PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 9 August 2001
         DOCKET NUMBER: AR2001056807


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Michael L. Engle		Analyst

The following members, a quorum, were present:

Ms. Irene N. Wheelwright		Chairperson
Mr. Fred N. Eichorn		Member
Ms. Gail J. Wire		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, that the Army award him the Silver Star (SS).

3. The applicant states, in effect, that he was recommended by his commander for award of the SS based upon his heroic actions aboard a gun truck during combat action in the Republic of Vietnam (RVN) on 21 February 1971. In support of his application, he provides a copy of the award recommendation with citation, a copy of a letter from the brother of the commander who made the award recommendation, and a copy of his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214).

4. The applicant’s military records show that he was inducted into the Army on
6 May 1970 for 2 years. He successfully completed his initial training and was assigned to the RVN for duty as a heavy truck driver (64B) with the
523^rd Transportation Company, 26^th General Support Group. He served with this organization from 23 September 1970 to 27 February 1971.

5. The applicant’s DD Form 214, effective 3 June 1971, shows that he was honorably discharged in the rank of specialist four. His awards included the National Defense Service Medal, the Purple Heart, the Vietnam Service Medal, and the Vietnam Campaign Medal.

6. On 30 March 1971, the applicant’s commander recommended the SS for his heroic actions on the night of 21 February 1971. The accompanying citation described his gallantry in action against a hostile force while defending a night convoy.

7. General Orders Number 2264-329, Headquarters, United States Army, Vietnam, dated 29 June 1971, announced award of the BSM with “V” Device, to the applicant for heroism in connection with ground operations against a hostile force in the RVN. The applicant distinguished himself while serving aboard a gun truck providing security for a night convoy from Dong Ha to Fire Support Base Vandergrift. En route his convoy was ambushed by a hostile force firing rocket propelled grenades and automatic weapons, seriously wounding him in the initial encounter. Although exposed to the hostile fusillade, the applicant continued to maintain suppressive fire upon the belligerents, inflicting numerous casualties. After he radioed battalion headquarters for assistance, a relief force arrived to rescue the besieged convoy.

8. Department of the Army General Orders 24, dated 1972, announced award of the RVN Gallantry Cross with Gold Star to the 523^rd Transportation Company for the period from 23 October 1966 to 24 April 1971.

9. Army Regulation 600-8-22 provides, in pertinent part, that the SS 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. Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years. There are regulatory provisions for lost recommendations but not for late recommendations or reconsideration.

10. Army Regulation 600-8-22 provides, in pertinent part, that the BSM is awarded in time of war for heroism and for meritorious achievement or service. As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required. Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years. The bronze “V” device indicates acts of heroism involving conflict with an armed enemy.

11. Army Regulation 600-8-22 provides, in pertinent part, that the Good Conduct Medal (GCM) is awarded to individuals who distinguish themselves by their conduct, efficiency and fidelity during a qualifying period of active duty enlisted service. This period is 3 years, except in those cases when the period for the first award ends with the termination of a period of Federal military service. Although there is no automatic entitlement to the GCM, disqualification must be justified. Current practice requires that commanders provide a written notice of unfavorable consideration and permit the individual to respond.

12. Title 10 of the United States Code, section 1130 (10 USC 1130), provides the legal authority for consideration of proposals for decorations not previously submitted in timely fashion. It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or a unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation. Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.

CONCLUSIONS:

1. The Board is convinced that the applicant’s commander recommended him for award of the SS. However, the subjective judgement of the recommendation at the time resulted in award of the BSM with “V” Device.

2. As a matter of policy, there is no automatic entitlement on the part of any soldier to any Army decoration. In this regard, the Army and the other military services have never supported attempts by individuals to gain self-recognition. As a matter of longstanding policy, a recommendation which has been formally entered into channels, properly processed and correctly acted upon by a commander or other official vested with the legal authority to act in finality is not subject to challenge or reconsideration. In the absence of material evidence of impropriety or administrative error, the Army does not reconsider awards based upon the honest, subjective judgments of its commanders. To do so would render the decisions of past, present and future commanders meaningless. Therefore, the Board should not consider upgrading the applicant’s BSM with “V” Device to a SS.

3. The Board notes that the applicant still has the option to petition a Member of Congress, under the provisions of 10 USC 1130, to consider his request for upgrade of his BSM with “V” Device to the SS.

4. The Board notes the applicant’s outstanding quality of service and presumes that his not receiving a GCM for his service was an oversight. Accordingly, his records should be corrected to show award of this medal.

5. The applicant served with the 523^rd Transportation Company during the time it was awarded the RVN Gallantry Cross with Gold Star Citation Badge, and is therefore entitled to this award.

6. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case, particularly the DD Form 214 of the individual concerned, be corrected:

a. by showing he was awarded the BSM with “V” Device;

b. by showing he was awarded the RVN Gallantry Cross with Gold Star Citation Badge; and

c. by showing he was awarded the GCM for the period from 6 May 1970 to 3 June 1971.

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2. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

__INW___ __FNE__ __GJW__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  __Irene N. Wheelwright__
                  CHAIRPERSON

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INDEX

CASE ID	AR2001056807
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/08/09
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	PARTIAL GRANT
REVIEW AUTHORITY
ISSUES 1.	107.00
2.
3.
4.
5.
6.