IN THE CASE OF:	  

		BOARD DATE:	  13 April 2011

		DOCKET NUMBER:  AR20100023825 


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 his records be corrected by awarding him the Silver Star, a Purple Heart, and an additional bronze campaign (service) star for his participation in the Asiatic-Pacific Theater in WW II. 

2.  The applicant states he is missing a Silver Star, he suffered a combat injury to his left knee and is entitled to a Purple Heart, and he is entitled to an additional campaign star for his service in the Asiatic-Pacific theatre prior to his service in the Rhineland and Central Europe campaigns.  

3.  The applicant provides no supporting documentation.

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.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090004472, on 3 September 2009.

3.  The applicant's military records were lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained from documents provided by the applicant at the time of his previous requests for correction of his records.

4.  The applicant's records were previously corrected to show he received a combat wound to his left knee, was awarded the Purple Heart, and correcting the third digit of his service number.  A DD Form 215 (Correction to the Certificate of Release or Discharge from Active Duty), dated 9 May 1990, was issued to reflect these  corrections.  

5.  On 3 September 2009, the ABCMR granted the applicant's request to correct to his records by showing his awards included the Army of Occupation Medal with Germany Clasp, Asiatic-Pacific Campaign Medal with one bronze service star, and the European-African-Middle Eastern Campaign Medal with two bronze service stars.

6.  A DD Form 215, dated 16 November 2009, corrected the applicant's WD AGO 53-55 as follows by:

	a.  changing the third digit of his service number;

	b.  deleting the item 33 (Decorations) entry "AWARDED 2 BRONZE STARS FOR ABOVE CAMPAIGNS PER WDGO 33 & 40 1945";

	c.  deleting the item 55 (Remarks) entry "Entitled to wear Asiatic Pacific Theatre Campaign Ribbon, European African Middle Eastern Theatre Campaign Ribbon;

	d.  adding at item 33, award of the Purple Heart, Asiatic Pacific Campaign Medal with one bronze service star, European-African Middle Eastern Campaign Medal with two bronze service stars, and the Army of Occupation Medal with Germany Clasp;

	e.  adding at item 34 Wound In Left Knee (Mar 45); and

	f.  voiding the previously issued DD Form 215, dated 9 May 1990;

7.  Item 55 on the WD AGO also shows he is entitled the Victory Ribbon and American Theatre Campaign Ribbon.

8.  With the above corrections, the applicant's record now shows his authorized awards and decorations as the Purple Heart, Good Conduct Medal, American Campaign Medal, Asiatic Pacific Campaign Medal with one bronze service star, European-African Middle Eastern Campaign Medal with two bronze service stars; World War II Victory Medal, Army of Occupation Medal with Germany Clasp, and the Honorable Service Lapel Button - WWII.

9.  There is no evidence in the available records showing a recommendation for or award of the Silver Star.

10.  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.

11.  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 a timely fashion.  Upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award of or upgrading of a decoration.  Based upon such review, the Secretary shall determine the merits of approving the award.

12.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to:  Commander,  U.S. Army Human Resources Command, ATTN:  AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY  40122.  The unit must be clearly identified, along with the period of assignment and the recommended award.  A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638.  Requests should be supported by sworn affidavits, eyewitness statements, certificates, and related documents.  Supporting evidence is best provided by commanders, leaders, and fellow Soldiers who had personal knowledge of the facts relative to the request.  The burden and costs for researching and assembling supporting documentation rest with the applicant.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he is missing a Silver Star, he injured his left knee and warrants a Purple Heart, and he is entitled to an additional campaign star for his service in the Asiatic-Pacific theatre prior to his service in the Rhineland and Central Europe campaigns.  

2.  With the exception of the issue of entitlement to the Silver Star, the other issues have already been addressed and favorably resolved.  A DD Form 215 was issued to show the corrections affecting these issues.

3.  The applicant has not provided and the record does not contain any evidence of a recommendation for or award of the Silver Star.  Therefore, no relief is warranted on this issue.

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

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)                                         AR20100023825





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ABCMR Record of Proceedings (cont)                                         AR20100023825



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