IN THE CASE OF:	  

		BOARD DATE:	  18 March 2010

		DOCKET NUMBER:  AR20090016684 


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, the daughter of a deceased former service member (FSM), requests, in effect, award of the Silver Star, the Bronze Star Medal, and the Presidential Unit Citation.

2.  The applicant states she has a "Combat Citation" signed by the field artillery commander of the 35th Infantry Division Headquarters recommending the FSM for the Silver Star and the Bronze Star Medal.  She also has a paper that states the FSM was to be awarded the "Presidential Citation."  She contends that upon speaking with officials at the American War Library, she was informed that "these awards were never actually followed through on."

3.  The applicant provides an undated combat citation; Order Number 37064, dated 28 February 1945; the FSM's death certificate; her birth certificate; insurance documentation; her marriage certificate; her wedding invitation; and a copy of the FSM's WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge) in support of her 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 FSM'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 FSM'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 FSM was inducted into the Army of the United States on 30 June 1944.  He served in the European theater of operations from 4 March 1945 through 5 September 1945 and was honorably discharged on 22 April 1946.

4.  Item 6 (Organization) of the FSM's WD AGO Form 53-55 shows he was assigned to Headquarters Battery, 35th Division Artillery.  His WD AGO 
Form 53-55 shows the Army Good Conduct Medal, the American Campaign Medal, the European-African-Middle Eastern Campaign Medal, the Army of Occupation Medal with Germany Clasp, and the World War II Victory Medal as authorized awards.

5.  There are no orders for the Silver Star or the Bronze Star Medal in the available records.

6.  In support of her claim for the Silver Star and the Bronze Star Medal, the applicant provided an undated 35th Infantry Division Headquarters combat citation signed by the field artillery commander.  The citation states, in pertinent part, that by order of the commanding general, the FSM "be awarded and decorated with the 'Silver Star' for gallant actions" and that he was "also the holder of the 'Bronze Star.'  He received this award because he risked his life to save the life [sic] of two of his comrades who were wounded…."

7.  Department of the Army Pamphlet 672-1 (Unit Citation and Campaign Participation Credit Register) shows, among other information, unit awards and citations authorized for units which served during World War II  This pamphlet shows the 35th Infantry Division was not cited for the Presidential Unit Citation during World War II.

8.  In support of her claim for the Presidential Unit Citation, the applicant provided 35th Infantry Division Headquarters Order Number 37064, dated 28 February 1945, which states that the "Presedential [sic] Citation" will be presented to Pfc. [FSM] on or about the seventh day of June.

9.  Army Regulation 600-8-22 (Military Awards) states 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.

10.  Army Regulation 600-8-22 states the Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service not involving participation in aerial flight in connection with military operations against an armed enemy or while engaged in military operations involving conflict with an opposing armed force in which the United States is not a belligerent party.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

11.  Army Regulation 600-8-22 states the Presidential Unit Citation (known as the Distinguished Unit Citation until 3 November 1966) is awarded for extraordinary heroism in action.  A unit must display such gallantry, determination, and esprit de corps in accomplishing its mission as would warrant award of the Distinguished Service Cross to an individual.

12.  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.

13.  A DA Form 638 (Recommendation for Award) must be submitted (a copy of which will be provided to the applicant).  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 request 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 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 combat citation provided by the applicant, which appears to be a recommendation for the Silver Star and the Bronze Star Medal, was noted.  However, there are no orders for the Silver Star or the Bronze Star Medal in the available records.  Regrettably, there is insufficient evidence on which to base award of the Silver Star or the Bronze Star Medal in this case.

2.  While the available evidence is insufficient for awarding the FSM the Silver Star or the Bronze Star Medal, this in no way affects the applicant's right to pursue her claim for the Silver Star or the Bronze Star Medal, by submitting a request with the combat citation and supporting evidence through her Member of Congress under the provisions of Title 10, U.S. Code, section 1130.

3.  The 35th Infantry Division Headquarters Order Number 37064, dated 28 February 1945, provided by the applicant which states the "Presedential [sic] Citation" will be presented to the FSM was noted.  However, Department of the Army Pamphlet 672-1 shows the 35th Infantry Division was not cited for the Presidential Unit Citation during World War II.  Therefore, there is an insufficient basis for awarding the Presidential Unit Citation in this case.

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)                                         AR20090016684



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ABCMR Record of Proceedings (cont)                                         AR20090016684



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