IN THE CASE OF:	  

		BOARD DATE:	    8 December 2009

		DOCKET NUMBER:  AR20090009601 


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 his records be corrected to show award of the Silver Star.  He also requests, in effect, that he be allowed an opportunity to appear before the Board to present his side of the events that are relevant to his request.

2.  The applicant states he was awarded the Silver Star in 1944 by the colonel of the 100th Evacuation Hospital in Belgium.  In his statement, dated 30 September 2009, he indicated he could show the scars on his legs where shrapnel hit him.  

3.  The applicant provides, in support of his application, copies of letters he has been writing since 1983 requesting award of the Silver Star.

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 statement concerning shrapnel in his legs is determined to be a request for reconsideration of the Army Board for Correction of Military Records (ABCMR) denial to correct his military records to show he was awarded Purple Heart.  Army Regulation 15-185 sets forth procedures for processing requests for correction of military records.  Paragraph 2-15b allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within one year of the ABCMR's original decision and it has not previously been reconsidered.  The applicant previously requested reconsideration of ABCMR Docket Number AR20040000752, dated 16 December 2004.  The applicant's previous request for reconsideration was acted upon in ABCMR Docket Number AR200050007434, dated 7 February 2006.  This decision on the request for reconsideration was the final administrative action taken by the Secretary of the Army.  There is no further action contemplated by the ABCMR since he is not eligible for further reconsideration by this Board for this issue.  Therefore, the issue of the award of the Purple Heart will not be discussed further in these proceedings.

3.  The applicant's military records are not available for review.  As he has been previously advised, a fire destroyed approximately 18 million service members' records at the Nation Personnel Records Center in 1973.  It is believed that his records were lost or destroyed in that fire.  However, there were sufficient documents remaining for the Board to conduct a fair and impartial review of this case.

4.  The applicant enlisted in the Enlisted Reserve Corps on 14 December 1942 and entered active duty on 21 April 1943.  He arrived in the European Theater of Operations on 7 September 1944.  Information contained in the Office The Surgeon General Hospital List shows he was admitted to the hospital on
27 October 1944 and “invalided home” with a diagnosis of “Psychoneurosis, anxiety.”  He returned to the United States on 10 February 1945.  

5.  On 14 April 1945, the applicant was honorably discharged with a certificate of disability.  Item 33 (Decorations and Citations) of his WD AGO Form 53-55 (Enlisted Record and Report of Separation, Honorable Discharge) does not show he was awarded the Silver Star.



6.  There is no evidence available that shows the applicant was awarded the Silver Star.

7.  A letter, dated 17 July 2008, from the Awards Branch, Human Resources Command (HRC), Alexandria, VA informed the applicant the records pertaining to the 100th Evacuation Hospital were not available at HRC.  He was referred to the National Archives at College Park, MD for a review of archived records that may help him locate general orders awarding him the Silver Star and/or an original recommendation for the award of the Silver Star with the original chain-of-command endorsements and original eyewitness statements.  

8.  A letter, dated 9 March 2009, from the Awards Branch, HRC again referred the applicant to the National Archives at College Park for assistance in further research into the archived records of the 100th Evacuation Hospital.

9.  Letters that were submitted by the applicant, dated between 17 November 2006 and 20 May 2009, requested assistance in obtaining the Silver Star.   These letters are addressed to the President of the United States; the ABCMR; the Awards Branch, HRC; the National Archives at College Park; his Congressional Representative; the Secretary of the Army; and the Army Review Boards Agency, Support Division in St. Louis, MO.  A letter, dated 12 February 2009, from the National Archives at College Park advised the applicant that unit records from the 100th Evacuation Hospital were at the National Archives but not available due to preservation work.  The National Archives advised the applicant to contact them again in about 2 months.

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.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, that is that what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in 


the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

12.  Paragraph 2-11 of Army Regulation 15-185 contains guidance on ABCMR hearings and it states that applicants do not have a right to a hearing before the ABCMR.  The ABCMR or the Director of the ABCMR may grant a formal hearing whenever justice requires. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he received the Silver Star.  There are no orders available showing the applicant was awarded the Silver Star and there is no evidence available to show that he was recommended for the award.  He has provided no evidence that supports his contention.  Regrettably, there is insufficient evidence to correct his record to show award of the Silver Star at this time.  If the National Archives can assist the applicant in locating Silver Star orders or a recommendation for award of the Silver Star, he may reapply to the Board.

2.  Additionally, there is insufficient evidence to show that a personal appearance/formal hearing is necessary to serve the interest of justice in this case.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X_____  __X____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.



2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.  



      _______ _   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)                                         AR20090009601



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ABCMR Record of Proceedings (cont)                                         AR20090009601



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