MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           15 February 2001                 
	DOCKET NUMBER:   AR2000047887

	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. Carl W. S. Chun		Director	
	Mr. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Margaret K. Patterson		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:  Reconsideration of his earlier appeal to correct his military records by awarding a “battlefield commission”.  He asserts that he is not seeking any financial remuneration. 

APPLICANT STATES:  In effect, that the statement of then Lieutenant M____ verifies that he was promised and should have received a direct appointment as a second lieutenant (2LT) and that the unit morning reports show that there was a shortage of officers in the company.  He cites the previously addressed letter from Colonel P____, the battalion commander.  Colonel P_____ also recommended the applicant for the Silver Star that was considered and approved by the Total Army Personnel under Title 10, U.S. Code, Section 1130.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case (AR1999024812) on 18 July 2000.

The applicant listed the lieutenant’s letter as an enclosure with the previous case.  However, it was not addressed in the MOC and should have been.  The applicant discussed the morning reports in correspondence, however they were not available.  They are, therefore, new evidence that also requires Board consideration.

The letter from (then) Lieutenant M____ states:

	“Upon joining Company I, I had to acquaint myself with the platoon leaders and other personnel.  I learned that W____ Y____  was in the process of a battlefield commission.  I was greatly impressed by you and your platoon!  I know that W____ received his!

I spoke to Captain I____ about the shortage of officers and suggested that you ‘should be given a battlefield commission!’  He said that he was trying to have you sent to West Point.  I had no idea what the process entailed but didn’t think it should go any further than battalion.  I was astounded when you told me that your commission hadn’t come through.”

The morning reports show that on 25 November and 
23 December 1944 Company I, 101st Infantry, had only four officers assigned.  The normal complement was five. 

A Joint Resolution, Public Law, 77-252, dated 22 September 1941, provided that, “during the present emergency, temporary appointments as officers of the Army of the United States could be made without appointing such persons as officers in any particular component of the Army of the United States.”  It further provided that such appointments could be vacated at any time by the President and, if not sooner vacated, would continue ”during the present emergency and 6 months thereafter.”

The editions of Army Regulation 605-10, and changes thereto in effect between 1941 and 1949, implemented Public Law 77-252.  The period of an appointment as a commissioned officer without component was specified as the duration of the emergency (World War II) and 6 months thereafter, unless sooner terminated.  Provisions were made for termination of such an appointment at the discretion of the President.  In addition, it was stipulated that, during the emergency and such further period as the Secretary of War may prescribe, former enlisted men who were discharged to enter on active commissioned service, and who presented themselves for enlistment upon the honorable termination of their officer status, would be entitled to restoration to the enlisted grade held immediately preceding their commissioned service.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR.  It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration.  The staff of the Board is authorized to determine whether or not such evidence had been submitted.

The regulation provides further guidance for reconsideration requests that are received more than 1 year after the Board’s original consideration or after the Board has already reconsidered the case.  In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously or within a short time after the Board’s original decision.  If the staff finds such evidence, the case will be resubmitted to the Board.  If no such evidence is found, the application will be returned without action.

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 previous Board has already addressed the letter of recommendation by COLONEL P____.  The other documents submitted by the applicant, including correspondence from and to various agencies and individuals, an article about him in the periodical Yankee Doings, maps and photographs, and an extract from a history of the Battle of the Bulge are not direct evidence in this case.  It is common knowledge that conditions were bad, the fighting fierce, replacement troops inadequate, and that there was a shortage of officers because of casualties.   
 
2.  The letter from Lieutenant M____ demonstrates that the chain of command considered the applicant for a battlefield commission.  The observation "I know that W____ received his!” also demonstrates that the chain of command possessed the time and knowledge to accomplish that personnel action.  However, Lieutenant M____ does not state that the company commander ever promised the applicant such an appointment or took any action to accomplish it.  The lieutenant’s astonishment that the applicant was not appointed an officer does not demonstrate that there is an error or an injustice in this case.

3.  The fact that the PERSCOM awarded the Silver Star based upon essentially the same evidence is noted, as is the evidence that, indeed, there was a shortage of officers in the applicant’s unit and that he performed the functions of a platoon leader.  However, the Board is convinced that the applicant would have been appointed an officer had that been the intention of his immediate chain of command at the time.  No error or injustice necessarily exists because he was not.

3.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

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

NOTE:  The Army Review Boards Agency, Support Division, St. Louis is requested to administratively correct the applicant’s records to show that his authorized awards consist of the Silver Star, the Bronze Star Medal with “V” and first bronze Oak Leaf Cluster, the Purple Heart with first bronze Oak Leaf Cluster, the Good Conduct Medal, the European-African-Middle Eastern Campaign Medal with four bronze service stars, the American Campaign Medal, the World War II Victory Medal, the Presidential Unit Citation (previously known as the Distinguished Unit Citation), the Combat Infantryman Badge and the Marksman Qualification Badge with Rifle Bar.  

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

__FNE__  __MHM__  __MKP __  DENY APPLICATION

	Carl W. S. Chun
    Director, Army Board for Correction 
	of Military Records

INDEX

CASE ID	AR2000047887	
SUFFIX		
RECON		
DATE BOARDED	20010215	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	107.00	
2.		
3.		
4.		
5.		
6.