IN THE CASE OF:	  

		BOARD DATE:  22 August 2013

		DOCKET NUMBER:  AR20130002475 


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 records to show the Bronze Star Medal and he should have been awarded the Silver Star for action in combat on or about 8 September 1944.  

2.  The applicant states he was correctly awarded the Purple Heart for being wounded in combat.  While in a military hospital recovering from his wounds, a Bronze Star Medal was tossed on his hospital bed.  He did not focus on the fact that his military records never reflected the award of the Bronze Star Medal until the Government of France awarded him the French Legion of Honor during a ceremony on 22 October 2010.  He believes the proper recognition should have been the Silver Star. 

3.  The applicant provides:

* Western Union telegram
* Honorable Discharge Certificate
* WD AGO Form 53-55 (Enlisted Record and Report of Separation - Honorable Discharge)
* Congressional correspondence
* Foreign certificate
* Letter from the National Personnel Records Center
* Medical statement



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 complete 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 available evidence shows the applicant enlisted in the Regular Army and entered active duty in New York City, NY, on 25 September 1939.  His WD AGO Form 53-55 shows at the time of his separation, he held military occupational specialty 677 (Military Policeman) and he was assigned to the 1008th Engineer Service Battalion.  

4.  His WD AGO Form 53-55 shows he departed the continental United States (CONUS) on 31 August 1942 and arrived in the European Theater of Operations (ETO) on 16 September 1942.  He departed the ETO on 1 November 1945 and arrived back in CONUS on 13 November 1945.  

5.  He completed 1 year and 6 days of continental service and 3 years, 1 month, and 27 days of foreign service.  He was honorably separated on 20 November 1945.

6.  His WD AGO Form 53-55 also shows in:

* Item 31 (Military Qualifications and Date) - the entry "None"
* Item 32 (Battles and Campaigns) - Normandy, Northern France, and Ardennes campaigns
* Item 33 (Decorations and Citations) - the American Defense Service Medal, American Service Medal, European-African Middle Eastern Service Medal, Purple Heart, and World War II Victory Medal

7.  The applicant's reconstructed record does not contain orders awarding him the Bronze Star Medal.

8.  He provides a medical document, dated 22 July 2013, that shows he has been under the care of a medical doctor for several years for multiple medical conditions. 

9.  Army Regulation 600-8-22 (Military Awards) states: 

	a.  The Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

	b.  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.  Title 10, U.S. Code, section 1130 allows the Service Secretary concerned to review a proposal for the award of, or upgrading of, a decoration that is otherwise precluded from consideration by limitations established by law or policy.  In order to request an award under Title 10, U.S. Code, section 1130, you must submit a DA Form 638 (Recommendation for Award), a copy of which is enclosed.

	a.  The DA Form 638 should clearly identify your unit, the period of assignment, and the award being recommended.  A narrative of the actions or period for which you are requesting recognition must accompany the DA Form 638.  In addition, your award request should be supported by sworn affidavits, eyewitness statements, certificates and related documents.  Corroborating evidence is best provided by commanders, leaders, and fellow Soldiers who had personal (i.e., eyewitness) knowledge of the circumstances and events relative to the request.

	b.  Title 10 USC 1130 also requires that a request of this nature be referred to the Service Secretary from a Member of Congress.  Therefore, you must submit your request through a Member of Congress who will send it to the U.S. Army Human Resources Command (HRC), ATTN: AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY 40122.  The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rest with the requestor.

	c.  If a Soldier chooses to pursue the award requested by submitting a request under the provisions of Title 10, U.S. Code, section 1130, and his/her request is subsequently denied by the HRC, the Soldier may reapply to the ABCMR with a copy of the denial.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records do not show award of the Bronze Star Medal which he was awarded and that he should have been awarded the Silver Star instead. 

2.  With respect to the Bronze Star Medal:

	a.  There is no evidence in the available record and the applicant does not provide substantiating evidence that shows he was recommended for or awarded the Bronze Star Medal. 

	b.  The governing Army regulation states that for personal decorations (which include the Bronze Star Medal) formal recommendation, approval through the chain of command, and announcement in orders are required.  The applicant's sincerity and his service in WWII are not in question.  However, in the absence of official orders, there is insufficient evidence to show the applicant was awarded the Bronze Star Medal or correct his WD AGO Form 53-55 to show this award. 

3.  As for the Silver Star, even if the applicant was in fact awarded the Bronze Star Medal, there are time limitations associated with an upgrade of a specific individual award to a higher award.  

	a.  The third highest award for valor is the Silver Star which requires gallantry in action against the enemy.  The gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction. The ABCMR acknowledges and applauds the applicant's service during World War II. 

	b.  However, the governing Army regulation states that for personal decorations (which include the Silver Star) formal recommendation, approval through the chain of command, and announcement of orders are required.  In the absence of official orders, there is insufficient evidence to correct his records to show the Silver Star.

	c.  Nevertheless, 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.  

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)                                         AR20130002475





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ABCMR Record of Proceedings (cont)                                         AR20130002475



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