IN THE CASE OF:	  

		BOARD DATE:	  15 February 2011

		DOCKET NUMBER:  AR20100018682


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 reconsideration of his earlier request to upgrade his award of the Distinguished Service Cross (DSC) to the Medal of Honor.

2.  The applicant states, in effect, errors in the original recommendation led the Army to approve the DSC.  Had the original recommendation correctly recounted his deed, it would have merited the Medal of Honor.  The errors were:

* an incorrect accounting of the number of Soldiers involved in the event
* an incorrect statement as to the applicant's reason for his action

3.  The applicant continues that the DSC citation reports only he and one other Soldier were involved; in fact, there were a total of five Soldiers involved.  When a Soldier was shot while attempting to throw a white phosphorous grenade, he fell to the ground and dropped the live grenade.  The applicant states the reason he picked up the grenade and attempted to throw it out a window was to protect his fellow Soldiers; however, the DSC citation states he was attempting to throw it at the enemy when it exploded and wounded him.

4.  The applicant provides excerpts from the Medal of Honor citations which he claims proves he performed the same level of valorous act for which others received the Medal of Honor.



5.  The applicant provides:

* a 10 December 2010 letter
* an attachment:  Criteria for Award of the Medal of Honor
* DA Forms 1594 (Daily Staff Journal or Duty Officer's Log) for S2/3 Section, 2nd Battalion, 12th Cavalry, dated 21-26 February 1968

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 AR20080019742, on 15 January 2009.

2.  The applicant provides no new argument; however, he does provide five new DA Forms 1594 which are considered new evidence requiring reconsideration by the Board.

3.  The evidence of record shows the applicant served in the Republic of Vietnam from 28 October 1967 to 23 February 1968.  He was an infantryman assigned to Company A, 2nd Battalion, 12th Cavalry, 1st Cavalry Division.  In February 1968, the applicant's unit participated in the Battle of Hue.  On 21 February 1968, the applicant performed a heroic act, for which he was recommended for a valor award.

4.  General Orders Number 11136 Headquarters, 1st Cavalry Division, Vietnam, dated 23 August 1968, awarded the applicant the Silver Star (SS) for gallantry in action while engaged in military operations involving conflict with an armed hostile force on 21 February 1968.

5.  On 24 November 1968, the applicant's SS orders were rescinded.  General Orders Number 5429, Headquarters, US Army Vietnam, instead awarded the applicant the DSC for extraordinary heroism in connection with military operations involving conflict with an armed hostile force in the Republic of Vietnam.  The citation stated:

[Applicant] distinguished himself by exceptionally valorous actions on 21 February 1968 while leading a squad against four heavily fortified North Vietnamese Army bunkers near the city of Hue.  Two of the positions were successfully destroyed, but the remaining fortifications continued to pour an intense volume of fire on [Applicant] and his men. 


He and another Soldier advanced to the cover afforded by a partially destroyed house to come within close range of the enemy.  When his comrade attempted to throw a white phosphorous grenade through a window in the building at the communists’ positions, he was severely wounded by a sniper fire and fell senseless to the floor.  The armed grenade landed beside him.  Unhesitatingly and with a complete disregard for his own life, [Applicant] dove toward the live grenade.  Grasping it in his hands, he rolled over an opening in the wall and threw the deadly missile toward the bunkers.  As he released the grenade it detonated, critically burning him.  His quick action, however, caused the primary force of the explosion to be outside of the building, and his wounded comrade was not harmed by the blast.  [Applicant's] extraordinary heroism and devotion to duty were in keeping with the highest traditions of the military service and reflects great credit upon himself, his unit, and the United States Army.

6.  From approximately February 2000, the applicant, with support from his fellow comrades-in-arms, began an effort to upgrade his DSC to a Medal of Honor.  This effort culminated in an 11 July 2008 decision by the Army Decorations Board, U.S. Army Human Resources Command, Alexandria, VA [now located at Fort Knox, KY], which reaffirmed the previously approved, upgraded award of the DSC and disapproved award of the Medal of Honor.

7.  In denying the applicant's request in 2009, the Board clearly noted his contention that "[he] and four comrades [not one comrade] were engaged with enemy Soldiers when one of his comrades attempted to throw an un-pinned phosphorous grenade at an enemy position.  As he prepared to throw the grenade, the Soldier was wounded in the head by an enemy bullet prior to releasing the grenade and fell to the ground with the activated grenade landing beside him.  With complete disregard for his own life, he (applicant) dove for the grenade, grabbed it, and attempted to get it away from his comrades [vice toward the enemy].  Just as he released the grenade, it exploded, severely wounding him…."

8.  Army Regulation 600-8-22 (Military Awards) states 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 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 or her comrades and must have involved risk of life.  Incontestable proof of the performance of the service is required.  
9.  Army Regulation 600-8-22 states the Distinguished Service Cross is awarded to a person, who while serving in any capacity with the Army, distinguishes himself or herself by extraordinary heroism while engaged in action against an enemy of the United States not justifying award of the Medal of Honor.  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 his or her comrades.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant has requested reconsideration of the Board's previous 15 January 2009 decision to deny upgrading his DSC to a Medal of Honor.  He provided no new argument, merely reiterated his previous argument.  Neither the number of Soldiers spared injury by his act, nor his intent in disposing of the grenade, is in dispute.  However, these facts were clearly taken into account in reaching a decision in 2009.

2.  The applicant provides five new DA Forms 1594 recounting the actions of the 2nd Battalion, 12th Cavalry, 1st Cavalry Division during the Battle of Hue at the end of February 1968.  These documents were thoroughly reviewed and determined to offer no additional information supportive of the applicant's request.

3.  The applicant provided excerpts of Medal of Honor citations describing acts he considers similar to his own act of valor; however, the awards process is individual, with each case evaluated on its own merits.  There is no formula to determine what level of valor citation is appropriate.  Using the exact opposite argument, it is possible to find numerous DSC citations describing acts of valor similar to the applicant's.

4.  The decision in no way diminishes the heroic act and sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.

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 AR20080019742, dated 15 January 2009.



      __________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)                                         AR20100018682



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100018682



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1