IN THE CASE OF:	  

		BOARD DATE:	  29 September 2009

		DOCKET NUMBER:  AR20090011871 


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, the daughter of a deceased former service member (FSM), requests that the FSM's posthumous award of the Silver Star (SS) be upgraded to the Distinguished Service Cross (DSC).

2.  The applicant states, in effect, she defers to her counsel.

3.  In support of the application, the applicant provides an AGPZ Form 60 (Report of Casualty), dated 17 October 1967; a DD Form 1300 (Report of Casualty), dated 24 October 1967; a Department of Health – Division of Vital Records – Richmond [VA] Certificate of Death, issued on 18 April 2005; a self-authored letter, dated 23 June 2009; a letter from the applicant's sister, dated 23 June 2009; and a letter from another sister, dated 24 June 2009.  These documents, in pertinent part, serve to show the FSM was killed in action on 17 October 1967 in the Republic of Vietnam (RVN), the FSM's remarried spouse died on 11 April 2005, and the FSM's oldest daughter is the next of kin authorized to petition the Army Board for Correction of Military Records (ABCMR) on behalf of the deceased FSM.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests that the deceased FSM's award of the SS be upgraded to the DSC.


2.  Counsel states, in effect, the award of the SS was unjust and in error as a direct result of improper command influence by the Commanding General (CG), 
1st Infantry Division (1st ID).  He also states the Army Decorations Board (ADB) did not properly consider new evidence under the provisions of Title 10, U.S. Code, section 1130.  He further states that based on incorrect information from the Chief, Military Awards Branch (MAB), U.S. Army Human Resources Command (USA HRC), Alexandria, VA, the Secretary of the Army (SA) denied reconsideration of the request without review of substantive evidence and recommendations rendered by senior Army retired general officers.

3.  Counsel provides, in support of the application, two binders containing a
9-page addendum to the DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, section 1552), dated
23 June 2009; Tab A (a 6-page section), Tab B (a 7-page section), and Tab C (a 10-page section), along with tabbed documents cross-referenced as enclosures that comprise the various previous submissions of the requests to USA HRC and to the SA.

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 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 FSM enlisted as a cadet; he graduated from the U.S. Military Academy, West Point, NY; he was commissioned in the Regular Army (RA) as an infantry officer in the grade of second lieutenant (2LT); and he entered active duty on      1 June 1956.  He was promoted to the rank of major (MAJ) on 31 March 1966.

3.  The FSM arrived in the RVN on 20 July 1967 and he was assigned to Headquarters and Headquarters Company (HHC), 1st Brigade, 1st ID, with duty as the S-3 (Operations Officer) on 23 July 1967.  He was killed in action on       17 October 1967.

4.  The 2nd Battalion, 28th Infantry, temporarily under the operational control of the Commander, 1st Brigade, 1st ID, had been operating west of the village of 
Chon Thanh since 8 October 1967, conducting "search and destroy" operations in an area known to be occupied by large Viet Cong forces.  Only four of the battalion's five companies (HHC, A, B, and D) were involved; C Company was providing fire base security for the supporting artillery unit.

5.  On the morning of 17 October 1967, A Company led out from the night defensive perimeter on a recon-in-force with the battalion command group and
D Company in trail.  B Company was left to secure the night defensive position (NDP) where the heavy weapons platoon and reconnaissance platoon were to secure/screen the NDP.  Sporadic contact occurred throughout the morning.   Around noontime, A Company was engaged by a very much larger enemy force (one estimate put the number at 1200 to 1400) and D Company deployed in support.  The situation deteriorated as both companies became more or less beleaguered.  The brigade commander and the FSM, his S-3, who had been orbiting the area to coordinate air and artillery support, lost radio contact with the battalion commander and landed to take control of the situation.  By the time the remaining forces, B Company, and the reconnaissance platoon could deploy in support of the engaged troops, the battalion command group and both A and D companies had sustained very heavy casualties.  The battalion commander, battalion sergeant major, and the FSM were among the fatalities.  C Company was air-lifted in to assist and by late afternoon the area was secured as the Viet Cong forces withdrew.

6.  The fighting on 17 October 1967 resulted in 55 men being killed in action (including three men who later died of their wounds), two missing in action, and 75 or more wounded.  All 65 men in A Company had been killed or wounded;
D Company was a little better off; and the battalion commander and those with him were killed. 

7.  Headquarters (HQ), 1st ID, General Orders (GO) Number (#) 7720, dated
27 October 1967, posthumously awarded the FSM the SS for gallantry in action against a hostile force on 17 October 1967 in the RVN.

8.  In support of the application, counsel provides a two-volume set of documents as follows:  (Note:  To avoid omitting any of the information presented with this application, all applicant submissions are provided to the Board.)  In the following summary, counsel's words and characterizations are used:
   
   a.  Volume 1 contains a 9-page addendum to the DD Form 149 that provides an introduction, summary of the general background, military situation, actions by the deceased FSM, presentation of evidence of injustice and error which warrants correction of the record by the ABCMR, organization of the application (i.e., the supporting evidence and background information), and an index of evidence in support of the DD Form 149 with explanatory notes for the documents in Volume 1 (Tabs A, B, and C, along with those at Tabs 1 through 28) and Volume 2 (Tab 1 with Tabs A through G, Tab 2 with Tabs 1 through 9, and Tab 3 with Tabs A through J).

	b.  Volume 1 - Tab A lists the pertinent award authorities governing this case; alleges the CG, 1st ID, improperly influenced awards authorized for the Battle of Ong Thanh (RVN); and sets forth evidence that the CG, 1ID 's intervention in the awards process unjustly precluded the deceased FSM's consideration for award of the DSC.  This portion shows:

   (1)  the Deputy Commanding General, U.S. Army Vietnam (USARV), was 
the award approval authority for awards of the DSC to personnel assigned to the USARV, and the CG, 1st ID, was the award approval authority for awards of the SS to personnel assigned to 1st ID;

   (2)  on 17 June 2002, the former Adjutant, 1st Brigade, 1st ID, in a statement in support of award of the Medal of Honor to First Lieutenant (1LT) Albert C. W____, [then] Commander, Company D, 2nd Battalion, 28th Infantry, for actions on 17 October 1967 in the RVN stated [Volume 1, Tab 7], 

   (a)  "…the fact that his [1LT W____'s] battalion was not working for its 
parent brigade further militated against any valor award recommendation being submitted."  He also stated, "I only processed awards for the 1st Brigade personnel who had been involved - the Brigade Commander, the Brigade S3 [the deceased FSM], and the Brigade S2";

   (b)  "[b]ased on eyewitness reports, for instance, I submitted my 
Brigade Commander, Colonel 'Buck' N_____, for the Distinguished Service Cross for his actions at Ong Thanh on 17 October 1967";
   
   (c)  "Division Headquarters returned that recommendation without 
action with the note that the Division Commander believed that no more than one Distinguished Service Cross should be awarded for what was in essence an ambush, and that he had decided that the deceased battalion commander [Lieutenant Colonel (LTC) Terry D. A____, Jr.] should be the recipient of that one Distinguished Service Cross"; and he concludes

   (d) "I am providing this statement so that members of any award 
review board process can concentrate on weighing the facts available regarding the actions of Albert Clark W____ as the commander of Company D, 2-28th Infantry at Ong Thanh on 17 October 1967 and not be influenced by the lapse of time between action and award recommendation or by the failure of the
1st Infantry Division chain of command to take appropriate awards action immediately after the battle."

   (3)  on 16 February 2006, a former The Judge Advocate General (TJAG) 
of the Army opined that the Division Commander's directive to award only one DSC for the Battle of Ong Thanh and to specify who would receive that award was "improper" [Volume 1, Tab 10];

   (4)  on 17 July 2006, the former CG of Central Command (i.e., during the 
first Gulf War) reviewed the matter and concluded that the statement of the CG, 1st ID ",…was clearly unlawful command influence regarding who should be recommended for the Distinguished Service Cross" [Volume 1, Tab 11]; and

   (5)  on 27 February 2008, the (then) former Commander, 1st Brigade, 1st ID, stated, in pertinent part, "[i]n the case of the Battle of Ong Thanh on October 17, 1967, Division Headquarters made the decision as to who and what awards would be made.  I did not have the opportunity to recommend [the deceased FSM] for the Distinguished Service Cross at that time; if I had the opportunity, I would have recommended him for the DSC, then as I do now."  [Volume 1, Tab 6]

   c.  Volume 1 - Tab B recounts the actions taken to redress the injustice done to the individuals present at the Battle of Ong Thanh and to the deceased FSM when the Division Commander precluded submission of certain awards.  It also describes perceived errors by the MAB during the processing of the request and reconsideration request to upgrade the deceased FSM's award of the SS to a DSC.  This document states:

		(1)  on 30 September 2005, a recommendation to upgrade the posthumous award of the deceased FSM's SS to an award of the DSC was submitted under the provisions of Title 10, U.S. Code, section 1130; on
16 November 2005, the Chief, MAB, provided information with respect to the type of additional essential documentation and evidence that was required to support the recommendation being fully and fairly considered; and on 10 July 2006, an updated DA Form 638 (Recommendation for Award) requesting upgrade of the FSM's posthumous award of the SS to a DSC was submitted;
   
   (2)  a copy of page 5 of the Daily Staff Journal or Duty Officer's Log for 
Headquarters, 1st Brigade, 1st ID, for the period from 0001 hours, 17 October 1967 to 2400 hours, 17 October 1967 was added [Volume 1, Tab 9].  This Tab also provides a narrative account of the death of the FSM based on interview statements from three individuals, including the 1st Brigade commander.  (Page 3 of the log that would have contained Items 54 through 86 covering the period from 1221 hours to 1705 hours, 17 October 1967, is not included with this application);

   (3)  HQ, 1st ID, Combat After Action Interview Report, dated 31 March 1968, on the Battle of Ong Thanh, 2-28 Infantry Meeting Engagement          17 October 1967, with Special Intelligence Estimate to 1st ID INTSUM (Intelligence Summary).  This document is silent with respect to the actions of the FSM.  [Volume 1, Tab 2]

   (4)  a statement from the Senior Military Archivist, Modern Military 
Records, National Archives and Records Administration, dated 13 January 2006, stating, in pertinent part, "[u]ntil 1969, Army awards case files were routinely disposed after final action was taken"  [Volume 2, Tab 2-2];
 
   (5)  a narrative description with an expanded summary of action [from that 
of the original SS award order] and proposed citation for the DSC, along with a letter from the former Commander, 1st Brigade, 1st ID, and four eyewitness statements  [Volume 2, Tabs C, D and E]; 

   (6)  two explanatory notes that were added by an unidentified individual to 
the 17 June 2002 statement submitted by the former Adjutant, 1st Brigade, 1st ID, that offered new information:

   (a)  "[t]he first note stated that the deceased battalion commander was 
the son of the famous and 'revered' Major General [name omitted], World War II Commanding General of the 1st Infantry Division"; and

   (b)  "[t]he second note explained:  'True to the Division Commander's 
word [at that time], no 1st Division soldier who participated in the Battle of Ong Thanh received a decoration higher than the Silver Star…";

   (7)  personal notes from senior Army retired general officers supporting 
posthumous award of the DSC to the FSM [Volume 1, Tabs 10, 11 and 12];

   (8)  the ADB recommended disapproval of the DSC and the CG, USA 
HRC, disapproved award of the DSC to the FSM [Volume 1, Tab 13];

   (9)  additional eyewitnesses were sought, there was further research into 
documentation on the Battle of Ong Thanh, and in February 2008 a panel of senior Army retired general officers was formed [presumably by counsel] to consider and make comment on the recommendation for award of the DSC to the FSM.  This panel unanimously recommended upgrade of the FSM's posthumous award of the SS to a posthumous award of the DSC [Volume 1, Tabs 22 thru 27];

   (10)  the request for reconsideration was forwarded to the SA; and

   (11)  on 24 July 2008, the SA denied the request for reconsideration 
[Volume 1, Tab 14].

   d.  Volume 1 - Tab C is a 10-page section that summarizes evidence that the deceased FSM has been improperly and unjustly denied award of the DSC through command influence by the CG, 1st ID, in September [sic] 1967 and errors by the MAB and ADB; explains why the decision of the ADB not to upgrade the deceased FSM's award of the SS is flawed, in error, and unjust; and sets forth evidence purported to have been not previously considered by the Army.  This evidence constitutes the basis for a decision by the ABCMR to approve award of the DSC.  This document, in pertinent part, states:

   (1)  the Chief, MAB's assertion that all of the information submitted had
previously been reviewed by the ADB on 22 March 2007 is not correct;

   (2)  the ADB determination that "the degree of action and service rendered 
did not meet the strict criteria for the proposed award" is not cited as a criteria for award of the DSC;

   (3)  the membership and qualifications of the ADB is at issue (i.e., field 
grade officers or general officers; staff officers or combat commanders, recent combat experience versus Vietnam era); and

		(4)  the denial of reconsideration precluded the votes and valuable insights provided by six distinguished senior Army retired general officers.

	e.  Volume 2 - Tab 1 contains a copy of the initial award recommendation submitted under the provisions of Title 10, U.S. Code, section 1130, dated
30 September 2005, along with all identified enclosures.  On 16 November 2005, the Chief, MAB, USA HRC, advised, "there is insufficient documentation in this request to submit to the Army Decorations Board for consideration" and, in 
pertinent part, offered information with respect to the type of additional essential documentation and evidence required to support the recommendation being fully and fairly considered.  [Volume 1, Tab 8]

	f.  Volume 2 - Tab 2 contains a copy of the revised award recommendation based on instructions from the MAB, USA HRC.  On 10 May 2007, the Chief, MAB, USA HRC, advised, in pertinent part, "[o]n March 22, 2007, the Army Decorations Board determined that the degree of action and service rendered did not meet the strict criteria for the proposed award.  Based on the board's recommendation, the Commanding General, United States Army Human Resources Command, on behalf of the Secretary of the Army, disapproved award of the Distinguished Service Cross, reaffirming that the previously approved award of the Silver Star was the appropriate award for Mr. H_______'s heroism."

	g.  Volume 2 - Tab 3 contains a copy of the revised award recommendation, dated 14 March 2008, submitted as a reconsideration request of the Title 10, U.S. Code, section 1130 case.  On 24 July 2008, the SA advised, "I have been informed by the Chief, Military Awards Branch, that all of the information you submitted with your letter of July 1, 2008 was previously considered by the Army Decorations Board when it reviewed Major H_______'s case on March 22, 2007.  Their determination, based on that information, was that the Silver Star is the appropriate award.  As you know, Department of Defense and Army policy dictates that one-time reconsideration by the award approval authority shall be conclusive, unless new and substantive information is provided."

9.  In connection with the processing of this case, a copy of 5 pages of the Daily Staff Journal or Duty Officer's Log for Headquarters, 1st Brigade, 1st ID, for the period from 0001 hours to 2400 hours, 17 October 1967, was obtained from the National Archives and Records Administration, College Park, MD.  This copy of the log contains the complete sequence of events that occurred during the referenced period.  A review of items 50 through 87, covering the period from 1200 hours to 1706 hours, 17 October 1967, confirmed that there are no official entries or references pertaining to the actions of the deceased FSM.

10.  During the processing of this case, a search of the USA HRC, Awards and Decorations Computer Assisted Retrieval System, for the RVN Conflict was conducted for award orders pertaining to key personnel who participated in the Battle of Ong Thanh on 17 October 1967.  This search produced copies of the following award orders.

   a.  USARV, GO # 6615, dated 26 December 1967, that posthumously awarded LTC Terry D. A____, Jr., [then] Commander, 2nd Battalion,
28th Infantry, the DSC;
   
   b.  1st ID, GO #189, dated 8 January 1968, that awarded Colonel (COL) George E. N_____, [then] Commander, 1st Brigade, 1ID, the SS;



   c.  1st ID, GO #504, dated 20 January 1968, that awarded Private First Class (PFC) Joseph J. C_______ [then] assigned to Company A, 2nd Battalion,
28th Infantry, the SS;
   
   d.  1st ID, GO #1936, dated 5 March 1968, that awarded COL George E. N_____, [then] Commander, 1st Brigade, 1ID, the Distinguished Flying Cross;

   e.  1st ID, GO #8317, dated 18 November 1967, that posthumously awarded Sergeant Major Francis E. D______, [then] assigned to HHC, 2nd Battalion,
28th Infantry, the Bronze Star Medal (BSM) with "V" Device;
   
   f.  1st ID, GO #9214, dated 26 December 1967, that awarded 2LT William D. E____ [then] assigned to HHC, 2nd Battalion, 28th Infantry, the BSM with "V" Device;

   g.  1st ID, GO #8184, dated 14 November 1967, that awarded MAJ Robert W. G______ [then] assigned to HHC, 2nd Battalion, 28th Infantry, the BSM (First Oak Leaf Cluster); and
   
   h.  1st ID, GO #7506, dated 21 October 1967, that awarded PFC Thomas M. H_____ [then] assigned to HHC, 2nd Battalion, 28th Infantry, the Purple Heart.

11.  In further connection with the processing of this case, a search of the Department of the Army Publications and Forms website (www.army.mil/usapa/) was conducted for award orders pertaining to key personnel who participated in the Battle of Ong Thanh on 17 October 1967.  This search produced copies of the following award orders.

   a.  Headquarters, Department of the Army (HQDA), Washington, DC, GO #74, dated 20 November 1969, that posthumously awarded 2LT Harold B. D_____, Jr. [then] assigned to Battery C, 6th Battalion, 15th Artillery, 1st ID, as a forward observer with Company D, 2nd Battalion, 28th Infantry, the Medal of Honor.

   b.  HQDA, Washington, DC, GO #40, dated 22 July 1970, that awarded CPT (then 1LT) Albert C. W____ [then] assigned to Company A, 2nd Battalion,
28th Infantry, 1st Brigade, 1st ID, the SS (First Oak Leaf Cluster).

   c.  HQDA, Washington, DC, GO #9, dated 18 November 2005, that awarded 1LT Albert C. W____, [then] assigned to Company A, 2nd Battalion,
28th Infantry [1st Brigade, 1st ID], the DSC.

12.  Further research on the Battle of Ong Thanh identified the website:  http://freepages.military.rootsweb.ancestry.com/ that contains notes from [then] Captain Jim K____ who served as Commander, Company B, 2nd Battalion,
28th Infantry, at the time of Operation Shenandoah II.  This six and one-half page narrative covers the period 7 - 17 October 1967.  For actions occurring on         17 October 1967 it states, in pertinent part, "OH-13 had landed as I was moving up and I heard close in gunfire.  The OH-13 was idling on the ground when I approached it and my third platoon sergeant - Sgt. N_____ and a couple of soldiers were putting a body into the passenger side.  I said, 'Who the hell is that?'  He was obviously dead, wet and covered with mud.  Sergeant N_____ responded that "some major just landed here and told us to go running into the jungle with him.  We told him there were V.C. out there, but he said 'Come on.'  He got about thirty yards and they nailed him.  I think I found out who he was when Colonel N______ arrived and asked if Major H_______ was in the area.  Major H_______ was the Brigade S-3.  [H_______ had been an All-American football player at West Point, so his death made big new[s] back in the U.S.]"

13.  Army Regulation 600-8-22 (Military Awards) is the current regulation that prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. Chapter 3 (U.S. Army Individual Decorations), paragraph 3-1 (Intent), states that U.S. Army military decorations are awarded in recognition of heroism, meritorious achievement, or meritorious service.  It also states the decision to award an individual a decoration and the decision as to which award is appropriate are both subjective decisions made by the commander having award approval authority.  Limiting awards to a specific number per unit is not authorized.

14.  Army Regulation 672-5-1 (Military Awards), in effect at the time, confirmed that the policy against limiting awards to a specific number per unit did not appear in the regulation.  The policy guidance that states "limiting awards to a specific number per unit is not authorized" first appears in the version of the awards regulation that was effective on 1 October 1982.
   
15.  Army Regulation 600-8-22 states, in pertinent part, that the DCS is awarded to a person who, while serving in any capacity with the Army, distinguished himself or herself by extraordinary heroism not justifying the award of a Medal of Honor; while engaged in an action against an enemy of the United States; while engaged in military operations involving conflict with an opposing or 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 act or acts of heroism must have been so notable and have involved risk of life so extraordinary as to set the individual apart from their comrades [emphasis added].
16.  Army Regulation 600-8-22 provides, in pertinent part, that the SS is awarded to a person who, while serving in any capacity with the U.S. Army, is cited for gallantry in 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 required gallantry, while of a lesser degree than that required for the DCS, must nevertheless have been performed with marked distinction.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and counsel contend that the deceased FSM's records should be corrected to show he was posthumously awarded the DSC for actions on
17 October 1967 in the RVN because the posthumous award of the SS was unjust and in error as a direct result of improper command influence by the CG, 1st ID, on military award processing procedures for the Battle of Ong Thanh.

2.  The FSM was killed by enemy fire on 17 October 1967 and posthumous award of the SS was announced in general orders on 27 October 1967.

3.  The former brigade commander has submitted two statements in support of the request for upgrade of the deceased FSM's award (dated 20 January 2005 and 27 February 2008).

   a.  The former brigade commander's 2005 statement is silent with respect to any 1st ID policy or statement by the CG that imposed a limitation on awards.

   b.  In the former brigade commander's 2008 statement he states, "[i]n the case of the Battle of Ong Thanh on October 17, 1967, Division Headquarters made the decision as to who and what awards would be made.  I did not have the opportunity to recommend Major H_______ for the Distinguished Service Cross at that time…"  He does not elaborate on the reason(s) he did not have the "opportunity" to recommend the deceased FSM for award of the DSC.  

4.  The current awards regulatory guidance states that "limiting awards to a specific number per unit is not authorized."  The awards regulation in effect at the time did not prohibit this limitation.  In any case, the request that the FSM's SS be upgraded to the DSC is being considered by the ABCMR at this time upon the merits of the case and not under any particular regulatory guidance concerning "limiting awards."

5.  Counsel's contention that the ADB did not properly consider new evidence submitted in the request to upgrade the deceased FSM's award of the SS to a DSC under the provisions of Title 10, U.S. Code, section 1130 is moot because that evidence does not demonstrate that relief is warranted.

   a.  The 8-page Headquarters, 1st Infantry Division, 175th Military History Detachment, Combat After Action Interview Report for the Battle of Ong Thanh on 17 October 1967, submitted in support of the request, is silent with respect to the actions of the FSM.

   b.  The 5-page Headquarters, 1st Brigade, 1st Infantry Division, Daily Staff Journal or Duty Officer's Log for the period 0001 hours to 2400 hours, 17 October 
1967, submitted in support of the request, is missing page 3.  However, the
5-page report obtained from the National Archives and Records Administration, College Park, shows that page 3 contains items 50 through 81 covering the period from 1200 hours to 1618 hours, 17 October 1967, which corresponds to the time the brigade commander's helicopter landed at the site and the period of time immediately following and during which the deceased FSM's actions might have been officially documented.  However, there are no official entries or references to the actions of the FSM on this report.

   c.  Page 5 (as submitted) is the Narrative Account of the death of the FSM.  This page identifies three individuals who were nearest the FSM at the time as sources of information for the account.  They included, PFC Johnny Lee D____, Weapons Platoon, Company A, 2nd Battalion, 28th Infantry; Specialist Four (SP4) Thomas M. H_____, Medic, 2nd Platoon, Company A, 2nd Battalion, 28th Infantry; and COL George E. N_____, Commander, 1st Brigade, 1st ID.
   
   (1)  The brigade commander stated, "[e]arlier, I had told my S-3 [the 
deceased FSM], to remain in the chopper and stay airborne where I could best utilize him to help me run things.  This was just after I landed at the NDP.  He was my right arm in the field, and I really depended on him.  He begged me to let him come in on the ground and assist, and I relented.  Just before I moved out with the relief column I told him to do all he could to assist in reorganizing A and D Companies and help get the stragglers and wounded back that were filtering in on the right flank."

   (2)  The narrative account states, "[a]t a time shortly after noon the Major 
had been in the NDP for about 20 minutes when he organized a party of three or four besides himself to help get the wounded out.  There was a sergeant, a medic, a PFC with a machete, and possibly one other.  None of these men knew [the FSM] but followed his simple instruction, which was 'Come with me, we are going to help get the wounded out.  I want one man to have a machete.  [The FSM] led going almost in a dead run through tall grass and knee-deep water.  He outdistanced the rest of the group by about 50 meters in the 350-400 meters he had plunged.  The draw narrowed with a tree at the end of the draw.  Shots sounding like that of an AK-47 rang out from the tree, mortally wounding [the deceased FSM] in the upper abdomen and right thigh.  He was dead by the time the medic applied the first bandage."

	d.  Two of the three individuals (identified above) provided witness statements in support of the request to upgrade the FSM's posthumous award of the SS to a posthumous award of the DSC under the provisions of Title 10,U.S. Code, section 1130.
   
   (1)  In a 20 January 2005 statement, COL George E. N_____ (the former 
brigade commander) elaborated on his intentions to the FSM in the helicopter prior to landing.  He stated, "[d]uring our very short flight to the nearest landing site outside the heavily wooded battle area I reviewed with [the FSM] our plan of action.  We would split up and concentrate on reestablishing command and control of what forces were left, rallying troops that were disoriented in the battle area; collect and commit into the battle area all available troops from the battalion night defensive area and any other reinforcements that might become available."

   (2)  In a 16 November 2004 statement, Thomas M. H_____ (the Medic, 
2nd Platoon, Company A) stated, "[d]uring one of these trips a Major who I did not know appeared on the scene with four or five soldiers.  He saw that I was a medic and shouted "come on doc, there are more wounded out there, let's go get them".  The Major took the point position and led the way up a marshy vee of thigh to waist high grass.  He advanced about 75 meters when automatic weapon fire from a tree at the edge of the jungle cut him down.  Under covering fire from another soldier I moved to him and began treatment on his multiple chest wounds, but he died in my arms a few seconds later.  At this time another soldier helped me move him back, and his body was placed on a helicopter for extraction."  This eyewitness offers no comment or recommendation with respect to upgrade of the deceased FSM's award of the SS to a DSC.

   (3)  Written statements were submitted by LTC (Retired) William D. E____ 
III (then Reconnaissance Platoon Leader); LTC (Retired) Robert W. G_____ (then Executive Officer, 2nd Battalion); LTC (Retired) John F. S____ (then Operations Officer, 2nd Battalion, 28th Infantry); and Brigadier General (Retired) James E. S______ (a former Operations Officer, 2nd Battalion, 28th Infantry).   Three of these officers were present at the Battle of Ong Thanh on 17 October 1967.  These statements provide information with respect to the brigade commander, FSM, and S-2 landing at the site of the NDP and meeting in the Tactical Operations Center (TOC), 2nd Battalion, 28th Infantry.  One of these statements indicates, "[the FSM] ventured beyond the perimeter several times to assist the returning wounded and exposing himself to enemy small arms fire."  However, none of these officers appear to have been direct eyewitnesses to the deceased FSM's actions after he left the NDP/TOC and departed the perimeter, and they offer no additional details with respect to the FSM's heroic action to recover the wounded soldiers.

	e.  On 22 March 2007, the ADB determined that "the degree of action and service rendered did not meet the strict criteria for the proposed award."  Based on the ADB's recommendation, the Commander, USA HRC, on behalf of the SA, disapproved award of the DSC and reaffirmed the previously-approved award of the SS.

		(1)  There is no evidence that the ADB that convened on 22 March 2007 was improperly constituted and/or conducted.  There is also no evidence that the ADB failed to consider and apply the specific award criteria for the SS and DSC in its deliberations of the proposed upgrade of the deceased FSM's SS to a DSC.

		(2)  There is no evidence that the Commander, USA HRC, acted improperly on the recommendation of the ADB that convened on 22 March 2007.
	
6.  Counsel contends that based on incorrect information provided by the Chief, MAB, USA HRC, the SA subsequently denied reconsideration of the request for upgrade without review of substantive evidence.  He also contends that the deceased FSM's actions and degree of heroism must be judged consistent with the standards and combat environment which existed during the Vietnam War.
   
   a.  The 14 March 2008 request for reconsideration, along with all enclosures, was carefully considered.
   
   (1)  The additional claims of heroic actions by the FSM on 17 October 1967 were considered.  It is reasonable to conclude that the FSM's required duties as the brigade operations officer were known and clearly understood by those in his chain of command, including his duties while he was on the ground with the brigade commander on 17 October 1967.  Moreover, records show that the actions taken by the FSM on that date were communicated to the chain of command by those who were nearest the FSM at the time and officially documented in the narrative account shortly after the FSM's death.  In fact, records show the deceased FSM's commander was one of the sources of this information.  Therefore, it is concluded that the events and circumstances leading to the deceased FSM's actions, along with the commander's actions, were appropriately considered at the time.

   (2)  The contention that the division commander acted improperly with 
respect to the deceased FSM's award recommendation was previously reviewed.  Again, there is insufficient evidence to conclude the award of the SS to the 
deceased FSM was unjust or in error due to improper command influence by the division commander on military award processing procedures for the Battle of Ong Thanh on 17 October 1967.

		(3)  The considered opinions and recommendations of the panel of senior Army retired general officers were reviewed and considered.

   (a)  The determinations made by individual members of the panel of 
senior Army retired general officers in February 2008 do not establish that the decision made by the award approving authority (i.e., the division commander) at the time was improper, inequitable, or unjust.

   (b)  The determinations made by individual members of the panel do 
not establish that the ADB did not properly consider new evidence submitted in support of the award recommendation under the provisions of Title 10, U.S. Code, section 1130.

			(c)  While the opinions and recommendations of the individual members of the panel of senior Army retired general officers lend credibility and weight to counsel's request, they do not invalidate the recommendation of the ADB or the decision made by the CG, USA HRC, made in 2007 regarding consideration of the request under the provisions of Title 10, U.S. Code, section 1130.

   (d)  All of the award orders gathered during the processing of this case 
were thoroughly reviewed in order to gain context of the actions and degree of heroism which existed at that time.  From this review, it was determined that the spirited and conspicuous act of heroism and courage displayed by the FSM was performed with marked distinction consistent with a recommendation for an SS.  Thus, it is concluded the degree of heroism displayed by the FSM was of a lesser degree than that required for the DSC.
   
	b.  Therefore, in view of all of the foregoing, and after careful and thorough consideration of all of the additional substantive evidence submitted in support of this request, it is concluded that the posthumous award of the SS to the deceased FSM was and is the appropriate award to recognize his actions on
17 October 1967 in the RVN.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant, counsel, and all others concerned to know that this action in no way diminishes the sacrifices made by her father in service to our Nation.  The applicant and all Americans should be justifiably proud of her father's service in arms.



      _________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)                                         AR20090011871



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ABCMR Record of Proceedings (cont)                                         AR20090011871



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