IN THE CASE OF:	  

		BOARD DATE:	        24 MARCH 2009

		DOCKET NUMBER:  AR20080011686 


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, an authorized agent working on behalf of the former service member (FSM), requests that the FSM's Air Medal with "V" Device be upgraded to the Silver Star.

2.  The applicant states that the Air Medal for heroism (valor) was awarded; however, the FSM should have been awarded the Silver Star as it would have been more appropriate.

3.  The applicant provides, through the office of a Member of Congress, an undated facsimile (fax) transmission sheet which was used to forward the application to this agency; a letter from the Member of Congress addressed to this agency, dated 21 July 2008, providing details regarding the FSM's brave service to this country; a complimentary self-serve fax cover sheet, dated 15 July 2008, with an undated statement from the FSM granting the applicant the authority to act as the FSM's agent for the purpose of upgrading the FSM's Air Medal with "V" Device; a Privacy Act Statement from the office of the Member of Congress, dated 15 July 2008, signed by the agent, providing the Member of Congress the authority to receive information about the agent; a letter, dated 14 July 2008, addressed to the Member of Congress forwarding the Application for Correction of Military Records and requesting assistance in ensuring that the FSM receives proper recognition for the FSM's extraordinary acts of bravery and gallantry while in Vietnam; a letter addressed to the Awards Review Board



Support Division, dated 31 May 2008, explaining the events that the agent contends took place that should have merited the FSM the award of the Silver Star; signed and notarized individual acknowledgements and individual signature lines; an undated self-authored brief from the agent entitled "Chinook Helicopter Crash Viet Nam" providing details of the FSM's gallantry, heroism, and valor during the period for which the FSM was awarded the Air Medal with "V" Device; a copy of General Orders Number 831 dated 22 March 1966 awarding the FSM the Air Medal (sixth oak leaf cluster) with "V" Device; and a picture of what appears to be a crashed helicopter.

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.  On 26 March 1951, the FSM enlisted in the U.S. Army Reserve (USAR) in Troy, Alabama, for 3 years in the pay grade of E-1.  He successfully completed his training and he was ordered to active duty on 10 June 1951 as a crane and shovel operator.  He was promoted through the ranks to sergeant.

3.  After completing 1 year, 9 months, and 15 days of net service for pay purposes, the FSM was honorably released from active duty (REFRAD) on 10 January 1953 and transferred to the USAR to complete his Reserve obligation.  The DD Form 214 (Report of Separation from the Armed Forces of the United States) that he was furnished at the time of his REFRAD shows that he was not authorized any awards during this period of service.

4.  The FSM enlisted in the Regular Army (RA) for 3 years on 25 August 1953 and he was awarded a unit supply specialist military occupational specialty.  While on active duty, he attended the Army Aviation School and completed the Cargo Helicopter Pilot Course.



5.  After completing 2 years, 3 months, and 22 days of net service for pay purposes this period, the FSM was honorably discharged on 16 December 1955 for the convenience of the government to accept an appointment as a Reserve warrant officer (WO1).  The DD Form 214 that the FSM was furnished at the time of his discharge shows that he was awarded the National Defense Service Medal during this period of service.

6.  On 17 December 1955, the FSM accepted an appointment in the Reserve in the rank of W-1 as a helicopter pilot.  He was promoted to chief warrant officer two (CW2) on 21 October 1959 and he was promoted to chief warrant officer three (CW3) on 27 December 1963.

7.  After completing 10 years, 3 months, and 17 days of net service this period, the FSM was honorably discharged from the USAR on 3 April 1966 to accept an appointment in the RA.  The DD Form 214 that the FSM was furnished at the time of his discharge shows that he was awarded the Good Conduct Medal, the National Defense Service Medal, the Army Aviator Badge, the Senior Army Aviator Badge, and the Army Commendation Medal with two oak leaf clusters.

8.  The FSM accepted an appointment in the RA in rank of CW2 on 4 April 1966. He was promoted to CW3 on 17 December 1967 and he was promoted to chief warrant officer four (CW4) on 14 March 1968.

9.  After completing 6 years, 11 months, and 28 days of net service this period, the FSM was honorably retired from the Army on 31 March 1973.  The DD Form 214 that he was furnished at the time of his retirement shows that he was awarded the Army Commendation Medal with two oak leaf clusters, four Overseas Service Bars, the Bronze Star Medal, the Vietnam Service Medal with seven bronze service stars, the Air Medal with "V" Device and 18 oak leaf clusters, the National Defense Service Medal with first oak leaf cluster, the Vietnam Campaign Medal with Device (1960), the Armed Forces Reserve Medal, the Presidential Unit Citation, the Meritorious Unit Citation, and the Master Aviator Badge.

10.  A review of the available records does not show that orders were ever published awarding the FSM the Silver Star.

11.  The self-authored brief entitled "Chinook Helicopter Crash Viet Nam" that the agent submitted in support of the application tells a story of how the agent and other Soldiers were rescued by a helicopter pilot (the FSM) after the helicopter in which the agent was riding went out of control and crashed as a result of hostile 


action by the enemy while he was in Vietnam.  The self-authored brief is four pages in length and the FSM is mentioned twice therein; once as the pilot that rescued the agent and other Soldiers and flew them to safety, the second at the end of the brief where the agent states that the FSM was awarded the Air Medal with "V" Device (sixth oak leaf cluster) for the rescue.

12.  The agent also submits a picture of what appears to be the crashed helicopter that the agent refers to in the self-authored brief.

13.  During the processing of this case, a Board analyst contacted the Army Human Resources Command, Military Awards Branch to determine if the FSM had exhausted his administrative remedies with the Army Decorations Board.  The analyst was informed that there is no record of the FSM or his agent ever applying through that board for an upgrade of the FSM's Air Medal to a Silver Star.

14.  Title 10 of the U. S. 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.

15.  Army Regulation 600-8-22 (Military Awards) 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.

DISCUSSION AND CONCLUSIONS:

1.  The agent contends that the Air Medal with "V" Device that was awarded to the FSM should be upgraded to the Silver Star.


2.  The agent's contentions have been noted; however, they are not sufficiently mitigating to warrant the relief requested.

3.  In accordance with the applicable regulation, the Silver Star is awarded for gallantry in action against the enemy.  The required gallantry must have been performed with marked distinction.  While the FSM's courage and valor were unquestionable, it does not appear that his actions merit an upgrade of the award that the FSM received.

4.  As previously stated by the agent, the FSM rescued the agent and other Soldiers by helicopter and flew them to safety.  As a result of the FSM's actions, the FSM was awarded the Air Medal with "V" Device (sixth oak leaf cluster).  The agent has provided insufficient evidence to support the contention that the FSM met the criteria for the award of the Air Medal with "V" Device (sixth oak leaf cluster) to be upgraded to the Silver Star.

5.  While the available evidence is insufficient for upgrading the Air Medal with "V" Device to a Silver Star, this in no way affects the applicant’s right to pursue his claim for the Silver Star by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

6.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The agent has failed to submit evidence that would satisfy this requirement.

7.  In view of the foregoing, there is no basis for granting the agent's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ___X_____  ____X____  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.



      _________XXX________________
                 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)                                         AR20080011686



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ABCMR Record of Proceedings (cont)                                         AR20080011686



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