MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:          14 April 1999                    
	DOCKET NUMBER: AR1998013542

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. Lee Cates 		Analyst	

  The following members, a quorum, were present:

	Ms. Karen L. Wolff		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Thomas B. Redfern, III		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS: That his records be corrected to show award of the Distinguished Service Cross vice the Silver Star.

APPLICANT STATES: That a colonel in his wartime unit recently suggested he should have been awarded the Distinguished Service Cross.  The applicant provided a copy of DA Form 1577 (Authorization for Issuance of Awards) for the Silver Star, dated 21 November 1994; a copy of the citation which accompanied his award of the Silver Star; and copies of two newspaper articles pertaining to his award which will be provided to the Board.  

COUNSEL CONTENDS: That the Distinguished Service Cross is awarded for extraordinary heroism while engaged in an action against an enemy of the U. S. involving risk of like so extraordinary as to set the individual apart from his or her comrades.  The applicant’s citation to accompany the Silver Star was awarded for gallantry in action against the enemy.  For this reason, the Veterans of Foreign Wars of the United States supports the applicant’s contention that the Silver Star should be upgraded to the Distinguished Service Cross.

EVIDENCE OF RECORD: The applicant's military records show:

The applicant was enlisted in the Army National Guard on 20 November 1940 and was inducted onto active service on 24 February 1941.  He served in the Pacific Theater of Operations from 22 October 1942 to 8 March 1945.  He was honorably separated on 4 August 1948, based on issuance of a Certificate of Disability for Discharge.

General Order 703, 43d Infantry Division, dated 22 September 1945, awarded the applicant the Silver Star for gallantry in action against the enemy at Rosario, Luzon, Phillipine Islands, on 29 January 1945.

There is no indication in the available records that the applicant’s chain of command submitted a formal recommendation for award of the Distinguished Service Cross for his actions on 29 January 1945.

Army Regulation 600-8-22 (Military Awards) indicates, in pertinent part, that the Distinguished Service Cross is awarded to a person who, while serving an any capacity with the Army, distinguished himself or herself by extraordinary heroism not justifying the award of a Medal of Honor; while engaged in an action against an enemy of the United States; while engaged in military operations involving conflict with an opposing or 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 act or acts of heroism must have been so notable and have involved risk of like so extraordinary as to set the individual apart from his or her comrades.

Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that 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.  Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years.  There are regulatory provisions for lost recommendations but not for late recommendations or reconsideration.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  There is no evidence which shows the applicant was recommended or awarded the Distinguished Service Cross; therefore, he is not entitled to award of the Distinguished Service Cross.

2.  The applicant contends that he should have received the Distinguished Service Cross.  However, the Board notes there is no evidence to support this contention.  Additionally, all awards must be recommended by the chain of command and approved by the proper award approval authority which in this case was the Commanding General of the 43d Infantry Division.  In the absence of evidence to the contrary, the Board has determined that the Commanding General of the 43d Infantry Division properly determined the applicant’s actions merited award of the Silver Star.

3.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________ GRANT

________  ________  ________ GRANT FORMAL HEARING

KLW____  AAO____  TBR ____ DENY APPLICATION

						Loren G. Harrell
						       Director

INDEX

CASE ID	AR1998013542	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	1999 April 14	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19480804	
DISCHARGE AUTHORITY	AR615-361	
DISCHARGE REASON	PD	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.107	DSC	
2.		
3.		
4.		
5.		
6.