MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:             8 September 1999
	DOCKET NUMBER:    AC9811538
    AR1998013605

	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. Hubert S. Shaw, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Fred K. McKoy		Chairperson	
	Ms. Karen L. Wolff		Member	
	Mr. Orville W. Troesch, Jr.		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 award of the Distinguished Service Cross (DSC) be upgraded to the Medal of Honor pursuant to the Fiscal Year 1996 National Defense Authorization Act.

APPLICANT STATES:  “The upgrading of my DSC has as much merit as the seven (7) black men awared (sic awarded) the Medal of Honor under the National Defense Act of 1996.  The applicant states also that his appeal is submitted for the following reason:

	“1.  Following a fifteen (15) month, 272 page study by a team of military historians appointed to select black candidates to receive the Congressional Medal of Honor; seven (7) were nominated.  At this time Congress had to waive the time limit for awarding World War II medals.  Realizing it would be impossible to get a waiver from Congress, the Fiscal Year 1996 National Defense Authorization Act was enacted into law on February 10, 1996 which provided an avenue for consideratoin (sic consideration) of previously approved awards to be upgraded.”

	“Seven (7) blacks were hnominated (sic nominated), five (5) had been awarded the Distinguished Service Cross, one (1) the Silver Star, and one (1) did not have a decoration that met the criteria for upgrading.  All seven (7) have been awarded the Congressional Medal of Honor.  

“Even though 1.2 million black soldiers participated in World War II only a very small percentage fought in combat units on the front line.  Most performed rear echelon duties.”

“Attached herewith are the seven (7) narratives that qualified the black soldiers decorations for upgrades to the Congressional Medal of Honor.”

“Also attached herewith is written documentation as to my actions which rendered the Distinguished Service Cross, and qualifying said decoration to be upgraded to the Congressional Medal of Honor.  This documentation speaks for itself.

“2.  A team of historians are currently searching for Asian Americans, Pacific Island soldiers and airmen who received the Distinguished Service Cross to be upgraded to the Congressional Medal of Honor.”

“3.  A completed revised, completed DA Form 638.”

“Request approval of this final appeal.  I have fulfilled all of the qualifications and requirement for approval for upgrading my Distinguished Service Cross and the British Military Cross.  I was recommended for the Congressional Medal of Honor on February 22, 1945, during WWII.  Consequently I was awarded the DSC and the BMC because the quota had been filled.”

“As quoted in the editorial marked Exhibit A-2,  If a man earned the Medal of Honor, he should get it—no matter the color of his skin.  It is reverse discrimination to deny my medals being upgraded.  If this request is not approved, the denial will continue to be discriminatory, political and totally unfair, as it has been thus far.”

In support of his application, the applicant submitted a privacy release form, a letter from the Awards Branch of the Total Army Personnel Command to a Member of Congress, and exhibits as listed on the page numbered 5 of the attachments to his application.  All documents submitted by the applicant and his service personnel records were provided to the Board for consideration during their deliberations.

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

The applicant was appointed a second lieutenant of infantry in the Army of the United States on 24 May 1941 and was later appointed in the Regular Army.  He was retired on 28 February 1965 after more than 23 years of Army service.

The applicant, who was a captain at the time, was awarded the Distinguished Service Cross by 7th Army General Order Number 242, dated 10 June 1945.  The citation for this award stated:  For extraordinary heroism in action on 18-19 January 1945, in the vicinity of ***, Luxembourg.  When his battalion was threatened by severed communications and enemy infantry who had infiltrated, [the applicant] led a patrol of volunteers to restore wire lines and engage the Germans.  Coming upon a hostile machine gun nest, [the applicant] crawled forward and threw a hand grenade directly into the position, destroying the gun and its crew.  He then restored wire communication which enabled his commanding officer to control his troops during a critical phase of the operation. [The applicant’s] extraordinary heroism is in keeping with the highest traditions of the service.”

The original recommendation for award of the Medal of Honor for the applicant is not available to the Board.  The applicant submitted a page entitled (Ltr Hq 8th Inf, subject “Award of Congressional Medal of Honor”, dtd 22 Feb 45).  This document states:  On 18-19 January, 1945, the 2nd Battalion, 8th Infantry, the reserve battalion of the 8th Infantry, was ordered to cross the Sure River and join the other two battalions of the regiment in operations to clear the area between the Sure River and Our Rivers of enemy resistance.  At 1100 hours when it became urgent for the battalion to cross the Sure River, the foot bridge which had been constructed for this purpose was under heavy enemy artillery and small arms.  It was decided that the river crossing would be made by rubber boats.  An attempt was made to carry the boats to the river bank but was halted by observed small arms, rocket and artillery fires.  [The applicant] 2nd Battalion S-3, realizing the urgency of executing the river crossing, procured two M-1 assault boats and with the aid of six enlisted men, carried them to the river, which was 300 yards away.  When the boats had been launched, [the applicant] ordered the enlisted men to safety and remaining exposed to direct enemy fire, conducted a shuttle system of boats and troops.  [The applicant] remained on the river bank under heavy fire until all troops in his area crossed to the other side.  After the battalion had crossed the Sure River, it launched a night attack.  After the objective had been taken, contact with the front line companies was lost and it was discovered that groups of the enemy had established themselves between the front line and the Battalion Command Post, [the applicant] realizing the importance of ascertaining the exact status of the battalion, immediately led a patrol of two volunteers forward toward the front line position.  Coming upon a hostile machine gun nest that was firing directly at the patrol, [the applicant] crawled forward and threw two hand grenades directly into the position, destroying the machine gun and killing the three man crew.  He then restored wire communications, contacted the companies, which enabled his commanding officers to control his troops during this critical phase of the operation.  [The applicant’s] outstanding heroism and gallantry in combat are in keeping with the highest tradition of the service.  [The applicant] was not wounded during the performance of this action.”  This document shows the name of the commander of the 8th Infantry, a lieutenant colonel, and is identified as Exhibit B-2, “copy of the original recommendation for the Congressional Medal of Honor”.

The applicant submitted a request for upgrade of his Distinguished Service Cross under Section 1130 of Title 10, United States Code (cited by the applicant as the 1996 National Defense Authorization Act).  A Member of Congress forwarded the DA Form 638 (Recommendation for Award) as required by the law to the Secretary of the Army.  The Army Decorations Board is the Secretary of the Army’s designated agent for reconsideration of awards under the provisions of Section 1130.  On 5 September 1996, the Army Decorations Board considered the request to upgrade the applicant’s award of the Distinguished Service Cross to the Medal of Honor.  The Army Decorations Board determined that the “degree of heroism did not meet the criteria for award of the Medal of Honor and that the previous award of the Distinguished Service Cross was the appropriate award and recognition.”

After the decision of the Army Decorations Board, the applicant submitted an application to this Board, dated 1 July 1998, requesting that his award of the Distinguished Service Cross be upgraded to the Medal of Honor.

Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, for award of the Medal of Honor.  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.  The regulation provides that 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 the risk of life.  Further, the regulation requires that “incontestable proof” of the performance of the service will be exacted and each recommendation for this decoration will be considered on the standard of extraordinary merit.

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

Section 1130, Title 10, United States Code 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.

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.  The Board noted the applicant’s submission of the citations for the seven Black soldiers from World War II who were recently awarded the Medal of Honor. The Board also noted the applicant’s contention that it is “reverse discrimination” to deny upgrade of his Distinguished Service Cross and his contention that “If this request is not approved, the denial will continue to be discriminatory, political and totally unfair, as it has been thus far.”  These contentions by the applicant are not relevant in this case because each recommendation for award must be considered on its own merit and each application submitted to this Board is considered individually and solely on its own merit.  Actions by other agencies in the cases of other service members are not precedent governing decisions of this Board. 
2.  Although original documentation is not available to the Board, the applicant contends that his battalion commander recommended him for the Medal of Honor for his actions on 18 and 19 February 1945.  Clearly, an award recommendation was forwarded through the applicant’s chain of command, which was present and possessed all the facts at the time in question, to the award approval authority for the Distinguished Service Cross.  The award approval authority for the Distinguished Service Cross at the time in question was the Commanding General of the Seventh United States Army and he determined that the Distinguished Service Cross was the appropriate award for the applicant’s actions.  As a result, the Distinguished Service Cross was awarded and the applicant also was recommended for and received a foreign decoration from the British Government for these same actions.

3.  The Board noted the applicant’s contention that he received the Distinguished Service Cross and the British Military Cross instead of the Medal of Honor “because the quota had been filled.”  This contention is without merit because award regulations have historically prohibited quotas for awards and the applicant has provided no evidence of record which shows that the award process in this case was flawed or was improper.  

4.  There is no question that the applicant’s actions on 18 and 19 February 1945 were heroic and he deserved a high degree of recognition, and the Board does not dispute the fact that the applicant’s actions were heroic.  At issue is the degree of heroism involved in the actions of the applicant.  Clearly, the applicant contends that his battalion commander believed the actions of the applicant merited award of the Medal of Honor.  However, a senior General Officer in command of the Seventh U.S. Army at the time, who considered every recommendation for award of the Medal of Honor from his assigned units, did not agree and determined instead that the Distinguished Service Cross was a more appropriate award.

5.  This determination by the Seventh Army Commander was made based on his battlefield experience, his consideration of previous recommendations for the Medal of Honor, and the facts presented in the recommendation.  Based on his rank, position, and distinguished and lengthy combat service, the Board believes that the Seventh Army Commander was well qualified and fully capable of rendering a proper decision on this award resulting in award of the Distinguished Service Cross.

6.  Evidence of record clearly shows that the award approval authority intended that the applicant receive award of the Distinguished Service Cross.  The applicant’s disagreement with the decision is understandable; however, he has not presented any evidence that the award process or the decision was flawed or otherwise improper or inequitable.  

7.  Based on the foregoing and after detailed review of all evidence in this case, the Board finds that the Distinguished Service Cross is the proper award to recognize the applicant’s heroism in action on 18 and 19 February 1945.  Therefore, the applicant is not entitled to upgrade of his award of the Distinguished Service Cross to the Medal of Honor.

8.  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 this requirement.

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

10.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the applicant’s extraordinary heroism in service to the United States.  His actions on 18 and 19 February 1945 were recognized with this Nation’s second highest decoration for heroism in action against an armed enemy and the applicant and all Americans should be justifiably proud of his service in arms and the recognition of his heroism.

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

FKM_____  KLW_____  OWT_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1998013605/ac98-11538	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990908	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19650228	
DISCHARGE AUTHORITY	TITLE 10 USC 3911.  .  .  .  .  	
DISCHARGE REASON	RETIREMENT WITH OVER 23 YEARS	
BOARD DECISION	DENY	
REVIEW AUTHORITY	MR HARRELL	
ISSUES         1.	107.0001	
2.		
3.		
4.		
5.		
6.