PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 5 MARCH 2002
         DOCKET NUMBER: AR2001058773



         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. Joseph Adriance		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Thomas b. Redfern, III		Member
Mr. Donald P. Hupman, Jr.		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 his Silver Star (SS) be upgraded to the Distinguished Service Cross (DSC).

3. The applicant states, in effect, that he was recommended for the DSC over
32 years ago while he served as a squad leader in the Republic of Vietnam (RVN). He indicates that he attended a reunion of his old battalion and renewed acquaintances with his former platoon leader and unit medical corpsman (medic). It was at this time that he was told that a number of men who had been involved in an ambush in May of 1968 had been nominated for certain awards, that were never awarded. Some of these nominations included the Medal of Honor for their medic and the DSC for him. Needless to say, he was very honored by the thought that the men of his platoon thought highly enough of him to resubmit the nominations. In support of his application, he provides a reconstructed after action report prepared by his former platoon leader and notarized copies of supporting third party statements.

4. The applicant’s military records show that he entered the Regular Army on
13 February 1967, and that he continuously served on active duty for 3 years until being honorably separated on 12 February 1970.

5. The applicant’s Enlisted Qualification Record (DA Form 20) record confirms that upon completing his training, which resulted in his being awarded military occupational specialty (MOS) 11B (Infantryman), he was assigned to the RVN, where he arrived on 3 August 1967. He was further assigned to Company A,
1^st Battalion, 5^th Infantry Regiment, 25^th Infantry Division, where he served as a Rifleman until his departure from the RVN on 25 July 1968. The DA Form 20 also shows that during his tenure in the RVN, he participated in four campaigns.

6. The separation document (DD Form 214) issued to and authenticated by the applicant on the date of his separation confirms that he held the rank of sergeant/E-5 and was serving in MOS 11B (Light Weapons Infantryman) at that time. Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) shows he earned the following awards during his active duty tenure: National Defense Service Medal; Vietnam Service Medal (VSM) with 4 bronze service stars; Republic of Vietnam Campaign Medal with 60 Device; Purple Heart and Purple Heart 1^st Oak Leaf Cluster; Combat Infantryman Badge; and Marksman Marksmanship Badge (Rifle).

7. The applicant’s Military Personnel Records Jacket (MPRJ) contains a copy of General Orders (GO) Number (#) 4808, dated 3 July 1968, issued by Headquarters, 25^th Infantry Division, which awarded the applicant the Bronze Star Medal, for meritorious service in connection with military operations against a hostile force, for the period August 1968 through August 1968. This award was not included in list of awards contained in the his separation document.
8. The MPRJ also contains a copy of GO # 8639, dated 6 December 1968, issued by Headquarters, 25^th Infantry Division, which awarded the applicant the Bronze Star Medal with Valor (“V”) Device, for his heroism in connection with military operations against a hostile force on 19 May 1968. The MPRJ is void of any documents, derogatory information, and/or a unit commander disqualification that would have prohibited the applicant from receiving the Army Good Conduct Medal (AGCM).

9. In December 1999, a recommendation for award of the DSC on the applicant was submitted to Department of the Army (DA) through a Member of Congress (MOC). This request along with supporting documents was forwarded to the Army Decorations Board (ADB) and on 20 January 2000, the ADB determined that the degree of action did not meet the criteria for the proposed award and it instead recommended the applicant receive the SS. The Commanding General (CG), Total Army Personnel Command (PERSCOM), on behalf of the Secretary of the Army (SA), approved an award of the SS and the award was forwarded to the applicant’s MOC for presentation to the applicant.

10. On 25 February 2000, a correction to the applicant’s separation document
(DD Form 215) was published by DA, Chief, Military Awards Branch, which added the SS to the applicant’s 12 February 1970 DD Form 214. In effect, this action upgraded the applicant’s Bronze Star Medal with “V” Device, authorized in
GO # 8639, for heroism on 19 May 1968, to the SS.

11. The applicant provided the enclosed reconstructed after action report prepared by his platoon leader that outlines the circumstances and events of
19 May 1968, and includes recommendations that the applicant receive the DSC from the platoon leader and unit medic. The DSC recommendations indicate that the applicant distinguished himself in action while on a combat patrol in the Ho Bo Woods, RVN, on 19 May 1968. They state, in pertinent part, that the applicant and his patrol spotted a North Vietnamese Army (NVA) force and immediately engaged this enemy force by firing claymore mines, calling for illumination from the main battalion night logger position, and continued fire into the human wave attack. Going from man to man, the applicant exposed himself to devastating hostile fire and while doing so, he was severely wounded during the ensuing battle. However, he continued to lead his men in containing the enemy’s advances. Because of the sheer numerical superiority of the NVA force, some enemy soldiers were able to penetrate the ambush perimeter, at which time the applicant used his bayonet to repel the advancing enemy, killing many in the process. The platoon leader ordered a diversion and evacuation of the ambush site, which allowed the applicant to help evacuate the wounded back to the main battalion.

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12. In October 2000, this award recommendation and supporting packet was again submitted to DA through another MOC. In addition, to the previously mentioned after action report and the DSC recommendations, a supporting statement was also provided by the applicant’s former battalion commander, now a retired major general (MG). It states that, although not present at the particular engagement in question, he knows that the platoon leader’s account of the engagement is factual. He further comments that his battalion was subsequently awarded the Presidential Unit Citation (PUC), the unit award equivalent to award of the DSC to an individual.

13. The former battalion commander also claims that during 5 years of combat,
3 members of the battalion were awarded the Medal of Honor posthumously and only four members of the unit were awarded the DSC for the entire period of the war, in spite of the fact the unit met the criteria for a PUC. He further states that, in retrospect, he finds it hard to believe that a unit so exposed to and engaged in daily combat would not have received more awards of the DSC. He finally states that the rotation policy for key small unit leaders as well as casualties at the platoon and company command level may have precluded appropriate and timely awards for heroic actions such as occurred on 19 May 1968. He explains that his predecessor departed shortly after this action, which may have contributed to the failure to properly recognize the valor of the applicant. In conclusion, he submits that the applicant’s actions on 19 May 1968, as described by his platoon leader and by other members of the unit, clearly merit award of the DSC.

14. On 9 November 2000, the ADB, after considering the recommendations and supporting packet requesting an upgrade of the applicant’s SS to a DSC, determined that the degree of action and service rendered did not meet the criteria for the proposed award. Based on this ADB recommendation, the CG, PERSCOM, on behalf of the SA, disapproved the DSC and affirmed that the previously approved SS for gallantry in action was the appropriate award for the applicant’s actions.

15. 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.

16. Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual military awards. Chapter 4 prescribes the policy for award of the AGCM. Paragraph 4-4, gives the specific criteria for approval of the AGCM. It states, in pertinent part, that it is the immediate commander’s decision to award the AGCM based on his personal knowledge of the individual and on the individual’s official records. It further states that the lack of official disqualifying comment by previous commanders allows that period of service to qualify for use in awarding the AGCM.

17. Paragraph 4-5 of the regulation defines periods of service which qualify for award of the AGCM. It states, in pertinent part, that each 3 year period of continuous enlisted active Federal military service served after 27 August
1940 as a qualifying period for award of the AGCM. The available evidence contains no indication that the applicant had committed any infractions that would have disqualified him from receiving the AGCM or that he was ever disqualified for the award by any of his unit commanders.

18. Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) provides guidance on determining or establishing the eligibility of individual members for campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict. It confirms that the applicant’s unit, 1^st Battalion, 5^th Infantry Regiment, earned the Republic of Vietnam Gallantry Cross with Palm Unit Citation and Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation during his assignment tenure.

CONCLUSIONS:

1. The Board notes the applicant’s contention that his SS should be upgraded to the DSC, and it has carefully considered this request and the supporting documents. However, it finds an insufficient evidentiary basis to support the requested relief.

2. The Board acknowledges the applicant’s heroic actions of 19 May 1968, and it wishes to congratulate him on his outstanding record of combat service. The Board also understands why the applicant may disagree with the final determination made in regard to his award. However, this alone is not a sufficient basis to reverse the determination made by the CG, PERSCOM on behalf of the SA.

3. The evidence of record clearly establishes that the applicant’s request for an upgrade of his SS to the DSC was properly processed, considered, and disapproved by the proper authority in accordance with the applicable provisions of the law on two separate occasions.

4. The Board notes that after both reconsideration reviews by the ADB, the proper authority determined that the SS was the appropriate award for the applicant’s actions on 19 May 1968. The Board is satisfied that all requirements of law and regulation were met throughout the award review process and therefore, it finds no error or injustice related to the determination made in this case on behalf of the SA.

5. The DD Form 214 on file verifies that the applicant completed a total 3 years of honorable active military service from 13 February 1967 to 12 February 1970. Lacking a disqualification from any of his unit commanders and the absence of any derogatory information on file that would preclude him from receiving the award, the Board concludes his service satisfies the qualifying period criteria necessary to be awarded the AGCM. Thus, it concludes that it would be appropriate to award him the AGCM for his 3 year period of honorable service at this time.

6. During its review of his case, the Board also determined that the applicant was awarded the Bronze Star Medal, for meritorious service for the period August 1967 through August 1968, and that this award was erroneously omitted from his 12 February 1970 separation document.

7. In addition, based on his unit service in the RVN, he is entitled to the Republic of Vietnam Gallantry Cross with Palm Unit Citation and Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation. Therefore, the Board also concludes it would be appropriate to add these awards to his record at this time.

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

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RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by awarding the individual concerned the Army Good Conduct Medal for his honorable service from 13 February 1967 through 12 February 1970; by showing he was awarded the Bronze Star Medal, for meritorious service for the period August 1967 through August 1968, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation; and by providing him a corrected separation document that includes these awards.

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

BOARD VOTE:

__FNE__ _ _TBR__ __DPH GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  __Fred N. Eichorn__
                  CHAIRPERSON

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INDEX

CASE ID	AR2001058773
SUFFIX
RECON
DATE BOARDED	2002/03/05
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	GRANT PARTIAL
REVIEW AUTHORITY
ISSUES 1. 46	107.0000
2. 52	107.0006
3.
4.
5.
6.