MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:           5 February 2002
	DOCKET NUMBER:   AR2001058042

	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:

	Ms. June Hajjar		Chairperson	
	Ms. Karol A. Kennedy		Member	
	Mr. Roger W. Able		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, reconsideration of his earlier appeal to correct his military records by awarding him the Silver Star.

APPLICANT STATES:  In effect, that the excerpts from the two books demonstrate that he is entitled to the award.  Through his congressman, the applicant furnished extracts from A Dark and Bloody Ground by Edward C. Miller and The Bloody Forest by Gerald Astor. 

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a Memorandum of Consideration prepared to reflect the Board's previous consideration of the case (AR2001053080) on 22 May 2001.

The applicant’s submissions are new evidence that require Board consideration.

The applicant had previously written “…I was bleeding profusely from my arm wound…We had lost much of the platoon, and there was a great fear that the Germans would counterattack, and that we would be too weak to fend them off.  Because of this, I refused evacuation and volunteered to stay on the line…My platoon leader, a second lieutenant told me, ‘I plan to put you in for a Silver Star.’…”  He continued his account of events and described how, the next day, he sustained a serious head wound while a mortar barrage pinned them down.

The excerpt from A Dark and Bloody Ground makes only one reference to the applicant.  It recounts his recollections of how water filled trenches froze-over at night.  The book The Bloody Forest recounts several incidents involving the applicant.  Therein the applicant described, in detail, how he was wounded in the arm but elected to stay on the line.  “The squad leaders called a conference to decide what to do…I stood on the outside edge of this, having no voice in what was to be done…overcome with the feeling that something terrible was going to happen…I headed for a depression…to take cover…there was a terrific explosion behind me.…I felt…shrapnel tear a hole in my upper left arm…another   grazed my helmet, and I was hit a blow by something on the right side of my combat boot…the shell had exploded right where I had been standing…Most of the group was scattered about on the ground…Old Moe the squad leader was unhurt .  He came running up to me and said, …‘you’ve got to follow me out of here; the platoon is all shot up and we need everybody we can get to hold the line.’  So I followed him past the wounded. …I was faced with multiple factors.  Moe didn’t know that I had been struck in the arm, and I could have gone back to the hospital for treatment.  I decided to follow his orders…we were joined by Lieutenant S____ in a position more to the East…Moe scattered sulfa powder on my arm wound and tied a bandage around it.  Then we waited for the night.…”  The book goes on to relate how the applicant sustained a serious head wound the next day.

Army Regulation 600-8-22 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.

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 has 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 with 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 excerpts from the two books, particularly The Bloody Forest, quote the applicant at length but therein he did not claim that he had been promised a recommendation for the Silver Star.  The discrepancies and differences between the two versions of the events reduce the credibility of both.

2.  Furthermore, based upon the applicant’s versions of the incident, this Board concludes that the applicant’s action, by remaining on the line even though he had been wounded rather than seeking medical treatment, while noteworthy, did not meet the regulatory requirement for award of the Silver Star.  It did not constitute “spirited and conspicuous acts.”  

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.

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

_JH ____  __KAK __  __RWA__  DENY APPLICATION

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

INDEX

CASE ID	AR2001058042	
SUFFIX		
RECON		
DATE BOARDED	20010205	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	107.00	
2.		
3.		
4.		
5.		
6.