IN THE CASE OF:	  

		BOARD DATE:	       21 January 2009

		DOCKET NUMBER:  AR20080015845 


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, in effect, that he be awarded the Distinguished Flying Cross (DFC) for his actions in Vietnam on 27 February 1970.

2.  The applicant states, in effect that the award appears to have not been made at the time because the unit award’s clerk lost several recommendations.  The substance of the case is provided by retired Colonel (COL) H. M____, who relates that he was the unit's awards officer at the time.

3.  The applicant provides a 15 September 2006 letter from the Chief, Military Awards Branch, Army Human Resources Command, reporting disapproval of the congressionally sponsored recommendation; a 30 October 2007 letter from the Director, Army Board for Correction of Military Records (ABCMR), informing applicant of the need to exhaust administrative remedies by applying to the Military Awards Branch; and 19 other documents.

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.  A previous case resulting from the applicant's 24 April 2007 application was inadvertently closed administratively.  An earlier application to and denial by the Military Awards Branch appears to have not been available in the record at that time.

3.  In February 1970 the applicant, formerly an enlisted person in both the Navy and the Air Force, was a second lieutenant with the 361st Aviation Company (Aerial Weapons) (Escort) at Pli Ku, Republic of Vietnam, as a Cobra helicopter gunship pilot.  He served in Vietnam from 6 December 1969 until 12 June 1970 when he was medically evacuated.

4.  The applicant retired as a major 30 November 1979.  His awards, as listed on his Report of Separation from Active Duty (DD Form 214), consist of the Bronze Star Medal, Purple Heart with Oak Leaf Cluster, Army Commendation Medal, Good Conduct Medal, National Defense Service Medal with Oak Leaf Cluster, Armed Forces Reserve Medal, Vietnam Service Medal, Republic of Vietnam Gallantry Cross with Silver or Bronze Star [document not clearly legible], Republic of Vietnam Campaign Medal with Device (1960), Republic of Vietnam Gallantry Cross Unit Citation with Palm, Army Aviator Badge, Expert Marksmanship Qualification Badge with Rifle (M-16) and Pistol (.45 Caliber) Bars and the Sharpshooter Marksmanship Qualification Badge with Rifle (M-14) and Pistol (.38 Caliber) Bars.

5.  His official records contain orders for the Air Medal with "V" Device for heroism on 25 January 1970 and the Air Medal Second thru Seventh Awards that do not appear on his DD Form 214.  Additionally, his service in Vietnam qualifies him for the Vietnam Service Medal with two bronze service stars for the Vietnam Winter - Spring 1970 campaign, 1 November 1969 - 30 April 1970 and the Sanctuary Counteroffensive campaign, 1 May - 30 June 1970.  The 361st Aviation Company was awarded the Valorous Unit Award for the period 14 August 1969 through 20 January 1970 by Department of the Army General Order (DAGO) 43 of 1972 and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation by DAGO 5 of 1973.

6.  The citation for the applicant's Air Medal with "V" Device for heroism reads in part, "These men [the applicant and, apparently, his co pilot] distinguished themselves by exceptionally valorous actions while responding to a distress call from a…downed aircraft.  They provided suppressive fire to...the recovery crew and despite several hits, they remained until the downed aircraft was ready to fly…"

7.  Army Regulation 600-8-22 (Military Awards) provides in pertinent part for award of the Distinguished Flying Cross.  The regulation states that the Distinguished Flying Cross is awarded to any person who, while serving in any capacity with the Army of the United States, distinguished himself or herself by heroism or extraordinary achievement while participating in aerial flight.  The performance of the act of heroism must be evidenced by voluntary action above and beyond the call of duty.  The extraordinary achievement must have resulted in an accomplishment so exceptional and outstanding as to clearly set the individual apart from his or her comrades or from other persons in similar circumstances.

8.  Paragraph 1-15 of this regulation provides for instances of lost recommendations as follows:

If the Secretary of the Army determines that a statement setting forth the distinguished act, achievement, or service, and a recommendation for official recognition was made and supported by sufficient evidence within 2 years after the distinguished service, and that no award was made because the statement was lost, or through inadvertence the recommendation was not acted upon; he or she may, within 2 years after the date of the determination, award any appropriate military decoration, Numeral, or Oak Leaf Cluster in lieu thereof, to the person concerned (10 USC 3744).  In each case, the proponent for an award provides the following to Commander, USA HRC, ATTN: (AHRC-PDO-PA), Alexandria, VA 22332-0471:

   a.  Conclusive evidence of the formal submission of the recommendation into military channels.
   
   b.  Conclusive evidence of the loss of the recommendation or the failure to act on the recommendation through inadvertence.
   
   c.  A copy of the original recommendation, or its substantive equivalent.  As a minimum, the recommendation should be accompanied by statements, certificates, or affidavits corroborating the events or services involved.  It is emphasized that the proponent must provide Commander, USA HRC, ATTN: AHRC-PDO-PA, Alexandria, VA 
22332-0471, with adequate information for Secretarial evaluation of the deed or service to determine if an award is to be made.  The person signing a reconstructed award recommendation must be identified clearly in terms of his or her official relationship to the intended recipient at the time of the act or during the period of service to be recognized.

9.  The applicant's supporting documents consist of copies of the following:

	a.  Retired COL H. M____,

		(1)  in an undated statement of the facts and circumstances of the case and a 1 May 2007 statement, reports that he believes the battalion awards clerk discarded several recommendations that probably included the applicant's DFC.  He states that CW2 T____, the personnel officer, confirms this.

		(2)  in his "Summary & Eyewitness Awards/Recommendation Statement" asserts that, in Operation Halfback, the applicant provided exceptionally courageous, valorous and badly needed fire support to a 110 man mixed Special Forces and Montagnard force that controlled a hilltop overlooking the Ho Chi Minh trail deep inside Laos.  For four days, this irregular unit denied passage to any large enemy trucks.  The ordnance expended to dislodge them and to protect them exceeded anything COL M____, who was a co-pilot in another Cobra, witnessed in two years in Vietnam.  The applicant exposed his aircraft to medium and heavy anti-aircraft fire to protect the troops on the ground and a Republic of Vietnam Air Force helicopter that was bringing in supplies and evacuating the wounded.  The applicant persisted in this even though his aircraft was hit by 17 enemy rounds.  The ground force was successfully extracted.  After this action, COL M____ was wounded and unable to follow-up on the awards recommendations but he and six others received the DFC for this engagement.

	b.  Retired Lieutenant Colonel (LTC) D____, in a 14 July 2008 statement, and a document entitled "[Applicant's] Distinguished Flying Cross" promises to persist until the applicant is awarded the DFC.  He relates that he commanded the 361st Aviation Company at that time.  He believed that all but two of the pilots who served under him had received the DFC, but was amazed to learn in 2004, at a convention, that the applicant had not.  He personally recommended the applicant for the DFC and knows that it was warranted many times over.  The company regularly supported Studies and Observations Group (SOG) missions on the Ho Chi Minh Trail in Cambodia and Laos.  These tasks were so highly classified that he could not even share the details with the battalion commander. The classified nature of the missions precluded their giving exact locations for events and such information was normally required in award recommendations.  He describes the exploits of the SOG units and of his 361st Aviation Company aviators who supported them.  He observes, "There can be no excusing my command failure to see to it that my men were recommended for all their heroism.  But, the fact of the matter is this:  We came to believe that our courageous exploits on a daily basis were routine and not a cause for undue recognition or award.  Looking back on it, we were wrong.  Every man, every day, earned a DFC and more.  We were just too busy to recommend all the heroism and would have been embarrassed to do it as well.  We had fighting, and maintaining, and training, and ourselves to look after."  They flew many missions together and he knows that he personally recommended the applicant for the DFC on at least three occasions.  Every other pilot on the mission that COL H. M____ writes about received the DFC.  They know that the battalion awards clerk trashed recommendations and considered it possible that he had a personal beef with the applicant who was a no nonsense officer who tolerated no "BS."

	c.  COL H. M____ prepared the DA Form 638 (Recommendation for Award), dated 4 December 2005.  LTC D____ approved it as the intermediate authority.

	d.  Privacy Act releases from applicant and COL H. M____.

	e.  The proposed citation essentially duplicates the information provided by COL H. M____, as described above.

	f.  A 3 February 2006 eyewitness statement from retired LTC S____ relates that, during Operation Halfback the applicant employed his Cobra helicopter in such a way as to both suppress the enemy fire and draw it away from a downed Republic of Vietnam helicopter so that those aboard could evacuate.  He also relates that he originally submitted a supporting statement at the time and only learned in 2005 that nothing had been done.

	g.  Chief Warrant Officer Two (CW2) Carl S____, in a 21 July 2008 statement, relates that he received two DFC's and was surprised to learn that the applicant, with whom he flew many missions, had not received any.

	h.  In a 4 October 2005 statement, retired LTC U____ states that he was the battalion commander at the time.  He supports this effort to award the applicant the DFC.  He relates that he was aware of the 361st's missions in support of clandestine operations, but was not involved.  "The 361st received their missions directly from the special units…"

	i.  a 4 October 2005 statement from retired CW4 T____; 

	j.  [unclassified] message P102130Z May 1970 from the 361st Aviation Company recommended the applicant and 13 other aviators [including now COL H. M____ and LTC D____, the company commander] for award of the DFC for actions on 5 May 1970 by flying "deep into Cambodia" in support of elements of the 4th Infantry Division.  It concludes by stating that a formal recommendation will follow.

	k.  General Orders Number 2196 with citation for DFC with second oak leaf cluster awarded to CW2 E____, and DFC with first oak leaf cluster awarded to Captain M____ for actions on 27 February 1970; 

	l.  General Orders Number 2206 with citation for DFC with third oak leaf cluster awarded to CW2 M____, DFC with second  oak leaf cluster awarded to CW2 L____, and DFC with fourth oak leaf cluster awarded to CW2 I____ for actions on 27 February 1970;

	m.  two pages of the Daily Staff Journal or Duty Officers Log, 52nd Aviation Battalion, for 27 February 1970;

	n.  a six page extract from the book SOG describes Operation Halfback in which the friendly force tried to set up a roadblock on the Ho Chi Minh Trail.  It includes the observation, "Soon it was night again…By now the NVA had trucked in heavy antiaircraft guns…"

	o.  a map and a photograph of location apparently from the book SOG; and

	p.  applicant's retirement DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that all the other Cobra pilots and copilots involved received the DFC for this operation.

2.  Now retired COL H. M____ states that he was the company's awards officer and that the applicant was recommended for the DFC for Operation Halfback.

3.  The message P102130Z May 1970 shows that the applicant was informally recommended for award of the DFC for an engagement on 5 May 1970.

4.  That message also demonstrates the tempo of operations at that time.  The administrative work must not have been flowing smoothly, if the company commander found it necessary to send a priority message on 30 May 1970 to report an informal recommendation for awards for events on 5 May 1970.

5.  Army regulation 600-6-22, the governing regulation, provides the guidance for cases of lost recommendations.  While it is reasonable to conclude from the available evidence that the applicant was recommended for award of the DFC, there is no "conclusive evidence" of the loss of the recommendation or the failure to act on the recommendation through inadvertence.  It is equally possible that the recommendation was disapproved.   There is no evidence of an actual approval for the stated award and the existing evidence does not support granting award of the DFC.

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

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.



      ___________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)                                         AR20080015845



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ABCMR Record of Proceedings (cont)                                         AR20080015845



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