IN THE CASE OF:	

		BOARD DATE:	  14 January 2010

		DOCKET NUMBER:  AR20090012280


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 promotion from Captain (CPT) to Major (MAJ) and award of the Bronze Star Medal.

2.  The applicant states he was promised the promotion and the award by his commander, but received no paperwork.  He adds that, while serving in the China-Burma-India Theater of Operations, he shot and killed a 19-foot python which was blocking entrance to the Air Field Control Tower.  The Japanese were attacking and it was critical to man the tower in order to launch the unit's Lockheed P-38 lightning fighter aircraft.  Shortly after this incident, his commander told him his promotion to MAJ was approved and he was being recommended for the Bronze Star Medal for dispatching the python and launching the aircraft.

3.  The applicant provides:  a letter which he wrote outlining the issues and which was affirmed by a former comrade-in-arms, correspondence from the Secretary of the Army to a Member of Congress, and an outline for a potential book about his exploits.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant be promoted to MAJ and awarded the Bronze Star Medal.

2.  Counsel states the applicant does not seek recompense, but simply the promotion he was told had been approved, and the award for which he had been recommended.

3.  Counsel provides:  letters dated 16 June 2009 and 25 August 2009; the applicant's WD AGO Form 53-98 (Military Record and Report of Service – Certificate of Service); and WD AGO Form 100 (Separation Qualification Record).

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.  Available pay records from the Aviation Cadet Detachment, Scott Field, IL show the applicant enlisted on 21 May 1942.  He was discharged on
25 December 1942.  His WD AGO Form 53-55 (Enlisted Record and Report of Separation – Honorable Discharge) is not available.  However, his WD AGO Form 53-98, which was given to officers, shows that on the following day,
26 December 1942, he entered active duty as a communications officer in the Army Air Corps.

4.  The applicant served as an Army Air Corps officer from 26 December 1942 until separated on 13 April 1946 in the rank of CPT.  His WD AGO Form 53-98 shows he was awarded the American Theater Ribbon, European-African-Middle Eastern Campaign Ribbon, the Asiatic-Pacific Theater Ribbon with 5 Battle Stars, 


the World War II Victory Medal, 4 Overseas Service Bars, and the Distinguished Unit Badge.  It does not show award of the Bronze Star Medal, nor does it show he ever held the rank of MAJ.

5.  Relative to his request, there is no documentation which shows he was ever recommended for award of the Bronze Star Medal or was, in fact, awarded that decoration.  Likewise there is no documentation regarding an approved promotion from CPT to MAJ.

6.  Title 10 of the U.S. Code, section 1130 (10 USC 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.

7.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to the Secretary of the Army at the following agency:  U.S. Army Human Resources Command, Personnel Service Support Division, 200 Stovall Street, Room 3S67, Alexandria, VA  22332-0405.  The applicant's unit must be clearly identified, along with the period of assignment and the award being recommended.  A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638.  Requests for consideration of awards should be supported by sworn affidavits, eyewitness statements, certificates, and related documents.  Corroborating evidence is best provided by commanders, leaders and fellow Soldiers who had personal knowledge of the circumstances and events relative to the request.  The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rest with the requestor.

8.  During World War II, War Department Circular 161, dated 21 May 1942, governed the temporary promotion of officers on active duty.  It provided that recommendations for promotion to captain and above would be forwarded through designated channels to TAGO (The Adjutant General's Office) for review and approval by the Army Personnel Board.  The policy required subordinate field commanders to submit recommendations for promotions to the next higher commander for consideration and further transmission, if approved.  This procedure enabled major commanders to control overall promotions within their commands so that allowance could be made for replacements received and the authorized strengths in the various grades would not be exceeded.  No promotion was effective until approved by all commanders in the chain of command and favorably acted upon by the major commander who had the authority to promote.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests promotion to MAJ and award of the Bronze Star Medal.

2.  While the available evidence is insufficient for awarding the applicant a Bronze Star Medal, this in no way affects the applicant’s right to pursue his claim for the Bronze Star by submitting a request through his/Member of Congress under the provisions of 10 USC 1130.

3.  Concerning his promotion to MAJ, the applicant states he was assigned to the 5th Fighter Group, Chinese-American Composite Wing, 14th Air Force during World War II.  In accordance with War Department Circular 161, if his Group Commander had recommended him for promotion to MAJ, the recommendation would have gone through command channels to Headquarters, 14th Air Force.  There it would have been reviewed by the Commanding General, either (then) Major General Claire Chennault (10 March 1943-10 August 1945) or (then) Major General Charles B. Stone (10 August 1945-1 January 1946).  If the Commanding General agreed with the promotion recommendation, it would have been forwarded to TAGO in Washington for action by the Army Personnel Board.  If the Commanding General disagreed with the promotion recommendation (e.g., because he was over strength in Majors, or needed to realign his grade distribution in subordinate commands), he could summarily disapprove it and it would have gone no further.  Even if the Commanding General had recommended approval and sent the recommendation to Washington, the Army Personnel Board could have denied the promotion.

4.  Unfortunately, there are no records available to warrant approving the applicant's request for promotion.  However, 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.  



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)                                         AR20090012280



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ABCMR Record of Proceedings (cont)                                         AR20090012280



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