IN THE CASE OF:
BOARD DATE: 8 September 2010
DOCKET NUMBER: AR20100010497
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 widow of a deceased former service member (FSM), requests correction of her late husband's WD AGO Form 53-55 (Enlisted Record and Report of Separation) to show award of the Silver Star.
2. The applicant states:
* The FSM was awarded the Silver Star on 8 May 1944
* His discharge record does not include his award of the Silver Star
* His discharge record was in error when it was produced in 1945
3. The applicant provides:
* WD AGO Form 53-55
* Recommendation for Silver Star for the FSM's actions on 11 April 1945
* Standard Form 180 (Request Pertaining to Military Records)
* Letter, dated 29 July 2009, from FSM's grandson
* Newspaper article
* Letter, dated 12 February 2010, from a Major General
* FSM's death certificate
* Letter, dated 17 August 2009, from a Kentucky State Representative
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The FSMs 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 FSMs 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 4 December 1942. He served as a rifleman in the European-African-Middle Eastern (EAME) Theater of Operations from 10 October 1944 to 17 November 1945. On
1 December 1945, he was released from active duty.
4. The FSM's WD AGO Form 53-55 shows the Bronze Star Medal (Headquarters, 99th Infantry Division General Orders 72, dated 26 June 1945), American Theater Ribbon, Good Conduct Medal, World War II Victory Medal, and EAME with three bronze service stars as authorized awards.
5. There are no orders for the Silver Star in the available records.
6. In support of her claim, the applicant provided a recommendation for the Silver Star for the FSM's actions on 11 April 1945.
7. Records at the U.S. Army Human Resources Command, Military Awards Branch, in Alexandria, Virginia show the recommendation for the Silver Star for the FSM's actions on 11 April 1945 was previously sent to that office by the FSM's grandson for consideration. The FSM's grandson was informed the recommendation for the Silver Star was downgraded to the Bronze Star Medal with "V" Device (99th Infantry Division General Orders 72, dated 26 June 1945).
8. 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant claims the FSM was awarded the Silver Star on 8 May 1944. However, evidence of record shows the FSM arrived at the EAME Theater of Operations on 10 October 1944.
2. The recommendation for the Silver Star for the FSM's actions on 11 April 1945 provided by the applicant was downgraded to the Bronze Star Medal with "V" Device.
3. There are no orders for the Silver Star in the available records. Therefore, regrettably, there is insufficient evidence on which to base adding the Silver Star to the FSM's WD AGO Form 53-55.
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) AR20100010497
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ABCMR Record of Proceedings (cont) AR20100010497
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