MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:        14 October 1998       
	DOCKET NUMBER:   AC98-10937

	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. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. Robert W. Garrett		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:  In effect, amendment of a 2nd Infantry Division general order (GO) awarding the Silver Star posthumously to his brother, who was killed in action during the Korean War; and upgrading this award to the Distinguished Service Cross.  In an earlier dated application, he requests upgrading to either the Distinguished Service Cross or the Medal of Honor.

APPLICANT STATES:  That the action which resulted in his brother being awarded the Silver Star took place on 18 May 1951, shortly after midnight, and not on 17 May 1951 as indicated in the GO and took place in the vicinity of Hongchon, not Pungchon-ni as shown in the GO.  He also states that there is no mention of Hill 800, nor mention that it was defended by 500 enemy soldiers.  He states that the narrative is too vague and a more complete citation is warranted.  His brother should be awarded posthumously the Distinguished Service Cross for the extraordinary bravery he displayed [during the counterattack on the hill].  

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

A 2nd Infantry Division General Order, dated 16 July 1951, awarded posthumously the Silver Star Medal to the applicant’s brother, then a solider in Company K, 38th Infantry Regiment, for distinguishing himself by gallantry in action on 17 May 1951 in the vicinity of Pungchon-ni, Korea.  That order makes no mention of Hongchon, nor of a Hill 800 being defended by 500 enemy soldiers.

A DA GO No. 72, 9 August 1951, awarded the 2nd Infantry Division and attached units the Distinguished Unit Citation for extraordinary heroism and outstanding performance of duty in action against the armed enemy in the vicinity of Hongchon, Korea, during the period 16 to 22 May 1951.

An Eighth Army GO No. 636, 12 August 1951, awarded the second bronze oak leaf cluster to the Silver Star Medal to an NCO who distinguished himself by gallantry in action against the enemy in the vicinity of P’ungch’on-ni, Korea on 
18-19 May 1951, while a member of Company K, 38th Infantry Regiment.  That NCO was cited in the below narrative concerning the action on Hill 800. 

Included with the applicant’s request is two pages of a narrative prepared by a historian describing the counterattack on Hill 800 by soldiers of Company K.  NOTE:  The complete narrative of this action on Hill 800 (styled Bunker Hill by the men who defended it) and the preamble to this action was downloaded from the Internet.   That narrative [taken from the internet] indicates that the X Corps, to which the 38th Infantry was assigned, occupied a line southwest-northeast of the main supply road between Hongchon and Inje, and that Hill 800 was ten miles or more from the main supply road and accessible only by a single-lane dirt road that followed the curves of a small tributary of the Hongchon River.  The action on Hill 800 took place during the day and the evening of 17 May 1951, with the counterattack by soldiers of Company K to regain the hill having occurred either in the late evening or early morning of the 18th.  That report indicates that after the successful counterattack, the company’s counterattacking force had spread out to occupy the rest of Hill 800 by 0130 on 18 May.  There is no mention of the hill being defended by 500 enemy soldiers, although the battalion commander estimated that several hundred Chinese had occupied bunkers on this hill.  

A copy of a newspaper article, unknown date, with an accompanying photograph, shows the widow of the applicant’s brother, with her baby daughter, receiving the Silver Star Medal from an Army colonel.

On 7 May 1993 an official of the Total Army Personnel Command replied to a member of congress concerning the applicant’s award of the Medal of Honor for his brother.  That official stated that there was no authority under existing law whereby the Army could now consider him for an award of the MH, that recommendations for that award based on actions during the Korean War had to be submitted into military channels for consideration by August 1956 in accordance with law.  He went on to say that the applicant’s brother was properly considered for recognition by his commanders in 1951 and was awarded the Silver Star.  The officials who approved the Silver Star were fully knowledgeable of the gallant actions that the applicant’s brother performed and had the authority to recommend approval of an award of the Distinguished Service Cross or the MH between 1951 and 1956 if they believed that a higher award was warranted. He stated that in the absence of conclusive evidence of material error or impropriety, it would be inappropriate for the Army to undermine the decision made by the applicant’s commanding general in 1951.     

On 31 March 1997 the applicant requested from the Secretary of the Army a Silver Star Medal award citation.  He stated that no citation was ever given his parents (now deceased).  He also stated that his brother’s “distinguished” service perhaps merit the “distinguished service cross”.

In May 1997 the applicant wrote the President requesting an investigation concerning his brother’s death, and that requested his service records be investigated.  He stated that he had no Silver Star Medal citation.  He stated that his brother was killed by machine gun fire of 28 May 1951 as a result of the action of 17 May 1951 and evidently he should have received the Distinguished Service Cross [because he] “distinguished himself”.

On 1 August 1997 an official of the Soldier and Family Support Directorate of the Army Reserve Personnel Center (ARPERCEN) responded to the applicant’s letter to the President, informing the applicant that citations were issued in the original form only, and since his brother’s records were destroyed in the 1973 fire, the citation for the Silver Star could not be replaced.  That official stated that a certificate was furnished him on 19 August 1992.  He was also informed him that he could apply to this Board concerning his brother’s awards and an investigation of his death.

Army Regulation 600-8-22 provides policy, criteria, and administrative instructions concerning military decorations.  Paragraph 3-6 states, in pertinent part, that 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 conspicuously by gallantry and intrepidity at the risk of his life above and beyond the call of duty while engaged in an action against an enemy of the United States. 

Paragraph 3-7 states that the Distinguished Service Cross is awarded to a person who distinguishes himself by extraordinary heroism not justifying the award of the Medal of Honor, while engaged in an action against an enemy of the United States.  The act of heroism must have been so notable and have involved risk of life so extraordinary as to set the individual apart from his comrades. 

Paragraph  3-7 states that the Silver Star is awarded to a person who 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.  The required gallantry, while of a lesser degree that that required for the Distinguished Service Cross, must nevertheless have been performed with marked distinction. 

Paragraph 3-11 states that the Distinguished Flying Cross is awarded to any person who distinguished himself by heroism or extraordinary achievement while participating in aerial flight.

Paragraph 3-13 states that the Bronze Star Medal is awarded to any person who distinguished himself by heroic or meritorious achievement or service.

Paragraph 3-1 of the aforementioned regulation 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.
  
DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The action in which the applicant’s brother was awarded the Silver Star posthumously may or may not have taken place in the late evening of the 17th of May 1951.  It may have occurred in the vicinity of Pungchon-ni or in the vicinity of Hongchon, or in the vicinity of both locations.  The evidence suggests that the action in and around Hill 800 began in the late afternoon, continued until the evening and temporarily ceased after the counterattack by soldiers of Company K, in which members of that unit consolidated their position at approximately 0130 on 18 May.  Action began again that day and continued until the next day, 19 May, when at approximately 0400 the Chinese broke off their attack.  The Board notes that the NCO who received the Silver Star during that same period for apparently the same action distinguished himself on 18 and 19 May 1951, in the vicinity of P’ungch’on-ni.

2.  Consequently, it is the opinion of this Board that the personnel in attendance at that time, i.e., the company commander and other soldiers in the chain of command, were in the best position to know what happened, and where and when it happened, and absent conclusive evidence to the contrary, this Board is not going to change the date nor the location cited in the order awarding the applicant’s brother the Silver Star Medal.  Nor is the Board going to add details to this order regardless of their accuracy.  The individual who awarded the Silver Star Medal to the applicant’s brother obviously believed enough was said.  The omission of details in an order concerning this action does not constitute an error, and this Board is not going to embellish a 47 year old general order.

3.  The Board notes that there are at least four other medals, the Medal of Honor, the Distinguished Service Cross, the Distinguished Flying Cross, and the Bronze Star Medal, two that rank higher and two that rank lower than the Silver Star Medal, that use the words “distinguished himself” as part of the criteria for award of those medals.  The term “distinguished” in the citation awarding the applicant’s brother the Silver Star Medal, should not be construed as reason to believe that that medal should be upgraded to award of the Distinguished Service Cross.  The Board notes that soldiers who receive awards for both heroism and meritorious service or achievement “distinguish” themselves.

4.  The Board agrees and can add nothing to the assessment made by PERSCOM in the 7 May 1997 letter to a member of congress, in which an official of that agency stated that the officials who approved the Silver Star Medal were fully knowledgeable of the actions performed, and that absent evidence of material error or impropriety, it would be inappropriate to question the decision made in 1951.  The actions of the applicant’s brother were gallant and heroic and for this he was awarded the Silver Star Medal, the third highest award for valor made to a soldier on behalf of a grateful nation.     

6.  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

__JNS__  __EMW__  __RWG__  DENY APPLICATION

						Loren G. Harrell
						Director