MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            27 April 2000                  
	DOCKET NUMBER:   AR1999032280

	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.

	Ms. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Ms. Elizabeth Buchanon 		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Mr. Kenneth L. Wright		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, that his Silver Star for gallantry in action on 29 April 1945 be upgraded to the Distinguished Service Cross.  

APPLICANT STATES:  In effect, that on 4 March 1999 the Army Decorations Board disapproved a recommendation to upgrade his Silver Star (for gallantry on 29 April 1945) to the Distinguished Service Cross.  In support of his application, he submits a letter from a Member of Congress, dated 22 June 1999, wherein the Member of Congress requests reconsideration of the applicant’s case reviewed by the Army Decorations Board, four eyewitness statements and an extract from a regimental operations journal.    

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

The applicant’s military records were destroyed or lost during the National Personnel Records Center fire of 1973.  Records available to the Board were obtained from alternate sources and show that the applicant was inducted on
13 November 1942.  He served as a machine gun noncommissioned officer in the European Theater of Operations from 9 December 1944 through 8 January 1946 and was honorably discharged on 25 January 1946.  The applicant received two awards of the Silver Star for gallantry in action, one for actions on 20 April 1945 and another one for actions on 29 April 1945.      

The applicant’s WD AGO Form 53-55 (Enlisted Record and Report of Separation), which was authenticated in his own hand, does not show the Distinguished Service Cross as an authorized award.    

There is no evidence in the applicant’s service personnel records which show that he was recommended for or was awarded the Distinguished Service Cross during World War II.  

On 26 February 1999, a recommendation to upgrade the applicant’s Silver Star (for gallantry in action on 29 April 1945) to award of the Distinguished Service Cross was submitted under the provisions of Section 1130, Title 10, United States Code, by a Member of Congress to the Secretary of the Army for consideration.  

On 4 March 1999, the Army Decorations Board considered the recommendation and determined that the degree of action displayed by the applicant on 29 April 1945 did not meet the criteria for an award of the Distinguished Service Cross.  As a result, the Commanding General, United States Total Army Personnel Command, on behalf of the Secretary of the Army and combined with the recommendation by the Army Decorations Board, disapproved award of the Distinguished Service Cross.    

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.

Army Regulation 600-8-22 (Military Awards) 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 600-8-22 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.

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 applicant was recommended for award of the Silver Star for his gallantry in action on 29 April 1945.  This recommendation for award of the Silver Star was approved by the award approval authority and announced in orders.

2.  There is no evidence of record, and the applicant has provided no evidence, which shows that he was recommended for award of the Distinguished Service Cross by his chain of command at the time of the applicant’s actions on 29 April 1945.   

3.  Under the provisions of Section 1130, Title 10, United States Code, an award recommendation for the Distinguished Service Cross was considered by the Army Decorations Board on 4 March 1999.  The Army Decorations Board determined that the degree of action displayed by the applicant did not meet the criteria for award of the Distinguished Service Cross and award of the Distinguished Service Cross was denied.       

4.  The applicant has not presented any evidence that the award process or the decision by the appropriate award authorities at the time of the action on 29 April 1945 was flawed or otherwise unjust, improper or inequitable.

5.  This Board considered all information submitted and all available evidence of record in this case and found no compelling evidence which warranted upgrading the applicant’s award of the Silver Star to the Distinguished Service Cross.  Therefore, the Board reaffirms the decision of the Army Decorations Board not to award the Distinguished Service Cross in this case.

6.  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 the aforementioned requirement.

7.  In view of the foregoing, there is no basis for granting the applicant's request to upgrade his award of the Silver Star to the Distinguished Service Cross.

8.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the heroism and sacrifice by the applicant in service to the United States.  His actions on 29 April 1945 were recognized with an award of the Silver Star 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

EB_____  TAP_____  KLW____  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999032280	
SUFFIX		
RECON		
DATE BOARDED	20000427	
TYPE OF DISCHARGE	(HD)	
DATE OF DISCHARGE	19460125	
DISCHARGE AUTHORITY	AR 615-365  	
DISCHARGE REASON	Convenience of the Government RR 1-1 Demobilization	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	107.0002	
2.		
3.		
4.		
5.		
6.