RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  5 June 2007
	DOCKET NUMBER:  AR20060013975 


	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.


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	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 defers to his former Commanding Officer on 25 March 1970, referred to hereafter as the FCO. 

2.  The FCO requests that the applicant be awarded the Soldier’s Medal or the Army Commendation Medal.

3.  The FCO states that he was the Commanding Officer of Alpha Troop, 1st Squadron, 11th Armored Cavalry Regiment on the night of 25 March 1970 when the applicant distinguished himself by the highest degree of heroism not involving actual combat against an armed enemy.  He states he was an eyewitness to the applicant’s heroic actions which he continues to believe should result in the award of the Soldier’s Medal.  In the alternative, the FCO requests that the applicant be awarded the Army Commendation Medal as authorized by Army Regulation 600-8-22, Military Awards, paragraph 3-16.

4.  The FCO briefly described the incidents involving the applicant’s heroic actions on 25 March 1970.  In essence, the FCO states the applicant helped save many of Alpha Troop’s Soldiers from potential death or injury as a result of preventing two mortar carriers from catching fire or exploding.

5.  The FCO points out that he submitted a request for award of the Soldier’s Medal to the Secretary of the Army under the provisions of Section 1130, Title 10, United States Code.  He states the Army Decorations Board denied this recommendation on the merits of the submission, essentially stating that the applicant’s actions did not deserve the award recommended.  Further, the FCO states the Army Decorations Board did not make a recommendation regarding a lesser award instead of the Soldier’s Medal.  In view of the action by the Military Awards Branch, he appeals to this Board to correct this injustice to the applicant. 

6.  The FCO provides a DA Form 638, Recommendation for Award, dated 23 November 2004, and supporting documents; a letter from the Military Awards Branch, dated 22 December 2004; and his letter to the Chief, Military Awards Branch, dated 26 July 2005 with enclosures.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which the FCO states occurred on 20 June 1970.  The application submitted in this case is dated 15 May 2006; however, the application was received in this office on 2 October 2006.
2.  Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant was inducted into the Army on 27 June 1968.  He completed basic combat training and advanced individual training.  He was awarded military occupational specialty (MOS) 11C (Infantry Indirect Fire Crewman).  He was promoted to sergeant (SGT) on 31 March 1969.

4.  He was assigned to Vietnam on 15 July 1969 with Troop A, 1st Squadron, 11th Armored Cavalry Regiment as a squad leader.  

5.  Headquarters, II Field Force Vietnam General Orders Number 1825, dated 12 May 1970, show the applicant was awarded the Bronze Star Medal for meritorious service from June 1969 to May 1970 in Vietnam.

6.  He departed Vietnam on 19 June 1970 and was credited with participation in the Vietnam Summer-Fall 1969 Campaign, the Vietnam Winter-Spring 1970 Campaign, and the DA Sanctuary Counteroffensive Campaign.

7.  The applicant was honorably released from active duty on 20 June 1970.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, and the Combat Infantryman Badge.

8.  The FCO submitted a DA Form 638, dated 23 November 2004, to the Army Decorations Boards to recommend the applicant receive award of the Soldier’s Medal for actions from 25 March 1970 to 26 March 1970.  The FCO cited three of the applicant’s achievements for justification for the Soldier’s Medal as described under Part III (Justification and Citation Data) on the DA Form 638.

9.  The FCO also submitted a statement of witness, from himself.  The FCO stated, in part, “I did not observe him direct the undamaged mortar vehicles out of harm’s way, but I saw him near the flames and explosions.  So near and so active, in fact, that when he was reported missing that evening, the first sergeant and I did not even request a recount.  It made sense that he had been injured and dusted off.”
10.  In December 2004, the FCO published a book, The Anonymous Battle, on the events of 25/26 March 1970.  Below are some extracts from the book.

Page 17  “(The applicant), the mortar section chief, also running toward the flames, counted five men on the ground as he called his crews to drive away the two vehicles not on fire. One of them accelerated immediately out of the glow of burning mortar-propellant charges and fuel and into the safety of the surrounding shadows.”

Page 18  “A quick look at the burning vehicle, its aluminum structure distorting as temperatures rose, was sufficient to determine the cause of the tragedy.  A round had exploded inside the 81-millimeter mortar on board as it was being fired, destroying the gun tube and igniting the basic load of fuel and, later, mortar propellant charges and ammunition.”

Page 24  “The only news worth celebrating that dreadful morning was the astonishing reappearance of (the applicant), the chief of the ravaged mortar section, (the applicant) recalls that…”I went to the CP and, when I walked in, the first sergeant and the troop commander looked like they’d seen a ghost because they thought I had been one of the men burned in the track.  The troop commander gave me a big hug and the first sergeant immediately took me off the KIA list.”

11.  Department of the Army, U.S. Army Human Resources Command, Alexandria, Virginia Permanent Order Number 160-18, dated 9 June 2005, show the applicant was awarded the Bronze Star Medal with “V” Device for heroism on 26 March 1970 (during the battle the day after the incident for which the Soldier’s Medal is requested) in Vietnam.

12.  In a 9 June 2005 letter, the Military Awards Branch informed a congressman that the recommendation to award the Soldier’s Medal to the applicant was disapproved because the Army Decorations Board had determined that the degree of action and service rendered did not meet the criteria for the proposed award.  (On 24 May 2007, the Military Awards Branch indicated that award of the Army Commendation Medal had been considered but not approved).

13.  A DD Form 215 (Correction to DD Form 214), dated 9 June 2005, added the Bronze Star Medal with “V” Device to the applicant’s DD Form 214.

14.  In a 6 February 2006 letter, the Military Awards Branch informed a congressman that this office was unable to process the request for reconsideration for award of the Soldier’s Medal to the applicant due to lack of new or substantial information to support reconsideration.  He was advised to appeal to the ABCMR.

15.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Soldier's Medal is awarded for distinguished heroism not involving actual conflict with the enemy.  The same degree of heroism is required as for award of the Distinguished Flying Cross.  The performance must have involved personal hazard or danger and the voluntary risk of life under conditions not involving conflict with an armed enemy.  Awards of the Soldier's Medal will not be made solely on the basis of having saved a life.  

16.  Army Regulation 600-8-22 provides that the Distinguished Flying Cross is awarded to any person while serving in any capacity with the Army of the United States, distinguished himself or herself or extraordinary achievement while participating in aerial flight.  The performance of the act of heroism must be evidenced by voluntary action above and beyond the call of duty.  The extraordinary achievement must have resulted in an accomplishment so exceptional and outstanding as to clearly set the individual apart from his or her comrades or from other persons in similar circumstances.

17.  Army Regulation 600-8-22 provides that the Army Commendation Medal may be awarded to any member of the Armed Forces of the United States 
who, while serving in any capacity with the Army after 6 December 1941, distinguished himself or herself by heroism, meritorious achievement or meritorious service.  The Army Commendation Medal may be awarded for acts for noncombatant-related heroism which do not meet the requirements for an award of the Soldier’s Medal.  

18.  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 AND CONCLUSIONS:

1.  The FCO submitted his recommendation for award of the Soldier’s Medal in November 2004.  The Army Decorations Board determined that the degree of action and service rendered did not meet the strict criteria for award of the Soldier’s Medal and disapproved the recommendation and also did not approve award of the Army Commendation Medal.
2.  It appears the FCO requested reconsideration of his recommendation for award of the Soldier’s Medal to the applicant.  However, the Army Decorations Board was unable to process his request because he provided no new or substantial information to support reconsideration.  

3.  This Board considered all information submitted and all available evidence of record in this case.  The FCO’s book, The Anonymous Battle, has been reviewed.  It is noted that the applicant was the mortar section chief of the mortar carrier that caught fire from the explosion and of the adjacent mortar carriers.  His actions on the night of 25 March 1970 do not appear to have clearly set him apart from what any other mortar section chief should have/would have done in similar circumstances.  Similarly, there is no compelling evidence found which would warrant granting the applicant award of the Army Commendation Medal for his actions on 25 March 1970.  This action, however, in no way diminishes the heroism and sacrifice by the applicant in service to the United States.  

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 20 June 1970; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 19 June 1973.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING
x___x______  x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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 for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.



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          CHAIRPERSON




INDEX

CASE ID
AR20060013975
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070605
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. Schwartz
ISSUES         1.
107.0010
2.

3.

4.

5.

6.