation, the Meritorious Unit Commendation (2 Awards), and the French Fourragere unit award to his WD AGO Form 53-98; and by providing him a corrected separation document that show these awards. 

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to award of the Distinguished Service Cross and its addition to his WD AGO Form 53-98.  




      _______ _   _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)                                         AR20090005815



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ABCMR Record of Proceedings (cont)                                         AR20090005815


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