IN THE CASE OF:	  

		BOARD DATE:	  13 April 2011

		DOCKET NUMBER:  AR20100025885 


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 reconsideration of an earlier request that his Bronze Star Medal with "V" Device be upgraded to the Silver Star.

2.  The applicant states:

* He was recommended for the Silver Star but he was awarded the Bronze Star Medal for heroic achievements (the Bronze Star Medal with "V" Device)
* The After Action Report correlates the recommendation for the Silver Star
* The After Action Report describes the fierce fighting that Company K, 23rd Infantry, 2nd Infantry Division encountered in March 1945
* Two officers and 22 enlisted men were wounded in action and 2 enlisted men were killed
* Paragraph 3 of the discussion and conclusion section of the Army Board for Correction of Military Records (ABCMR) Docket Number AR20090008128 states he distinguished himself by "gallantry in action" on 4 March 1945
* Army Regulation 600-8-22 (Military Awards) states the Silver Star is awarded for "gallantry in action" against the enemy
* By the ABCMR's own conclusion, he met the requirement for award of the Silver Star  




3.  The applicant provides:

* A letter from a Member of Congress, undated
* an After Action Report for the 23rd Infantry during March 1945
* recommendation for the Silver Star, dated 2 June 1945
* ABCMR Record of Proceedings Docket Number AR20090008128
* letter, dated 19 June 2007, from the Military Awards Branch, U.S. Army Human Resources Command
* a document with 25 signatures of German prisoners

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20090008128, on 22 September 2009.

2.  The After Action Report provided by the applicant is new evidence which will be considered by the Board.

3.  His contention, that since the ABCMR concluded he distinguished himself by "gallantry in action" on 4 March 1945, he met the requirement for award of the Silver Star, is also a new argument which will be considered by the Board.

4.  His 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 applicant’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.

5.  He was inducted into the Army of the United States on 31 May 1943 and entered active duty on 14 July 1943.  He served as a rifleman assigned to Company K, 23rd Infantry, 2nd Infantry Division in the European Theater of Operations from 15 January 1945 through 13 July 1945.  He was honorably discharged on 15 November 1945.

6.  He submitted an unsigned letter of recommendation, dated 2 June 1945, for award of the Silver Star for actions on 4 March 1945 in Germany.  The letter of recommendation was addressed to "Commanding Officer, 23rd Infantry, APO 2 U.S. Army" and the signature block reflects "Exxx O. Axxxxx, 1st Lt. Infantry."



7.  Section I (Award of Bronze Star Medal) of Headquarters, 2d Infantry Division General Orders Number 79, dated 23 June 1945, show he received the Bronze Star Medal for heroic achievements on 4 March 1945 in Germany.  Section l (Award of Silver Star) of these orders authorized the Silver Star for gallantry in action to two Soldiers. 

8.  There are no orders for the Silver Star in the available evidence.

9.  On 19 June 2007, the Military Awards Branch, U.S. Army Human Resources Command determined there was insufficient documentation in the applicant's request to upgrade his Bronze Star Medal with "V" Device to the Silver Star to submit to the Army Decorations Board for consideration.  

10.  He provided an After Action Report for the 23rd Infantry during March 1945.  The report states Company K was involved in a fierce firefight with at least 19 different enemy positions on 4 March 1945.  The report also states 2 officers and 22 enlisted men were wounded in action and 2 enlisted men were killed on that day.  The report does not mention the applicant by name, or his heroic deeds.

11.  Army Regulation 600-8-22 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.  During World War II, Silver Star approval authority resided with Division Commanders, usually major generals.

12.  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 n military operations involving conflict with an opposing armed force in which the United States is not a belligerent party.  Awards made for acts of heroism, performed under circumstances described above, are of a lesser degree than required for the award of the Silver Star.  The regulation states the bronze “V” device denotes acts of heroism involving conflict with an armed enemy.  During World War II, Bronze Star Medal approval authority resided with Division Commanders, usually major generals.




13.  In 2009, the applicant was advised to submit an upgrade request under the provisions of 10 USC Section 1130.  There is no indication he has done so.  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.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to:  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 provided an After Action Report for the 23rd Infantry Regiment.  This report was carefully considered.  There is no doubt the 23rd Infantry Regiment engaged in fierce combat during early March of 1945.  The report documents this combat and also documents the cost in human suffering  that was paid by the heroes of that fight.  However, the After Action report sheds no specific light on the matter of the applicant's contribution during 4 March 1945.  As such, it is of limited value in determining whether to upgrade his Bronze Star Medal to a Silver Star.

2.  The recommendation for award of the Silver Star by first lieutenant Exxx O. Axxxxx is unsigned and therefore of limited value.  Further it is written from the vantage of a platoon leader in Company K, 23rd Infantry Regiment and addressed directly to the Commanding Officer, 23rd Infantry Regiment.  Company K was assigned to 3rd Battalion; the correct processing of the Silver Star recommendation should have been:

							Thru:	Commanding Officer
									Company K

									Commanding Officer
									3rd Battalion, 23rd Infantry

							To:		Commanding Officer
									23rd Infantry Regiment

3.  The recommendation does not follow proper processing, which also limits its evidentiary value.  Each commander in the chain of command would have had the opportunity to endorse the recommendation.  The Regimental Commander would have reviewed the award recommendation and either returned it as denied or forwarded it with a recommendation for approval.  In forwarding the recommendation, he would have either endorsed the Silver Star or recommended downgrade to a Bronze Star Medal.

4.  The applicant contends that since ABCMR Docket Number AR20090008128 previously concluded he distinguished himself by "gallantry in action" on 4 March 1945, it proves he met the requirement for award of the Silver Star.  However, this sentence in paragraph 3 of the discussion and conclusions section in Docket AR20090008128 appears to be an administrative error.  It seems the wording from Section I (Award of Silver Star) was alluded to instead of Section ll (Award of Bronze Star Medal) of the general orders.  The sentence should have stated "The applicant distinguished himself by heroic achievements in connection with military operations against the enemy in Germany on 4 March 1945, and was awarded the Bronze Star Medal for heroism."  We apologize for this administrative error.

5.  There is no compelling evidence which warrants upgrading his Bronze Star Medal with "V" Device to the Silver Star.  Therefore, the 1945 decision that the Bronze Star Medal with "V" Device was the appropriate recognition for his heroic actions on 4 March 1945 is reaffirmed.

6.  While the available evidence is insufficient for awarding the applicant Silver Star, this in no way affects his right to pursue his claim for the Silver Star by submitting a request through his Member of Congress under the provisions of 10 USC 1130 with as much additional evidence as noted in paragraph 13 above as he can obtain.  

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 to amend the decision of the ABCMR set forth in Docket Number AR20090008128, dated 22 September 2009.




      __________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)                                         AR20100025885



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ABCMR Record of Proceedings (cont)                                         AR20100025885



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