RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  23 October 2007
	DOCKET NUMBER:  AR20070006981 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. Hubert O. Fry, Jr.

Chairperson

Mr. Michael J. Flynn

Member

Mr. William Blakely

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 upgrade of his award of the Silver Star to a Medal of Honor. 

2.  The applicant states, in effect, that his unit was ambushed during a patrol by a much numerically superior enemy force in the Republic of Vietnam on 18 March 1967.  He further states that the enemy used overwhelming fire to include machine-gun, semi-automatic and automatic weapons, claymores, grenade- launchers, and grenades.  The applicant's quick reaction using the firepower of his M-60 machine-gun defeated the enemy at the critical moment as evidenced by the extremely high initial enemy casualties in a situation where the enemy had the advantage of a surprise ambush.  The applicant further states his actions laid the foundation for the advance of others that came from the rear and greatly reduced their chance of being killed or wounded.  His actions were a primary and integral part of the entire patrol to work in a heroic action without being totally decimated.  The applicant adds that he did not know an upgrade was possible; however, while his counselor, a Bronze Star Medal recipient himself, was going over his records and read the Silver Star citation, the counselor recommended the applicant request an upgrade.  The applicant concludes that he conducted extensive research through the National Personnel Records Center and tracked down several members of his platoon to submit affidavits in support of his application for an upgrade.  The applicant provides information concerning the general conditions of the battle area, terrain, enemy weapon systems, and enemy and friendly casualties.

3.  The applicant provides the following documentary evidence in support of his application:

	a.  a reconstructed DA Form 638 (Recommendation for Award), dated 29 October 2004;

	b.  a self-authored statement, dated 30 August 2005, describing the purpose and timing of the award upgrade and the action overview;

	c.  a sworn Affidavit, dated 19 August 2005, by a comrade-in-arms;

	d.  an after Action Report (AAR), drafted by the highest-ranking living member of the applicant's chain of command;


	e.  a sworn Affidavit, dated 13 September 2005, by the platoon's Radio Telephone Operator (RTO);

	f.  a sworn Affidavit, dated 31 July 2005, by Task Force Oregon,  Section
G-2, Acting Sergeant;

	h.  a sworn Affidavit, dated 11 February 2005, by an individual who overheard a conversation on 18 March 1967 regarding the applicant's heroism in battle; 

	i.  a letter of Support, dated 7 December 2004, by the Commander of the Department of California Military Order of the Purple Heart; 

	j.  Headquarters, 9th Infantry Division, General Orders Number 884, dated 27 April 1967, awarding the applicant the Silver Star;

	k.  Headquarters, 9th Infantry Division, General Orders Number 342, dated 27 March 1967, awarding the applicant the Purple Heart;

	l.  DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 6 May 1968;
	
	m.  Joint Operations Graphic Overlay showing the location of the activities;

	n.  a declassified Combat Operations After Action Report, dated 1 April 1967;

	o.  a DA Form 1594 (Daily Staff Journal or Duty Officer's Log), dated 18 March 1967; 

	p.  a memorandum, dated 18 November 2005, Army Human Resources Command, Alexandria, Virginia, to the applicant's Member of Congress (MOC) notifying her that the applicant's request to upgrade his Silver Star Medal was incomplete; and

	q.  a memorandum, dated 2 March 2006, Army Human Resources Command, Alexandria, Virginia, to applicant's MOC notifying her that the Military Awards Branch was closing the case and advising her that the applicant has the right to submit his application to the Army Board for Correction of Military Records (ABCMR) for consideration. 


CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show that he was inducted into the Army of the United States on 27 April 1966.  Assigned to Fort Riley, Kansas, he completed basic combat training and advanced individual training as a member of Company C, 2nd Battalion, 47th Infantry (2/47 INF), 9th Infantry Division and was awarded MOS (military occupational specialty) 11B (Light Weapons Infantryman).

3.  On 9 January 1967, 2/47 INF embarked for the Republic of Vietnam aboard the USNS General John Pope, arriving in Vietnam on 29 January 1967.  The applicant served in Vietnam until on/about 8 January 1968.

4.  The applicant was awarded the Silver Star for gallantry in action while engaged in military conflict with an armed hostile force on 18 March 1967.  General Orders Number 884, Headquarters, 9th Infantry Division, dated 27 April 1967, cited the following reason:

[Applicant] distinguished himself by exceptionally valorous actions when his unit came under attack as they were crossing a jungle clearing on 18 March 1967.  [Applicant], quickly collecting his faculties, attacked one flank of the numerically superior enemy force as other increments of the unit formed a tight defensive network.  He was in the very center of the charge and was subjected to a hail of fire from Claymore mines and automatic and semi-automatic weapons.  [Applicant] was hit and painfully wounded by shrapnel, yet he continued to fight on.  Swinging from the center of the assault to the left flank, he lay down a withering fire upon a hostile machine gun nest, eliminating it and saving the 

friendly force innumerable casualties.  After this heroic act he joined in the defense of his position, refusing medical aid, until his more seriously wounded comrades were treated.  [Applicant's] extraordinary heroism in close combat against a numerically superior Viet Cong force is in keeping with the highest traditions of the military service and reflects great credit upon himself, the 9th Infantry Division, and the United States Army.

5.  Following his tour of duty in Vietnam, the applicant returned to the United States and assignment at Fort Ord, California.  He was honorably released from active duty on 6 May 1968.  His DD Form 214 shows he was awarded the Silver Star, Purple Heart, National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, Combat Infantryman Badge, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

6.  In May 2001, the applicant requested documentation for his Silver Star from the National Personnel Records Center (NPRC), St. Louis, Missouri.  Thereafter he began a campaign to have his Silver Star upgraded to a Medal of Honor.  On 29 October 2004, he completed a DA Form 638 to the Army Decorations Board showing it was from a Representative in Congress.

7.  In a letter dated 18 November 2005, the Chief, Military Awards Branch, US Army Human Resources Command (HRC), Alexandria, Virginia responded to the Representative in Congress that the "[Applicant] has provided a DA Form 638 with proposed citation, daily staff journals, an after action report, maps and diagrams of the location of the action, eyewitness affidavits, and a copy of his DD Form 214."  However, the letter added that the Army Decorations Board required "a copy of the original recommendation for award of the Silver Star with proposed citation and original eyewitness affidavits, and original chain-of-command endorsements."  The letter noted that the National Archives in College Park, Maryland did not have such documentation on file, thus the applicant's request could not be considered.

8.  The Representative in Congress again wrote to the Army Decorations Board on behalf of the applicant on 16 February 2006.  In a 2 March 2006 letter, the Chief, Military Awards Branch stated there was nothing the Army Decorations Board could do and referred to the applicant to the Army Board for Correction of Military Records (ABCMR).


9.  The applicant submitted a DD Form 149 (Application for Correction of Military Records Under the provisions of Title 10, US Code, Section 1552) to the ABCMR on 20 April 2007.  The application contained the following supporting statements:

	a.  A sworn affidavit, dated 19 August 2005, from a comrade-in-arms who witnessed the action.  He states that the applicant did, indeed, perform above and beyond the call of duty on 18 March 1967 when 25 men of the 1st Platoon, Company C, 2nd Battalion, 47th Infantry, were on patrol to search for and destroy enemy bunkers when it was ambushed.  During the ambush, the applicant attacked enemy positions with his M-60 machine gun while advancing all the way up the column.  He neutralized enemy fire from one flank and continued fighting on another flank while under a hail of fire that hit and wounded him.  But, despite his blood-soaked and holes-filled clothes, he was able to eliminate enemy machine gun fire, thus saving several lives.  The witness adds that this was the Company's first firefight of this magnitude and, as such, there was no reference as to what level of awards should be given in that situation.  The witness concludes that the applicant deserves his Silver Star for his first advance to his location; however, his continued advance that eliminated additional enemy positions at grave risk to himself merits the Medal of Honor;

	b.  A sworn affidavit, dated 13 September 2005, from the platoon's RTO who was at a base camp monitoring the radio.  He states that there were rumors in the base camp that many American lives were lost in the firefight, so he proceeded to the location of the ambush where he saw several killed and wounded Soldiers and heard the applicant's name being mentioned and then he witnessed the wounded applicant, who was more concerned about other Soldiers' injuries than his own.  The RTO adds that the applicant refused to be medically evacuated and that there were reports of the applicant dragging another Soldier who was shot in the chest, and trying to save his life by giving him mouth-to-mouth resuscitation.  The RTO concludes that the applicant made himself a target so others might live.  Therefore, he deserves the Medal of Honor.

	c.  A sworn affidavit, dated 31 July 2005, from a second comrade-in-arms who witnessed the action and stated that he was at the location when the applicant performed his heroic action.  The witness adds that a large enemy force ambushed the platoon while crossing an open field when the applicant grabbed his M-60 machine-gun and endangered himself by firing back at the enemy, both on the ground and in the trees, and killed several enemy soldiers while at the same time saving American lives and allowing those who were saved to move forward and take cover away from the open ground; 

	d.  A sworn affidavit, dated 11 February 2005, from an individual who heard a statement being made about the applicant that he should get the Medal of Honor for his heroism and for being able to bring his M-60 machine gun fire on the enemy, probably saving many lives;  

	e.  A sworn affidavit, dated 31 October 2005, by the highest-ranking, living member of the applicant's chain of command who is now a retired sergeant major (SGM).  He states that he was deployed with his company guarding a highway when the ambush started.  The SGM adds that the applicant was in the very front, fighting his way up, and signaling others to follow.  After the firefight, the applicant took a defensive position along the highway trying to find more ammunition for his machine gun which had blood all over the stock.  He refused medical care until all his comrades were treated.  During the debriefing, the SGM noticed the applicant was picking shrapnel out of his face and wiping blood as a medic took more shrapnel out of his face and the rest of his body.  The SGM also noticed that the applicant's clothes were shredded on all sides and that his face was puffy and swollen with shrapnel holes oozing blood.  The SGM also adds another point that was not mentioned in all the affidavits – it was reported that the applicant was wounded while risking his life for another Soldier who died shortly after the applicant attempted to save him.  The SGM concludes that the applicant risked his life above and beyond the call of duty with heroic courage in the face of the enemy saving many American lives;

	f.  In his statement, dated 7 December 2004, the Commander of the Department of California Military Order of the Purple Heart states that having been in combat himself, he does not take lightly any reference to gallantry in action.  He added that he had reviewed all the information available about the ambush and battle in question in a manner that only a combat veteran can perform with the conclusion that the applicant should be considered for the Medal of Honor;

10.  The applicant provided the following additional documentation with his DD Form 149:

	a.  Headquarters, 9th Infantry Division, General Orders Number 342, dated 27 March 1967, showing he was awarded the Purple Heart for wounds received in connection with military operations against a hostile force in the Republic of Vietnam on 18 March 1967;

	b.  Headquarters, 9th Infantry Division, General Orders Number 884, dated 27 April 1967, showing he was awarded the Silver Star for his actions on 18 March 1967;

	c.  map overlays showing the exact location of the his fields of fire in relation to the location of both his platoon and the ambushing force;

	d.  several extracts of Combat Operations After Action Reports (AAR), dated 1 April 1967.  The AAR states that, on 18 March 1967, during a reconnaissance mission by the 2nd platoon of C Company, the platoon engaged an estimated platoon-size enemy that was later found to be a much larger force.  The AAR further states the 1st Platoon of C Company made contact with an enemy that utilized claymore mines, hand grenades, machine guns, and was supported by artillery and mortar fire; and

	e.  Daily Staff Journal or Duty Officer Logs showing entries for incidents, messages, and orders that the Intelligence/Operations Officer of the 1st Brigade, 9th Infantry entered on 18 March 1967.

11.  The Medal of Honor, section 3741, title 10, United States Code (10 USC 3741), was established by Joint Resolution of Congress, 12 July 1862 (amended by acts 9 July 1918 and 25 July 1963).  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; while engaged in military operations involving conflict with an opposing foreign force; or while serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party.  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 risk of life.  Incontestable proof of the performance of the service will be exacted and each recommendation for the award of this decoration will be considered on the standard of extraordinary merit. 

12.  Army Regulation 600-8-22 provides, in pertinent part, that the Distinguished Service Cross is awarded to a person, who while serving in any capacity with the Army, distinguished himself or herself by extraordinary heroism while engaged in action against an enemy of the United States not justifying award of the Medal of Honor.  The act or acts of heroism must have been so notable and have involved risk of life so extraordinary as to set the individual apart from his or her comrades.


13.  Army Regulation 600-8-22 provides, in pertinent part, that the Silver Star 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.

14.  Army Regulation 600-8-22 (Military Awards), in pertinent part, authorizes award of a bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation and states that authorized bronze service stars will be worn on the appropriate service medal.  The applicant served in two campaigns during his Vietnam service, Counteroffensive, Phase II (1 July 1966-31 May 1967) and Counteroffensive, Phase III (1 June 1967-29 January 1968).

15.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the unit awards received by units serving in Vietnam.  This document shows the unit to which the applicant was assigned was cited for award of the Vietnam Gallantry Cross with Palm Unit Citation for the period 1 December 1966 to 30 June 1968 by Department of the Army General Order Number 31, dated 1969.  It also shows that the unit was awarded the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for the period 19 December 1966 to 28 June 1969 by Department of the Army General Order Number 59, dated 1969.

16.  Headquarters, US Army Vietnam, on 16 July 1968, authorized the applicant to accept and wear an individual foreign award of the Vietnam Gallantry Cross with Gold Star for his actions on 18 March 1967.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to upgrade of his Silver Star to the Medal of Honor.  His original request for the Medal of Honor, submitted to the Army Decorations Board through the Honorable Mary Bono, Representative in Congress, was returned without action by that board.  The reason cited was the need for a complete copy of the original recommendation for award of the Silver Star with proposed citation, original eyewitness affidavits, and the original chain-of-command endorsements.


2.  The highest awards for valor are, in descending order, the Medal of Honor, the Distinguished Service Cross, and the Silver Star.  Requirements for each award are:

	a.  Medal of Honor – Conspicuous gallantry and intrepidity as a member of the Army at the risk of life above and beyond the call of duty while engaged in an action against an enemy of the United States.  The deed performed must have been one of personal bravery or self-sacrifice so conspicuous as to clearly distinguish the individual above his/her comrades and must have involved risk of life.  Incontestable proof of the performance of the service will be exacted and each recommendation for the award of this decoration will be considered on the standard of extraordinary merit.

	b.  Distinguished Service Cross – While serving in any capacity with the Army, displaying extraordinary heroism not justifying the award of a Medal of Honor; while engaged in an action against an enemy of the United States.  The act or acts of heroism must have been so notable and have involved risk of life so extraordinary as to set the individual apart from his or her comrades.

	c.  Silver Star – Requires gallantry in action against the enemy.  The gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction.

The ABCMR acknowledges and applauds the applicant's valor and courage on 18 March 1967 under extremely hazardous conditions; he is truly an American hero.  However, it is extremely difficult to make the necessary distinctions as to whether a particular act constitutes "conspicuous gallantry and intrepidity", "extraordinary heroism", or "gallantry in action."

3.  The applicant’s record shows that he was clearly cited for gallantry in action against an enemy of the United States while engaged in military operations involving conflict with an opposing foreign force in the Republic of Vietnam.  A decision was made to award him the Silver Star.  However, without the information requested by the Army Decorations Board, a determination of the appropriateness of that decision cannot be made.  For instance, it is not known whether the applicant's immediate commander recommended he be awarded a Medal of Honor or a Distinguished Service Cross and the recommendation was disapproved in favor of a Silver Star.  Conversely, it is not known whether he was originally recommended for a Bronze Star Medal for Valor, but upgraded to a Silver Star by the approving authority.

4.  The decision of whether to award an individual a decoration and which decoration to award is a judgment call made by the commander having award approval authority.  Commanders at the time of the act, or shortly thereafter, determined that the applicant's actions were so extraordinary and so noteworthy as to warrant award of the Silver Star.  Almost forty years have passed since the events of 18 March 1967 and the ABCMR, is not privy to the decision process used that time.

5.  The applicant is entitled to additional awards which do not appear on his DD Form 214.  He is entitled to wear two bronze service stars on his Vietnam Service Medal, the Vietnam Gallantry Cross with Gold Star, the Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.

6.  Evidence shows that the applicant’s records contain administrative error which does not require action by the Board.  Therefore, administrative correction of the applicant’s records will be accomplished by the Case Management Support Division (CMSD), St. Louis, Missouri, as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__hof___  __mjf___  __wb____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.  The Board determined that administrative error in the records of the individual should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned to show the 
Vietnam Service Medal with two bronze service stars, the Vietnam Gallantry Cross with Gold Star, the Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation.

3.  The Board acknowledges and recognizes the valor, courage, and extraordinary heroism displayed by the applicant on 18 March 1967 while under extremely hazardous conditions and the acts of personal bravery exhibited by the applicant during the Vietnam War.



							Hubert O. Fry, Jr.
______________________
          CHAIRPERSON



INDEX

CASE ID
AR20070006981
SUFFIX

RECON

DATE BOARDED
20071023
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
107.0000
2.

3.

4.

5.

6.