IN THE CASE OF:	  

		BOARD DATE:	        13 January 2009

		DOCKET NUMBER:  AR20080016314 


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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show award of the Silver Star and reconsideration of the portion of his earlier request pertaining to correction of his DD Form 214 to show award of the Medal of Honor and the Bronze Star Medal.

2.  The applicant states, in effect, that he was awarded the Medal of Honor for his participation in heavy fighting with the 1st Infantry Division during the TET Offensive campaign in the Republic of Vietnam.  He adds that he was exposed to Agent Orange and also suffered nerve damage to his left knee and lumbar region of his lower back, as well as malaria and Post Traumatic Stress Disorder (PTSD). 

3.  In a separate letter, dated 16 December 2008, the applicant also states, in effect, that he was awarded the Silver Star, but it is not shown on his DD Form 214.

4.  The applicant did not provide any additional documentary evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080007678, on 4 September 2008.
2.  The applicant provides two separate hand-written letters, dated 22 September 2008 and 16 December 2008, in which he states that he was awarded the Medal of Honor, the Bronze Star Medal, and the Silver Star.  The previous case addressed the Medal of Honor and the Bronze Star Medal, however, the Silver Star was not previously raised by the applicant or reviewed by the ABCMR; therefore, it is considered a new issue and as such warrants consideration by the Board.

3.  The applicant's records show he was inducted into the Army of the United States on 13 June 1967.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  The highest rank/grade he attained during his military service was specialist four (SP4)/E-4.  He was honorably separated and transferred to the U.S. Army Reserve Control Group on 12 June 1969.  

4.  The applicant’s records also show he served in the Republic of Vietnam from 4 November 1967 to 31 October 1968.  He was assigned to Company D, 1st Battalion, 26th Infantry, 1st Infantry Division.

5.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 shows he was awarded the National Defense Service Medal, the Vietnam Service Medal with bronze service star, the Republic of Vietnam Campaign Medal with Device 1960-Device, the Army Commendation Medal, two Overseas Service Bars, the Combat Infantryman Badge, and the Expert Marksmanship Qualification Badge with Rifle Bar.  Item 24 does not show award of the Silver Star. 

6.  Two DD Forms 215 (Correction to the DD Form 214), dated 4 February 2003 and 31 October 2008, amended the applicant’s DD Form 214 to add awards of the Air Medal, the Good Conduct Medal, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation, and substituted a silver service star in place of the bronze service star with his Vietnam Service Medal.

7.  The applicant's records do not contain general orders awarding him the Medal of Honor, the Silver Star, or the Bronze Star Medal.

8.  During the processing of this case, a member of the Board staff reviewed the Awards and Decorations Computer Assisted Retrieval System (ADCARS) maintained by the Military Awards Branch of the United States Army Human Resources Command (HRC), which is an index of general orders issued during the Vietnam era between 1965 and 1973.  This review failed to reveal any Medal of Honor, Silver Star, and/or Bronze Star Medal orders on file for the applicant.  

9.  The Medal of Honor, section 3741, title 10, United States Code (10 USC 3741), was established by Joint Resolution of Congress, 12 July 1862 (amended by acts 9 July 1918 and 25 July 1963).  The Medal of Honor is awarded by the President in the name of Congress to a person who, while a member of the Army, distinguishes himself or herself conspicuously by gallantry and intrepidity at the risk of his or her life above and beyond the call of duty while engaged in an action against an enemy of the United States; while engaged in military operations involving conflict with an opposing foreign force; or while serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party.  The deed performed must have been one of personal bravery or self-sacrifice so conspicuous as to clearly distinguish the individual above his comrades and must have involved risk of life.  Incontestable proof of the performance of the service will be exacted and each recommendation for the award of this decoration will be considered on the standard of extraordinary merit. 

10.  Army Regulation 600-8-22 (Military Awards) provides that the Medal of Honor is awarded by the President in the name of Congress to a person who, while a member of the Army, distinguishes himself conspicuously by gallantry and intrepidity at the risk of his life above and beyond the call of duty while engaged in an action against an enemy of the United States.  The deed performed must have been one of personal bravery or self-sacrifice so conspicuous as to clearly distinguish the individual above his comrades and must have involved risk of life.  Incontestable proof of the performance of the service is required.

11.  Army Regulation 600-8-22 provides 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.

12.  U.S. 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.  

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 contends that his DD Form 214 should be corrected to show award of the Medal of Honor, the Silver Star, and the Bronze Star Medal.

2.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required, for each award requested.  In the applicant's case, it is noted that:

	a.  the applicant's record is void of a recommendation for award of the Medal of Honor; there are no general orders that show the applicant was awarded the Medal of Honor; and the applicant did not provide any incontestable proof of the performance of the service that shows he distinguished himself conspicuously by gallantry and intrepidity at the risk of his own life above and beyond the call of duty while engaged in an action against an enemy of the United States;

	b.  the applicant's record is void of a recommendation for award of the Silver Star; there are no general orders that show the applicant was awarded the Silver Star; and the applicant did not provide evidence that he distinguished himself for gallantry, spirited and conspicuous acts of heroism and courage performed with marked distinction, in action against the enemy; and

	c.  the applicant's record is void of a recommendation for award of the Bronze Star Medal; there are no general orders that show the applicant was awarded the Bronze Star Medal;, and the applicant did not provide evidence that shows he distinguished himself by heroism, meritorious achievement or meritorious service.

It is, therefore, concluded that there is insufficient evidence to grant the applicant the requested relief in this case.


3.  Nevertheless, while the available evidence is insufficient for awarding the applicant the Medal of Honor, the Silver Star, and/or the Bronze Star Medal, this in no way affects the applicant’s right to pursue his claim for those awards 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 to amend the decision of the ABCMR set forth in Docket Number AR20080007678, on 4 September 2008, pertaining to the Medal of Honor and the bronze Star Medal.  Furthermore, the Board also determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned to show award of the Silver Star Medal.



															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)                                         AR20080016314



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080016314



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1