BOARD DATE:	  25 May 2010

		DOCKET NUMBER:  AR20090019525 


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:

* the date of action on General Orders Number 4877, Headquarters, 1st Cavalry Division (Airmobile), dated 2 April 1970, awarding him the Silver Star be changed from 28 March 1970 to 26 March 1970

* the narrative reason for the award be changed

2.  The applicant states the date of the action for which he was awarded the Silver Star was 26 March 1970, not 28 March 1970.  Also, the narrative reason for the award is inaccurate and should be changed to reflect what actually took place.  To that end, he provides an accurate narrative reason written by his former battalion commander, now a retired major general (MG).

3.  The applicant provides:

* a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period 5 December 1966 through 20 July 1990

* a copy of General Orders Number 4877, Headquarters, 1st Cavalry Division (Airmobile), dated 2 April 1970

* 
a copy of General Orders Number 4858, Headquarters, 1st Cavalry Division (Airmobile), dated 2 April 1970, awarding him the Purple Heart for wounds received in connection with military operations against a hostile force on 26 March 1970

* a notarized letter, dated 2 November 2009, from his former battalion commander, a retired MG, providing a slightly different reason for award of the Silver Star

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.  With prior enlisted service, the applicant was appointed as a Reserve Commissioned Officer of the Army and entered active duty on 5 December 1966.

3.  The applicant arrived in Vietnam and was assigned to Headquarters, Military Assistance Command-Vietnam (MACV) on 19 October 1968.  On 3 February 1970, he was reassigned to Company C, 2nd Battalion, 8th Cavalry, 1st Cavalry Division (Airmobile) as the company commander.

4.  On 26 March 1970, Company C was located in the jungle in War Zone C, Tay Ninh Province, Republic of Vietnam, near the Cambodian border.  There they encountered a battalion-sized element of the 272nd North Vietnamese Army Regiment.  A fierce battle ensued for which the applicant was awarded the Silver Star.  The narrative reason on the official orders awarding the Silver Star reads:

For gallantry in action while engaged in military operations involving conflict with an armed hostile force in the Republic of Vietnam.  Captain [applicant] distinguished himself by exceptionally valorous action on 28 March 1970 [sic], while serving as company commander in the Republic of Vietnam.  When his unit encountered intense small arms, automatic weapons, and rocket fire, Captain {applicant] immediately and with complete disregard for his own safety, moved among his men, deploying them in necessary defensive positions.  While under a barrage of fire, he courageously probed the enemy positions until he located a vulnerable area and personally led the assault which routed the hostile force from its well fortified positions.  His gallant action is in keeping with the highest traditions of the military service, and reflects great credit upon himself, his unit and the United States Army.

Although the narrative does not indicate it, the applicant was wounded during the action described above.  General Orders Number 4858, Headquarters, 1st Cavalry Division (Airmobile), dated 2 April 1970, awarded him the Purple Heart for the wounds he received on 26 March 1970 during the action described above.

5.  On 26 October 1970, the applicant departed Vietnam.  The applicant retired on 20 July 1990 by reason of permanent physical disability.

6.  On 26 October 2009, at a White House ceremony, the President of the United States awarded veterans from A Troop, 1st Squadron, 11th Armored Cavalry Regiment (ACR) the Presidential Unit Citation for their heroic actions on 26 March 1970 when they came to the aid of Soldiers from C Company, 2nd Battalion, 8th Cavalry, 1st Cavalry Division, who were facing more than 400 enemy fighters while engaged in battle.

7.  The applicant provided a notarized letter, dated 2 November 2009, from his former battalion commander.  The author states the date of the action on the applicant's orders for the Silver Star should be corrected to show 26 March 1970. The author further recommended that the narrative citation for the award be amended to read how the applicant displayed sound leadership abilities while his company was surrounded and cutoff from medical and other support until a relief force broke through to his unit.  His proposed narrative reads:

For gallantry in action while engaged in military operations involving conflict with an armed hostile force in the Republic of Vietnam.  Captain [applicant] distinguished himself by exceptionally valorous action on 26 March 1970, while serving as company commander in the Republic of Vietnam.  When his unit encountered a vastly superior force and received intense small arms, automatic weapons, and rocket fire, Captain [applicant] immediately and with complete disregard for his own safety, moved among his men, deploying them in necessary defensive positions.  His leadership by example continued while his company was surrounded and cut off from medical and other support until a relief force broke through to his unit.  After more intense fighting, when darkness forced disengagement, Captain [applicant] continued his courageous leadership by assuming the mission of a covering force for a withdrawal under contact.  His gallant action is in keeping with the highest traditions of the military service, and reflects great credit upon himself, his unit, and the United States Army.

The underlined portions of the proposed narrative reason identify changes from the official narrative reason.

8.  Army Regulation 672-5-1 (Decorations and Awards), then in effect, provides guidance on processing awards.  The regulation states it is the responsibility and privilege of any individual having personal knowledge of an act, achievement, or service believed to warrant award of a decoration to submit a recommendation for consideration; however, once initiated, all recommendations proceed through the chain of command to the commander having approval authority.  Recommendations may be submitted in letter form but it is preferable that DA Form 638 (Recommendation for Award) be used.  This form is self-explanatory; however, close attention to detail is most essential.  A separate recommendation including a proposed citation will be submitted for each proposed award and only one proposed recipient will be named in a single recommendation.  Lucid reporting of facts, not flowery generalities, will be most likely to achieve the object of the recommendation.  Statements of eyewitnesses, preferably in the form of certificates, affidavits, or sworn statements, extracts from official records, sketches, maps, diagrams, photographs, etc., will be attached to support and amplify stated facts.  The proposed citation usually will be limited to one typewritten, double-spaced page.

DISCUSSION AND CONCLUSIONS:

1.  The applicant wants General Orders Number 4877, Headquarters, 1st Cavalry Division (Airmobile), dated 2 April 1970, corrected by:

* changing the "Date of Action" from 28 March 1970 to "26 March 1970"

* modifying the narrative reason for the award of the Silver Star to, in effect, better highlight his leadership

2.  There is no question the "Date of Action" is incorrect.  The "Date of Action" was 26 March 1970.  This is verified by the fact the applicant's Purple heart order shows he was wounded on 26 March 1970, and by the fact the Presidential Unit 

Citation was awarded by President Obama on 26 October 2009 to A Troop, 1st Squadron, 11th ACR for action on 26 March 1970 in rescuing the applicant's company from a superior enemy force threatening to annihilate them.  General Orders Number 4877, Headquarters, 1st Cavalry Division (Airmobile), dated 2 April 1970 should be corrected by changing the "Date of Action" to 26 March 1970.

3.  The applicant contends that the cited narrative reason for the award of his Silver Star is not accurate and he provides a suggested narrative reason in the notarized letter from his from his former battalion commander.  The actual narrative reason and the proposed narrative reason differ only in the area of emphasis on leadership; there is no argument as to the basic facts of the applicant's actions on 26 March 1970.  There is an unwillingness to substitute a proposed narrative written 40 years after the event for the narrative written shortly after the event and ultimately approved by the Commanding General, 1st Cavalry Division on 2 April 1970.

4.  Although the original recommendation for award of the applicant's Silver Star is not available, it would seem reasonable to presume that since the applicant was a company commander, the recommendation would have originated with his battalion commander and been processed through brigade level to the division for approval.  If so, the very individual who is now recommending a slightly changed narrative reason would have been the individual who submitted the original narrative reason.  In such a case, his retrospective thinking regarding the wording of the original narrative reason is difficult to accept.  The narrative reason for the award should remain as stated in General Orders Number 4877.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x_____  ____x____  ____x__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by correcting the "Date of Action" in General Orders Number 4877, Headquarters, 1st Cavalry Division (Airmobile), dated 2 April 1970, from 28 March 1970 to 26 March 1970.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains amending the narrative reason in General Orders Number 4877, Headquarters, 1st Cavalry Division (Airmobile), dated 2 April 1970.



      _______ _   _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)                                         AR20090019525





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