IN THE CASE OF:	

		BOARD DATE:	  4 March 2010

		DOCKET NUMBER:  AR20090014416 


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 Soldier's Medal.

2.  The applicant states when he was assigned to the 11th Airborne Military Police (MP) Company in Augsburg, Germany in 1957, he rescued two individuals from a store filled with fumes.  He states he knew the vapors could be fatal when he entered the store and dragged one individual out and then returned to the store and dragged out the second individual.  When the ambulance arrived the individuals were transported to the hospital and he returned to the MP headquarters to make his report.  He states the officer-in-charge told him he should be put in for the Soldier's Medal and that he would see to it.  He states he left Germany on emergency leave and was subsequently transferred to Fort Niagara, Niagara Falls, NY.  He states he had forgot all about the incident until an old friend asked him about it.  The friend was not present during the incident and was only asking about it because the applicant had told him about it many years ago.  The applicant states he cannot remember exactly when this incident happened but a check of MP blotters will show when the incident happened.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from the Armed Forces of the United States) with an effective date of 31 August 1975.

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 personnel records show he enlisted in the Regular Army on 13 June 1955 for a period of 3 years.  He had previously served 3 years active service in the U.S. Marine Corps.  He was released to inactive duty in the U.S. Army Reserve on 27 September 1958.  He enlisted in the Regular Army again on 17 December 1958 and served continuously until he was released from active duty and placed on the Retired List on 1 September 1975.

3.  The applicant served in Germany during the period 4 March 1956 to 
22 July 1957.  He was assigned to Headquarters Company, 11th Airborne Division from 26 August 1955 until 31 July 1956; to the 11th Airborne MP Company from 1 August 1956 to 28 February 1957; and to Headquarters and Headquarters Company, Command and Control Battalion, 11th Airborne Division from 1 March 1957 to 27 August 1957.

4.  Section 9 - Medals, Decorations, and Citations - of the applicant's DA Form 24 (Service Record) does not show the applicant was awarded the Soldier's Medal.

5.  There are no orders or recommendations in the applicant's Military Personnel Records Jacket (MPRJ) for the award of the Soldier's Medal.

6.  On 31 August 1975, the applicant was retired and placed on the Retired List the following day.  He had completed a total of 22 years, 11 months, and 29 days of active military service.

7.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Soldier's Medal is awarded for distinguished heroism not involving actual conflict with the enemy.  The same degree of heroism is required as for award of the Distinguished Flying Cross.  The performance must have involved personal hazard or danger and the voluntary risk of life under conditions not involving conflict with an armed enemy.  Awards of the Soldier's Medal will not be made solely on the basis of having saved a life.  


8.  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.

9.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be awarded the Soldier's Medal for an incident that occurred in Germany in 1957.

2.  Although the applicant has submitted a detailed statement concerning the incident, he has submitted no sworn affidavits, eyewitness statements, police reports, or other related evidence to corroborate his statement.  He stated he does not remember exactly when the incident occurred. 

3.  There are no orders, recommendations, or references to the award of the Soldier's Medal in the applicant's MPRJ.

4.  In view of the above, there is insufficient evidence to award the applicant the Soldier's Medal.

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

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

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)                                         AR20090014416



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ABCMR Record of Proceedings (cont)                                         AR20090014416



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