IN THE CASE OF:  

		BOARD DATE:  2 June 2015

		DOCKET NUMBER:  AR20140018014 


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, in effect, award of the Silver Star for his actions in France on or about 22 August 1944.

2.  The applicant states he has been trying for years to get his Silver Star, which his commanding officer said he would get for his actions in Fontenay, France, as a member of Company C, 167th Engineer Combat Battalion.

3.  The applicant provides an article he authored entitled "Sink or Swim" and a three-page history of the 167th Engineer Combat Battalion through 9 May 1945. 

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 was inducted into the Army of the United States and entered active duty in New York City, NY, on 2 March 1943.  His WD AGO Form 53-55 (Enlisted Record and Report of Separation – Honorable Discharge) shows he held military occupational specialty 605 (Heavy Machine Gunner).

4.  His WD AGO Form 53-55 shows he departed the continental United States (CONUS) on 28 June 1944 and arrived in the European Theater of Operations (ETO) on 6 July 1944.  He departed the ETO on 4 December 1945 and arrived back in CONUS on 22 December 1945.

5.  He completed 1 year and 4 months of continental service and 1 year,             5 months, and 25 days of foreign service.  The highest rank/grade he held was private first class/E-3.  He was honorably separated on 27 December 1945.

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

* Item 31 (Military Qualifications and Date): "Rifle M-1 SS-167  August 1943"
* Item 32 (Battles and Campaigns): "Central Europe, Northern France, Rhineland, GO 33 WD 45 as amended" 
* Item 33 (Decorations and Citations): "World War II Victory Medal, American Service Medal, European-African-Middle Eastern Service Medal, Good Conduct Medal, Purple Heart" 
* Item 34 (Wounds Received in Action): "ETO 2 Apr 45"

7.  The applicant's reconstructed record does not contain orders awarding him the Silver Star.  He does not provide orders, a certificate or any other documentation awarding or recommending him for the Silver Star.

8.  He provides a self-authored article entitled "Sink or Swim" that describes his engagement with the enemy on 22 August 1944.  In effect it states he opened fire and had to eventually retreat to and cross a river in order to escape.  It took two days to find his unit.  At that point, his commander told him he would put him in for the Silver Star. 

9.  He also provides a three-page history of the 167th Engineer Combat Battalion (origin and author unknown) that depicts the unit's engagement on 22 August 1944.  It accounts for the applicant having "been outstanding in that he killed one German officer as die [sic] German command car came up."   This article does not discuss any awards or medals that were given following the engagement.

10.  Army Regulation 600-8-22 (Military Awards) 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.
	
11.  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.  

12.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to:  Commander, 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's request for award of the Silver Star was carefully considered.

2.  There are no orders or other evidence in his military records that show he was awarded or recommended for the Silver Star.  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 orders, there is a lack of adequate evidence to support and award him the Silver Star.
3.  Nevertheless, while the available evidence is inadequate for awarding him the 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.

4.  Notwithstanding the sincerity of the applicant and his faithful service to our Nation, without additional documentation, other than his personal account, there is an insufficient basis for granting the requested relief.

5.  The Board wants the applicant and all others concerned to know this action in no way diminishes the sacrifices made by him in service to our Nation during WWII.  The applicant and all Americans should be justifiably proud of his service in arms.

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)                                         AR20140018014



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