RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           24 May 2005
      DOCKET NUMBER:  AR20040006032


      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 A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Margaret V. Thompson          |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Leonard G. Hassell            |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, reconsideration of his request that
his Bronze Star Medal (BSM) with Valor (“V”) Device be upgraded to a Silver
Star (SS).

2.  The applicant states, in effect, that the Army Decorations Board’s
(ADB)
2 September 1999 decision on upgrading the award he received for heroism on
22 March 1970, while serving in the Republic of Vietnam (RVN) did not
mention the date of the action, but specifically referred to him as “then
Sergeant”.  He further states that the Board in its original decisional
document did not address the discrepancy in the rank indicated in the ADB
decision.  He further states that he received the Army Commendation Medal
(ARCOM) with “V” Device for heroism on 22 March 1970, at which time his
rank was specialist (SPC), and that he received another ARCOM for heroism
on 18 June 1970, at which time his rank was sergeant.

3.  The applicant provides the following documents in support of his
application:  Self-Authored Letter to the Secretary of the Army, BSM with
“V” Device Certificate, United States Army Total Personnel Command
(PERSCOM) Chief, Military Awards Branch Letter, Separation Document (DD
Form 214), and Separation Document Correction (DD Form 215).

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR2003098146, on
9 December 2003.

2.  The applicant’s military record shows that he enlisted in the Regular
Army and entered active duty on 20 February 1969.  He was trained in,
awarded and served in military occupational specialty (MOS) 11B
(Infantryman) and the highest rank he attained while serving on active duty
was sergeant (SGT).  The record further shows that he served in the RVN
from 4 November 1969 through
23 October 1970.

3.  During his RVN tour, on 30 April 1970, the applicant was awarded the
ARCOM with “V” Device for heroism in connection with military operations
against a hostile force on 22 March 1970, while serving as a SPC in the
RVN.

4.  The citation for the applicant’s heroism award for his 22 March 1970
actions reads “For heroism in connection with military operations against a
hostile force.  Specialist Four C……, distinguished himself by heroic
actions on 22 March 1970, while serving with Company C, 4th Battalion, 23rd
Infantry in the Republic of Vietnam.  While established in their night
position, elements of Company C came under intense small arms fire from a
large enemy force.  During the initial contact, a member of the element was
seriously wounded.  With complete disregard for his own safety, Specialist
C…… exposed himself to a hail of enemy fire as he moved through the
contract area and gave lifesaving first aid to the wounded man.  His
valorous actions contributed immeasurably to saving the lfie of a fellow
soldier.  Specialist C……’s bravery and devotion to duty are in keeping with
the highest traditions of the military service and reflect great credit
upon himself, his unit, the 25th Infantry Division, and the United States
Army.”

5.  On 24 October 1970, the applicant was honorably separated after
completing 1 year, 8 months and 3 days of active military service.  He
completed a second active duty enlistment between 25 August 1972 and 21
August 1975, at which time he was honorably separated after completing 2
years, 11 months and
27 days on that period of service, and a total of 4 years, 8 months and 1
day of active military service.

6.  The separation documents issued to the applicant for both active duty
enlistments, as amended by a DD Form 215, dated 9 July 2001, show that he
earned the following awards:  BSM with “V” Device 3rd Oak Leaf Cluster,
ARCOM with “V” Device 1st Oak Leaf Cluster, National Defense Service Medal,
Vietnam Service Medal, RVN Campaign Medal with 60 Device, Combat
Infantryman Badge and Marksman Qualification Badge with Rifle Bar.

7.  On 3 March 1998, a recommendation to upgrade the applicant’s ARCOM with
“V” Device, which he received for heroism on 22 March 1970, to a SS was
submitted under the provisions of Title 10 of the United States Code,
Section 1130 (10 USC 1130) by a Member of Congress.

8.  On 25 August 1999, the PERSCOM Chief, Military Awards Branch informed
the Member of Congress who had submitted the 10 USC 1130 recommendation
that his request to upgrade the applicant’s award for his 22 March 1970
actions had been accepted for consideration by the ADB.

9.  On 2 September 1999, the ADB determined that the degree of action
rendered by the applicant during the 22 March 1970 action did not meet the
criteria for award of the SS.  As a result, the Commander, PERSCOM, acting
on behalf of the Secretary of the Army, disapproved award of the SS.
10.  On 19 October 1999, The Adjutant General (TAG), Army notified the
Member of Congress who had submitted the 10 USC 1130 recommendation of the
ADB decision and disapproval of the SS.  In this correspondence, the
applicant was referred to as “then Sergeant”.

11.  On 22 September 2000, a recommendation to upgrade the applicant’s
ARCOM with “V” Device to a BSM with “V” Device, for his heroism on 22 March
1970 was submitted under the provisions of 10 USC 1130, by a second Member
of Congress.

12.  On 22 January 2001, the ADB determined the applicant’s actions of
22 March 1970 met the criteria for the BSM with “V” Device.  The PERSCOM
Commander, on behalf of the Secretary of the Army, approved the BSM with
“V” Device for the applicant’s heroic actions on 22 March 1970.  This
action resulted in the publication of a BSM with “V” Device certificate and
announcement of the award in orders.

13.  On 18 April 2003, the PERSCOM Chief, Military Awards Branch, in
responding to an inquiry from the applicant, informed the applicant that
the ADB had previously considered and denied his request to upgrade his BSM
with “V” Device to a SS.  As a result, his application was forwarded to
this Board.

14.  In its original conclusions, the Board found that the applicant’s
request to upgrade his heroism award for actions on 22 March 1970 had been
previously considered and denied by the ADB.  It further concluded, after a
thorough merit review of the applicant’s record and the evidence he
submitted, that there was no compelling evidence that would support a
further upgrade of this award to a SS. It further found that the ADB 2001
action to upgrade the award to a BSM with
“V” Device was the appropriate recognition for the applicant’s actions on
22 March 1970.  As a result of its conclusions that the merits of the
applicant’s case did not support award of the SS, the Board determined
there was an insufficient evidentiary basis to support waiving his failure
to timely file his application within the 3-year statute of limitations.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that given he held the rank SPC during the
22 March 1970 action, the reference to his rank as “then sergeant” in the
PERSCOM letter pertaining to the ADB action is an indication that the wrong
award was considered for upgrade.  However, this claim is not supported by
the evidence of record, or independent evidence he provides.

2.  The PERSCOM and ADB actions on this case all began with the
recommendations submitted by Members of Congress on behalf of the
applicant. These recommendations specifically requested consideration of an
upgrade of the award the applicant received for his actions on 22 March
1970, and included supporting documents to be considered by the ADB.  The
evidence of record clearly shows that both ADB upgrade reviews were based
on the heroism award the applicant received for his actions on 22 March
1970.

3.  The incorrect rank reference in the PERSCOM regarding the ADB action
was likely the result of a transfer of the rank he held when he was
released from active duty, which is reflected in his record and on his DD
Form 214.  This evidence of record does not indicate that this rank
reference had a material impact on the ADB merit review of the upgrade
recommendations submitted for his 22 March 1970 acts of heroism.

4.  Further, during its original review of this case, prior to denying a
waiver of the applicant’s failure to timely file his application within the
3-year statute of limitations, the Board completed a comprehensive and
thorough review of the applicant’s military record and the independent
evidence he submitted.  This review resulted in a conclusion that the
merits of the applicant’s case did not support an upgrade of his award for
heroism on 22 March 1970 to a SS.

5.  Further, during this reconsideration review, the merits of the
applicant’s request to upgrade his award to the SS were also carefully
considered.  However, although his actions of 22 March 1970 were clearly
heroic, there is insufficient evidence of record, or independent evidence
he has provided that would call into question the ADB determination that
the BSM with “V” Device adequately recognizes his actions of 22 March 1970.
 Therefore, there is an insufficient evidentiary basis to support a further
upgrade of this award to the SS.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MVT _  ___JTM _  ___LGH_  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis to amend the decision of
the ABCMR set forth in Docket Number AR2003098146, dated 9 December 2003.




            ____Margaret V. Thompson __
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040006032                           |
|SUFFIX                  |                                        |
|RECON                   |AR2003098146  2003/12/09                |
|DATE BOARDED            |2005/05/24                              |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |N/A                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  46   |107.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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