DOCKET NUMBER:  AR20090021777 


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, an upgrade of his award of the Air Medal (AM) with “V” Device to the Distinguished Flying Cross (DFC).  

2.  The applicant states, in effect, his request for an upgrade of his AM with “V” Device to the DFC was denied by the Military Awards Branch of the U.S. Army Human Resources Command (HRC), Alexandria and he seeks approval of said upgrade.  The initial recommendations were forwarded for both himself and Chief Warrant Officer Four (CW4) K _ _ _ _ _.  However, despite identical information, the recommendation for CW4 K _ _ _ _ _ was approved and his was denied.   

3.  The applicant provides copies of the following:

* DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) and DD Form 215 (Correction to DD Form 214)
* Seven unclassified DA Forms 1594 (Daily Staff Journal or Duty Officer’s Log
* Two aerial maps of the Plei Me-la Drang Valley (Pickup Zone in Vietnam (6 November 1965))
* Recommendation for the DFC and Justification for Upgrade of an Award for Heroism, DA Form 638 (Recommendation for Award), Statement in Support of DFC, and Proposed Citation from LTC P _ _ _ _ _ _ (Retired), former Aircraft Commander (A/C), Company B, 229th Assault Helicopter Battalion; and Authority for Re-Submission, pertaining to himself
* 
Recommendation for the DFC and Justification for Upgrade of an Award for Heroism, DA Form 638, Statement in Support of DFC, and Proposed Citation pertaining to CW4 K _ _ _ _ _ from LTC P _ _ _ _ _ _ (Retired), A/C, Company B, 229th Assault Helicopter Battalion 
* His reply from the Military Awards Branch
* Permanent Orders and the DFC Certificate pertaining to CW4 K _ _ _ _ _. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  LTC P _ _ _ _ _ _ (Retired), former A/C, Company B, 229th Assault Helicopter Battalion, the applicant’s former company commander, serving as his counsel, requests a reversal of the denial by HRC of his recommendation on behalf of the applicant for upgrade of his AM for Valor to the DFC.

2.  Counsel states it appears that different criteria had been applied for different Soldiers.  Upon sending his recommendation to a Member of Congress on behalf of the applicant, which he endorsed to the Department of the Army, he also submitted an almost identical recommendation for CW4 K _ _ _ _ _ , another veteran aviator, through the Member of Congress’ office.  The upgrade to the DFC was approved for CW4 K _ _ _ _ _, but not the applicant.  The only difference in these two recommendations is they were routed differently.  The applicant’s package went to the Congressional Liaison Office then to the Awards Branch, whereas CW4 K _ _ _ _ _’s package went directly to the Army Chief of Staff, then down to The Adjutant General to the Military Awards Branch.  

3.  Counsel also states the applicant and this warrant officer were both involved in the same action on the night of 6 November 1965.  He was the A/C of the lead helicopter, CW4 K _ _ _ _ _ was the A/C of the number two ship, and the applicant was A/C of the third and rearmost in the flight, the most vulnerable position.  This mission was voluntary and was not scheduled or ordered by any higher authority.  The Military Award Branch cited several shortcomings in the recommendation for the applicant which were not mentioned in CW4 K _ _ _ _ _’s recommendation.  These were addressed through a Member of the Congress and the two files were to be again examined for comparison.  Despite the fact the two packages were identical except for the routing, the result was one was approved and the applicant’s was not.  The Department of Army recently awarded the DFC to other veteran aviators for exactly the same reasons the applicant cited in his initial recommendation.

4.  No additional documentation was provided in support of the applicant’s application.


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 military records show he enlisted in the Regular Army on 3 June 1958 and held military occupational specialty 672.10 (Airplane Mechanic). He was honorably discharged from active duty on 2 June 1961, at the expiration of his term of service.

3.  He was appointed in the U.S. Army Reserve (USAR), as a warrant officer one, on 23 August 1963 and entered on active duty the same day.  He completed training and was assigned specialty 062B, Rotary Wing Aviator.  He was promoted to CW2 on 23 February 1965.  He served in Vietnam with Company A, 101st Aviation Battalion and the 13th Combat Aviation Battalion.  

4.  He was awarded the AM with Seventh Oak Leaf Cluster (OLC) with “V” Device for heroism while participating in aerial flight in the Republic of Vietnam on 6 November 1965.  General Orders Number 840, Headquarters, 1st Cavalry Division, dated 22 March 1966, cited the following reason:

As a pilot of a UH-1D troop lift helicopter in a flight of three with a mission of a night medical evacuation of infantry troops, he voluntarily flew his aircraft into the unlighted landing zone while fully aware that intense hostile fire would be encountered and the landing would be extremely difficult.  [Applicant] received intense hostile fire during his approach, but with total disregard for his own personal safety, he unhesitatingly with remarkable flying skills completed the approach and executed a safe landing.  Upon completing the loading of critically wounded personnel, [Applicant's] aircraft came under attack by accurate enemy automatic weapons fire.  Two of the flight’s three helicopters were hit.  Realizing the danger to the wounded on board and the possibility of the loss of his helicopter and crew, [Applicant] assisted the aircraft commander in an immediate successful emergency departure.
5.  He was honorably released from active duty on 23 August 1966 at the expiration of his active duty commitment and transferred to the USAR Control Group (Reinforcement).

6.  Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 lists the following awards:  the National Defense Service Medal, Army Commendation Medal, Army Aviator Badge, Vietnam Service Medal, AM with 9th OLC, Bronze Star Medal, and Vietnam Campaign Medal.

7.  On 13 November 2008, he was issued a DD Form 215, deleting the award of the Army Commendation Medal, the AM with 9th OLC, and the Vietnam Service Medal from his DD Form 214 dated 23 August 1966 and adding the following awards:  the AM with Numeral 20 and “V” Device, Army Commendation Medal with OLC, Army Good Conduct Medal, Vietnam Service Medal with three bronze service stars, Expert Marksmanship Qualification Badge with Pistol Bar, Sharpshooter Marksmanship Qualification Badge with Carbine and Rifle Bars, Meritorious Unit Commendation, and Republic of Vietnam Gallantry Cross with Palm Unit Citation.  

8.  On 12 March 2009, LTC P _ _ _ _ _ _ (Retired), former A/C, Company B, 229th Assault Helicopter Battalion, submitted to a Member of Congress under the provisions of Title 10, US Code, section 1130, and to the Secretary of the Army, an Authority for Re-Submission, a Recommendation for the DFC and Justification for Upgrade of an Award for Heroism, Statement in Support of Distinguished Flying Cross, DA Form 638, and Proposed Citation for upgrading the applicant’s AM with “V” Device to the DFC for actions on 6 November 1965.

9.  In the justification, LTC P _ _ _ _ _ _ (Retired), stated the original recommendation addressed about a one-hour period on 6 November 1965, the purpose of that flight was to perform a night medical evacuation into an unlighted Landing Zone (LZ), and the applicant’s aircraft came under fire while loading wounded.  New information showed there was no body armor or helicopter mounted machine guns, enemy fire could not be returned, landing lights could not be used, and the applicant flew through a gauntlet of enemy weapons fire, landed still under fire, and took off under fire.  LTC P _ _ _ _ _ _ stated the applicant volunteered for the mission, was the pilot of the last ship in the formation and as such was in the most vulnerable position because he was a few seconds behind the lead ship.  He and his crew, under withering enemy fire, physically assisted in getting those severely wounded Soldiers on board as quickly as possible.  His ship was hit several times; nevertheless, he calmly saw that the loading was completed, even loading more than the ship’s cargo weight 

rating so as to save more lives.  With major systems damaged, he physically wrestled the shuttering helicopter back to the aid stations thereby saving the lives of his wounded passengers.  The applicant’s calm demeanor and outstanding flying skill under such grueling pressure and extreme enemy danger permitted his executing the picture perfect heroic mission.  Without him, scores of Americans would not have survived that night.

10.  On 29 March 2009, LTC P _ _ _ _ _ _ (Retired), former A/C, Company B, 229th Assault Helicopter Battalion, submitted through a Member of Congress an Authority for Re-Submission, a Recommendation for the DFC and Justification for Upgrade of an Award for Heroism, Statement in Support of DFC, DA Form 638, and Proposed Citation for awarding CW4 K _ _ _ _ _ the DFC.

11.  The DA Form 638 and statement submitted in support of award of the DFC for CW4 K _ _ _ _ _ stated as the A/C of a UH-1D Helicopter flying lead of a flight of three returning from an earlier day-long mission when they received an emergency radio call advising that a cavalry unit was under nearly overwhelming enemy fire.  The ground commander was afraid they would be overrun and defeated and requested six helicopters.  CW4 K _ _ _ _ _ spoke up calling "Let's get 'em!" immediately volunteering with the other flight members to conduct an emergency medivac pickup.  CW4 K _ _ _ _ _ was the A/C of the number two ship in the formation.  He flew through very heavy small arms and large caliber and large machine gun fire on approach, waiting wounded fire, physically assisted in getting those severely wounded on board as quickly as possible.  While still being fired upon calmly saw that the loading was completed, lifted the ship, and joined the flight back to the aid station.  

12.  Permanent Orders 148037, issued by HRC on 29 May 2009, and a certificate were issued upgrading CW4 K _ _ _ _ _’s AM with “V” Device to the DFC for extraordinary achievement on 6 November 1965 while serving as A/C of the UH-1D helicopter during the Plei Me-la Drang Valley operation.     

13.  In a letter, dated 16 October 2009, the Chief, Military Awards Branch, HRC, advised a Member of Congress that the Army Decorations Board reviewed the recommendation to upgrade the applicant’s AM with “V” Device to the DFC and determined the degree of action and service rendered did not meet the strict criteria for the proposed award.  The Commanding General, HRC, acting on behalf of the Secretary of the Army, concurred with the board’s decision disapproving the award of the DFC and reaffirming the previously authorized award of the AM with “V” Device was the appropriate award for the applicant’s actions.  The letter also advised the applicant had the right to appeal the decision to the ABCMR and this course of action did not necessarily mean his applicant would be favorably considered. 
14.  Army Regulation 600-8-22 (Military Awards), then in effect, specified the AM was awarded in time of war for heroism and for meritorious achievement or service while participating in aerial flight.  The award was primarily intended for personnel on flying status, but could also be awarded to those personnel whose combat duties required them to fly, for example personnel in the attack elements of units involved in air-land assaults against an armed enemy.  

15.  Army Regulation 600-8-22 further specified the DFC was 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 have been 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.  Awards would only be made to recognize single acts of heroism or extraordinary achievement and would not be made solely on the basis of having saved a life.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he is entitled to upgrade his AM with "V" Device to a DSC.  His original request for the upgrade was submitted to the Army Decorations Board through his Member of Congress but was denied.  The reason cited was the Decorations Board determined the degree of action and service rendered did not meet the strict criteria for the proposed award.  

2.  The Board is asked to render a decision on whether or not the Decorations Board and Commanding General, HRC, acting within their respective authority, followed established procedures and was consistent in the application of policy and regulations in determining the level of award warranted to recognize the applicant's achievement on the night of 6 November 1965.

3.  The evidence he submitted with his request shows he was cited for bravery on 6 November 1965, as a pilot in a flight of three, with a mission of a night medical evacuation of infantry troops.  He placed himself in danger and risked his life and was awarded the AM with “V” Device in recognition of his heroism.  CW4 K _ _ _ _ _ was cited for bravery as an A/C.  

4.  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.  Commanders at the time of the act, or shortly thereafter, determined that the applicant's actions were so extraordinary and so noteworthy as to warrant award of the AM with "V" Device.  The Board is reluctant to substitute its judgment for that of the commanders in the theater at the time.

5.  The Board is further asked to render a decision on whether or not the Decorations Board and the Commanding General, HRC, acting within their respective authority, followed established procedures and was consistent in the application of policy and regulations in determining the level of award warranted to recognize the applicant's achievement on the night of 6 November 1965.

6.  Again, there was a difference in responsibility between the applicant's duties as a pilot and CW4 K_____'s duties as an A/C.  The Decorations Board and HRC presumably took those responsibilities into account in making their determinations concern what level of award each should receive.

7.  Further, the upgrade of another member's award for acts performed under the same or similar circumstances does not establish precedence or entitle the applicant to an automatic upgrade.  Again, the Board recognizes the valor and courage the applicant displayed on 6 November 1965.  However, neither he nor counsel have submitted sufficient evidence to show the heroism displayed by the applicant and the degree of action are equivalent to that required for award of the DFC.  The award of the DFC to another member should in no way be construed as belittling the applicant’s heroic conduct and incredible courage on 6 November 1965.  

8.  In view of the foregoing, there is no basis for granting his request.

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)                                         AR20090021777



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ABCMR Record of Proceedings (cont)                                         AR20090021777



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