IN THE CASE OF:
BOARD DATE: 20 July 2013
DOCKET NUMBER: AR20120021080
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 son of a deceased former service member (FSM), requests correction of his father's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his award of the Silver Star.
2. The applicant states the Silver Star should be added to his father's record of discharge.
3. The applicant provides:
* FSM's DD Form 214
* General Orders Number 48, issued by Headquarters, 97th Infantry Division, dated 29 October 1945
* FSM's Certificate of Death
* His Certificate of Live Birth
* His North Carolina Driver License
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 FSM enlisted in the Army of the United States (AUS) on 16 March 1943 and he entered active service on 18 June 1943. He served in the European Theater of Operations and the Asiatic-Pacific Theater of Operations.
3. General Orders Number 48, dated 29 October 1945, awarded the FSM the Silver Star for gallantry in action on 25 April 1945 near Cheb, Czechoslovakia.
4. On 31 December 1945, the FSM was honorably discharged.
5. The WD AGO Form 53-55 (Enlisted Record and Report of Separation) he was issued at the time shows he was awarded or authorized the:
* Army Good Conduct Medal
* European-African-Middle Eastern Campaign Medal with one bronze service star
* Asiatic-Pacific Campaign Medal
* American Campaign Medal
* World War ll Victory Medal
6. On 3 February 1947, the FSM was appointed a second lieutenant in the U.S. Army Reserve. He was ordered to active duty on 8 February 1947. On 31 July 1963, he retired by reason of sufficient service for retirement in the rank/grade of major (MAJ)/
O-4.
7. The DD Form 214 he was issued at the time shows he was awarded or authorized the:
* Army of Occupation Medal with Germany clasp
* Army Commendation Medal
* Senior Parachutist Badge
* National Defense Service Medal
* World War II Victory Medal
* American Campaign Medal
8. War Department Technical Manual 12-235 (Enlisted Personnel Discharge and Release from Active Duty), in effect at the time, prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It states for item 33, enter decorations or citations issued during the prior covered by the separation document.
9. Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It establishes standardized policy for the preparation of the DD Form 214. The DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge. It states for item 26, enter decorations, etc., awarded or authorized during the period covered by the DD Form 214.
DISCUSSION AND CONCLUSIONS:
1. General orders show the FSM was awarded the Silver Star for gallantry in action on 25 April 1945. Therefore, his WD AGO Form 53-55 should be corrected to show this award.
2. Although the applicant provided his father's DD Form 214, the FSM's record contains a WD AGO Form 53-55 for the period in which the Silver Star was awarded. Regulations in effect at the time of issuing the FSM's WD AGO Form 53-55 and subsequent DD Form 214 stated to list the awards and decorations awarded or authorized during the period covered by the respective separation documents. Therefore, the Silver Star should not be added to the FSM's
DD Form 214.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
____X____ ___X____ ___X_____ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding to the FSM's WD AGO Form 53-55 the Silver Star.
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 adding the Silver Star to the FSM's DD Form 214.
__________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) AR20120021080
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20120021080
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