IN THE CASE OF:	

		BOARD DATE:	22 September 2009   

		DOCKET NUMBER:  AR20090008128 


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 that he be awarded the Silver Star (SS).

2.  The applicant states that he was recommended for award of the SS but was awarded the Bronze Star Medal (BSM).  He continues to state he was told by his lieutenant that it would be corrected but he was captured and the lieutenant left.  The applicant concluded by stating that he was a new replacement so the award was downgraded.

3.  The applicant provides a self-authored statement; a copy of his WD AGO Form 53-55 (Enlisted Record and Report of Separation, Honorable Discharge); General Orders Number 79, dated 23 June 1945; a memorandum, dated 2 June 1945; and copies of news articles regarding military awards in support of this 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 records are not available 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, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case.

3.  The applicant's WD AGO Form 53-55 shows he was inducted into the Army of the United States on 31 May 1943 and entered active duty on 14 July 1943.

4.  The applicant provided a copy of General Orders Number 79, Headquarters, 2nd Infantry Division, dated 23 June 1945, which awarded him the BSM.

5.  The applicant submitted an unsigned letter of recommendation for award of the SS, dated 2 June 1945.

6.  On 15 November 1945, the applicant was honorably discharged from active duty after completing a total of 3 years, 5 months, and 1 day of creditable active service.  The WD AGO Form 53-55 that he was issued shows he was awarded the European-African-Middle Eastern Service Medal, BSM, World War II Victory Medal, North Atlantic Treaty Organization Medal, and Army Good Conduct Medal.  His WD AGO Form 53-55 does not show award of the SS.

7.  The applicant submitted an undated copy of newspaper articles pertaining to past recipients of military awards with the applicant's handwritten notations that his actions were, in effect, more noteworthy.

8.  Army Regulation 600-8-22 provides, in pertinent part, that the SS 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.

9.  Title 10, U.S. Code, section 1130, provides the legal authority for consideration of proposals for decorations not previously submitted in a 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 the 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.  While the applicant contends that he was recommended for award of the SS and that the recommendation was downgraded, unfortunately the unsigned recommendation he submits with his request is not sufficient to conclude any error or injustice in this case.  The available evidence confirms only that the applicant was awarded the BSM and in the absence of more compelling evidence beyond the unsigned letter that a recommendation for award of the SS was entered into official channels and not processed to conclusion, there is no basis to grant the relief requested.

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

3.  While the decision of the ABCMR in this case is not favorable, the Board wants the applicant, his fellow veterans and all others concerned to know that this action in no way diminishes the heroism and sacrifice by the applicant in his service to the United States of America.  The applicant distinguished himself by gallantry in action on 4 March 1945 in Gemund, Germany, and was awarded the Bronze Star Medal for heroism.  Unquestionably, the applicant is a brave and highly decorated Soldier and he and all Americans should be very proud of his service in arms and the recognition accorded him for heroism.

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)                                         AR20090008128



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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