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ABCMR Memorandum of                                                               AC97-11577
Consideration (cont)

MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            22 October 1998
	DOCKET NUMBER:   AC97-11577

	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. Loren G. Harrell | | Director
| Mr. Hubert S. Shaw, Jr. | | Analyst

  The following members, a quorum, were present:

| Ms. June Hajjar | | Chairperson
| Mr. Fred K. McCoy | | Member
| Ms. Shirley L. Powell | | 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 award of the Distinguished Service Cross be upgraded to an award of the Medal of Honor.

APPLICANT STATES:  That the citation for his Distinguished Service Cross indicates action which merits award of the Medal of Honor.  The applicant believes he would have been awarded the Medal of Honor if it were not for his record of being absent without leave earlier in his service.

COUNSEL CONTENDS:  That the applicant’s request should be carefully considered.  The Veterans of Foreign Wars, as counsel, supports the applicant’s request particularly in view of his extraordinary heroism which resulted in numerous enemy casualties and saving the lives of several fellow soldiers.  Therefore, counsel requests full and impartial consideration of this case and relief as warranted by the facts.

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

The applicant entered active duty on 27 May 1966 and completed training as an infantryman.  He served in Vietnam from 10 June 1967 to 5 June 1968 and again from 2 May 1969 to 16 October 1969.  The applicant was discharged from active duty with an honorable discharge in the grade of E-5 on 21 October 1969.  

The applicant was awarded the Distinguished Service Cross by Headquarters, United States Army Vietnam General Orders Number 954, dated 1 March 1968.  

Informal coordination with the Awards Branch of the Total Army Personnel Command reveals the applicant received an interim award of the Silver Star by 1st Cavalry Division General Orders Number 277, dated 14 January 1968.  Special instructions of the orders announcing award of the Distinguished Service Cross superseded this interim award.

There is no indication in the applicant’s records that he was considered for or recommended for award of the Medal of Honor.  The applicant’s records show that he was absent without leave four times for a total of 94 days between 6 November 1966 and 21 March 1967 prior to the 7 December 1967 action for which he was decorated with the Distinguished Service Cross.  Records also indicate that he was absent without leave for 56 days during September and October 1968.  There is no evidence of record which shows the award recommendation by the applicant’s chain of command was influenced by his absence without leave prior to his first assignment in Vietnam.

Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, for award of the Distinguished Service Cross.  The Distinguished Service Cross is awarded to a person who, while serving in any capacity in the Army, distinguished himself or herself by extraordinary heroism not justifying award of the Medal of Honor.  The regulation requires that the act or acts meriting award of the Distinguished Service Cross 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 (Military Awards) provides, in pertinent part, 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.

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.  There is no evidence of record, and the applicant has provided no evidence, to show that he was considered for or recommended for the Medal of Honor.  There also is no evidence to support the applicant’s contention that he was denied award of the Medal of Honor because of his previous incidents of absence without leave.

2.  The Board notes the applicant’s chain of command, which was present and had all the facts at the time in question, had the opportunity to recommend the applicant for award of the Medal of Honor, but chose to recommend him instead for the Distinguished Service Cross (the second highest award for heroism in action).

3.  The Board notes that the award approval authority for the Distinguished Service Cross in this case was the four star general officer in command of all U.S. Army forces in Vietnam and that he could have recommended the applicant for award of the Medal of Honor.  However, the Commanding General of U.S. Army Vietnam determined the Distinguished Service Cross was the appropriate award for the applicant’s actions and approved this award rather than recommend him for award of the Medal of Honor.

4.  The evidence of record in this case shows that the applicant’s chain of command recommended award of the Distinguished Service Cross for his “extraordinary heroism” in action and that the award approval authority determined the Distinguished Service Cross was appropriate.  In the absence of evidence showing that the award process in this case was flawed or was improperly influenced, the Board is not predisposed to overturn the decision of the commanders on the scene at the time in question.  Therefore, the Board has determined that the applicant is not entitled to award of the Medal of Honor.

5.  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.

6.  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_____  FKM_____  SLP_____  DENY APPLICATION

						Loren G. Harrell
						Director