IN THE CASE OF:	  

		BOARD DATE:	       30 DECEMBER 2008

		DOCKET NUMBER:  AR20080015057 


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 letter of appreciation to a Soldier’s Medal.

2.  The applicant states that he was issued a letter of appreciation for the rescue of Staff Sergeant (SSG) Jxxx Mxxx in Okinawa, Japan, in 1972, and that the details of the rescue cannot be found in all the award sources provided by the U.S. Army Human Resources Command (HRC)-Alexandria or in his personnel records in St. Louis.

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

	a.  copy of an undated letter of appreciation issued by the Transportation Battalion, Support Brigade, 2d Logistical Command.

	b.  self-authored narrative of the rescue, dated 29 March 2006.

	c.  unsigned witness statement, dated 26 May 2006.

	d.  letter, dated 27 March 2008, from the National Personnel Records Center (NPRC).

	e.  self-authored letter, dated 12 June 2008, to his Member of Congress.


	f.  letter, dated 30 May 2007, from the Military Awards Branch, 
HRC-Alexandria.

	g.  self-authored letter, dated 27 August 2008.

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 he was appointed as a U.S. Army Reserve Warrant Officer of the Army in military occupational specialty 562D (Marine Engineer Officer) on 22 May 1969.  He served in various staff and leadership positions and was promoted to chief warrant officer four (CW4) on 1 June 1984.

3.  In around March 1972, while stationed in Okinawa, Japan, the applicant was issued a letter of appreciation by his battalion commander, citing the following reason:

It is indeed with great pleasure that I take this opportunity to commend you on your unselfish assistance in the rescue of Staff Sergeant Jxxx Mxxx who was in danger of drowning at Naha Port on 19 March 1972.  This action speaks highly of your regard for human life as you acted without the expectations of a tangible reward.  Your innate intelligence, calm nature, and quick thinking demonstrated by the expeditious nature in which you adapted normal ship’s gear into life saving equipment reflects great credit upon yourself and this command.  You are to be congratulated for your outstanding performance.  I feel certain that you will continue to offer assistance when your fellow man is in need.

4.  Following his tour of duty in Okinawa, the applicant completed several other continental United States and overseas assignments and was honorably separated on 31 October 1981 and placed on the Retired List in his retired grade of CW4 on 1 November 1981.  However, he was recalled to active duty on 30 June 1982, served an additional 6 years, and reverted back to the Retired List on 1 July 1988.  He was credited with over 26 years of active duty service.

5.  Item 13 (Decorations, Medals, Badges, Citations and campaign Ribbons awarded or Authorized) of the applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) and subsequent DD Forms 215 (Correction to DD Form 214) for the period ending 30 June 1988 show he was awarded the Bronze Star Medal, the Meritorious Service Medal (1st Oak Leaf Cluster), the Army Commendation Medal, the Army Achievement Medal, the Good Conduct Medal, the National Defense Service Medal, the Vietnam Service Medal, the Armed Forces Reserve Medal, the Noncommissioned Officer Professional Development Ribbon, the Army Service Ribbon, the Overseas Service Ribbon, the Vietnam Campaign Medal, the Legion of Merit, and the Korea Defense Service Medal.

6.  On 29 March 2006, the applicant requested that HRC-Alexandria award him the Soldier’s Medal for his actions on 16 March 1972 in Naha Port, Okinawa, Japan.  He stated that he was a deputy officer on a U.S. Army vessel when a member of the crew, SSG Jxxx Mxxx, came back to the vessel highly intoxicated one evening and jumped into the water in an attempt to commit suicide.  Another Soldier, a specialist, jumped into the 18-20 feet deep water and grabbed the SSG while he grabbed a heaving line with a monkey fist and also jumped into the water.  The SSG had already passed out but the specialist was holding on to him.  He tied the line around the SSG's chest and swam back to the tugboat.  He then threw the specialist a life-ring and pulled the two in.  The intoxicated SSG was ultimately rescued and taken to the dispensary.  He recommended the specialist for the Soldier’s Medal, but is unsure if he ever received it.  Additionally, the vessel master (now deceased) also recommended him for award of the Soldier’s Medal; however, he only received a letter of appreciation.

7.  The applicant submitted an unsigned witness statement, dated 26 May 2006, in which the witness states that he was the chief oiler assigned to the tugboat stationed at Naha Port, Okinawa, Japan.  The witness remembers returning to the vessel on the night of 19 March 1972 when he heard a commotion on the stern of the vessel and saw the applicant soaking wet and pulling on a line and dragging the intoxicated Soldier and the specialist to the side of the vessel where they were brought on board.  The witness adds that several days after the incident, it was common knowledge that the tugboat skipper had recommended the applicant and the specialist for awards of the Soldier’s Medal.

8.  In a letter dated 30 May 2007, the Chief, Military Awards Branch, 
HRC-Alexandria, responded to the applicant that the evidence he submitted (his letter of appreciation, DA Form 638 (Recommendation for Award), and eye witness statement) was insufficient for the Army Decorations Board to fully and fairly consider his request, and that without additional documentation, his request could not be acted upon.  The applicant was also asked to obtain any other documentation, such as a unit report of the incident and additional sworn eyewitness affidavits, and forward it to HRC-Alexandria for consideration.

9.  There is no indication that the applicant submitted further evidence or argument to HRC-Alexandria or that he requested reconsideration.

10.  On 19 March 2007, by letter, the National Archives and Records Administration notified the applicant that their agency has almost no records for U.S. Army units stationed in Okinawa during the 1970s.

11.  In a letter, dated 12 June 2008, to his Representative in Congress, the applicant restates the events of 19 March 1972 and requests assistance to upgrade his letter of appreciation to a Soldier’s Medal.

12.  In his self-authored letter, dated 27 August 2008, the applicant restates the events of 19 March 1972 and describes his communication with HRC-Alexandria and with the NPRC.

13.  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.  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.  There are regulatory provisions for lost recommendations but not for late recommendations or reconsideration.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his letter of appreciation should be upgraded to a Soldier’s Medal.  His original request for the Soldier’s Medal submitted to the Army Decorations Board was returned without action by that board.  The reason cited was the need for further documentation, such as a unit report of the incident and additional sworn eyewitness affidavits, corroborating the events of 19 March 1972.

2.  The ABCMR acknowledges and applauds the applicant's unselfish assistance on 19 March 1972.  The applicant’s record shows that he was cited for assisting in the rescue of an intoxicated SSG and a decision was made to issue him a letter of appreciation.  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 an Army Commendation Medal and the recommendation was disapproved in favor of a letter.

3.  By regulation, award of the Soldier's Medal may be appropriate when the member's performance involves personal hazard or danger and the voluntary risk of life under conditions not involving conflict with an armed enemy.  An award of the Soldier's Medal is not made solely on the basis of having saved a life.  Furthermore, 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.  The applicant's commander at the time of the act, or shortly thereafter, determined that the applicant's actions warranted issuing him a letter of appreciation.  Almost 40 years have passed since the events of 19 March 1972 and the ABCMR is not privy to the decision process used at that time.

4.  There is no evidence in the available records and the applicant did not provide any substantiating evidence that shows he was recommended for award of the Soldier's Medal.  Army regulation states that for personal decorations, formal recommendation, approval through the chain of command, and announcement of orders are required.  There is insufficient evidence to award the applicant the Soldier's Medal in this case.

5.  While the available evidence is insufficient for awarding the applicant the Soldier's Medal, this in no way affects the applicant’s right to pursue his claim for the Soldier's Medal 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)                                         AR20080015057



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ABCMR Record of Proceedings (cont)                                         AR20080015057



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