IN THE CASE OF:	  

		BOARD DATE:	       6 November 2008

		DOCKET NUMBER:  AR20080014952 


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 requests an upgrade of his award of the Bronze Star Medal with "V" Device to a Silver Star.

2.  The applicant defers his statement to counsel. 

3.  The applicant provides additional documentary evidence through counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's award of the Bronze Star Medal with "V" Device be upgraded to a Silver Star.

2.  Counsel states that:

	a.  The applicant's award of the Bronze Star Medal with "V" Device should be upgraded to a Silver Star for his exceptional gallantry in action while engaged with the enemy near Dak To in the Republic of Vietnam on 12 November 1967.  The applicant and private first class (PFC) Dxxe Hxxxxt, a wounded Soldier who was rescued by the applicant, were both awarded the Bronze Star Medal with "V" Device for the same action.  Subsequently, PFC Hxxxxxt's  award was upgraded to a Silver Star while the applicant's was not.  



	b.  The applicant first became aware of PFC Hxxxxxt's upgrade in April 2008 and learned that Silver Stars were generally awarded for similar rescue actions The type of gallantry displayed by the applicant who despite immediate danger to himself, rescued a wounded comrade who would have been killed or captured is generally honored and awarded with the Silver Star.  The applicant displayed one of the most selfless and brave acts that reflect great credit upon him, the unit, and the Army, and is in keeping with the highest traditions of military service.

3.  Counsel provides the following additional documentary evidence in support of the applicant's request:

	a.  Copy of Headquarters, 173rd Infantry Brigade (Separate), General Orders Number 146, dated 8 January 1968, awarding the applicant the Bronze Star Medal with "V" Device.

	b.  Copy of Headquarters, 173rd Infantry Brigade (Separate), General Orders Number 435, dated 8 February 1968, awarding another Soldier (PFC Hxxxxxt) the Bronze Star Medal with "V" Device.

	c.  Copy of Headquarters, I Field Forces Vietnam, General Orders Number 291, dated 27 March 1968, awarding PFC Hxxxxxt the Silver Star.

	d.  Statement, dated 14 May 2008, from the applicant's former squad leader.

	e.  Letter, dated 22 May 2008, from the applicant's former platoon leader to the applicant's counsel.

	f.  Letter, dated 25 June 2008, from the applicant's counsel to the National Archive at College Park, MD.

	g.  Affidavit, dated 28 July 2008, from the applicant's former platoon medic.

	h.  Applicant's sworn declaration, dated 25 August 2008.

	i.  Declaration, dated 25 August 2008, from the applicant's counsel.

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 21 June 1966.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He attained the rank/grade of sergeant (SGT)/E-5 and was honorably discharged on 20 December 1968 for the purpose of immediate reenlistment into the Regular Army.  

3.  The applicant's records also show that he subsequently executed a series of extensions and/or reenlistment in the Regular Army and held MOS 18Z (Special Forces Senior Sergeant).  He was placed on the Retired List in his retired grade of master sergeant (MSG)/E-8 on 30 June 1992.  He was credited with 26 years of honorable military service.

4.  The applicant's records show he served in the Republic of Vietnam from 21 May 1967 to 30 March 1968.  He was assigned to Company A, 1st Battalion, 503rd Infantry, 173 Infantry Brigade (Separate).

5.  Item 24 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 (Armed Forces of the United State Report of Transfer or Discharge), dated 20 December 1968, shows he was awarded the Parachutist Badge, the National Defense Service Medal, the Vietnam Service Medal, the Vietnam Campaign Medal, the Combat Infantryman Badge, the Bronze Star Medal (1st Oak Leaf Cluster) and "V" Device, the Purple Heart (1st Oak Leaf Cluster), and two Overseas Service Bars.  

6.  The applicant was awarded the Bronze Star Medal with "V" Device for heroism in connection with military operations against a hostile force on 12 November 1967.  General Orders Number 146, Headquarters, 173rd Airborne Brigade (Separate), dated 8 January 1968, cited the following reason:

[Applicant] distinguished himself by exceptionally valorous actions on 12 November 1967 in the Republic of Vietnam.  On this day the [Applicant] was the squad leader of the point squad in the platoon.  Suddenly, he and his men came under intense enemy fire. [Applicant] led his squad in an assault on the enemy positions, and personally charged an enemy machinegun bunker, destroying it with grenades.  As the enemy fire increased, the squad was forced to withdraw.  [Applicant] carried a wounded man to safety while firing on the enemy at the same time.  [Applicant] contributed greatly to the eventual defeat of the enemy force.

7.  In June 2008, the applicant solicited the help of his counsel to assist him in upgrading his Bronze Star Medal.  Subsequently, counsel requested a copy of the original recommendation that resulted in award of the Bronze Star Medal with "V" Device, from the National Archive at College Park.  However, on 7 July 2008, counsel was informed by the Chief, Textual Records References Staff, National Archives and Records Administration, that his office was unable to locate any relevant files for the applicant's unit for the period in which counsel was interested in. 

8.  The applicant and his counsel 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 25 August 2008.  The application contained the following supporting statements, declarations, and affidavits:

	a.  A statement, dated 14 May 2008, from the applicant's former squad leader, who states that during the applicant's tenure in his squad, he showed his skill and techniques in jungle warfare.  His aggressiveness and superior leadership earned him the position of fire team leader.  As a fire team leader, he led night ambushes, combat patrols, and frequently took the positions of point man.  He led by example and took care of his men.  The former squad leader goes on to state that the applicant was the best land navigator he has ever known.  He was a hard-fighting and courageous man.

	b.  A statement, dated 22 May 2008, from the applicant's former platoon leader, in which he states that he got to know the applicant as a Soldier and as a person under extraordinary conditions, and that the applicant earned his everlasting admiration and respect.  He goes on to state that the platoon was involved in many contacts and firefights with the enemy and that the applicant volunteered for tough assignments, such as "point" more than anyone else.  After about 6 months as his platoon leader, he became the company Executive Officer and another lieutenant took his place as the 3rd platoon leader, and although he did not have the opportunity to know the applicant as well as he did, he is sure he would support the outstanding character, courage, and heroism that the applicant continuously demonstrated.  He concludes that based on his experience, knowledge, and personal observations, he strongly supports the applicant's upgrade of his award to a Silver Star.


	c.  An affidavit, dated 28 July 2008, from the applicant's former platoon medic who states that the applicant's squad was the point squad for the company on 12 November 1967 and that the company was ordered to move along a designated route to link up with D Company of the same battalion.  At mid- morning on that day, gunfire erupted at the front of the column.  He (the medic) immediately began moving forward and when he reached the platoon leader, he heard him telling the applicant that PFC Hxxxxxt was dead.  However, the applicant, having already silenced two enemy bunkers, pulled his squad back, and set up a small perimeter, asked his men to cover him and began moving forward toward the wounded comrade.  He carried and/or dragged the wounded PFC to a safer position while the squad gave him covering fire.  The medic provided the wounded PFC first aid and was subsequently medically evacuated. 

	d.  The applicant's declaration, dated 25 August 2008, in which he states that on 12 November 1967, he and PFC Hxxxxxt were in the point squad in the platoon on a trail littered with rice-balls and blood-stained dressing materials.  Suddenly, a dog-handler who was attached to the platoon signaled that the dog was on alert for enemy movement.  He (the applicant) ordered PFC Hxxxxxt and three other Soldiers to patrol the area.  As they patrolled the area, they spotted an enemy soldier in a foxhole.  The enemy soldier started firing at them and this was followed by an exchange of fire between the patrol team and the enemy.  PFC Hxxxxxt threw a hand-grenade and silenced an enemy machinegun position.  The applicant then ran past the silenced foxhole and faced another freshly dug foxhole.  He killed the occupant of that foxhole and ran around the bushes to his squad where he found PFC Hxxxxxt lying on his stomach with his head toward the enemy position.  The platoon leader assumed the PFC was killed and wanted the rest of the team to pull back.  However, under intense fire, the applicant ran out of his position alone and carried the unconscious PFC to safety where he was subsequently evacuated by a medical helicopter.

	e.  A declaration, dated 25 August 2008, from the applicant's counsel, in which he states that he is assisting the applicant in his quest to upgrade his award to a Silver Star and that he was advised that prior to submitting the DD Form 149, the applicant had to exhaust his administrative remedies and that he had to obtain the original field recommendation from the National Archives.  However, the original recommendation could not be found.  

9.  Counsel also submitted copies of PFC Hxxxxxt's citations for award of the Bronze Star Medal with "V" Device and award of the Silver Star.



	a.  Headquarters, 173rd Airborne Brigade (Separate), General Orders Number 435, dated 8 February 1968, awarded PFC Hxxxxxt the Bronze star Medal with "V" Device for heroism in connection with military operations against a hostile force on 12 November 1967.  The orders cited the following reason:

[PFC Hxxxxxt] distinguished himself by exceptionally valorous actions on 12 November 1967, near Dak To, in the Republic of Vietnam.  On this day, [PFC Hxxxxxt] was the point-man for Company A, 1st Battalion (Airborne), 503rd Infantry, as they moved toward the crest of a hill.  After finding fresh signs of the enemy in the area, [PFC Hxxxxxt] found an enemy rucksack, fresh bandages, and footprints.  After informing his superiors, [PFC Hxxxxxt ] began searching the area to his front very deliberately for the enemy.  [PFC Hxxxxxt] spotted what he thought was a fresh grave, but then took cover when he spotted movement and came under fire.  After returning the fire, [PFC Hxxxxxt] moved toward the enemy position and eliminated it with fire from his rifle.  After moving still farther forward, [PFC Hxxxxxt ] located a machinegun bunker and attacked it.  He killed the gunner with his rifle and then neutralized the position with a hand grenade after crawling very close to it.  [PFC Hxxxxxt] then spotted another machinegun bunker as he maneuvered forward to attack it, he was seriously wounded in the head.  With the initial enemy threat eliminated by [PFC Hxxxxxt], his company managed to withdraw from the hill and allow air strikes to be effectively placed on the enemy positions.  After evacuating him, the company managed to rout the enemy force and capture the hill.  

	b.  Headquarters, I Field Force Vietnam, General Orders Number 291, dated 27 March 1968, awarded PFC Hxxxxxt the Silver Star for gallantry in action while engaged in military operations involving conflict with an armed hostile force in the Republic of Vietnam on 12 November 1967, while serving in the 3rd Platoon, Company A, 1st Battalion (Airborne), 503rd Infantry, 173rd Airborne Brigade (Separate).  The orders cited the following reason:

[PFC Hxxxxxt's] platoon was leading Company A to the crest of a hill in the vicinity of Tak Do.  [PFC Hxxxxxt] was leading the point-man and found an enemy rucksack, fresh bandages, and footprints in the area.  After informing his superiors, [PFC Hxxxxxt] dropped his rucksack and began searching the area to his front deliberately. He spotted what he first thought a fresh grave, but then realized it was an enemy bunker.  He took cover when he saw movement and received fire.  After returning the fire, [PFC Hxxxxxt] maneuvered against the bunker and eliminated it with his M-16.  By maneuvering further, [PFC Hxxxxxt] located a machinegun bunker, killed the gunner, and after crawling very close to it, neutralized the position with a hand grenade.  Still under small arms and rocket fire from his front and both flanks, [PFC Hxxxxxt]  moved to still another machinegun position, where he was seriously wounded in the head. Having eliminated most of the initial threat, the third platoon withdrew to evacuate [PFC Hxxxxxt] and to allow air strikes to be put on the hill. 

10.  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.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years

11.  United States Army Vietnam Regulation 672-1 (Military Awards) governed the military awards program in Vietnam during the Vietnam War.  This regulation stated that the Bronze Star Medal may have been awarded for heroism, meritorious achievement or service which did not involve aerial flight, but which was performed in connection with military operations against an armed enemy including combat, support, and supply operations.  

12.  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.

13.  Title 10 of the United States 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and his counsel contend that he is entitled to upgrade of his Bronze Star Medal with "V" Device to a Silver Star.

2.  The ABCMR acknowledges and applauds the applicant's valor and courage on 12 November 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."  Furthermore, none of the statements submitted by counsel in support of the applicant's request speak to the specific events of 12 November 1967 with the exception of the medic's statement.  However, even the medic's statement fails to shed light on the applicant's detailed actions of that day.

3.  The applicant’s record shows that he was clearly cited for his heroism when he distinguished himself by valorous action on 12 November 1967 in connection with military operations against an enemy of the United States in the Republic of Vietnam.  A decision was made to award him the Bronze Star Medal with "V" Device.  However, without the original award recommendation, 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 Silver Star or possibly a Distinguished Service Cross and the recommendation was disapproved in favor of a Bronze Star Medal.  Conversely, it is not known whether he was originally recommended for an Army Commendation Medal, but upgraded to a Bronze Star Medal for Valor 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 Bronze Star Medal for Valor.  More than forty years have passed since the events of 12 November 1967 and the ABCMR is not privy to the decision process used at that time.

5.  The ABCMR considers individual applications that are properly brought before it.  In appropriate cases, it directs or recommends correction of military records to remove an error or injustice.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  Each case is assessed and analyzed based on its own merits.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

6.  While the available evidence is insufficient for upgrading and/or awarding the applicant the 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.

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)                                         AR20080014952



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ABCMR Record of Proceedings (cont)                                         AR20080014952



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