IN THE CASE OF:	  

		BOARD DATE:	  22 October 2015

		DOCKET NUMBER:  AR20150006700 


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, that the Distinguished Service Cross awarded to her deceased spouse, a former service member (FSM), be upgraded to award of the Medal of Honor.

2.  The applicant states the FSM's battalion commander (then Lieutenant Colonel (LTC) L--- B. R----) recommended the FSM for the highest award for his actions on 24 January 1945.  He failed to follow through on that recommendation due to being seriously wounded the following day.  LTC R---- and the FSM continued fighting in the battle for the next two weeks that pushed the German Army back across the Rhine River into Germany.

   a.  She states that paperwork and medals were not a priority at the time.  
LTC R---- did not check with Headquarters, 3rd Infantry Division, to determine if the Awards Branch had followed through in getting eyewitness accounts to the FSM's heroic feat.  She adds that LTC R---- thought he was the only person who knew what the FSM had done in saving his battalion from being decimated by six German Panzer tanks and 600 infantry soldiers in the Colmar Pocket campaign.  However, within two weeks of the action, three eyewitnesses had been called back from the front and provided their sworn statements.

   b.  She also states the three eyewitness accounts were not known to exist because they were not in the FSM's official records.  However, after extensive research, they were discovered in 2005.  As a result, previous reviews of the FSM's award did not include the statements.  She states they document his heroic feat in destroying the six tanks, killing 50 enemy soldiers, and wounding 100 during the battle that lasted more than 3 hours until the enemy withdrew.

   c.  She requests personal appearance before the Board.

3.  The applicant provides a copy of a Commonwealth of Kentucky, Cabinet for Health Services, Registrar of Vital Certificates, Certificate of Death, that shows the FSM died on 5 November 1998 and the applicant is listed as his surviving spouse and the informant.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the Distinguished Service Cross that was awarded to the FSM be upgraded to award of the Medal of Honor.

2.  Counsel states, on 24 January 1945, the FSM, ignoring a serious hip wound from a previous battle, slipped away from an Army hospital to rejoin his unit.  At that time, his unit encountered a massive German offensive that was part of Operation Northwind with an attacking force of 600 led by six Mark VI tanks, along with anti-tank vehicles.

   a.  The FSM took a roll of telephone wire and ran about 300 yards heading directly toward the advancing enemy with bullets and artillery shells exploding all around him.  He dove into a foot deep ditch where he set up his operating base.  On numerous occasions German soldiers swarmed the FSM's position and each time he called in pinpoint artillery strikes that caused them to retreat.  During the enemy's last attempt to stop him he called in artillery on his own position.  His actions led to 50 enemy dead and 100 wounded.  He clearly demonstrated his willingness to risk his life to save the lives of others in his unit through conduct above and beyond the call of duty.

   b.  His unit expeditiously processed an award recommendation for the Distinguished Service Cross in recognition of the FSM's actions.  Shortly thereafter, his battalion commander realized his error in not recommending the FSM for the Medal of Honor.  Over the years, he has sought to correct his error.

   c.  Counsel asserts that the evidence submitted demonstrates that the award recommendation for the Medal of Honor should be forwarded to the Department of the Army, Senior Army Decorations Board, for consideration and processing through the chain of command to the Secretary of the Army.

   d.  Counsel offers a summary of the criteria for award of the Medal of Honor.
   e.  Counsel states the three recently discovered eyewitness accounts provide incontestable proof to support award of the Medal of Honor to the FSM for his actions on 24 January 1945 that were above and beyond the call of duty and that saved his battalion.

    	(1)  Counsel provides a summary and quotes from a certificate prepared by LTC J--- A. H----, Commander, 7th Infantry Regiment, submitted in support of the FSM's award recommendation for actions on 24 January 1945.

    	(2)  Counsel also provides summaries and quotes from the three eyewitness statements of First Lieutenant (1LT) H--- W----, First Sergeant (1SG) H--- J. M----, and Private First Class (PFC) R--- A. D----.

   f.  Counsel comments on additional supporting evidence pertaining to:

    	(1)  Mr. R--- C----, a Wisconsin resident, who began his efforts to upgrade the FSM's Distinguished Service Cross to a Medal of Honor in 1999.  Mr. C---- met the FSM while conducting research into his uncle's military service (the FSM and his uncle were in the same regiment).  Upon learning more about the FSM's actions on 24 January 1945, but with virtually no evidence other than knowledge he had gained about the FSM, he sought to correct the record.

    	(2)  Major General (MG) L--- B. R----, U.S. Army (Retired), the FSM's battalion commander at the time, who affirmed in a:

    		(a)  18 February 1945 letter to his own father that he believed the FSM should have received the Medal of Honor;

    		(b)  30 September 2007 statement that he was not able to process the award packet through the chain of command due to the exigencies of war and being wounded in action the day following the FSM's heroic actions; and

    		(c)  14 December 2014 video statement that he considered the FSM the best fighting man he ever knew and he deserved the Medal of Honor.

    	(3)  Resolutions by the States of Alabama, Illinois, Kentucky, Rhode Island, Tennessee, and Wisconsin passed through their legislative bodies that resolved to urge those authorized to award the Medal of Honor to the FSM.

	 	(4)  S--- E. A----, U.S. historian, who opined that based on his meetings and discussions with many Medal of Honor recipients, he was certain that they would agree that the FSM deserved the same high honor.

    	(5)  A transcript of a post-war speech given by the FSM in which he humbly described his military service during World War II without mentioning his own personal heroism.

   g.  Counsel requests personal appearance before the Board or, in the alternative, telephonic or video conference to allow –

* Attorney D--- T---- five minutes to provide the background of this case
* Attorney D--- W. S---- five minutes to explain the evidence in terms of the Medal of Honor
* Commissioner H--- F---- H---- five minutes to explain the importance of correcting the record as this affects the 340,000 veterans who reside in Kentucky

3.  Counsel provides copies of the following documents –

* three eyewitness statements, dated 9 February 1945
* regimental commander's certificate, undated
* extract from battalion commander's letter, dated 18 February 1945
* recommendation for award of the Medal of Honor to the FSM, dated
30 September 2007
* interview/affidavit of MG L--- B. R----, dated 14 December 2014
* five State Resolutions in support of award of the Medal of Honor to the FSM (the sixth resolution from the State of Illinois was not provided)
* Kentucky Veterans Service Organization Resolution
* interview/affidavit of Mr. R--- C----, dated 9 January 2015
* letter of support from Mr. S--- E. A----, dated 11 November 2000
* transcript of FSM's speech about his military service during World War II

CONSIDERATION OF EVIDENCE:

1.  The FSM's military service 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 the FSM's records were lost or destroyed in that fire.  However, there were sufficient available documents in a reconstructed record, along with evidence provided by applicant and counsel, for the Board to conduct a fair and impartial review of this case.

2.  The FSM was inducted into the Army of the United States (AUS) on 1 March 1941.  He was trained as an infantryman, departed the United States on 


23 October 1942, and arrived in the European-African-Middle Eastern (EAME) 
theater of operations on 8 November 1942.  The FSM –
   
* attained the rank of technical sergeant on 13 January 1944
* was wounded in action on 6 March 1944
* was honorably discharged on 27 June 1944

3.  On 28 June 1944, the FSM was temporarily appointed a second lieutenant in the AUS as an infantry officer.  He was promoted to 1LT on 29 December 1944.

4.  General orders (GO) issued by Headquarters, 3rd Infantry Division, awarded the Silver Star (SS) to the FSM for gallantry in action, as follows –

* GO Number 84, dated 11 November 1943 – SS on an unspecified date in October 1943
* GO Number 87, dated 7 May 1944 – SS (1st Oak Leaf Cluster) on 
30 January 1944
* GO Number 11, dated 11 January 1945 – SS (2nd Oak Leaf Cluster) on 11 September 1944
* GO Number 43, dated 10 February 1945 – SS (3rd Oak Leaf Cluster) on
3 February 1945

5.  Headquarters, 7th Army, GO Number 47, dated 10 February 1945, announced award of the Distinguished Service Cross to the FSM.

   a.  The award citation reads:

   "By direction of the President, under the provisions of Army Regulations
600-45 [Personnel – Decorations], 22 September 1943, as amended, the Distinguished Service Cross is awarded by the Army Commander to the following named individual:  G--- M. C----, [Army Serial Number], First Lieutenant, Infantry, Headquarters, 3rd Battalion, [7th] Infantry Regiment, for extraordinary heroism in action.  On 24 January 1945, at 0800 hours, near Houssen, France, Lieutenant C---- ran four hundred yards through the impact area of an intense concentration of enemy artillery fire to direct friendly artillery on a force of six Mark VI tanks and tank destroyers, followed by six hundred fanatical German infantrymen, which was assaulting in full fury the spearhead position held by his Battalion.  Unreeling a spool of telephone wire, Lieutenant C---- disregarded shells which exploded twenty-five yards from him, tearing branches from the trees in his path, and plunged in a shallow ditch thirty yards beyond the positon of his foremost company.  Although the ditch provided inadequate protection from  the heavy automatic fire of the advancing enemy infantry, he calmly directed round after round of artillery on the foe from his prone position, hurling them back to the shelter of a dike.  For three hours he remained at his OP [observation post] despite wave after wave of German infantry, which surged forward to within five yards of his position.  As the last, all-out German assault swept forward, he ordered his artillery to concentrate on his own positon, resolved to die if necessary to halt the enemy.  Friendly shells exploded within five yards of him, blanketing his positon, wounding his one assistant.  Yet Lieutenant C---- continued to direct artillery fire on the assault elements swarming around him until the German attack was shattered and broken.  By his exemplary heroism, he killed approximately fifty and wounded an estimated one hundred Germans, disintegrated the powerful enemy assault and prevented heavy casualties in his Battalion.  Entered military service from Aaron, Kentucky.  By command of Lieutenant General P----."  

   b.  A date-stamp on a copy of the general orders shows it was received at Headquarters, 3rd Infantry Division, on 14 February 1945.

6.  Headquarters, 7th Army, Public Relations Office, Special Release Number 289, dated 11 February 1945, provided a history of the FSM's military service in the EAME theater of operations and published the narrative citation of his actions for which he received the Distinguished Service Cross.

   a.  It noted that in addition to receiving the second highest Army medal, the FSM had previously been awarded the Silver Star (3rd Oak Leaf Cluster), Bronze Star Medal, Purple Heart (2nd Oak Leaf Cluster), Army Good Conduct Medal, American Defense Service Medal, and EAME Campaign Medal with 7 Bronze Service Stars.

   b.  It also shows, "The reticent hero made only two statements following the presentation of the award by General P----.  He said, 'I think General P---- is a fine man and I think the Seventh Infantry Regiment is the best outfit in the Army'."

7.  Headquarters, 3rd Infantry Division, Adjutant General 200.6, dated 20 June 1945, announced award of the French Croix de Guerre to the FSM for heroism in action. 

8.  The FSM's WD AGO Form 53-98 (Military Record and Report of Separation –
Certificate of Service) shows he entered active duty on 28 June 1944 and he was honorably discharged on 22 June 1945.  During this period he had completed 
3 months and 11 days of continental service, and 8 months and 14 days of foreign service.  It also shows in –

* item 6 (Organization):  Headquarters, 3rd Battalion, 7th Infantry Regiment
* item 27 (Military Occupational Specialty and Number) –

* Infantry Unit Commander – 1542
* Intelligence Staff Officer – 9301

* item 28 (Battles and Campaigns) –

* Algerian-French Morocco
* Tunisian
* Sicilian
* Naples-Foggia
* Rome-Arno
* Southern France
* Germany

* item 29 (Decorations and Citations) –

* Distinguished Service Cross
* Silver Star (3rd Oak Leaf Cluster)
* Bronze Star Medal
* Purple Heart (2nd Oak Leaf Cluster)
* EAME Campaign Medal with 7 Bronze Service Stars

* item 30 (Wounds Received in Action):  August 1944 and September 1944,  EAME Theater

9.  On 18 November 1996, the Chief, Military Awards Branch, U.S. Total Army Personnel Command (now U.S. Army Human Resources Command), responded to a request submitted by Mr. R--- C----, dated 21 September 1996, wherein he requested upgrade of the FSM's Distinguished Service Cross to the Medal of Honor.  Mr. C---- was advised that Section 526 of the Fiscal Year 1996 (FY96) National Defense Authorization Act (NDAA) that was enacted into law on 
10 February 1996 provides an avenue for consideration of awards that were either not submitted in a timely fashion, or for upgrading a previously approved award to a higher award.

   a.  He was informed, "[i]nitial review of the information submitted in support of your request indicates that the documentation is insufficient to support an equitable assessment of the request at this time."

   b.  Detailed information was provided to Mr. C--- pertaining to the information and documentation required for a reconstructed award recommendation to be considered.  Specifically, information pertaining to the Soldier, unit of assignment, recommended award, period for which the Solder is being recognized, a short narrative of the action(s) of the Soldier being recognized, eyewitness statements attesting to the act(s) of valor performed, sworn affidavits, certificates, and any other related documentation.

   c.  He was advised that the burden and costs for researching and assembling documentation to support the requested award rest with the requestor.  He was also advised that the award recommendation must be referred to the Secretary of the Army by a Member of Congress.

   d.  The letter shows that the documentation Mr. C---- had provided was returned to allow him the opportunity to fully address the matter.  He was also provided a checklist to assist him in his effort.

10.  On 6 March 1997, Senator W---l H. F--- submitted a request to the Secretary of the Army, on behalf of Mr. R--- C----, nominating the FSM for award of the Medal of Honor for his actions on 24 January 1945.

   a.  The documentation included a letter written by Mr. R--- C---- and a reconstructed award recommendation with the GO that announced award of the Distinguished Service Cross to the FSM.  It also included:

    	(1)  A letter, dated 16 September 1996, from MG (Retired) L--- B. R----, Commander, 3rd Battalion, 7th Infantry, 3rd Infantry Division (on the date of the action), along with a certification of the information, dated 19 December 1996.  

    		(a)  MG R--- provided a summary of his actions to obtain information and provide direction to his units on that date.  He stated the FSM was serving as the S-2 and that he volunteered to take another Soldier to set up an OP in order to provide the commander information and direct artillery fire on the enemy.  He described how the FSM called in artillery fire and also provided important information to properly orient the unit's tank destroyers toward the enemy.

 			(b)  He recalls drafting an award citation, forwarding it to regimental headquarters, and states that it was forwarded to the division headquarters.  He notes that he had a discussion with the division awards officer that focused on the fast-moving combat situation and limited time he had for writing a citation.  MG R---- wrote, "[s]ince [the FSM] was going home soon he suggested that we could get him a DSC [Distinguished Service Cross] soon and that he could go home wearing a DSC.  With combat my main mission I did not give much thought as to what the Medal of Honor would mean to [the FSM].  Now that he is on his death bed it would be a great tribute to him and to his family if the DSC could be upgraded to the Medal of Honor."

    	(2)  Three pages from an article on the history of the 7th Infantry Regiment "From Fedala to Berchtesgaden" written by Mr. White.  It describes, in pertinent part, the actions of the FSM –

* on 30 January 1944, while serving in the rank of TSGT
* on 24 January 1945, from the Distinguished Service Cross citation
* on 3-4 February 1945, when he assumed command of Company L

    	(3)  Letter written by Brigadier General J--- R. G----, Jr., The Adjutant General, Kentucky National Guard, dated 10 October 1996, written on behalf of Governor P--- P----.  He acknowledged the FSM's case for award of the Medal of Honor was a compelling one; however, it was not possible for the Governor to award the medal.  He did request that the FSM be issued a commission as a Kentucky Colonel.

   b.  On 24 March 1997, the award recommendation with supporting document was referred to the Army Decorations Board (ADB) for consideration.

   c.  On 8 April 1997, the Chief, Military Awards Branch, notified Senator F--- that the award recommendation for the Medal of Honor to the FSM that was submitted under the parameters of Public Law 104-106 (FY96 NDAA), Section 526, was forwarded to the ADB for consideration.  The ADB, exercising authority delegated by the Secretary of the Army, determined that the degree of heroism displayed did not meet the criteria for the proposed award and that the previously approved award of the Distinguished Service Cross was the appropriate form of recognition for the FSM's actions.  Therefore, the Commanding General, U.S. Total Army Personnel Command, on behalf of the Secretary of the Army and combined with the recommendation by the ADB, disapproved the award of the Medal of Honor.

11.  On 7 January 1998, Mr. R--- M. C----, on behalf of the applicant, submitted a DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) requesting upgrade of the FSM's Distinguished Service Cross to the Medal of Honor.  The application was considered under ABCMR Docket Number AR199021889 on 4 November 1999.

   a.  Mr. C---- provided a summary of the FSM's actions on 24 January 1945 and offered the assessment, "I would add that, in World War II, there was not a great distinction between a citation for the Distinguished Service Cross to the Medal of Honor."  He also opined that the FSM's actions qualify him for the Medal of Honor.

   b.  In support of the application he provided copies of the FSM's enlisted record and separation document, his WD AGO Form 53-98, the four GOs announcing award of the Silver Star to the FSM, the GO announcing award of the Distinguished Service Cross to the FSM, the former battalion commander's letters, dated 16 September 1996 and 19 December 1996, a statement from a former fellow Soldier, and numerous letters and inquiries in support of the effort to upgrade the FSM's award of the Distinguished Service Cross to the Medal of Honor.  
   
   c.  The relevant evidence pertaining to the FSM's heroic actions on
24 January 1945 was previously summarized in this Record of Proceedings.  The Board considered all the available evidence and found that the chain of command recommended the FSM for award of the Distinguished Service Cross and that the award approval authority determined the Distinguished Service Cross was the appropriate award.

   d.  The Board found no evidence that the FSM was recommended for award of the Medal of Honor.  Thus, there was no basis for granting the requested relief and the applicant was notified of the decision on 16 November 1999.

12.  On 22 December 1999, Mr. R--- C----, on behalf of the applicant, submitted a request for reconsideration of ABCMR Docket Number AR1999021889, dated
4 November 1999, requesting upgrade of the FSM's Distinguished Service Cross to the Medal of Honor.  The request was considered under ABCMR Docket Number AR2000037390 on 7 June 2000.
   
   a.  Mr. C---- emphasized that MG L--- B. R----, the FSM's commander at the time, provided the rationale for not recommending the FSM for award of the Medal of Honor (i.e., more expedient processing of a Distinguished Service Cross award recommendation as compared to that of a Medal of Honor).  

   b.  In support of the request for reconsideration he provided a comparative summary of the FSM's actions on 24 January 1945 with those of Sergeant Audie Murphy (the second highest decorated Soldier of World War II).  He opined that the actions depicted in the FSM's award citation and those of Sergeant Audie Murphy (on 26 January 1945) are so similar as to warrant equal resolution.
   
   c.  The Board considered all the available evidence, along with the applicant's new argument.  Notwithstanding the FSM's former battalion commander's current opinion that the FSM's actions warrant the higher decoration, the Board noted that he chose to recommend the FSM for award of the Distinguished Service Cross despite procedures that were in place to allow for the granting of an interim award pending final results on the higher decoration.  

   d.  The Board concluded that the overall merits of the case, including the latest submissions and arguments, were insufficient as a basis to reverse the previous decision.  Thus, in the absence of sufficient relevant evidence to demonstrate the existence of probable error or injustice, the Board denied the requested relief and the applicant was notified of the decision on 14 June 2000.

13.  On 27 February 2015, the U.S. District Court for the Western District of Kentucky at Bowling Green issued a Stipulated Order of Dismissal and Remand to Agency that shows in return for the applicant's voluntarily dismissal of the complaint in the court action, the matter was remanded back to the ABCMR.
[At a hearing on 4 December 2014, the court instructed the parties to take and record the statements of MG (Retired) L--- B. R---- and (then PFC) R--- D--- to preserve them for review by the court, the mediator, and the Department of the Army.]

14.  In support of the application the following documents were submitted.

   a.  Copies of three "Complete Descriptions of Service Rendered" that show 1LT H--- W----, Infantry, S-3, 3rd Battalion, 7th Infantry; 1SG H--- J. M----, Company I, 7th Infantry; and PFC R--- A. D----, Intelligence Section, Headquarters Company, 3rd Battalion, 7th Infantry, were present at and eyewitnesses to the FSM's actions on 24 January 1945.  The statements provide the date, time of day, and conditions; a description of the terrain, location, and positions; an assessment of the U.S. forces and the enemy, the enemy's actions, and casualties; and the effects of the results of the FSM's actions.  (It is noted that PFC D--- states he was seated beside the FSM in the battalion command post when the FSM expressed his intended actions, he followed the FSM in order to be of assistance, and he was positioned in a ditch a few yards behind the FSM during the action.)  The information and descriptions in the statements are substantially the same as the data, information, and descriptions that appear in the citation of the GO that announced award of the Distinguished Service Cross to the FSM.  The eyewitness accounts show that each individual signed their statement, along with a summary court officer, on 9 February 1945.  (The ABCMR board members are referred to the three eyewitness statements for the purpose of reviewing each individual's complete account.)  

   b.  A "Certificate" that shows LTC J--- A. H----, Infantry, Commanding Officer, 7th Infantry, provided information and data pertaining to events on 24 January 1945, including a description of the FSM's actions on that date.
   c.  An extract of a letter written by (then) LTC L--- B. R---- to his father (W.H. R----), dated 18 February 1945.  He describes the FSM's character and military service, and states the FSM was awarded the Distinguished Service Cross.  He states, "He has the DSC, which should have been, I believe, a Congressional Medal of Honor, but he was heading home and we wanted to get him the highest award possible before he left."

   d.  A one-page recommendation for the Medal of Honor pertaining to the FSM prepared by MG (Retired) L--- B. R---- on 30 September 2007.  He provides a summary of the actions of the FSM on 24 January 1945.  It shows, "My staff was instructed to get 1LT C---- the highest award possible.  However, on 25 January 1945, I was wounded in the battle and not able to follow through with the paperwork necessary to recommend 1LT C---- for the Medal of Honor.  In my affidavit, dated 6 June 2006, I was not aware that my staff had acquired three written eyewitness accounts of 1LT C----'s heroic feat and it was a complete surprise when I learned about their recent discovery.  With the three eyewitness accounts now available there is no question that 1LT C---- meets the criteria for the Medal of Honor and I am requesting at this time that my error in 1945 of not following through with the necessary paperwork recommending LT C---- for the Medal of Honor be corrected in the interest of justice."

   e.  A one-page book review of "A Memoir – MG L--- B. R----, U.S. Army, Retired," that provides a summary of MG R----'s military career.  It contains one paragraph on his service during World War II.  It does not make mention of the battle or actions on 24 January 1945.

   f.  A compact disc video of an interview of MG L--- B. R---- by Attorney L--- 
C---- in Roanoke, Virginia, on 14 December 2014 (approximately 30 minutes in duration), with an Affidavit and a 9-page written transcript of the interview.  
MG R---- responds to questions by the interviewer pertaining to his personal and military background, followed by a focus on the FSM being recommended for award of the Distinguished Service Cross for his actions on 24 January 1945 and subsequent efforts to upgrade the award.  (It is noted that MG R---- was 96 years old at the time of the interview with physical limitations, and the attorney frequently asked leading questions.)  In response to the interviewer's question, "And at that time General R----, do you recall what instructions, if any, you gave to your staff with respect to [1LT] C----'s acts and the awards that you wanted him to receive?"  MG R---- responded, "Yes."  The interviewer stated, "You asked them to take action to get him the highest award for his acts there?"  MG R---- responded "Uh huh."  He also reaffirmed the statements he made in his letter to his father, dated 18 February 1945, and his statements and conclusion made in an affidavit, dated 6 June 2006.  He added that if the Board had any question about the award recommendation meeting all the criteria for the Medal of Honor, he requested a personal appearance before the Board.

   g.  Copies of the following resolutions urging the United States Congress to enact legislation authorizing the President to award a Medal of Honor posthumously to 1LT G--- M--- C----.

* States of Alabama, House of Representatives, Montgomery, AL, House Joint Resolution 122, dated 17 April 2006
* Commonwealth of Kentucky, General Assembly, 2004 Regular Session, House Concurrent Resolution Number 223, dated 18 March 2004,
* State of Rhode Island, Senate Resolution, Memorializing Congress to Award the Medal of Honor Posthumously to First Lieutenant G--- M--- C----, dated 1 June 2005
* State of Tennessee, House Joint Resolution Number 146, approved on 4 May 2005
* State of Wisconsin, 2005-2006 Legislature, 2005 Senate Resolution 7, dated 3 May 2005, 

   h.  A copy of a Joint Executive Council of Veterans Organizations of Kentucky, Harned, KY, Resolution, dated 2 April 2014, urging the United States Congress to enact legislation authorizing the President to award a Medal of Honor posthumously to 1LT G--- M--- C----.  (The agency represents 339,000 veterans and their families.)

   i.  A compact disc video of a statement made by Mr. R--- M. C---- in Elkhorn, Wisconsin, witnessed by Ms. C--- M. J----, Notary Public, on 9 January 2015 (approximately 10 minutes in duration), with a 3-page Affidavit of the statement. Mr. C---- reads the affidavit and attests to its accuracy.  He states that he met the FSM while conducting research into his uncle's military service (the FSM and his uncle were in the same regiment).  Upon learning about the FSM's distinguished military service and his actions on 24 January 1945, he came to the conclusion that the FSM's award of the Distinguished Service Cross should be upgraded to a Medal of Honor.  He has spent the past 19 years in this effort.

   j.  A letter written by Mr.  S--- E. A----, dated 11 November 2000, who opines that based on his meetings and discussions with many Medal of Honor recipients, he is sure they would all agree that the FSM's actions on 24 January 1945 "more than deserves the honor of joining them."

	k.  A transcript of a post-war speech given by the FSM in which he humbly described his military service during World War II without mentioning his own personal heroism.

15.  The Board also considered supporting statements provided telephonically by Mr. D----- R. T---, Mr. D----- W. S-------, and Ms. H------ F----- H----.  

16.  Title 10, U.S. Code, section 3741 (The Medal of Honor:  Award), was established by Joint Resolution of Congress on 12 July 1862 (amended by acts on 9 July 1918 and 25 July 1963).  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 award of this decoration will be considered on the standard of extraordinary merit.

17.  Title 10, U.S. Code, section 3754, states the President may delegate his authority to award the Medal of Honor, Distinguished Service Cross, and Distinguished Service Medal to a commanding general of a separate Army or higher unit in the field.

18.  Army Regulation 600-45 (Decorations), dated 22 September 1943, governed awards and decorations during the period of service under review.

   a.  Paragraph 9 shows, "The Medal of Honor is awarded, in the name of Congress, to each person who, while an officer, noncommissioned officer, or private of the Army, in action involving actual conflict with an enemy, distinguishes himself conspicuously by gallantry and intrepidity at the risk of his life above and beyond the call of duty.  In order to justify an award of the Medal of Honor, the individual must perform in action a deed of personal bravery or self-sacrifice above and beyond the call of duty, so conspicuous as clearly to distinguish him for gallantry and intrepidity above his comrades, involving risk of life or the performance of more than ordinarily hazardous service, the omission of which would not justly subject the person to censure as for shortcoming or failure in the performance of his duty.  The recommendations for the decoration will be judged by this standard of extraordinary merit and incontestable proof of the performance of the service will be extracted."  The recipient of a Medal of Honor will, whenever practicable, be ordered to Washington and the presentation made by the President.
   
   b.  Paragraph 10 shows, "The Distinguished Service Cross is awarded to any persons who, while serving in any capacity with the Army, distinguish themselves by extraordinary heroism in connection with military operations against an armed enemy.  To warrant an award of the Distinguished Service Cross a person must perform an act or acts of heroism so notable and involving a risk of life so extraordinary as to set him apart from his comrades."  The Distinguished Service Cross may be awarded by the commanding general of United States Army Forces in a theater of operations or the commanding general of any separate force operating outside the continental United States when commanded by a major general or officer of higher grade.

   c.  Paragraph 20 (Recommendations) shows, "Recommendations for the award of decorations may be initiated by any officer.  Recommendations must be based upon the statement of an eyewitness, preferably the recipient's immediate commander, and must contain a complete, yet concise, description of the service rendered in such detail that the appropriate commander or the War Department may determine whether the service was, in fact, sufficient to meet the requirements for the award.  Particular attention should be given in the data supporting a recommendation and not the preparation of the citation.
   
    	(1)  Written testimony will be in the form of certificates or affidavits.  In recommendations for combat decorations, specific information should be included, as nearly as reasonably possible, regarding each of the following (using operations maps, narrative statement, or any other convenient form) -

* character of the terrain, of hostile observation and, of enemy fire
* visibility, time of day, and atmospheric conditions
* location of enemy
* morale, that of our forces and that of the enemy
* casualties sustained
* effects or results of deed in question

    	(2)  Each case will be submitted separately and forwarded through command channels with the view or recommendations, either favorable or unfavorable, of each commander through whom it passes.

19.  Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations.

   a.  Chapter 1 (Introduction) provides in:

    	(1)  section II (Responsibilities), paragraph 1-5, that the Commanding General, U.S. Army Human Resources Command will conduct and supervise all military awards functions prescribed in this regulation; and

    	(2)  section V (Policy, Precedence, and Information):

    		(a)  paragraph 1-14 (Time imitations), that each recommendation for an award of a military decoration must be entered administratively into military channels within 2 years of the act, achievement, or service to be honored.  No military decoration, except the Purple Heart, will be awarded more than 3 years after the act or period of service to be honored;

    		(b)  paragraph 1-20 (Interim awards and awards of a lesser decoration), to ensure that a deserving act, achievement, or service receives recognition, the appropriate authority may promptly award a suitable lesser military decoration pending final action on a recommendation for a higher award.  When a higher award is approved, the approving authority will revoke the interim award.

   b.  Chapter 3 (U.S. Army Individual Decorations), paragraph 3-1 (Intent), shows U.S. Army military decorations are awarded in recognition of heroism, meritorious achievement, or meritorious service.  It also shows the decision to award an individual a decoration and the decision as to which award is appropriate are both subjective decisions made by the commander having award approval authority (emphasis added).

20.  Title 10, United States Code, section 1130, provides that the Service concerned will review a proposal for the award of, or upgrading of, a decoration that would not otherwise be authorized to be awarded based upon time limitations previously established by law.  Requests for consideration of awards should be supported by sworn affidavits, eyewitness statements, certificates and related documents.  Corroborating evidence is best provided by commanders, leaders and fellow comrades who had personal knowledge of the circumstances and events relative to the request.  A request for award not previously submitted in a timely fashion will only be considered under this provision if the request has been referred to the Service Secretary from a Member of Congress.  The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rests with the requester.

21.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-11 states that applicants do not have a right to a hearing before the ABCMR.  The Director of the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The request for a personal appearance hearing was considered.  However, by regulation, an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.  In this case, the evidence of record, and independent evidence provided by the applicant and counsel, is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

2.  The contention that the Distinguished Service Cross awarded to the FSM for his heroic actions on 24 January 1945 should be upgraded to the Medal of Honor was carefully considered.  The arguments provided in support of the request include, in pertinent part –

* the fact that the battalion commander was wounded in battle the following day and not able to follow through with the award recommendation
* the battalion commander's desire to recognize the FSM with the highest award possible before the FSM left the theater of operations
* the three eyewitness accounts provide the "incontestable proof" for award of the Medal of Honor, as required by regulation
* the three eyewitness accounts were not known to exist during the effort to upgrade the FSM's award of the Distinguished Service Cross

3.  The evidence of record shows Army Regulations 600-45 provided detailed information regarding delegation of awards authority and the procedures for preparing and submitting award recommendations, including the Medal of Honor. 
   
   a.  The policy guidance governing combat decorations was clear in that written testimony in the form of certificates or affidavits was required, including the statement of at least one eyewitness.

   b.  The evidence of record shows the three eyewitness statements were subscribed and sworn on 9 February 1945 and the Commander, 7th Infantry, completed the required "certificate" endorsing the award recommendation.  In addition, these documents provided specific data and information required by the regulation for a recommendation for a combat decoration (emphasis added).

	c.  The evidence of record show the award approval authority at the time (emphasis added) determined the applicant's heroic acts were so extraordinary and so noteworthy as to warrant award of the Distinguished Service Cross.

   d.  General orders were issued by Headquarters, 7th Army, on 10 February 1945, awarding the FSM the Distinguished Service Cross for his heroic acts on 
24 January 1945.

   e.  Thus, the evidence of record shows the award recommendation was properly processed through command channels and approved by the appropriate award approval authority (i.e., the Commanding General, 7th Army).

4.  The procedures for processing a recommendation for award of the Medal of Honor through command channels during the period of service under review were well-defined and published.  The evidence of record shows the regulatory guidance required a recommendation for the Medal of Honor be referred to the War Department.  Thus, it is reasonable to conclude that senior commanders were aware that the recipient of a Medal of Honor would be ordered to Washington for presentation of the award by the President.

   a.  There is no evidence of record that shows the FSM was recommended for the Medal of Honor.

   b.  Inasmuch as the FSM was scheduled to return to the United States in March 1945, the award approval authority could have approved the Distinguished Service Cross as an interim award.  However, the Commanding General,
7th Army, did not do so.

   c.  Moreover, the rationale that the FSM's battalion commander offered in his letter to his father, on 18 February 1945 (just three weeks after the action), "but he was heading home and we wanted to get him the highest award possible before he left," coupled with his acknowledgement in that same letter that he did not give much thought to the Medal of Honor, offers additional evidence that the Distinguished Service Cross was not an interim award (emphasis added).

   d.  As such, in conjunction with the recommendations of the FSM's chain of command, it was the award approval authority's considered judgment that the Distinguished Service Cross was the appropriate level of recognition for the FSM's heroic actions on 24 January 1945.

5.  The evidence of record shows the battalion commander monitored the battle by radio as the FSM called in artillery fire and provided important information for him to properly orient the unit's tank destroyers toward the enemy.  
   a.  In two separate statements (30 September 2007 and 14 December 2014), the FSM's former battalion commander confirmed that he gave instructions to his staff to get the FSM "the highest award possible."  He also stated that he was not able to process the award packet through the chain of command due to the exigencies of war and being wounded in action the following day.

   b.  The evidence of record shows, 17 days later, the FSM was awarded the Distinguished Service Cross, our Nation's second highest decoration for heroism.  Moreover, there is no evidence that shows the approved award is inconsistent with the battalion commander's guidance.

6.  The evidence of record shows the three eyewitness statements were located in 2005 and included the statement of PFC R--- A. D----, the intelligence specialist who accompanied the FSM in battle on 24 January 1945.

   a.  The fact that the eyewitness statements were not obtained earlier by those advocating upgrade of the award does not offer evidence that they were not considered by the award approval authority.  In fact, the evidence of record clearly suggests otherwise because the regulatory guidance governing combat decorations required eyewitness statements along with complete, detailed descriptions of the service rendered so that the appropriate commander could determine if the Soldier's actions met the requirements for the award.
   
   b.  In a letter, dated 16 September 1996, MG (Retired) R---- recalled drafting an award citation just a few days after the action.  He also indicated that he was aware the FSM took another Soldier to set up the OP on 24 January 1945.

   c.  Thus, it is reasonable to conclude that (then) LTC R---- would have specifically instructed his staff to obtain the eyewitness statement of PFC D----, the intelligence specialist who accompanied the FSM in battle.  In fact, the evidence of record shows that his staff did obtain PFC D----'s statement.
   
   d.  In view of the foregoing evidence, the former battalion commander's statement in the 30 September 2007 award recommendation that he was not aware that his staff had acquired written eyewitness accounts of the FSM''s heroism is not easily understood.

	e.  The contention that the three eyewitness accounts were not known to exist because they are not filed in the FSM's records is acknowledged.  However, an award recommendation (with enclosures) is not filed in the individual Soldier's military personnel records; the orders that promulgate the award are filed in the Soldier's records.  The award recommendation (and enclosures) is filed in the unit files.  Presumably, that is where the eyewitness statements were discovered.
7.  The contention that the three eyewitness statements offer new evidence that was not considered by the ADB is acknowledged.

   a.  Title 10, United States Code, Section 1130, affords an avenue of relief to request upgrade of an award of a military decoration that was not entered administratively into military channels within 2 years of the act, achievement, or service to be honored or awarded more than 3 years after the act or period of service to be honored.

   b.  The evidence of record shows the Chief, Military Awards Branch, reviewed the initial request that Mr. R--- C---- submitted under the provisions of Title 10, United States Code, Section 1130, for upgrading a previously approved award to a higher award.  He found the documentation that Mr. C--- had submitted to be insufficient to support an equitable assessment.  He provided specific information and detailed guidance to Mr. C---- to afford him the opportunity to conduct additional research and fully address the matter.  Moreover, he advised him that the burden for researching documentation to support the requested award rested with the requestor (emphasis added).

   c.  Despite this advice, less than four months later, the only contemporaneous documents that Mr. C---- included in his resubmission was a copy of the general orders that announced award of the Distinguished Service Cross to the FSM.  (As noted above, the three eyewitness statements and certificate were previously considered as part of the original recommendation for award of the Distinguished Service Cross.)

   d.  On 24 March 1997, the ADB, exercising authority delegated by the Secretary of the Army, determined that the degree of heroism displayed did not meet the criteria for the proposed award and that the previously approved award of the Distinguished Service Cross was the appropriate form of recognition for the FSM's actions.

8.  On 4 November 1999, the ABCMR considered all available records and the evidence submitted and found that the chain of command recommended the FSM for award of the Distinguished Service Cross and that the award approval authority determined the Distinguished Service Cross was the appropriate award.  Thus, there was no basis for granting the requested relief.

9.  On 7 June 2000, the ABCMR reconsidered all available records and the new argument (i.e., more expedient processing of a Distinguished Service Cross award recommendation as compared to that of a Medal of Honor).  The Board concluded that the overall merits of the case, including the latest submissions and arguments, were insufficient as a basis to reverse the previous decision. Accordingly, the Board denied the requested relief.

10.  With respect to the argument or comparison of the FSM's actions with any other Soldier(s) who has/have been awarded the Medal of Honor, the heroic actions of any Soldier considered for award of the Medal of Honor are independently reviewed, assessed, and deliberated upon.  The fact that award recommendations/citations may contain similar information, data, language, or phrases does not, in and of itself, determine the actual level of heroism performed by the Soldier.  Each combat deed is independently evaluated and considered in the context of the environment, terrain, circumstances, combat situation (e.g., mission, circumstances, level of combat heroism, duration of action, inspiration to comrades, etc.), and the considered judgment of commanders throughout the chain of command, including the Commander in Chief in the case of the Medal of Honor.

11.  A thorough review of the three eyewitness statements shows they provide (individually and collectively) the same essential data and information that is contained in the FSM's Distinguished Service Cross citation.  In addition, they each offer an account that is consistent with the description of the FSM's actions that was promulgated in the general orders.  More importantly, they do not offer "new" evidence or "incontestable proof" of any additional acts of heroism by the FSM on 24 January 1945.

12.  Therefore, considering all the evidence of record, including the "newly discovered" records and argument presented, along with the court-ordered recorded/written statements, and in view of the foregoing discussion, it is concluded that there is an insufficient evidentiary basis for granting the requested relief.  Moreover, a thorough analysis of the evidence of record clearly shows that there is no evidence of impropriety, error or injustice or in this case.

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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)                                         AR20150006700



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