IN THE CASE OF:	  

		BOARD DATE:	  15 February 2011

		DOCKET NUMBER:  AR20100020725


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 correction of his WD AGO Form 53-55 to show he was awarded the Silver Star.

2.  The applicant states, in effect:

* he is in possession of the Silver Star and can provide pictures of the back and front of the medal
* he is 88 years old now and it is very important to have his records corrected
* he can supply the names and details of the day the medal was presented to him if needed
* since he can produce the medal, it may not be necessary to bother his legislators with getting his records corrected
* on his date of discharge he was in a lot of pain and more than ready to be released
* he did not question the discharge clerk that typed his discharge orders or ask him to change the details
* it should be evident by the points he was given to get out early that he had indeed been presented with the Silver Star

3.  The applicant provides:

* email between an individual who identifies herself as the former service members daughter and the National Personnel Records Center (NPRC)
* WD AGO Form 53-55
* photographs of the front and back of a Silver Star
* a self-authored statement (undated)

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 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 to conduct a fair and impartial review of this case.

3.  He was inducted into the Army on 23 October 1942.  He entered on active duty on 6 November 1942.  He completed training as a tank driver.  He was promoted through the ranks to sergeant.

4.  He was honorably discharged on 10 January 1946, due to demobilization.  His WD AGO Form 53-55 shows the following awards:

* Philippine Liberation Ribbon with two bonze service stars
* American Theater Service Medal with bronze arrowhead
* Good Conduct Medal
* Bronze Star Medal
* Asiatic-Pacific Theater Service Medal
* Lapel Button

5.  On 5 August 2004, the NPRC notified the applicant that he was authorized the following awards:

* Bronze Star Medal
* Good Conduct Medal
* American Campaign Medal
* Asiatic-Pacific Campaign Medal with three bronze service stars with arrowhead
* World War II Victory Medal
* Philippine Liberation Ribbon with two bronze service stars
* Honorable Service Lapel Button WW II

6.  A review of the available records does not show that the applicant was awarded the Silver Star.

7.  The applicant provides photographs of the front and back of a Silver Star.

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.

9.  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.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been noted.  His supporting documents have been considered.

2.  However, there is insufficient evidence available showing he was awarded the Silver Star. 

3.  The photographs of the medal he submits have been considered.  However, he provides no orders showing that he was awarded the Silver Star.  Therefore, the photographs are not sufficiently mitigating to warrant amending his WD AGO Form 53-55 to show he was awarded the Silver Star.  The burden of proving an error or injustice by a preponderance of the evidence, rests with the applicant.

4.  In view of the foregoing, the applicant’s request should be denied.



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)                                         AR20090005994



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ABCMR Record of Proceedings (cont)                                         AR20100020725



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