MEMORANDUM OF CONSIDERATION

MEMORANDUM OF CONSIDERATION



MEMORANDUM OF CONSIDERATION

With Col. Sims’ replies to the Army dated October 15, 2003

( in red and italics)

 

IN THE CASE OF: 

 

 

 

BOARD DATE:  16 September 2003

DOCKET NUMBER:  AR2003088483

 

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. Klaus P. Schumann

 

Analyst

 

 

The following members, a quorum, were present:

 

 

Mr. Fred N. Eichorn

 

Chairperson

 

Mr. Melvin H. Meyer

 

Member

 

Ms. Karen A. Heinz

 

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:  That the award of the Silver Star awarded to him for action on 28 January 1945 be upgraded to the Medal of Honor.

 

APPLICANT STATES:  Through his designated representative [hereafter referred to as the applicant’s representative], that the citation for award of the Silver Star for action on 28 January 1945 was missing factual information that he believes warrants an upgrade of this Silver Star to the Medal of Honor.  Specifically, he contends that the applicant individually assaulted and destroyed a Mark V German Tank, which was attacking and firing at him and his platoon, and, that this information was not included in the award citation.

 

In support of his application, the applicant submits:

 

1.  A copy of a 17 June 2003 letter from the Wisconsin Legislature supporting upgrade of the Silver Star to the Medal of Honor.

 

2.  A copy of a 22 January 2003 letter from the Deputy, Adjutant General of the Army denying his request for a third review of his request for upgrade of the Silver Star to a Medal of Honor.

 

3.  A 15 October 2001 New York Times newspaper article and a Medal of Honor citation from the book, United States of America’s Congressional Medal of Honor Recipients and Their Official Citations.

 

4.  A 4 February 2003 statement by the applicant authorizing his representative to act on his behalf.

 

5.  A copy of a 28 February 2003 letter from the applicant’s representative to the Army Board for Correction of Military Records (ABCMR) citing his determination to continue his efforts to upgrade the Silver Star to a Medal of Honor.

 

6.  A copy of a 25 November 2002 letter with letters of support from the applicant’s representative to the Total Army Personnel Command (PERSCOM) requesting a third review of the applicant’s request to upgrade his Silver Star to a Medal of Honor.

 

7.  A copy of a 20 August 2002 letter by the applicant’s representative to the President of the United States of America requesting him to overrule the Secretary of the Army’s decision not to upgrade the applicant’s award of the Silver Star to the Medal of Honor.

 

8.  A copy of a 27 March 2002 letter from the Secretary of the Army notifying a Member of Congress of his decision to deny the applicant’s request for an upgrade of his Silver Star.

 

9.  A copy of a 29 October 2001 letter from the applicant’s representative to the President requesting assistance in expediting the process of reviewing the applicant’s request for upgrade of his Silver Star.

 

10.  A copy of a 23 March 2001 letter from the applicant’s representative to the President requesting assistance in expediting the process of reviewing the applicant’s request for upgrade of his Silver Star because of concern for their age.

 

11.  A copy of a 12 May 2000 letter from the applicant’s representative to the President requesting he override the Secretary of the Army’s decision to not upgrade the applicant’s Silver Star to the Medal of Honor.

 

12.  A description of a Mark V tank; a DA Form 638 (Recommendation for Award) signed by the applicant’s representative, recommending the Medal of Honor for the applicant.

 

13. A copy of a 18 May 1999 letter to the President requesting upgrade of the applicant’s Silver Star to the Medal of Honor.

 

14.  A copy of a 19 March 1945 citation awarding the applicant the Silver Star; a proposed citation for the Medal of Honor prepared by the applicant’s representative.

 

15.  A map of the area where the applicant earned his Silver Star; witness statements dated 5 April 1999, 11 May 2000, 19 May 2000, 12 May 1999 and one undated statement.

 

16.  A WD AGO Form 100 (Separation Qualification Record); a copy of the history of the 504th Parachute Infantry Regiment with a copy of a 6 July 1999 letter from the applicant’s representative attesting to the validity of the historical account with the exception of the items edited by the applicant’s representative.

 

17.  A copy of a 29 June 2000 letter to a Member of Congress to the Secretary of the Army requesting reconsideration of the award of the Medal of Honor to the applicant.

 

18.  A copy of a 5 July 2000 letter from PERSCOM to a Member of the House of Representatives accepting his request for reconsideration of the Medal of Honor for the applicant.

 

19.  Support statements from the 31st Colonel of the 504th Regiment, 32nd Colonel of the 504th Regiment, the Post Quartermaster of Bohlman-Grimes Post 1904 (Veterans of Foreign Wars) and the State Commander for Wisconsin (Veterans of Foreign Wars).

 

20.  A copy of a 11 July 2000 letter to the White House Chief of Staff requesting his assistance and a copy of a 20 March 2000 letter from the Secretary of the Army to a Member of Congress denying the applicant’s request to upgrade his Silver Star to the Medal of Honor.

 

The applicant’s representative provides a citation, which describes the actions of another World War II veteran who received the Medal of Honor, for actions the applicant’s representative believes are similar to those of the applicant.  The applicant’s representative contends that this award of the Medal of Honor establishes precedent in this case.  The applicant’s representative presents the following citation which awarded the Medal of Honor to an Army Staff Sergeant assigned to Company C, 601st Tank Destroyer Battalion who destroyed an enemy tank near Bruyeres, France on 25 October 1944:

 

“He commanded a tank destroyer near Bruyeres, France, on 25 October 1944.  Our infantry occupied a position on a wooded hill when, at dusk, an enemy Mark IV tank and a company of infantry attacked, threatening to overrun the American position and capture a command post 400 yards to the rear. [the Staff Sergeant’s name omitted] tank destroyer, the only weapon available to oppose the German armor, was set afire by 2 hits. Ordering his men to abandon the destroyer, [the Staff Sergeant’s name omitted] reached comparative safety. He returned to the burning destroyer to search for comrades possibly trapped in the vehicle risking instant death in an explosion, which was imminent and braving enemy fire, which ripped his jacket and tore the helmet from his head. Completing the search and seeing the tank and its supporting infantry overrunning our infantry in their shallow foxholes, he secured a bazooka and ran after the tank, dodging from tree to tree and passing through the enemy’s loose skirmish line. He fired a rocket from a distance of 20 yards, immobilizing the tank but leaving it able to spray the area with cannon and machinegun fire. Running back to our infantry through vicious fire, he secured another rocket, and, advancing against a hail of machinegun and small-arms fire reached a position 10 yards from the tank. His second shot shattered the turret. With his pistol he killed 2 of the crew as they emerged from the tank; and then running to the crippled Mark IV while enemy infantry sniped at him, he dropped a grenade inside the tank and completed its destruction. With their armor gone, the enemy infantry became disorganized and was driven back.  [Name omitted] great daring in assaulting an enemy tank single-handed, his determination to follow the vehicle after it had passed his position, and his skill and crushing thoroughness in the attack prevented the enemy from capturing a battalion command post and turned a probable defeat into a tactical success.”

 

The applicant’s representative, who was also the company executive officer of the unit (Company H) to which the applicant was assigned during the time in question, contends that the actions by the Medal of Honor recipient above were similar to the actions of the applicant in this case.  However, the applicant’s representative argues that the applicant’s action was more noteworthy because he destroyed a more modern and lethal German Mark V tank and its crew by using only two handheld grenades (concussion and fragmentation).

 

The applicant’s representative further argues that the applicant’s actions allowed the unit to seize the town of Herresbach, Belgium.  He also states "it was wrong for our Commander to not recommend [the applicant’s name omitted] for the Medal of Honor”.

 

The applicant’s representative states in an 18 May 1999 letter to the President of the United States:  “Following the action in 1945, I informed the Commanding Officer of Company H, 504, that [the applicant’s name omitted] should be recommended for the Medal of Honor for this amazing accomplishment.  Upon inquiring about this we were informed that because there were no U.S. casualties, during this action, there was no chance of having a Medal of Honor approved.  He was, however, awarded the Silver Star, which, in the citation, omitted a major individual act of valor by him".

 

The applicant’s representative asserts that the applicant “deserves” the Medal of Honor and presented the following proposed citation:

 

“[The applicant’s name omitted], First Lieutenant, 504th Parachute Infantry Regiment, 82nd Airborne Division, for conspicuous valor on 28 January 1945, near Herresbach, Belgium.  After breaking a trail across country for twelve hours in deep, dry snow, [the Applicant’s name omitted], a platoon leader, was ordered to advance with his platoon (27 men) and two Tank Destroyers (TD) along the main road leading into Herresbach and attack an oncoming German force of over 200.  About one mile from the village he and his men executed a frontal assault on the startled enemy force and engaged them in close in fighting with small arms and automatic weapons while the enemy forces attempted to fight back. [Applicant’s name] direction and leadership of his men was so superb that within ten minutes the entire enemy force was killed, captured or fled.  As he pursued the fleeing enemy forces, a German Mark V Tank appeared moving in his direction with heavy automatic fire, which caused his men to take cover.  Knowing the TDs were not in position to engage this tank, [the applicant’s name omitted] without hesitation and under heavy fire, moved rapidly toward the approaching enemy tank and stopped it with a Gammon grenade.  He then moved closer to the tank and tossed a hand grenade into the open hatch, killing the entire crew.  Due to his personal bravery and risk to life, [the applicant’s name omitted], with his platoon, was able to continue his mission into Herresbach.  Under heavy enemy sniper fire and rifle fire, he took a leading part in flushing the enemy out of their houses, killing eight more and causing others to be captured.  As a result of [applicant’s name] fearless leadership, individual actions and skillful handling of his men over 100 enemies were killed, including the 25 he personally killed, and 180 were taken prisoner.  This feat was accomplished without a single U.S. casualty.  [The applicant’s name omitted] demonstrated a remarkable degree of tactical skill and an unusual brand of valor that few could equal.  His action reflects highly upon himself and the Airborne Forces."

 

The applicant’s representative contends the eyewitness statements that he provides substantiate and affirm the actions of the applicant on 28 January 1945 in Herresbach, Belgium, and that those statements provide sufficient evidence and justification to upgrade the applicant’s award of the Silver Star to the Medal of Honor.  Additionally, he contends that to disapprove the applicant’s request for upgrade of his Silver Star “implies that his fellow comrades lack the competence to affirm his (the applicant’s) act of valor."

 

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

 

The applicant was commissioned through the Reserve Officers’ Training Corps and entered active duty as a Second Lieutenant on 8 June 1942.  He was assigned to the European Theater of Operations from 26 Sep 1943 to 29 December 1945 and was assigned to the 504th Parachute Infantry Regiment, 82nd Airborne Division.

 

The applicant’s WD AGO Form 53-98 (Military Record and Report of Separation) shows in Item 29 (Decorations and Citations) that he was awarded the Distinguished Service Cross, the Silver Star with one Oak Leaf Cluster, the Purple Heart with one Oak Leaf Cluster, the Bronze Star Medal, the European-African-Middle Eastern Campaign Medal with 5 bronze service stars and one arrowhead, the Combat Infantryman Badge, the WWII Victory Ribbon, the Distinguished Unit Citation, the Belgian Fouragere, the American Theater Ribbon, and the Military Order of Wilhelm.

 

The applicant’s Official Military Personnel File (OMPF) contains a citation for award of the Bronze Star Medal.  This citation shows that the applicant was awarded the Bronze Star Medal for heroic action in Italy on 9 February 1944.  This citation is signed by the Major General in command of the 82nd Airborne Division at that time.

 

His records also contain a citation for award of the Distinguished Service Cross.  This citation shows that the applicant was awarded the Distinguished Service Cross for extraordinary heroism in Holland on 30 September 1944.

 

His records also contain a citation for award of the Silver Star (First Oak Leaf Cluster).  This shows that the applicant was awarded a second Silver Star for gallantry in action in Belgium on 20 December 1944.  This citation is signed by the Major General in command of the 82nd Airborne Division at that time.

 

His records also contain a citation for award of the Silver Star. This shows that the applicant was awarded the Silver Star for gallantry in action in Belgium on 28 January 1945.  This citation is signed by the Major General in command of the 82nd Airborne Division who signed or recommended approval of other awards presented to the applicant.  The citation for this award of the applicant’s Silver Star states:

 

"For gallantry in action on 28 January 1945 near Herresbach, Belgium.  After breaking a trail across country for twelve hours in deep, dry snow, [the Applicant’s name omitted], a platoon leader, was ordered to advance with his platoon and two supporting tanks along the main road leading into Herresbach.  About one mile from town, his platoon was fired upon by about 200 Germans forming for a defense.  Quickly grasping the situation, he led a frontal assault on the startled enemy who attempted to fight back.  [the Applicant’s name omitted] direction and leadership of his men was so superb that within ten minutes the entire force of enemy was either killed, captured, or fled into the town.  He then reorganized his platoon, and with the two supporting tanks followed the enemy into town.  Braving heavy enemy sniper and rifle fire, he personally took a leading part in flushing the enemy out of their houses, killing eight and capturing five enemy.  As a result of [the Applicant’s name omitted] fearless leadership and skillful handling of his men, over 100 enemy were killed, 180 captured, and large amounts of valuable equipment fell into our hands.  This feat was accomplished without the loss of a single man wounded or killed.  [the applicant’s name omitted] demonstrated a remarkable degree of tactical skill and a brand of courageous leadership which reflects highly upon himself and the Airborne Forces."

 

Evidence of record shows that the applicant’s representative submitted three separate requests on behalf of the applicant, to upgrade the Silver Star he received on 19 March 1945 for action in Herresbach, Belgium on 28 January 1945 to the Medal of Honor.

 

Records show that, on 18 May 1999, the applicant’s representative submitted a request to the President of the United States to upgrade the applicant’s Silver Star to the Medal of Honor.

 

Records show that, on 8 June 1999, a Member of Congress forwarded a request to the Department of Army to review the applicant’s award of the Silver Star for upgrade to the Medal of Honor.  This recommendation was accepted under the provisions of Title 10, United States Code, Section 1130.

 

Records show that, on 4 August 1999, the Senior Army Decorations Board considered the recommendation for award of the Medal of Honor submitted by a Member of Congress.  The Senior Army Decorations Board unanimously recommended disapproval for award of the Medal of Honor to the applicant.  On 20 March 2000, based on the recommendation by the Senior Army Decorations Board, the Secretary of the Army disapproved the award of the Medal of Honor and affirmed that the previously approved award of the Silver Star was the appropriate award for the applicant’s actions on 28 January 1945.

 

Records show that, on 12 May 2000, the applicant’s representative submitted a request to the President of the United States to "override or have reconsidered" the Secretary of the Army’s denial for the award of the Medal of Honor to the applicant.  This request included a description of a V Panther Battle Tank, two eyewitness statements and a completed DA Form 638 (Recommendation for Award).

 

Records show that, on 29 June 2000, a Member of Congress forwarded a request for reconsideration to the Department of the Army for award of the Medal of Honor to the applicant.  This recommendation was accepted under the provisions of Title 10, United States Code, Section 1130.

 

Records show that, the Senior Army Decorations Board reconsidered the recommendation for award of the Medal of Honor by a Member of Congress on 27 November 2000 and again on 30 March 2001.  In both cases, the Senior Army Decorations Board determined that the applicant’s degree of action and service did not meet the criteria for award of the Medal of Honor.  On 27 March 2002, based on the recommendation by the Senior Army Decorations Board, the Secretary of the Army disapproved the award of the Medal of Honor and affirmed that the previously approved award of the Silver Star was the appropriate award for the applicant’s actions on 28 January 1945.

 

Evidence of record shows that a third request was made for upgrade of the applicant’s award of the Silver Star to the Medal of Honor.  By letter dated 22 January 2003, an official for PERSCOM further notified the applicant’s representative that further consideration for award of the Medal of Honor for the applicant " is not warranted."

 

United States Code, Title 10, Section 1130 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 rest with the requester. 

 

Army Regulation 600-45 (Decorations), dated 22 September 1943, with changes, governed award of military decorations at the time of the applicant’s actions on 28 January 1945, and specifically governed award of the Medal of Honor.

 

Paragraph 8 of Army Regulation 600-45 governed who could make awards.  This provision of regulation specifically stated that in any case where the commander is not authorized to make an award, the recommendation will be forwarded to the War Department.  Paragraph 8b (1) stated that the “Medal of Honor and the Distinguished Service Medal may be awarded by the War Department only.”

 

Paragraph 9 of Army Regulation states that the “Medal of Honor is awarded, in the name of Congress, to each person who, while an officer, noncommissioned officer, or private of the Army, in action involving actual conflict with an enemy, distinguishes himself conspicuously by gallantry and intrepidity at the risk of his life above and beyond the call of duty.”

 

Paragraph 9b of Army Regulation 600-45 further stated the standards for award of the Medal of Honor.  The standards are:  In order to justify an award of the Medal of Honor, the individual must perform in action a deed of personal bravery or self-sacrifice above and beyond the call of duty, so conspicuous as to clearly distinguish him for gallantry and intrepidity above his comrades involving risk of life or the performance of more than ordinarily hazardous service, the omission of which would not justly subject the person to censure for shortcoming or failure in the performance of his duty. The recommendations for the decoration will be judged by this standard of extraordinary merit and incontestable proof of the performance of the service will be extracted.

 

Paragraph 16 of Army Regulation 600-45, in effect during World War II, governed preparation of recommendations for all awards and decorations including those for the Army Commendation Medal, the Bronze Star Medal, the Silver Star, the Distinguished Service Cross, and the Medal of Honor.  This regulation required that award recommendations for heroism include detailed information regarding the military situation, weather and terrain conditions, the specific actions of the individual, corroborating eyewitness statements and a proposed citation.  In addition, the chain of command, which included the battalion commander and the regimental commander, were required to submit recommendations for awards of the Bronze Star and higher with their comments to the division commander for consideration. Finally the division commander, as the award approval authority for awards and decorations up to the Silver Star, reviewed all of the information submitted, not just the proposed award citation.  As the award approval authority, the division commander had the authority to approve the recommended award, to downgrade it to a lesser award, or to recommend to the appropriate award approval authority upgrade to a higher decoration.  All recommendations for award of the Distinguished Service Cross and the Medal of Honor during World War II had to be submitted to the War Department for consideration.

 

Paragraph 10a of Army Regulation 600-45 governed award of the Distinguished Service Cross during World War II and stated:  “The Distinguished Service Cross is awarded to persons who, while serving in any capacity with the Army, distinguish themselves by extraordinary heroism in connection with military operations against an armed enemy.”

 

Paragraph 10b of Army Regulation 600-45 stated:  “To warrant award of the Distinguished Service Cross a person must perform an act or acts of heroism so notable and involving risk of life so extraordinary as to set him apart from his comrades

 

Paragraph 18 of Army Regulation 600-45 stated:  The Silver Star is awarded to persons who, while serving in any capacity with the Army, distinguish themselves by gallantry in action not warranting award of the Medal of Honor or the Distinguished Service Cross.

 

Army Regulation 600-8-22 (Military Awards), currently in effect, provides for award of the Medal of Honor.  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 or her life above and beyond the call of duty while engaged in an action against an enemy of the United States.  The regulation provides that the deed performed must have been one of personal bravery or self sacrifice so conspicuous as to clearly distinguish the individual above his comrades and must have involved the risk of life.  Further, the regulation requires that “incontestable proof” of the performance of the service will be exacted and each recommendation for this decoration will be considered on the standard of extraordinary merit.

 

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

 

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 600-8-22 provides, in paragraph 3-1c, 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, it is concluded:

 

1.  The Board considered the applicant’s request to upgrade his award of the Silver Star to the Medal of Honor for actions on 28 January 1945 in Herresbach, Belgium.  No comment.

 

2.  The Board reviewed the application and all submissions including eyewitness statements, unit history, a map, actions of the Senior Army Decorations Board, documents written on behalf of the applicant by Members of Congress, a citation of another Medal of Honor recipient and the applicant’s military personnel record.

I do not have reports of the Senior Army Decoration Board and they (the Senior Board) did not have a copy of the precedent.

 

3.  The Board considered contentions made by the applicant’s representative that the applicant’s award citation contains several factual omissions and that these omissions likely had an impact on whether he received, at the time, proper consideration for the Medal of Honor.  Specifically, the applicant’s representative contends that the citation awarding the applicant the Silver Star "omits the fact that during the attack to seize Herresbach, [the applicant’s name omitted] individually destroyed a Mark V Tank and crew using two grenades (concussion and fragmentation) and went on to seize Herresbach.

I made one claim: The omission of his destruction of the Mark V Panther Tank and crew

 

            a.  The Board noted that the description of the applicant’s engagement of the enemy tank is not included in the citation for the Silver Star.

True

 

            b.  However, the Board determined that there is no evidence that this omission resulted in award of the Silver Star instead of the Medal of Honor.  Further, the contention by the applicant’s representative does not take into account the regulatory requirements for processing all personal decorations during World War II.

The omission is the primary factor for not awarding the Medal of Honor. I complied with the requirements for submission of the recommendation as listed.

 

c.  During World War II, award recommendations for heroism required detailed information regarding the military situation, weather and terrain conditions, the specific actions of the individual, corroborating eyewitness statements and a proposed citation.  All of these elements were required in the submission of the initial award recommendation by a unit commander to an award approval authority.

All conditions were complied with when submitted by me on July 6, 1999. There is no evidence that those who, in 1945, submitted Megellas for an award, did not comply with regulations. The citation for the Silver Star was signed by M.G. Gavin.

 

d.  The chain of command, which included the battalion commander and the regimental commander, were required to provide their comment on all recommendations for awards of the Bronze Star Medal and higher for consideration by the award approval authority.

The citation was drafted and typed by members of the S-1 Section of the 504th Parachute Infantry Regiment. They must have complied with regulations, at the time, because the Silver Star was awarded.

 

e.  The division commander, as the award approval authority for the Silver Star, reviewed all of the information submitted, not just the proposed award citation.  As appropriate, the award approval authority could recommend a higher degree of recognition, but in this case elected not to do so based on the facts presented.

Information about the Mark V Tank was submitted by the Company Commander, but it was not included in the citation for the Silver Star. Not much consideration was given to this incident at the time. In fact in his book, On to Berlin, M.G. Gavin has the wrong “Battalion” attacking Herresbach, where this occurred.

 

f.  The Board also noted, that in the event the award approval authority for the Silver Star needed additional information or questioned the appropriate level of recognition in this case, the chain of command, operational reports and records, and eyewitnesses were immediately available at that time.

My initial recommendation (upgrade) was submitted in 1999 and additional information was sent when known. All the required documents, including eyewitness statements, are part of the recommendations. The commanders are all deceased.

 

g.  Based on all of the foregoing facts, the Board concluded that, while the award citation does not describe the applicant’s actions in regard to the destruction of the enemy tank, there is no evidence presented to show that his actions were omitted from or inaccurately reflected in the unit commander’s initial award recommendation.  Furthermore, there is no evidence presented which shows that the Silver Star awarded to the applicant failed to represent the chain of command’s recommendation on the appropriate level of recognition.

Other than misspelling his name in the citation for the Silver Star, it has no mention of the German Mark V Tank being put out of action by Megellas.

 

4.  The Board reviewed the statements, from other veterans who participated in the battle to seize Herresbach on 28 January 1945, which were presented by the applicant’s representative.  The Board noted that some of these statements were by eyewitnesses to the applicant’s actions wherein he disabled a Mark V tank and killed its crew.  While the Board does not doubt the accuracy of these statements or the heroism displayed by the applicant on 28 January 1945 in Herresbach, Belgium, the Board is not predisposed in this case to overturn the decision on an award made by the proper approval authority unless there is compelling evidence of error or injustice, especially when a long time has elapsed since the event in question occurred and when the award approval authority was present in the theater of operations at the time of the event.  In this case, the Major General commanding the 82nd Airborne Division during this time, based on his judgment, experience, knowledge of the situation and the recommendations submitted to him, decided that the proper level of recognition for the applicant’s action on 28 January 1945 was the Silver Star and not the Medal of Honor.

Although this board does not doubt the accuracy of these statements or the heroism displayed by Megellas on 28 January 1945, they denied him the upgrade. (?) What obtuse thinking this is.

 

5.  The Board noted that the applicant’s representative, by his own statement, indicated that he, in his capacity as the company executive officer, personally informed the commanding officer of Company H, 504th Parachute Infantry Regiment at the time in question, that the applicant should be awarded the Medal of Honor for his "amazing accomplishment."  Therefore, it is reasonable to conclude that the company commander was fully aware of the applicant’s actions and that he considered those actions and the recommendation of his executive officer while deciding on the appropriate level of recognition for the applicant’s actions.

Captain John Gray, H Company Commander, was new and feeling his way in this new command. Prior to the awarding of the Silver Star to Megellas, he (Gray) was injured and evacuated. I, at the time, assumed command of the company, but failed to read the citation for the Silver Star to Megellas. We were fighting a war.

 

6.  The Board noted the statement in the applicant’s 18 May 1999 letter to the President of the United States citing an inquiry conducted at the time of the applicant’s actions, which indicated "because there were no U.S. casualties, during this action, there was no chance of having a Medal of Honor approved."  However, the Board determined that the applicable regulatory criteria, then and now, does not require the existence of casualties for award of the Medal of Honor.  Further, the Board determined that, despite the results of the inquiry, this did not preclude the commanding officer from recommending the Medal of Honor for the applicant’s actions on 28 January 1945 if he determined that this was the appropriate level of recognition.

I disagree with the conclusion. I stated only what we were told. I did not imply that this was the applicable regulatory criteria, then or now, for awarding a Medal of Honor. Why should James Megellas be penalized for mistakes of the chain of command?

 

7.  The Board noted the excerpts from the history of the 504th Parachute Infantry Regiment submitted by the applicant’s representative, as well as the handwritten changes made to the text by him.  The Board also noted the conflicting perspectives between the applicant’s and eyewitness accounts and the historical account provided by the applicant’s representative, which states, in pertinent part, that "The only enemy armor present was a Mark V tank which, along with its crew, was promptly disposed of when paratroopers dropped a Gammon grenade on the turret."

See 3g above. It is true that, at the time, the only enemy armor encountered by Company H, 504th Parachute Infantry, was the German Mark V Tank, but it, with crew, was destroyed by only one paratrooper named Megellas.

 

8.  The Board noted the contention made by the applicant’s representative that the award of the Medal of Honor to a Staff Sergeant in Company C, 601st Tank Destroyer Battalion establishes a precedent for award of the Medal of Honor in this case.  However, this Board considers each case individually and on its own merit.  As a result, awards received by others or considered and awarded by other boards and commissions are not a basis for the Army Board for Correction of Military Records to grant an award, particularly an award of the Medal of Honor.

The precedent is appropriate. Nothing in the instructions forbids the “Board” from accepting it.

 

9.  The Board noted that the Senior Army Decorations Board, composed of Army General Officers, considered multiple requests to upgrade an award of the Silver Star to the Medal of Honor for the applicant’s actions in World War II.  In each case, the Senior Army Decorations Board determined and recommended to the Secretary of the Army that the Silver Star, not the Medal of Honor, was the appropriate level of recognition for the applicant’s actions on 28 January 1945 in Herresbach, Belgium.  In each case, the Secretary of the Army concurred with the recommendation of the Senior Army Decorations Board that the award of the Silver Star is appropriate in this case.

See 2 above.

 

10.  While the decision of this Board is not favorable in this case, this Board wants the applicant, his representative, his fellow veterans 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 of America.  On four occasions during World War II he demonstrated gallantry in action against enemy forces in Belgium and Holland and was recognized for his actions with one award of the Bronze Star Medal, two awards of the Silver Star and one award of the Distinguished Service Cross.  The applicant distinguished himself by gallantry in action on 28 January 1945 in Herresbach, Belgium and was awarded the Silver Star.  Unquestionably, the applicant is a brave and highly decorated soldier and he and all Americans should be tremendously proud of his service in arms and the recognition accorded to him for his acts of heroism.

The problem is that this exceptional combat leader (James Megellas) was not recognized, as he should be, for the valorous act of personally destroying a German Mark V Panther Tank and crew in WWII during the “Battle of the Bulge”.

 

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

I do not agree with this determination. After over 55 years, there is sufficient relevant evidence to demonstrate the existence of probably injustice.

 

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

NOTE:  This Board, in their discussion, noted the enemy tank is not included in the citation for the Silver Star; however, they determined that there is no evidence that this omission resulted in the award of the Silver Star instead of the Medal of Honor. Of course it did. In my opinion, this is faulty thinking: their failure to see that that the Mark V Tank, which was a major part of this action, was deliberately omitted, most likely to save time, and this compounded the injustice to James Megellas.

 

 

BOARD VOTE:

________  ________  ________  GRANT

 

________  ________  ________  GRANT FORMAL HEARING

 

__FEN__  __MHM__  __KAH___  DENY APPLICATION

 

 

 

 

                            Carl W. S. Chun

                            Director, Army Board for Correction

    of Military Records

 

 


 

INDEX

CASE ID

AR2003088483

SUFFIX

 

RECON

YYYYMMDD

DATE BOARDED

20030916

TYPE OF DISCHARGE

(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)

DATE OF DISCHARGE

YYYYMMDD

DISCHARGE AUTHORITY

AR .  .  .  .  . 

DISCHARGE REASON

 

BOARD DECISION

DENY

REVIEW AUTHORITY

Mr. Chun

ISSUES         1.MH

107.0001.0000

2.

 

3.

 

4.

 

5.

 

6.