IN THE CASE OF:	  

		BOARD DATE:	  12 December 2013

		DOCKET NUMBER:  AR20130019372 


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 the U.S. Army Human Resources Command        (HRC), Awards and Decorations Branch reconsider the nomination of her     great-grandfather, a deceased former service member (FSM), for award of         the Medal of Honor (MOH).  

2.  The applicant states:

   a.  The FSM, a member of the U.S. Army during the Civil War, was nominated for the MOH by Senator Julius C. Burrows in November 1901.  The nomination was rejected in February 1902, and an appeal was submitted in December        1902 with six additional eyewitness affidavits.
   
   b.  On 13 October 1903, the War Department declined to hear the appeal based on policy implemented in a War Department Circular, dated 16 March 1903, which stated an MOH nominee must be on active duty at the time of his nomination.
   
   c.  On 23 May 2013, the HRC, Awards and Decorations Branch declined to process the applicant's request for reconsideration of the FSM's 1903 MOH based on the grounds that the nomination had already received its one-time reconsideration on 13 October 1903. 

   d.  The applicant contends the HRC's rejection letter was based on the War Department Circular, dated 16 March 1903, and is in error since the 13 October 1903 ruling represented a refusal to hear an appeal - not a ruling on the appeal; therefore, the FSM's nomination is still valid and should be reconsidered.

3.  The applicant provides:

* MOH nomination documentation
* various documents relating to the FSM's military service
* death certificate
* proof of next of kin's familial relationship
* related correspondence 

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's records were furnished by the applicant with support from the National Archives and Records Administration.  Complete service records were not available for review with this case.  However, sufficient records were available to make a fair and impartial determination.

3.  On 26 November 1901, the FSM was nominated for award of the MOH by the Honorable J.C. Burrows, U.S. Senator.  

4.  On 12 February 1902, the Assistant Secretary of War informed Senator Burrows that the official records and testimony submitted in the case for award of the MOH had been carefully examined; however, under existing law and regulations prescribed by the President, the War Department was not justified in awarding the MOH to the FSM.

5.  On 2 December 1902, Senator Burrows, on behalf of the FSM, submitted additional letters and affidavits in support of the FSM's application for the MOH.  It was noted that the matter had already been considered and reported adversely; however, the FSM desired the War Department to consider the additional testimony in the hope that it would be found sufficient to accord him the high honor of receiving the MOH.

6.  The applicant provides an excerpt from a 1948 government publication, "The MOH of the U.S. Army," that verifies the nature of the War Department Circular, dated 16 March 1903, which determined the MOH could not be awarded when the application or recommendation is made after the [claimant] had been discharged from military service.

7.  The evidence shows on that 31 July 1903 the Medal of Honor and Certificate of Merit Board respectfully returned to the Chief of the Record and Pension Office the following decision:  "Under the decisions promulgated in War Department Circular, March 16, 1903, a medal of honor cannot be awarded in this case."  

8.  On 10 October 1903, the Acting Secretary of War concurred with the MOH Board with regard to the FSM's case.

9.  In a letter, dated 13 October 1903, the Chief, Record and Pension Office informed Senator Burrows that the President, concurring in an opinion of the Attorney General, had decided the MOH could not be awarded to a person not in the military service of the United States unless the application or recommendation for the award of the medal was made to him while he was in the military service.  Inasmuch as it did not appear that the award of the MOH was recommended to the FSM while he was in the military service, under the direction of the President, the medal could not be awarded to the FSM. 

10.  On 10 May 2013, the applicant, with the help of Senator Bill Nelson, requested an appeal of the FSM's MOH rejection.

11.  On 23 May 2013, the Chief, Awards and Decorations Branch, HRC, replied to Senator Nelson stating the FSM was not authorized the MOH.  It was noted the FSM's MOH recommendation was disapproved twice by the Assistant Secretary of War and that one-time reconsideration by the award approval authority was conclusive.

12.  Army Regulation 600-8-22 (Military Awards) states the MOH 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 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 or her comrades and must have involved risk of life.  Incontestable proof of the performance of the service is required.  

13.  Title 10, U.S. Code, section 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to have the HRC, Awards and Decorations Branch reconsider the nomination of the FSM for award of the MOH has been carefully examined and found to have merit.  

2.  The evidence shows that upon notification that the War Department was not justified in awarding the MOH to the FSM, the FSM, with sponsorship from Senator Burrows, submitted additional letters and affidavits on 2 December 1902, in support of reconsideration of his application for the MOH.

3.  On 31 July 1903, the MOH and Certificate of Merit Board informed the Chief of the Record and Pension Office that, "under the decisions promulgated in War Department Circular, March 16, 1903, a MOH cannot be awarded in this case."  

4.  There is insufficient evidence in the FSM's records to show the extent of the MOH and Certificate of Merit Board's process in evaluating the FSM's reconsideration.  It is reasonable to presume by the rather straight forward language in the board's letter to the Chief of the Record and Pension Office that the FSM did not receive a true reconsideration, but rather a "rubber stamp" response based upon the decisions promulgated in the War Department Circular, dated 16 March 1903, which determined the MOH could not be awarded when the application or recommendation was made after a claimant had been discharged from military service.

5.  In view of the foregoing and as a matter of equity it would be appropriate to grant the applicant the requested relief.   




BOARD VOTE:

___X___  ___X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends the case be forwarded to HRC for them to review all material information pertinent to the case and, if information so warrants, further process the nomination in accordance with Army Decorations Board standards.  The applicant should provide all pertinent documents to HRC, Awards and Decorations Branch within 90 days of the date of this ABCMR action.




      _______ _ 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)                                         AR20130019372



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ABCMR Record of Proceedings (cont)                                         AR20130019372



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