IN THE CASE OF: BOARD DATE: 9 May 2013 DOCKET NUMBER: AR20130006211 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, award of the Medal of Honor in lieu of the Legion of Merit. 2. He states he requests reconsideration of the award he received based on recently declassified documents that were not previously considered. 3. Through a Member of Congress, he provides: * letter, dated 23 November 2012, from G_____ S____ * letter, dated 17 October 2012, from J___ M. B_______ * memorandum, dated 8 November 2012, from the Chief, Awards and Decorations Branch, U.S. Army Human Resources Command (HRC) * numerous military records * newspaper clippings * excerpts from The Secret War Against Hitler, Donovan of [Office of Strategic Services (OSS)], and Widerstand und Verfolgung in Tirol: 1934-1945 (Resistance and Persecution in Tirol: 1934-1945) * OSS Agents in Hitler's Heartland, by G_____ S_____ * letters of support from Senator John D. Rockefeller IV * memoranda bearing dates in 1944 and 1945 pertaining to recommendations for award of the Medal of Honor, Distinguished Service Cross, and Distinguished Flying Cross to members of the OSS * general orders and a citation signed by President Truman awarding the Distinguished Service Cross to seven members of the OSS CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant's complete military record is not available to the Board for review. A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973. It is believed his records were lost or destroyed in that fire. This case is being considered using the documents he provides, a reconstructed record, and declassified records pertaining to Operation Greenup maintained by the National Archives and Records Administration. 3. The applicant was inducted into the Army of the United States on 20 October 1942. On a date not shown in the available records, he was assigned to duty in the Mediterranean Theater of Operations (MTO) with the 2677th Regiment, OSS (Provisional). 4. On the night of 25 February 1945, the applicant and two other men parachuted into Austria as members of a clandestine intelligence team to commence Operation Greenup. The available records show Operation Greenup was designed to gather intelligence on enemy operations in the vicinity of Innsbruck, Austria. 5. The record shows the team successfully infiltrated the targeted area and proceeded to report intelligence to their headquarters by radio as planned. The team continued its clandestine operation until the applicant was arrested by the Gestapo on 20 April 1945. 6. In a memorandum, subject: Meritorious Service of [Applicant], dated 6 May 1945, Major B____ W___, Assistant Chief of Staff, G-2, Headquarters, 103rd Infantry Division, stated: "On the afternoon of 3 May 1945 [applicant] performed a very valuable service for the Army as a whole and for the 103rd Infantry Division in their attack in the INNSBRUCK [sic] valley. The following recital of facts illustrates the foregoing statement:" "At approximately 1630 3 May 1945, advance elements of the Division were moving East from ZIRL [sic] to launch an attack on Innsbruck. German troops had withdrawn and taken up positions on the Western [sic] edge of the city. At this time, [applicant] crossed the INN [sic] River in a civilian sedan and contacted Major B____ W___, [Assistant Chief of Staff], G-2, and [another officer] and offered to lead them to a farm South [sic] of HALL [sic] where he was holding Gauleiter F____ H____ [the province's Nazi party chief] and his staff in custody awaiting the arrival of the American troops. [Applicant] led a small party to the [Nazi party chief] and through this contact it was possible (1) to order the German troops on the western edge of the city to cease all resistance and admit the American troops in the city of INNSBRUCK [sic] without opposition, (2) to obtain a statement from the [Nazi party chief] for a radio broadcast exhorting [local military forces] to lay down their arms. In addition, the [Nazi party chief] gave much valuable information on the disposition of troops and nonexistence of defenses throughout the area." 7. On 2 June 1945, his chain of command submitted a recommendation for award of the Distinguished Service Cross to the Commanding General, MTO, U.S. Army (MTOUSA). In a memorandum making the recommendation, Lieutenant Colonel (LTC) H_____ M. C_____, Chief, Secret Intelligence Central Europe, stated the applicant was recommended for the award based on the following: "With full knowledge of the extreme hazards involved [applicant] volunteered to parachute into enemy territory as leader of a clandestine intelligence team. On the night of 25/26 February, 1945, [applicant], in the company of another non-commissioned officer and an Austrian civilian, dropped to a blind pinpoint deep in the rugged and dangerous terrain of the central Austrian mountains. The group could not be dropped to the original pinpoint owing to cloud cover, so, the alternative pinpoint was used, and the group was dropped on a glacier about thirty-four hundred meters above sea level, thirty miles from Innsbruck. The group spent four hours collecting the supplies which had been dropped and managed to find all but one bundle which contained two pairs of skis. They buried most of the supplies and made the remaining pair of skis into a sled with which they started down the glacier. The snow was shoulder deep, and the group spent three hours covering the mile to the bottom of the glacier. The next ten hours were spent in covering two and a half kilometers along the floor of the valley. The group was in a state of complete exhaustion when it arrived at a small deserted hunting shack where it spent two days recuperating. After having rested up, the group returned to the glacier to recover the buried supplies and then set out for the village of Greis." "At Greis, the group saw its first Austrians. The party went to the burgomeister and informed him that they were army Alpine ski troops who had lost their unit and requested that he supply them with a sled to make the trip down the valley to Langenfeld. The burgomeister was most co-operative [sic] and provided the sled. They reached Langenfeld three and a half hours later and turned the sled over to a family designated by the burgomeister. The next morning, the group took the weekly courier truck to Oetz, and, from Oetz, boarded the train for Innsbruck. Here, the natural hazards of travel in the freezing, mountainous country were replaced by the constant danger to lives from discovery by the Gestapo. The group was travelling in regular United States Army olive drab field uniforms covered by ordinary snow capes. Many of the fellow passengers stared at the strange uniforms, but no questions were asked. At the town of Inzing, they had to pass the military control on the train, but the control officer accepted the story that they were Alpine troops lost from their unit. On arrival at Innsbruck, they proceeded to the village of Ober Perfus." "As leader of the team, [applicant's] activities were of two sorts: 1) gathering clandestine intelligence for transmission by radio to headquarters in Italy; and 2) contacting resistance elements in the area. In constant danger of his life, [applicant] exhibited almost unbelievable courage, resourcefulness, and enterprise in contacting local elements and gathering intelligence. In his three months of activity in enemy territory, [applicant] contacted and gained some measure of support and information from [several local officials]. In addition, [applicant] contacted innumerable strategically placed anti-Nazi workers, truck drivers, and shopkeepers. It must be emphasized that establishment of these contacts required the very greatest courage, soundness of judgment, and initiative on the part of [applicant], since each individual contacted could have turned [applicant] over to the Gestapo had he been so inclined." "In mid April 1945, the Gestapo seized one of the individuals with whom [applicant] had been working and forced a confession from him which implicated [applicant], and on 20 April 1945, [applicant] was taken into custody. The Gestapo attempted to extort the full story from [applicant] and particularly to determine the location of his radio operator, but [applicant] resisted all attempts to extract this information from him, even under torture and the severest of beatings. The Gestapo knew that the radio operator was in the village of Ober Perfus, so they took [applicant] to each house in the village to ask the families if they recognized him, but all such attempts proved futile, and at no time did [applicant] relax in his efforts to protect his team members." "By this time, American troops were drawing near, and [applicant] managed to arrange an interview with Dr. P_____, the Kreistleiter [a Nazi party official]. He managed to persuade Dr. P_____ to take him to [Gauleiter F____ H____]. When they reached the Gauleiter, he was about to deliver a radio address exhorting the troops and villagers of Innsbruck to make a last-ditch stand against the allied forces, but [applicant] persuaded him to depart from his prepared script and to declare that Innsbruck would become an open city once the Americans got over the mountains. Two days later, [applicant] got into a civilian car and drove to the American lines, making contact with Major W___, G-2, One Hundred and Third Infantry Division. He informed Major W___ that Innsbruck was prepared to surrender and later guided the American troops into the city." "During the three months in enemy territory, [applicant] gathered voluminous secret intelligence which was transmitted by radio to headquarters in Italy. The intelligence covered a wide range of subjects: the whereabouts of Mussolini, Daladier, and Hitler; the status of production at important Nazi war plants; the condition of travel and freight transportation on key rail lines in central Austria; the status of enemy defenses at vital bridges, tunnels, and highway bottlenecks; the movement of enemy troops to and from the various battlefronts; the precise data concerning the dispatching of railroad trains with materiel for the front. In one case, [applicant's] report was verified within twenty-four hours by aerial photographic reconnaissance, and only the sudden deterioration of weather conditions prevented a large-scale bomber attack on the target identified by [applicant]. In another case, an order-of-battle report forwarded by [applicant] was described by G-2, Allied Force Headquarters, in its weekly intelligence report as the key to major and hitherto inexplicable troop movements behind the enemy lines. The high quality of [applicant's] reports has evoked messages of praise from Mediterranean Allied Air Forces and Allied Forces Headquarters, as well as from lower echelons of the allied armed service in the Mediterranean Theater of Operations." "It must be emphasized that in the entire three months of service behind enemy lines, [applicant] was in constant danger of discovery. He exhibited at all times the coolest courage and a remarkable gift for leadership which made it possible for him to win the loyalty and support of resistance elements from all classes and walks of life. This courage, which was displayed constantly in the conduct of his everyday activities, was somewhat more dramatically displayed in his firm refusal to divulge the location of his radio operator even after torture and cruel beating by the Gestapo." 8. LTC H_____ M. C_____ proposed the following citation for award of the Distinguished Service Cross: "…for extraordinary heroism in connection with military operations against an enemy of the United States in Austria. As the leader of a small detachment, [applicant]…parachuted into a dangerous sector of enemy-held terrain. For three months, [applicant] worked in constant danger of his life, gathering secret intelligence of great value to the United States Government and rallying anti-Nazi elements in the vicinity of Innsbruck. When captured by the Gestapo, [applicant] refused to reveal the location of his team members, in spite of torture and cruel beatings. Later, he managed to obtain an interview with the Gauleiter of Innsbruck and to persuade that official to surrender the city before the arrival of American troops." 9. A 17-page undated document entitled Greenup Debriefing Report describes the execution of Operation Greenup in detail and confirms the account of the operation provided by LTC H_____ M. C_____. 10. On 8 June 1945, the applicant was appointed as a second lieutenant in the Army of the United States. The record shows his appointment was largely due to his extraordinary service in Austria. 11. A memorandum, subject: Proceedings of Awards & Decorations Board, dated 19 June 1945, shows the MTOUSA Awards and Decorations Board convened to consider the recommendation to award the Distinguished Service Cross to the applicant for the period 25 February to 8 May 1945. The board found that "this is an unusual achievement but the element of extraordinary personal heroism is lacking." The board determined the applicant's "outstanding service would be more appropriately recognized by a [Legion of Merit]." On a date not shown, Major General O.L. N_____, Deputy Theater Commander and Chief of Staff, approved award of the Legion of Merit. 12. A report, dated 21 June 1945, subject: Treatment of [Applicant], shows an interview with a local police official who participated in the applicant's interrogation confirmed the applicant was tortured and beaten after his capture. 13. On 13 August 1945, Headquarters, MTOUSA, issued General Orders Number 183 awarding the Legion of Merit to the applicant for exceptionally meritorious conduct in the performance of outstanding services in Austria from 25 February to 8 May 1945. 14. A memorandum, subject: Award of Purple Heart, dated 25 August 1945, shows the applicant was recommended for the Purple Heart for wounds he received on 20 April 1945 in Innsbruck, Austria. The memorandum listed his wounds as: * "Wound, contused, ear, left, moderately severe, received when an enemy Gestapo agent struck him with a club." * "Contusion, buttocks, bilateral, severe." 15. On 17 September 1945, LTC H_____ M. C_____ recommended the applicant for award of the Medal of Honor for "gallantry and intrepidity at the risk of his life above and beyond the call of duty." In support of the recommendation, he provided essentially the same account of the applicant's actions used in the earlier recommendation for award of the Distinguished Service Cross. 16. On or about 24 October 1945, the SSU Board of Officers determined it would not recommend award of the Medal of Honor to the applicant. The board found the applicant was awarded the Legion of Merit on the basis of the same recommendation. The recommendation was returned. 17. On 30 October 1945, U.S. Forces in Austria issued General Orders Number 38 awarding the Purple Heart to the applicant for wounds he received in action on 20 April 1945. 18. On 5 November 1945, LTC H____ M. C_____ submitted a request to an unspecified Awards and Citations Board requesting a review of the applicant's award of the Legion of Merit. He stated he did not believe the Awards and Citations Board was familiar with the circumstances of the case. He summarized the action taken to date, and he stated it was agreed by those familiar with the circumstances that the Legion of Merit was neither appropriate nor adequate. He recommended that the War Department be asked to rescind the Legion of Merit and "that a new recommendation be submitted for the Congressional [sic] Medal of Honor or at least for the Distinguished Service Cross as being more appropriate to the action undertaken by [applicant]." 19. On 9 December 1945, the applicant was relieved from active duty. 20. In a memorandum, dated 10 December 1945, to Brigadier General J___ M_______, Director, SSU, Office of the Assistant Secretary of War, War Department, LTC H____ M. C_____ requested that Headquarters, MTO, be asked to reconsider the merits of the case, and, if acceptable, to rescind that portion of the order awarding the applicant the Legion of Merit and substitute the Distinguished Service Cross. In the memorandum, he stated it was believed there was little likelihood that the Medal of Honor would be awarded, but the Distinguished Service Cross seemed to be in order. 21. In a memorandum, dated 9 January 1946, Brigadier General J___ M_______, Director, SSU, Office of the Assistant Secretary of War, War Department, stated the SSU Decorations Board had favorably considered a recommendation pertaining to the applicant. He stated he concurred with the sentiments expressed by LTC H____ M. C_____. He requested the case be returned to Headquarters, MTOUSA. 22. The available records include an informal routing slip documenting steps taken by Headquarters, MTOUSA, in making a determination on the recommendation to revoke the applicant's award of the Legion of Merit and reconsider the recommendation to award him the Medal of Honor. a. The routing slip shows: * the Awards and Decorations Board, Headquarters, MTOUSA, approved the recommendation for award of the Distinguished Service Cross * the G-1 did not concur in the recommendation of the board and considered the Legion of Merit appropriate b. In paragraph 4 (Discussion), the following points were entered: * the Medal of Honor was awarded for service "in action involving actual conflict with an enemy," as stated in Army Regulation 600-45 (Decorations) * the Distinguished Service Cross was awarded for "extraordinary heroism in combat in connection with military operations against an armed enemy…involving risk of life so extraordinary as to set him apart from his comrades," as stated in Army Regulation 600-45 * the documentation provided failed to indicate any incident involving actual conflict or direct physical contact with an armed enemy * while the applicant was constantly exposed to capture by the enemy, there appeared to be no greater risk of life than that of other personnel engaged in similar missions * in a similar case where 12 U.S. Army Soldiers landed behind enemy lines, were captured, and shot before a firing squad, posthumous award of the Silver Star was considered appropriate c. Paragraph 5 (Recommendation) states: "It is recommended that the attached recommendation for award of the Congressional [sic] Medal of Honor be disapproved and that original award of the Legion of Merit remain in effect." d. In a handwritten entry on the routing slip, the Commanding General (CG), MTO, stated he approved the recommendation in paragraph 5 for the reasons given in paragraph 4. 23. In a memorandum, dated 8 April 1946, the CG, MTO, informed The Adjutant General that he was recommending disapproval of the applicant's award of the Medal of Honor. The Legion of Merit remained in effect. 24. A Report of Decorations Board, dated 23 April 1946, shows the War Department Decorations Board, by majority decision, did not recommend the applicant for award of the Medal of Honor, Distinguished Service Cross, or Silver Star. The board determined the Legion of Merit was the appropriate award. 25. On 10 May 1946, The Adjutant General notified the Director, SSU, that the War Department had determined the gallantry the applicant displayed was not such as to warrant award of the Medal of Honor or a combat award and that the Legion of Merit was the appropriate award 26. On 13 March 2013, the Chief, Awards and Decorations Branch, U.S. Army Human Resources Command, notified Senator Rockefeller his office could not process a request to consider award of the Medal of Honor or Distinguished Service Cross for the applicant. The War Department had reconsidered his award of the Legion of Merit in 1946 and per Department of Defense and Army policy one-time reconsideration of a previously approved award is conclusive. 27. The applicant provides: a. an article from The New York Times, dated 5 October 1945, describing his service in Austria; b. excerpts from The Secret War Against Hitler, by former Central Intelligence Agency Director William Casey, and Donovan of OSS, both individuals provide a brief description of Operation Greenup and the applicant's role in the operation; c. a copy of OSS Agents in Hitler's Heartland, a book-length account of Operation Greenup; and d. a letter, dated 23 November 2012, from G_____ S_____, the author of OSS Agents in Hitler's Heartland, who confirms the applicant was beaten while held by Nazi authorities and provides a translation of a passage from Widerstand und Verfolgung in Tirol: 1934-1945 consisting of the testimony of a local woman who had heard of the applicant's torture by a Gestapo officials and who had observed the Gestapo official strike the applicant. 28. The applicant provides memoranda bearing dates in 1944 and 1945 pertaining to recommendations for award of the Medal of Honor, Distinguished Service Cross, and Distinguished Flying Cross to members of the OSS. A review of these records shows the cited service of each individual recommended for an award of the Medal of Honor or Distinguished Service Cross included direct involvement in organizing and perpetrating acts of sabotage and/or armed resistance against the enemy with the organized resistance behind enemy lines. 29. The applicant provides general orders and a citation signed by President Truman awarding the Distinguished Service Cross to seven members of the OSS. These documents show: * a civilian employee received the award for organizing resistance forces and directing successful acts of sabotage and guerrilla warfare * an officer and an enlisted member received the award posthumously for successfully operating behind enemy lines and going through enemy lines to deliver intelligence to the advancing allied armies * an officer received the award posthumously for leading a team that successfully gathered intelligence behind enemy lines for several weeks until he was captured and executed * two officers and an enlisted member received the award for service behind enemy lines that involved organizing resistance forces and perpetrating acts of sabotage and guerilla warfare 30. Army Regulation 600-8-22 (Military Awards) states 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 life above and beyond the call of duty while engaged in an action against an enemy of the United States. The deed performed must have been one of personal bravery or self-sacrifice so conspicuous as to clearly distinguish the individual above his or her comrades and must have involved risk of life. Incontestable proof of the performance of the service is required. 31. Army Regulation 600-8-22 states the Distinguished Service Cross is awarded to a person, who while serving in any capacity with the Army, distinguishes 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. 32. The Legion of Merit was established by Act of Congress on 20 July 1942 (Public Law 671, 77th Congress). The law provided that the Legion of Merit would be awarded by the President, under rules and regulations prescribed by him, to (a) personnel of the armed forces of the United States and of the Government of the Philippines and (b) personnel of the armed forces of friendly foreign nations who, since the proclamation of an emergency by the President on September 8, 1939, shall have distinguished themselves by exceptionally meritorious conduct in the performance of outstanding services. Executive Order 9260, dated 29 October 1942, reiterated the provisions of law. DISCUSSION AND CONCLUSIONS: 1. The available evidence does not support the applicant's request for award of the Medal of Honor in lieu of the Legion of Merit. 2. The record shows that three boards considered recommendations to award the applicant either the Medal of Honor or the Distinguished Service Cross. a. In June 1945, the MTOUSA Awards and Decorations Board considered a recommendation to award him the Distinguished Service Cross. The board acknowledged that his achievement was unusual, but found a lack of evidence of extraordinary personal heroism. Based on the board's recommendation, he was awarded the Legion of Merit. b. In October 1945, an SSU Board of Officers determined it would not recommend award of the Medal of Honor to the applicant because the recommendation was the same as that for which he had received the Legion of Merit. c. In early 1946, the MTOUSA Awards and Decorations Board considered a recommendation to award the applicant the Medal of Honor or the Distinguished Service Cross. The board approved the recommendation for award of the Distinguished Service Cross. The G-1 did not concur and indicated the Legion of Merit was the appropriate award. The CG, MTOUSA, recommended disapproval of the Medal of Honor and recommended the Legion of Merit remain in effect for the following reasons: * the Medal of Honor was awarded for service "in action involving actual conflict with an enemy" * the Distinguished Service Cross was awarded for "extraordinary heroism in combat in connection with military operations against an armed enemy…involving risk of life so extraordinary as to set him apart from his comrades" * the documentation provided failed to indicate any incident involving actual conflict or direct physical contact with an armed enemy * while the applicant was constantly exposed to capture by the enemy, there appeared to be no greater risk of life than that of other personnel engaged in similar missions * in a similar case where 12 U.S. Army Soldiers landed behind enemy lines, were captured, and shot before a firing squad, posthumous award of the Silver Star was considered appropriate d. In April 1946, the War Department Decorations Board determined the Legion of Merit was the appropriate award. 3. The authorities that considered recommendations to award the applicant the Medal of Honor or Distinguished Service Cross were nearly unanimous in their determination that the Legion of Merit was the appropriate award. Only one board, the MTOUSA Awards and Decorations Board that convened in early 1946, recommended award of the Distinguished Service Cross, and that recommendation was not endorsed by the chain of command. The War Department ultimately determined the Legion of Merit was the appropriate award. 4. A thorough review of the available documentation shows the account of the applicant's actions has remained substantially the same since 1945, and there is no evidence that would suggest any error or injustice in the original decision to award him the Legion of Merit, subsequent affirmations of his award of the Legion of Merit, or the reasons given for those decisions. 5. The recommendations and orders pertaining to awards given to other members of the OSS are noted. While these documents are useful in establishing context, a decision to upgrade an award cannot be based on comparisons with citations received by other Soldiers. Due to the subjectivity involved in the decision to give a Soldier an award, it is neither appropriate nor equitable to compare citations and recommendations. It is, however, appropriate to assess whether or not an award was appropriate by comparing the Soldier's actions to the criteria for various awards. In this regard, the fact that the applicant was not directly involved in armed conflict during the cited period supports the original decision to award the Legion of Merit and the War Department's decision that he should retain that award. 6. In view of the foregoing, there is an insufficient basis upon which to grant the requested relief. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___X_____ ___X_____ ___X___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 2. The applicant is a true American hero; his selfless service and devotion to duty were in keeping with the highest traditions of military service. In making this determination, the applicant and all others concerned should know this action in no way diminishes the sacrifices the applicant made in service to our Nation. All Americans should be justifiably proud of the applicant's service in arms. __________X___________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20130006211 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130006211 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1