IN THE CASE OF:	  

		BOARD DATE:	  24 September 2009

		DOCKET NUMBER:  AR20090007763 


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 award of the Silver Star.

2.  The applicant states that it appears that the Army does not want to acknowledge what happened to him during the Korean conflict.  In March 1951, the 23rd Infantry Regiment encountered combat within the mountains located near the Chosan Reservoir.  An 81 mm mortar round exploded in front of him, sending him approximately 20 feet in the air.  He landed on solid ice and injured his right shoulder; however, he did not feel the injury or the pain until years later. At the same time, his lieutenant told him to get back to his 60 mm mortar and fire at the enemy.  When the action was over, his lieutenant told him he was going to be put in for the Silver Star. 

3.  The applicant provides a copy of a letter, dated 20 June 2008, to the Department of Veterans Affairs in support of his request.

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 for the Board to conduct a fair and impartial review of this case.

3.  The applicant's DD Form 214 (Report of Separation from the Armed Forces of the United States), dated 7 July 1950, shows he enlisted in the Regular Army (RA) for a period of 2 years and he entered active duty in Philadelphia, PA, on
8 July 1948.  He was honorably released from active duty on 7 July 1950 and transferred to the Enlisted Reserve Corps (ERC) for completion of his Reserve obligation.

4.  The applicant's DD Form 214 for the period ending 7 June 1951 shows he was called from inactive duty and entered active duty in Philadelphia on
20 September 1950.  This form also shows that at the time of his separation, he held military occupational specialty (MOS) 4745 (Rifleman) and that his most significant assignment was with Company B, 23rd Infantry Regiment.  

5.  This DD Form 214 shows that he completed 11 months of creditable military service during this period of recall to active duty, of which 4 months and 19 days was foreign service.  He was honorably released from active duty on 7 June 1951 in the grade of corporal (Temporary) and he was transferred to the ERC to complete his remaining Reserve obligation.

6.  Item 27 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 shows he was awarded the Combat Infantryman Badge.  

7.  There is no indication in the applicant's reconstructed record that he was awarded any Korea-specific awards (Korea Service Medal/United Nations Service Medal) or any other awards, decorations, badges, or citations.

8.  Item 29 (Wounds Received as result of Action with Enemy Forces) of his DD Form 214 shows the entry "None." 

9.  There is no indication in the applicant's reconstructed records that his lieutenant recommended him for award of the Silver Star.

10.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Silver Star is awarded for gallantry in action against the enemy.  The required gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

11.  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 applicant contends that he should be awarded the Silver Star.

2.  The applicant’s record is void of any formal recommendation, approval through the chain of command, or orders that show he was awarded the Silver Star.  Furthermore, there is no documentary evidence in the available record and the applicant did not submit any substantiating evidence that shows the specific acts of heroism and courage against the enemy that he performed with marked distinction and led to meeting the criteria for award of the Silver Star.  

3.  Nevertheless, while the available evidence is insufficient for awarding the applicant the Silver Star, this in no way affects the applicant’s right to pursue his claim for the Silver Star by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130.







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)                                         AR20090007763



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ABCMR Record of Proceedings (cont)                                         AR20090007763



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