BOARD DATE:	  5 February 2013

		DOCKET NUMBER:  AR20120009439 


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:

The applicant requests through counsel:

	a.  upgrade of his Silver Star to the Medal of Honor.

	b.  correction of his WD AGO Form 53-98 (Military Record and Report of Separation - Certificate of Service) to show award of the Silver Star or the Medal of Honor if the upgrade is approved.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel states:

	a.  the applicant was awarded the Silver Star in February 2000.

	b.  the discharge document is in error because it was issued before the Silver Star was awarded to the applicant.

	c.  he believes the decision taken by the Military Awards Branch in 2003 to deny an upgrade to the Medal of Honor was done unfairly.

	d.  there was a witness to the events that happened in 1944.  This witness was a young boy at the time.

	e.  there was some delay in knowing it was the applicant who saved the town, but it was documented and all persons concerned wrote statements.
	f.  the applicant will turn 93 and he wants to pursue this correction.

2.  Counsel provides a Silver Star award certificate and citation, a newspaper article, an excerpt from a speech, email correspondence, and a testimony from the former mayor of Plelo.

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 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.

3.  The applicant was appointed a commissioned officer and was ordered to active duty on 3 October 1942.  His WD AGO Form 53-98 shows he was assigned to the 19th Cavalry Training Squadron, and he held the rank of captain on the date of his separation.  He served in the European Theater of Operations from 7 March 1944 to 11 October 1945.  

4.  He was released from active duty on 24 April 1946.  He completed 1 year, 11 months, and 2 days continental service and 1 year, 7 months, and 20 days of foreign service.

5.  Item 28 (Battles and Campaigns) of his WD AGO Form 53-98 shows that the applicant was given credit for participating in the Normandy, Northern France, Rhineland, and Central Europe campaigns of World War II.

6.  Item 29 (Decorations and Citations) of his WD AGO Form 53-98 shows award of the Bronze Star Medal, American Theater Campaign Medal, European-African-Middle Eastern Campaign Medal, and World War II Victory Medal.

7.  The applicant was awarded the Silver Star for gallantry in action on 9 August 1944 (award certificate and citation indicate 6 August 1944) by Permanent Orders 054-07 issued by Department of the Army, U.S. Army Personnel Command, (currently the U.S. Army Human Resources Command), dated 23 February 2000.  

8.  In a letter, dated 31 December 2002, the Chief, Personnel Service Support Division, U.S. Total Army Personnel Command (currently known as the 
U.S. Army Human Resources Command), responded to a congressman on behalf of the applicant's request for award of the Medal of Honor.  The congressman was informed that on 1 March 2000, the Army Decorations Board determined the degree of action and service rendered did not meet the strict criteria for the proposed award (Medal of Honor) and recommended instead an award of the Silver Star for gallantry in action.  Based on the Army Decorations Board's recommendation, the Commanding General, U.S. Total Army Personnel Command, on behalf of the Secretary of the Army, approved the award of the Silver Star.

9.  On 22 January 2003, the Chief, Military Awards Branch informed a congressman on behalf of the applicant that the new evidence presented for an award of the Medal of Honor was accepted and a determination was made to accept the recommendation for processing under the provisions of Section 1130, Title 10, U.S. Code.  The letter indicated the recommendation would be forwarded to the next convening Army Decorations Board for their consideration.   On 30 January 2003, the Army Decorations Board recommended disapproval.  

10.  In a letter, dated 9 July 2009, the Chief, Military Awards Branch, U.S. Army Human Resources Command, stated the Army Decorations Board determined the applicant's award of the Silver Star appropriately recognized his actions and the request for upgrade was disapproved.  One time reconsideration by the award approval authority is conclusive; therefore, this office could not reconsider his request.

11.  In the processing of this case, the evidence provided to the Army Decorations Board and that board's proceedings were obtained from the Chief, Military Awards Branch, U.S. Army Human Resources Command in order to be reviewed and considered by the members of the ABCMR.


12.  He provided the following documents:

	a.  newspaper article, dated 4 July 1990, reported that the applicant was awarded the French Legion of Honor Medal for his actions, along with his squadron, in liberating the French village of Plelo, then occupied by German troops during World War II and he was recognized as an honorary citizen of Plelo.  

	b.  extract of a speech which described the events which occurred on 6 August 1944 in the village of Plelo.  The speech stated in part "In the near future, you should receive the "Honour Medal of the American Congress."  This action has been pushed by the last two town councils and we hope that his action will succeed."  (The applicant's name is not mentioned).

	c.  testimony from the former mayor of Plelo, who described the events which occurred on the night between 6 and 7 August 1944.  He stated in part, "After the fight Lieutenant [applicant's name]'s five tanks and men gathered in the town square among the thanks and applause of the people of Plelo.  They filled up with fuel and made a quick review of their equipment and soon left to resume their original itinerary.  A great big thanks to Colonel [sic] [applicant's name] for his rapid intervention, for a few minutes later, the town of Plelo and its inhabitants would have ceised [sic] to exist…''

   d.  award certificate, dated 28 February 2000, showing he was awarded the Silver Star for gallantry in action on 6 August 1944.
   
	e.  citation, undated, for award of the Silver Star, stating "For gallantry in action on 6 August 1944 in the vicinity of Plelo, France, in connection with military operations against an enemy of the U.S. during World War II.  Lieutenant [applicant's name] distinguished himself with his platoon of five tanks and 20 men by rescuing the town of Plelo, France from enemy forces who were about to execute villagers in the town's square.  Lieutenant [applicant's name]'s platoon killed approximately 50 enemy soldiers and captured 60 more during the fierce firefight.  Lieutenant [applicant's name]'s platoon successfully routed the enemy from the village and departed to meet up with his main column at Plouigneau, France.  The gallantry in action displayed by Lieutenant [applicant's name] on this occasion reflects the highest tradition of military service, and reflects great credit on himself, the 15th Cavalry Reconnaissance Squadron, and the Army of the United States."

	f.  email, dated 14 July 2009, from the  Military Awards Branch to a congressman's office, stating the applicant submitted a request to have his Silver Star upgraded to the Medal of Honor.  The Army Decorations Board determined the degree of action and service rendered did not meet the strict criteria for the proposed award.  Acting on behalf of the Secretary of the Army, the Commander, U.S. Army Human Resources Command, concurred with this decision, and reaffirmed the Silver Star is the appropriate award for the applicant's actions.  The applicant was advised to apply to this Board.

13.  The Medal of Honor was established by Joint Resolution of Congress, dated 12 July 1862.  Army Regulation 600-8-22 (Military Awards) provides that the Medal of Honor is awarded by the President in the name of Congress to a person who, while a member of the Army, distinguishes himself or herself conspicuously by gallantry and intrepidity at the risk of his or her life above and beyond the call of duty while engaged in an action against an enemy of the United States; while engaged in military operations involving conflict with an opposing foreign force; or while serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party.  The deed performed must have been one of personal bravery or self-sacrifice so conspicuous as to clearly distinguish the individual above his comrades and must have involved risk of life.  Incontestable proof of the performance of the service will be exacted and each recommendation for the award of this decoration will be considered on the standard of extraordinary merit.

14.  Army Regulation 600-8-22 provides that the Distinguished Service Cross is awarded to a person who, while serving in any capacity with the Army, distinguished himself or herself by extraordinary heroism while engaged in action against an enemy of the United States not justifying award of the Medal of Honor.  The act or acts of heroism must have been so notable and have involved risk of life so extraordinary as to set the individual apart from his or her comrades.

15.  Army Regulation 600-8-22 provides that 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.

16.  Army Regulation 600-8-22 authorizes a bronze service star based on qualifying service for each campaign listed in appendix B of this regulation and states that authorized bronze service stars will be worn on the appropriate campaign or service medal, including the European-African-Middle Eastern Campaign Medal.



DISCUSSION AND CONCLUSIONS:

1.  Counsel contends the decision taken by the Military Awards Branch in 2003 to deny an upgrade to the Medal of Honor was done unfairly.  The applicant's service record is void of evidence which supports this claim.  The applicant's original request for the Medal of Honor was submitted to the Army through a Member of Congress.  The request was disapproved by the Army Decorations Board.  The reason cited was that the degree of action and service rendered did not meet the strict criteria for the proposed award.  

2.  The decision of whether to award an individual a decoration and which decoration to award is a judgment call made by the commander having award approval authority.  It appears his command did not recognize his actions with a gallantry award.  However, upon request, the Army Decorations Board reviewed the applicant's actions and compared them to those of other Soldiers who received gallantry awards at the time and determined the applicant's actions were so extraordinary and so noteworthy as to warrant award of the Silver Star.

3.  The Army awards system recognizes and reacts to distinguishing acts of valor and bravery of Soldiers and it is normally the commander on the ground who is the steward to ensure proper recognition of our brave men and women.  The Army has always been fully committed to the responsibility to properly recognize Soldiers for their valor, heroism, and meritorious service through a fair and consistent decorations and awards policy and process.

	a.  Awards and decorations are very important to Soldiers.  Equally important is the governance of the awards program.  For the awards program to be credible to the Soldiers and the American people, it must ensure that it recognizes the right individuals for the proper award.  It must ensure the integrity of the award is maintained through strict procedures and proper justifications.  Finally, it must place trust and confidence in commanders to execute the program.

	b.  The criteria for military awards are set forth in statutes, executive orders, and appropriate regulations.  Established by law, the criteria for the three highest valor awards have not changed from what they were in past conflicts.  Army regulations and policies establish the standards by which those awards are processed, approved, and presented.  This consistency upholds the heritage of the awards and the legacy of the heroes who have earned them.

4.  The highest awards for valor in descending order are the Medal of Honor, the Distinguished Service Cross, and Silver Star.

	a.  The Medal of Honor requires conspicuous gallantry and intrepidity as a member of the Army at the risk of life above and beyond the call of duty while engaged in an action against an enemy of the United States.  The deed performed must have been one of personal bravery or self-sacrifice so conspicuous as to clearly distinguish the individual above his/her comrades and must have involved risk of life.  Incontestable proof of the performance of the service will be exacted and each recommendation for the award of this decoration will be considered on the standard of extraordinary merit.

	b.  The Distinguished Service Cross requires displaying extraordinary heroism not justifying the award of a Medal of Honor while serving in any capacity with the Army while engaged in an action against an enemy of the United States.  The act or acts of heroism must have been so notable and have involved risk of life so extraordinary as to set the individual apart from his or her comrades.

	c.  The Silver Star requires gallantry in action against the enemy.  The gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction.

5.  While it appears the applicant and his supporters believe his actions were similar to those of other Soldiers who were awarded the Medal of Honor, each case stands on its own merits.  In this case, the applicant's actions were acknowledged and he was awarded the Silver Star.  Upon further review in 2009, the Army Decorations Board compared his actions to those of other Soldiers who had received gallantry awards and determined that the applicant's act did not meet the strict criteria for the proposed award in action necessary to merit an upgrade to the Medal of Honor.  That board was able to evaluate the applicant's act of heroism against other acts of heroism from the World War II era which resulted in award of the Medal of Honor and held that award of the Silver Star was the appropriate recognition.

6.  The applicant's valor and courage on 6 August 1944 under extremely hazardous conditions are acknowledged; he is truly an American hero.  His selfless acts of bravery and devotion to duty were in keeping with the highest traditions of military service.  However, he provides insufficient evidence to show that his actions met the criteria for being as conspicuously gallant or intrepid as were the actions of the Soldiers who were awarded either the Medal of Honor or Distinguished Service Cross.  The applicant has not submitted sufficient evidence to warrant overturning the Army Decorations Board's determination and upgrading his Silver Star.

7.  Permanent orders show the applicant was awarded the Silver Star for actions on 9 August 1944.  Therefore, it would be appropriate to amend his WD AGO Form 53-98 to reflect the Silver Star.

8.  His WD AGO Form 53-98 shows he received credit for participation in the Normandy, Northern France, Rhineland, and Central Europe campaigns of World War II.  Therefore, he is eligible for four bronze service stars for wear on his European-African-Middle Eastern Campaign Medal.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x__  ___x_____  ____x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that the WD AGO Form 53-98 of the individual concerned be corrected by:

a. Deleting the European-African-Middle Eastern Campaign Medal from item 29 and

b. Adding award of the Silver Star and European-African-Middle Eastern Campaign Medal with four bronze service stars to item 29.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading his Silver Star to the Medal of Honor.



      _______ _  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)                                         AR20120009439





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ABCMR Record of Proceedings (cont)                                         AR20120009439



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