IN THE CASE OF:	  

		BOARD DATE:	       27 MAY 2009

		DOCKET NUMBER:  AR20090003324 


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 he be awarded the Silver Star (SS).

2.  The applicant states, in effect, he was informed by his colonel prior to his discharge that he had been awarded the SS.  He further states this took place at the end of his 5-year tour of duty and it is vague in his mind after 60 years. 

3.  The applicant provides no additional documentation in support of his application.

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 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 (NPRC) 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.  This case is being considered using reconstructed records that primarily consist of the applicant's WD AGO 53-98 (Military Record and Report of Separation - Certificate of Service); and an NPRC letter, dated 10 December 2008.

3.  The applicant's WD AGO Form 53-98 shows he entered active duty in the Army of the United States (AUS) as a commissioned officer, out of Officer Candidate School, on 21 October 1943.  He held military occupational specialty (MOS) 2110 (Adjutant) and he served with 1124th Engineers Combat Group.  It also shows that he served in the European Theater of Operations (ETO) from      1 November 1944 to 17 October 1945.  

4.  Item 28 (Battles and Campaigns) of the applicant's WD AGO Form 53-98 confirms his participation in the Rhineland, Central Europe, Tunisia, and Algeria French Morocco campaigns, and Item 29 (Decorations and Citations) shows he earned the World War II Victory Medal, American Defense Service Medal, American Theater Campaign Ribbon, European-African-Middle Eastern (EAME) Campaign Medal, Soldier's Medal, Purple Heart, and the Honorable Lapel Button. 

5.  The reconstructed NPRC file made available to this Board is void of any orders or other documents that show the applicant was ever recommended for or awarded the SS by proper authority while serving on active duty.  

6.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy.  Paragraph 3-1 states, in pertinent part, that 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.

7.  Paragraph 3-10 of Army Regulation 600-8-22 states, in pertinent part, that the Silver Star is awarded to a person who, while serving in any capacity with the U.S. Army, is cited for gallantry in 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 armed conflict against an opposing armed force in which the United States is not a belligerent party.  The required gallantry, while of a lesser degree than that required for the Distinguished Service Cross, must nevertheless have been performed with marked distinction. 

8.  Title 10 of the U.S. Code, section 1130 provides the legal authority for consideration of proposals for decorations not previously submitted in a timely fashion.  It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or a unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention of entitlement to the SS was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  By regulation, 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.  

3.  The evidence is void of any orders or other documents confirming the applicant was ever recommended for or awarded the SS by proper authority.  Therefore, absent a recommendation and supporting documentation, there is an insufficient evidentiary basis to support granting the requested relief.

4.  While there is insufficient documentation and evidence for awarding the applicant the SS, this in no way affects the applicant’s right to pursue his claim for award of the SS by submitting a request, with an award recommendation and supporting evidence, through his Member of Congress under the provisions of 
Title 10, U.S. Code, section 1130.

5.  The applicant is advised that this action is based solely on the lack of sufficient documentation and in no way reflects a prejudicial or negative opinion regarding his claim.  The applicant and all others concerned should know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  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.



      _________XXX______________
               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)                                         AR20090003324



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ABCMR Record of Proceedings (cont)                                         AR20090003324



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