BOARD DATE:	  15 September 2011

		DOCKET NUMBER:  AR20110002530 


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, award of the Medal of Honor (MOH), Silver Star (SS), and the Bronze Star Medal (BSM).  He also requests his promotion to staff sergeant (SSG)/E6.

2.  He states he did not receive the BSM for the four firefights and the two hot landing zones in which he was involved.  He maintains he received a field promotion to SSG.  He explains, through his daughter-in-law, that he and his squad were on a reconnaissance mission near Hill 996 in Vietnam when they detected enemy activity.  He instructed his squad to fire into the bushes and any area where the enemy could hide as the squad headed up Hill 996.  He adds that they were halfway up the hill when he heard shots fired from behind him and he sent his machine gunner to cover their rear.  He states he placed his squad in a position to try and get the enemy in a crossfire and he was going to run across the open field to the top of the hill to facilitate the crossfire when he got blown-up by a rocket-propelled grenade.  He concludes that he would like to recommend all the men in his squad for the award of the SS and provides a list of their names.

3.  He provides a self-authored statement and several e-mails from former comrades.

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 record shows he was inducted into the Army of the United States on 14 March 1968.  He served in the Vietnam from 2 April 1969 to
2 August 1969.  He was honorably released from active duty on 10 November 1969 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining service obligation.  He completed
1 year, 7 months, and 27 days of total active service.

3.  The DD Form 214 he was issued at the time shows in:

	a.  Item 5a (Grade, Rate or Rank) and 5b (Pay Grade) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) the entry SGT (sergeant)/E-5.

	b.  Item 6 (Date of Rank) the entry 28 October 1968.

	c.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) no entry for the MOH, SS, or the BSM.

4.  Special Orders Number 128, issued by Headquarters, The Candidate Brigade, U.S. Army Infantry School, Fort Benning, GA, dated 28 October 1968, promoted the applicant to the temporary rank/grade of SGT/E-5.

5.  The applicant provides several e-mails from fellow comrades that support his heroic actions during their reconnaissance mission near Hill 996 in Vietnam.  One of the author's of the e-mails insists that the applicant, as well as his squad, should be given recognition for their valor on the hill that day.

6.  Review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the United States Army Human Resources Command, failed to reveal any orders for the MOH, SS, or the BSM.
7.  Army Regulation 600-8-22 (Military Awards) states the SS 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.

8.  U.S. Army Vietnam Regulation 672-1 (Decorations and Awards) governed the military awards program in Vietnam during the Vietnam War.  It stated the BSM may have been awarded for heroism or for 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.  The approval authority for award of the BSM was generally delegated no lower than brigadier generals in command of separate brigades.  However, the records of the Awards Branch of the U.S. Army Human Resources Command show that authority for award of the BSM for service had been delegated to colonels in command of the U.S. Army Support Commands located at Saigon, Cam Ranh Bay, and Qui Nhon and in command of separate engineer brigades in Vietnam assigned to the U.S. Army Engineer Troops (Provisional).  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

9.  Army Regulation 600-8-22 states the MOH 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.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

10.  Title 10, U. S. Code, section 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.
11.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to:  Commander, U.S. Army Human Resources Command, ATTN:  AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY  40122.  The unit must be clearly identified, along with the period of assignment and the recommended award.  A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638.  Requests should be supported by sworn affidavits, eyewitness statements, certificates, and related documents.  Supporting evidence is best provided by commanders, leaders, and fellow Soldiers who had personal knowledge of the facts relative to the request.  The burden and costs for researching and assembling supporting documentation rest with the applicant.

12.  As a matter of information, during the Vietnam area, Soldiers were often temporarily appointed to a higher grade to fill a particular need or vacancy within a unit.  However, when an individual was discharged, they reverted to their permanent grade and that permanent grade was recorded as the grade in which an individual was separated. 

13.  Army Regulation 635-5 (Separation Documents) establishes standardized policy for preparing and distributing the DD Form 214.  The regulation states that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  Paragraph 2-9 instructs the preparer to enter in items 5a/5b the rank/grade in which serving at the time of separation.

DISCUSSION AND CONCLUSIONS:

1.  The fact that the applicant provided several e-mails and a self-authored letter describing his heroic actions on Hill 996 in the RVN is not sufficient evidence on which to award him the MOH, SS, or the BSM.  There is an insufficient evidentiary basis to support the awarding him these decorations.

2.  While the available evidence is insufficient for awarding him the MOH, SS, or the BSM, this in no way affects his right to pursue his claim for these awards by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130.

3.  Additionally, the same provisions cited above pertaining to his right to pursue his claim through his Member of Congress apply to recommendations for the award of the SS for members of his squad.

4.  Evidence of record shows the applicant was temporarily promoted to SGT on 28 October 1968.  There is no evidence and he has not provided any evidence to show he was temporarily or permanently promoted to SSG/E-6 prior to his release from active duty.  Therefore, in the absence of promotion orders substantiating his claim there is an insufficient basis to grant this portion of 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)                                         AR20110002530



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ABCMR Record of Proceedings (cont)                                         AR20110002530



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