IN THE CASE OF:	

	BOARD DATE:	  20 May 2008

	DOCKET NUMBER:  AR20080006324 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant defers to his former Commanding Officer to state his request.  The former Commanding Officer requests that the applicant's Bronze Star Medal with "V" Device be upgraded to the Silver Star.

2.  The applicant's former Commanding Officer states that the applicant's actions on 26 March 1970 warrant award of the Silver Star and that the applicant distinguished himself by the highest degree of gallantry in action.  The former Commanding Officer further states that he was the recommending official at the time the applicant was awarded the Bronze Star Medal with "V" device.  However, he has since received new information from eyewitnesses at the time that justifies an upgrade to this award.

3.  The applicant's former Commanding Officer provides 10 enclosures identified in an index in support of this application.

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.  Records show the applicant was inducted on 16 October 1946 and served until he was honorably separated for the purpose of retirement on 30 June 1974. The highest grade the applicant held was platoon sergeant (PSG)/pay grade E-7.

3.  Records further show that the applicant was awarded the following:  National Defense Service Medal with Oak Leaf Cluster, Army Occupation Medal (Germany), Vietnam Service Medal with 3 bronze service stars, Army Commendation Medal, Combat Infantryman Badge, Republic of Vietnam Campaign Medal, Purple Heart, Armed Forces Expeditionary Medal (Korea), Bronze Star Medal with 2 Oak Leaf Clusters and 1 "V" Device, Good Conduct Medal, (Bronze with 3 Loops), and the Soldier's Medal.

4.  Department of the Army General Orders Number 2278, dated 30 May 1970, award the applicant the Bronze Star Medal with "V" Device (First Oak Leaf Cluster).  The reason for the award was cited as [the applicant's name removed] distinguished himself by heroism in connection with ground operations against a hostile force on 26 March 1970 while serving as a platoon sergeant with Troop A, 1st Squadron, 11th Armored Cavalry Regiment, in the Republic of Vietnam.

5.  Records show that the applicant's former Commanding Officer applied to the Army Awards Board for upgrade of the applicant's Bronze Star Medal with "V" Device and that the Army Awards Board did not take action due to the fact the original DA Form 638 (Recommendation for Award) was not available.  Without the original DA Form 638, the Army Awards Board was unable to determine what information was previously considered by the original award approval authority.

6.  The applicant's former Commanding Officer provided a DA Form 638, dated 23 November 2004, which recommends the applicant for award of the Silver Star.  This form does not state that the request is for an upgrade of a previous award.  The former Commanding Officer states the reason for the award is recognition of valor.  This form further shows that the immediate commander - at the time and the regimental commander-at the time recommended approval of award of the Silver Star.

7.  The applicant's former Commanding Officer also provided a copy of his book The Anonymous Battle for consideration with this application.  This book provides a historical review of the events of 25/26 March 1970.  This book was published in December 2004.

8.  The additional documentation provided by the applicant's former Commanding Officer essentially summarizes the event of 26 March 1970 for which the applicant was awarded the Bronze Star Medal with "V" Device.
9.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service.  This act or acts must be of lesser degree that that required for award of the Legion of Merit.  The bronze “V” device indicates acts of heroism involving conflict with an armed enemy.

10.  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) while of a lesser degree that that required for award of the Distinguished Service Cross 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.
  
11.  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 applicant's request for upgrade of his Bronze Star Medal with "V" Device was carefully considered.  Regrettably there is insufficient evidence to support the requested upgrade to the Silver Star.

2.  The applicant's former Commanding Officer by his own admission acknowledges that he recommended him for award of the Bronze Star Medal with "V" Device based on his actions at the time.

3.  Although the original DA Form 638 is not available for review with the case, it is presumed that the appropriate approval authority reviewed the award recommendation and determined that the Bronze Star Medal with "V" Device was the appropriate award for the applicant's actions.  The applicant has not established that all relevant information was not available to and considered by the original award approval authority.

4.  There is no evidence in available records nor has the applicant or his former Commanding Officer provided sufficient evidence showing that the decision to award the Bronze Star Medal with "V" Device to the applicant was inaccurate or unjust.  Pertinent Army regulations state that the decision to approve awards is a subjective decision made by the commander having award approval authority.  There is no evidence which shows that the appropriate authority approved an upgrade to award of the Silver Star at the time the applicant's former Commanding Officer recommended award of the Bronze Star Medal with "V" Device.

5.  Statements obtained over 30 years after the fact are not considered sufficient evidence to validate upgrade to award of the Silver Star.  Although these statements clearly show the heroic actions of the applicant, they are not significantly different than the information which supported award of the Bronze Star Medal with "V" Device and they do not outweigh the fact that the award approval authority at that time determined that the applicant's action warranted award of the Bronze Star Medal with "V" Device.

6.  Although the request for upgrade of the applicant's Bronze Star Medal with "V" Device is not approved, this action in no means diminishes the heroism and sacrifices by the applicant in his Service to the United States.  

BOARD VOTE:

___x_____  ___x_____  ___x_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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 for correction of the records of the individual concerned.




       _   ____x______   ____
           CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20080006324



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080006324



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1