BOARD DATE:	  15 September 2009

		DOCKET NUMBER:  AR20090007187 


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, as the son of a deceased former service member (FSM), requests upgrade of his late father's Certificate of Merit to the Bronze Star Medal.

2.  The applicant states, in effect, that his father's actions under combat conditions justify the award of the Bronze Star Medal and that the record supports actions above and beyond the call of duty under combat conditions.  He points out that in the recommendation for the Certificate of Merit his father made two river crossings as a radio operator with a front line infantry company as part of a forward observer party, that his superior conduct of communications without regard to his own safety materially aided these elements in accomplishing their missions and gaining their objectives, and that it was during these river crossings that the information he relayed and his conduct under fire materially aided the infantry regiment to make successful crossings.   

3.  The applicant also points out that his father was with Lieutenant B_______ during the two separate actions for which he [Lieutenant B_______] was awarded the Bronze Star Medal and that he does not believe that an officer was sent on such a mission alone.

4.  The applicant provides two recommendations for award of the Bronze Star Medal, dated 2 May 1945; orders and a citation for award of the Bronze Star Medal with "V" Device for Lieutenant B_______; a personal letter from Lieutenant B_______ to the FSM; the FSM's Certificate of Merit; the applicant's Ohio Department of Health Certificate of Live Birth; the applicant's State of Ohio – 
Office of Vital Statistics – Certification of Birth; the FSM's WD AGO Form 53-55 (Enlisted Record and Report of Separation – Honorable Discharge); a letter from a Member of Congress, dated 25 March 2009; letters from the Military Awards Branch, U.S. Army Human Resources Command, Alexandria, VA; the FSM's Ohio Department of Health – Vital Statistics - Certificate of Death; and After Action Reports for 1 April 1945 and 1 May 1945 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 FSM’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 FSM’s records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.  

3.  The FSM was inducted into the Army of the United States on 13 March 1943 and he entered active service on 20 March 1943.  He served in the European Theater of Operations from 21 January 1945 to 21 March 1946 and he was honorably discharged on 4 April 1946.  

4.  The applicant provided two recommendations, dated 2 May 1945, for award of the Bronze Star Medal for the period 14 March 1945 to 15 April 1945 .  One recommendation, from Lieutenant B_______, states, in pertinent part, that "As a member of the Forward Observers party with front line Infantry Companies it was his duty to carry and to keep in operation the 609 Radio with which to establish communication with the artillery firing batteries.  Many times, without regard for his own personal safety, he exposed himself to enemy fire in order to set up and operate the radio in a place suitable for efficient conduct of artillery fire on enemy installations, thereby materially assisting the Infantry in accomplishing their mission."  
5.  The other recommendation, from the FSM's commanding officer, states, in pertinent part, that "During the entire period of the operations of the 89th Infantry Division, which included the crossings of the Moselle and the Rhine Rivers, and the subsequent pursuit of the enemy across Germany, [the FSM's name] served as radio operator with front line infantry companies while a member of a forward observer party.  His superior conduct of communications without regard to his own safety materially aided these elements in accomplishing their missions and gaining their objectives.  While all of his service has been excellent his performance of duty was especially outstanding during the period of the two River crossings in that the information he relayed and his conduct under fire materially aided the Infantry regiment to make successful crossings."      
 
6.  On 8 May 1945, the recommendation for award of the Bronze Star Medal was disapproved by the Commanding General, 89th Division Artillery.  The FSM was awarded a Certificate of Merit for meritorious service in the performance of his duty as radio operator during the period 14 March 1945 to 15 April 1945 while actively engaged against the enemy.  

7.  There are no orders for the Bronze Star Medal in the available records. 

8.  The FSM died on 22 November 2005.

9.  On 4 December 2007, the Military Awards Branch, U.S. Army Human Resources Command determined that there was insufficient documentation in the applicant's request to have the FSM's Certificate of Merit upgraded to the Bronze Star Medal to submit to the Army Decorations Board for consideration.  The letter cited that per Department of Defense and Army policy, a request for reconsideration for possible upgrade of a previously approved recommendation for award can be submitted for reconsideration only if new, substantive, and material information is furnished.  However, the applicant's request did not provide any new substantive material.  
  
10.  On 7 October 2008, the Military Awards Branch, U.S. Army Human Resources Command again determined that there was insufficient documentation in the applicant's request to have the FSM's Certificate of Merit upgraded to the Bronze Star Medal to submit to the Army Decorations Board for consideration.  The letter reiterated the Department of Defense and Army policy for a request for reconsideration for upgrade of a previously disapproved recommendation for award and it pointed out that one time reconsideration by the award approval authority shall be conclusive.  It stated that the justification for reconsideration must be in letter format and cannot exceed two single-spaced typewritten pages.  The additional justification must note any errors or omissions 
in the original recommendation and/or supporting documentation.  The applicant was informed that he only needed to provide the letter of justification and that this letter should be submitted by someone with first-hand knowledge of the FSM's service in the time period covered by the award.

11.  In support of his claim, the applicant provided a copy of Lieutenant B_______'s citation and orders for the Bronze Star Medal with "V" Device for heroic achievement on 16 and 27 March 1945.  

12.  The applicant provided a handwritten letter from Lieutenant B_______ to the FSM, dated 23 July 1994, which states, in pertinent part, that until his dying day he will never forget the FSM and his "Damn Radio."  

13.  The applicant also provided After Action Reports for Headquarters, 563rd Field Artillery Battalion for the periods 1-31 March 1945 and 1-30 April 1945.  These reports mention Lieutenant B_______ on several combat missions.  

14.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the FSM was with Lieutenant B_______ during the two separate actions for which Lieutenant B_______ was awarded the Bronze Star Medal with "V" Device was noted.  Evidence of record confirms the FSM's chain of command recommended award of the Bronze Star Medal for his meritorious service in connection with military operations against an enemy of the United States during the period 14 March to 15 April 1945.  However, this recommendation was disapproved by the Commanding General, 89th Division Artillery because there was no indication of accomplishment of service with distinction above and beyond that normally expected.  As a result, the FSM was awarded the Certificate of Merit.

2.  The applicant has not presented any evidence that the award process or the decision by the Commanding General, 89th Division Artillery at the time of the FSM's actions during the period 14 March to 15 April 1945 was flawed or otherwise unjust, improper, or inequitable.

3.  There is no compelling evidence which warrants upgrading the FSM's Certificate of Merit to the Bronze Star Medal.  Therefore, the 1945 decision that the Certificate of Merit was the appropriate recognition for the FSM’s actions during the period 14 March to 15 April 1945 is reaffirmed.  

4.  The applicant and all others concerned should know that this action 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 his 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)                                         AR20090007187



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ABCMR Record of Proceedings (cont)                                         AR20090007187



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