IN THE CASE OF:	  

		BOARD DATE:	    18 October 2011

		DOCKET NUMBER:  AR20110004583 


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, through his Member of Congress (MOC) that his Meritorious Service Medal (MSM) be upgraded to an award of the Soldier's Medal for his actions during the period 6 to 7 February 1978.

2.  His MOC states that the applicant received the MSM for his actions which led to the saving of a civilian woman’s life, during what has become known as the “Great Blizzard of 1978.”  The applicant along with two other RI Army National Guard (RIARNG) Soldiers was also awarded the Valley Forge Cross from the National Guard Association of the United States (NGAUS) for their actions during the emergency.   

3.  His MOC also states his office submitted the applicant’s request for the Soldier’s Medal to the Army Human Resources Command (AHRC), Military Awards Branch which stated that it appeared that the applicant was erroneously awarded the MSM and if he wished to be considered for award of the Soldier’s Medal, he must forward the original recommendation for the award of the MSM with supporting documents to the Army Decorations Board for review. 

4.  The applicant and the MOC have attempted to obtain the original DA Form 638 (Recommendation for Award) for the MSM he received, however the RIARNG was unable to locate a copy.  The battalion commander, at that time and others involved were contacted but no one was willing or able to provide any insight into this award.  The Adjutant General and brigade commander, at that time, are both deceased. 

5.  The applicant provides:

* A reconstructed DA Form 638
* MSM certificate
* Various memorandums
* Newspaper articles
* Award citations
* Permanent orders
* An affidavit
* A sworn statement
* His DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 records show he was appointed as a Reserve Commissioned Officer in the grade of second lieutenant (2LT) on 11 June 1972 and entered active duty on 19 June 1972.  He was assigned to the Infantry Branch as a 1542 (Infantry Unit Commander).  He was honorably released from active duty on 
18 June 1974.  He is currently assigned to the U.S. Army Reserve (USAR) Retired Reserve. 

3.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows in item 
17 (Civilian Education and Military Schools) he completed the Military Police (MP) Officer Basic Course (Extension) in the year 1976.  Item 35 (Record of Assignments) of this form shows he served as an MP Officer with the RIARNG from 1 March 1976 through 31 March 1979.

4.  A memorandum, subject:  Recommendation for Award, dated 19 April 1978 shows the applicant was recommended for award of the Valley Forge Cross for extraordinary heroism in active service for the State of RI during the blizzard of 
6 February 1978 and the ensuing emergency operations.  It states, in part:  While serving as company commander, 115th MP CO, RIARNG, he distinguished himself by an act of heroism.  During the afternoon and early evening of 
6 February 1978, members of the 115th MP CO had assembled at their armory in answer to the State activation for a major snowstorm.  When the seriousness of the storm became evident, the applicant led some of his Soldiers onto Interstate 95 to assist stranded motorists and guide them to shelter.  

5.  After working more than 30 hours without sleep, the applicant found an unconscious woman buried in a snow bank and after rendering first air, he carried the woman, who weighed 150 to 160 pounds toward the hospital.  When he reached a distance of about one mile from the hospital, he was joined by one of his platoon leaders, who also assisted with carrying the woman.  After leaving the woman at the hospital, he returned to render additional assistance to several other stranded motorists before returning to his armory for needed food and rest. 

6.  He provided Permanent Orders 12-1, dated 14 June 1978.  This order shows he was awarded the MSM for exceptionally meritorious service while serving as a member of the RIARNG during the period 6 through 14 February 1978.  The accompanying MSM certificate shows the applicant physically carried the woman to the hospital through huge snowdrifts.  If not for his quick judgment and physical endurance, her life would have been lost.

7.  The applicant also provided an affidavit from a retired brigadier general (BG) R____.  BG R_____ states that during the period of the blizzard, he was serving in the capacity of an operations team leader in control of Soldier missions during the storm.  He states the applicant put his own life in danger while conducting rescue operations during the storm and his actions reflected those of a Soldier who was concerned for the safety of others.  The applicant physically carried a woman approximately two miles through six foot snowdrifts.  Had he not taken action the woman most certainly would have perished.  

8.  The newspaper articles show the applicant and several other Soldiers were awarded the Valley Forge Cross for their heroic efforts during the “Great Blizzard of 1978.”  In two of the articles the applicant states that he happened to be in the right place to help someone and he was honored to get the award, but he did not do anything more than others in his troop who saved lives.  Although he was nominated by the RIARNG for the national honor he would accept it on behalf of his MP CO and the RIARNG.  

9.  A memorandum from the Office of Policy and Liaison, dated 27 May 2003 shows the applicant’s MOC submitted an inquiry concerning award of the Soldier’s Medal.  It was stated by the NGB that the MSM was previously awarded and Army Regulation 600-8-22 (Military Awards) prohibits the presentation of two awards for the same act.  The Soldier’s Medal is not awarded solely on the basis of having saved a life, and must have involved personal hazard or danger, and the voluntary risk of life.  The MOC was instructed to request award of the Soldier’s Medal through the provisions of U.S. Code, Title 10, Section 1130.

10.  Two memoranda from the Military Awards Branch, AHRC, dated 1 May 2008 and 25 June 2009 show that in order for the applicant to be considered for award of the Soldier’s Medal, he must forward the original recommendation for the award of the MSM with all supporting documentation through a MOC.  It was also stated that an award authorized to a Soldier for recognition of their meritorious achievement or service cannot be considered for upgrade to an award that recognizes heroism.  However, it appeared that the applicant’s MSM was awarded erroneously.  

11.  The reconstructed DA Form 638 contains a description of the applicant’s achievements and a proposed citation for award of the Soldier’s Medal.  Although this document contains the names and titles of his chain of command during that period of service, there are no signatures present.

12.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards.  It states:

	a.  The Soldier's Medal is awarded for distinguished heroism not involving actual conflict with the enemy.  The same degree of heroism is required as for award of the Distinguished Flying Cross.  The performance must have involved personal hazard or danger and the voluntary risk of life under conditions not involving conflict with an armed enemy.  Award of the Soldier's Medal will not be made solely on the basis of having saved a life.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  

	b.  For an individual to have “distinguished” himself or herself must, by praiseworthy accomplishment, be set apart from other persons in the same or similar circumstances.  Determination of their distinction requires careful consideration of exactly what is or was expected as the ordinary, routine, or customary behavior and accomplishment for individuals of like rank and experience for the circumstances involved.”

   c.  “Above and beyond the call of duty” is the “exercise of a voluntary course of action the omission of which would not justly subject the individual to censure for failure in the performance of duty.”  It usually includes the acceptance of existing danger or extraordinary responsibilities with praiseworthy fortitude and exemplary courage.  

	d.  The MSM is awarded to members of the Armed Forces of the United States or of a friendly foreign nation who distinguish themselves by outstanding meritorious achievement or service in a noncombat area.  After 16 January 1969 but prior to 11 September 2001, the MSM was authorized to be awarded only for meritorious service or achievement while serving in a non-combat area.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  

13.  The NGAUS webpage shows the criteria for award of the Valley Forge Cross.  It states the individual must be an active, bona fide member of the National Guard and performed an act of heroism clearly beyond what reasonably might have been expected under the circumstances and of such a nature that had it not been attempted, no criticism would be justified.  The individual’s act of heroism was voluntary and the performance of the act placed them in personal jeopardy.  This award frequently will encompass lifesaving acts and may be appropriate under circumstances in which extraordinary performance has contributed to the alleviation of public tragedy or to the preservation of public property provided that the individual’s life was in jeopardy as a result of voluntary action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s MOC contends that the applicant should be awarded the Soldier’s Medal in lieu of the MSM for the period 6 through 14 February 1978. 

2.  The evidence of record shows that the applicant was awarded the MSM for meritorious service and the Valley Forge Cross for his heroism while under state activation for the purpose of providing aid to the state of RI during the “Blizzard of 1978.”  Each of these commanders in the chain of command had the opportunity to recommend the applicant for award of the Soldier’s Medal.  However, they elected not to do so at the time of the incident based on the facts.

3.  The newspaper articles submitted by the applicant show he admitted that he did not do anything more than other member of his unit who saved lives during that storm.  

4.  The 2008 and 2009 memoranda from the Military Awards Branch state that the applicant was erroneously awarded the MSM and if he wanted to be considered for award of the Soldier’s Medal, he needed to provide the Army Awards Board the original recommendation for award of the MSM and all supporting documents.  The evidence shows he was unable to produce these documents and as a result, applied to the ABCMR.

5.  His record shows that he was clearly cited for heroism by award of the Valley Forge Cross and the MSM for his action during the Blizzard of 1978.  However, without the original DA Form 638, a determination of the appropriateness of that decision cannot be made.  For instance, it is not known whether the applicant's immediate commander recommended he be awarded a Soldier's Medal and the recommendation was disapproved in favor of the MSM.  Conversely, it is not known whether he was originally recommended for an Army Commendation Medal for heroism, but upgraded to a MSM by the approving authority.

6.  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 MSM.  Over thirty years have passed since the event and the ABCMR, is not privy to the decision process used that time.

7.   Based on all of the foregoing, the applicant did not prove through a preponderance of evidence that his actions rose to the level required for award of the Soldier's Medal, which is the determining factor in whether an individual’s actions warrant an award of the Soldier’s Medal.

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)                                         AR20110004583





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