IN THE CASE OF:	  

		BOARD DATE:	      15 September 2011

		DOCKET NUMBER:  AR20110005448 


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 upgrade of his award of the Distinguished Flying Cross to a Medal of Honor or the Distinguished Service Cross.

2.  The applicant states:

	a.  The recommendation for upgrade of the Distinguished Flying Cross to a Medal of Honor was made on his behalf and submitted under the provisions of Title 10, U.S. Code (USC), Section 1130.  He believes the recommendation was acted on unjustly when the U.S. Human Resources Command (HRC) denied the request and disapproved forwarding it to the Senior Army Decorations Board and the Secretary of the Army who hold final approval authority.

	b.  Recommendations for various awards were initiated in 2008 for himself and two other Soldiers for actions that occurred on 29 December 1964.  HRC requested additional information which was provided but it was unclear if the letter was forwarded from the congressman's office to the awards branch.  The letter supported detailed eyewitness statements from several officers.  An email was received in April 2009 from HRC that stated all recommendations would be consolidated for presentation.  It wasn't until March 2010 that he found out telephonically that the request for him was denied and after he wrote to the Secretary of the Army he finally received written correspondence verifying the request for his upgrade was denied and the request was disapproved for forwarding to the Senior Army Decorations Board and the Secretary of the Army.

	c.  In November 2010, lieutenant colonel (LTC) B_____ requested action by the Secretary of the Army to review the packet submitted to support the upgrade of his Distinguished Flying Cross to a Medal of Honor.  The letter produced a response from the Army Review Board Agency which was forwarded to him for action.  The recommendation for the other two Soldiers also considered the possibility of awarding lesser awards and if his actions do not merit approval of the Medal of Honor then award of the Distinguished Service Cross would be in order.

3.  The applicant provides:

* Three eye-witness statements
* Seven letters
* Three pages of email
* Two pages of a newspaper article

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 second lieutenant field artillery (FA) officer in the U.S. Army Reserve (USAR) and executed an oath of office on 11 June 1954.  He entered active duty on 10 October 1954. 

3.  He attended the U.S. Army Aviation School and he served in Vietnam as an aviator as follows:

* 24 May 1964 - 14 February 1965 while assigned to the 68th Aviation Company and the 197th Aviation Company
* 27 October 1967 - 10 September 1968 while assigned to the 188th Assault Helicopter Company, 269th Combat Aviation Battalion

4.  The applicant was awarded the Distinguished Flying Cross for heroism while participating in aerial flight in Vietnam on 29 December 1964.  General Orders Number 2156, dated 20 October 1965, issued by the U.S. Military Assistance Command, Vietnam, cited the following reason:

[Applicant] distinguished himself by heroic action on 29 December 1964 while serving as an aircraft commander of an armed helicopter during a rescue operation in the Republic of Vietnam.  During the course of the operation, one of the American advisors and five friendly forces Soldiers became separated from the unit and were in danger of being captured or killed.  Upon receiving a call for assistance, [the Applicant] immediately, and in total disregard to his safety in the face of the hostile fire, landed his aircraft and rescued the stranded personnel.  While departing the area, his aircraft was subjected to intense enemy fire.  [Applicant], although encountering difficulty from his heavily overloaded aircraft, skillfully began firing rockets into the Viet Cong positions.  At this time one of his fire team leaders suffered extensive damage to his aircraft and was forced down.  [Applicant] landed beside the burning aircraft and ascertained that the crew was safe.  [Applicant's] heroic actions were in keeping with the highest traditions of the U.S. Army and reflect great credit upon himself and the military service.

5.  He was honorably retired from active duty in the rank of LTC on 31 May 1977.  He completed 22 years, 8 months, and 6 days of creditable active service.

6.  Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 (Report of Separation from Active Duty) shows the Silver Star, Legion of Merit, Distinguished Flying Cross (3rd Award), Soldier's Medal (2nd Award), Bronze Star Medal, Meritorious Service Medal (2nd Award), Air Medal (40th Award, Air Medal with "V" Device, Joint Service Commendation Medal, Army Commendation Medal with "V" Device (2nd Award), Purple Heart, National Defense Service Medal, Vietnam Service Medal with five bronze service stars, Republic of Vietnam Campaign Medal, Meritorious Unit Citation, Master Army Aviator Badge, Special Forces Parachutist Badge, and the General Staff Identification Badge.

7.  In a letter dated 27 August 2008, the Chief, Military Awards Branch, US Army HRC, Alexandria, Virginia responded to the Representative in Congress that LTC B_____ had submitted a request for the [Applicant] to be awarded the Medal of Honor.  The Chief stated they received the DA Form 638 with proposed citation, eyewitness statements, map of the combat area, unit journals, and the [Applicants] DD Form 214.  However, the letter added that two of the statements needed to be signed and "a copy of the original recommendation for award of the Distinguished Flying Cross with proposed citation, original eyewitness affidavits, original chain-of-command endorsements, and a privacy release was needed" before the award recommendation could be forwarded to the Army Decorations Board.

8.  In a letter to the applicant, dated 19 October 2010, Chief, Military Awards Branch, HRC, stated on 26 August 2009, the Commanding General, HRC, disapproved forwarding the recommendation to the Senior Army Decorations Board and affirmed that the previously awarded Distinguished Flying Cross was the appropriate award for his action.

9.  In a letter to the Secretary of the Army, dated 23 November 2010, LTC B_____ requested reconsideration of his initial request that the applicant be awarded the Medal of Honor and if not that award then he should be awarded the Distinguished Service Cross.

10.  A letter to LTC B_____, dated 22 February 2011, from the Army Review Board Agency stated that in order to initiate a review of the applicant's military records for award of the Medal of Honor or the Distinguished Service Cross the applicant must submit a request to the ABCMR.

11.  The applicant submitted a DD Form 149 (Application for Correction of Military Records Under the provisions of Title 10, US Code, Section 1552) to the ABCMR on 15 March 2011.  The application contained the following:

	a.  A sworn affidavit, dated 17 September 2008, from a comrade-in-arms who stated he was an eyewitness to the applicant's daring rescue on 29 December 1964 and he made a notarized statement to that fact on 16 January 2008.  He was wounded on 29 December 1964 and medically evacuated from Vietnam in January 1965.  He also received the Distinguished Flying Cross for his part in the rescue that day but his actions did not compare to what the applicant did that day. He had believed for almost 44 years that the applicant deserved the Medal of Honor for what he did that day.

	b.  A signed statement, dated 8 December 2008, from a comrade-in-arms who was at the combat site on 29 December 1964.  He stated he was a helicopter pilot and became aware that a U.S. Army advisor and his team of Soldiers were in serious trouble and surrounded by the enemy.  He flew to the area but due to a lack of communications it was difficult to see where the Soldiers were.  Eventually he heard a radio transmission in which the advisor told him to leave as they were surrounded by the enemy and the Soldiers were laying down their weapons.  He later heard that the applicant went above and beyond the call of duty and with total disregard for his own safety landed his helicopter and rescued the advisor and the crew of a helicopter that had been shot down.  

	c.  A sworn affidavit, dated 7 January 2009, from LTC B_____ a comrade-in-arms who witnessed the action.  He stated he was an advisor to a Republic of Vietnam Ranger Battalion and on 29 December 1964 the applicant displayed unbelievable courage in the face of danger and conspicuous gallantry above and beyond the call of duty which entitled him to the Medal of Honor.  He stated two Soldiers were with him as battalion advisors when they came under heavy fire by the enemy.  The Soldiers were captured and since the enemy Soldiers were dressed in Vietnamese ranger uniforms it was hard to tell who to shoot so he radioed for a helicopter to pick him up.  The applicant heard his radio call and volunteered to pick him up.  They were out of smoke grenades but the enemy had smoke grenades they set off so it was hard for the rescue helicopters to see where he was.  The applicant recognized that he was surrounded by the enemy and although he was in a small clearing and at great risk to his own life the applicant landed his helicopter and rescued him [LTC B_____] and three Soldiers from the Vietnamese ranger battalion.  As they were departing the area, a "sister" helicopter was fired upon and crash landed.  The applicant returned to the crash scene, pulled an unconscious crewman from the burning wreckage, and helped load them on other helicopters that had landed by then. 

12.  The Medal of Honor, section 3741, title 10, United States Code (10 USC 3741), was established by Joint Resolution of Congress, 12 July 1862 (amended by acts 9 July 1918 and 25 July 1963).  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 or her life above and beyond the call of duty while engaged in an action against an enemy of the United States; while engaged in military operations involving conflict with an opposing foreign force; or while serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party.  The deed performed must have been one of personal bravery or self-sacrifice so conspicuous as to clearly distinguish the individual above his comrades and must have involved risk of life.  Incontestable proof of the performance of the service will be exacted and each recommendation for the award of this decoration will be considered on the standard of extraordinary merit. 

13.  Army Regulation 600-8-22 provides, in pertinent part, that the Distinguished Service Cross is awarded to a person, who while serving in any capacity with the Army, distinguished 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.

14.  Army Regulation 600-8-22 provides, in pertinent part, that the Silver Star 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.

15.  Army Regulation 600-8-22 provides, in pertinent part, that the Distinguished Flying Cross is awarded to a person who distinguished himself or herself by heroism or extraordinary achievement while participating in aerial flight.  The act of heroism must be 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

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his Distinguished Flying Cross should be upgraded to a Medal of Honor or the Distinguished Service Cross.  The original request, submitted on his behalf through a Representative in Congress, was denied by the Army Decorations Board, HRC.  HRC affirmed that the previously awarded Distinguished Flying Cross was the appropriate award for his actions.

2.  The highest awards for valor are, in descending order, the Medal of Honor, the Distinguished Service Cross, the Silver Star, and the Distinguished Flying Cross.  Requirements for each award are:

	a.  Medal of Honor - Conspicuous gallantry and intrepidity as a member of the Army at the risk of 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/her comrades and must have involved risk of life.  Incontestable proof of the performance of the service will be exacted and each recommendation for the award of this decoration will be considered on the standard of extraordinary merit.

	b.  Distinguished Service Cross - While serving in any capacity with the Army, displaying extraordinary heroism not justifying the award of a Medal of Honor; while engaged in an action against an enemy of the United States.  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.

	c.  Silver Star - Requires gallantry in action against the enemy.  The gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction.

	d.  Distinguished Flying Cross - While serving in any capacity with the Army, displaying heroism or extraordinary achievement while participating in aerial flight.  The act of heroism must be 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.

The ABCMR acknowledges and applauds the applicant's valor and courage on 18 March 1967 under extremely hazardous conditions; he is truly an American hero.  However, it is extremely difficult to make the necessary distinctions as to whether a particular act constitutes "conspicuous gallantry and intrepidity", "extraordinary heroism", "gallantry in action", or "heroism and extraordinary achievement."

3.  The applicant’s record shows that he was clearly cited for heroism while participating in aerial flight and while engaged in military operations involving conflict with an opposing foreign force in the Republic of Vietnam.  A decision was made to award him the Distinguished Flying Cross.  However, without complete copy of the original recommendation for award of the Distinguished Flying Cross with proposed citation, original eyewitness affidavits, and the original chain-of-command endorsements, 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 Medal of Honor or a Distinguished Service Cross and the recommendation was disapproved in favor of a Distinguished Flying Cross.  Conversely, it is not known whether he was originally recommended for a Bronze Star Medal for Valor, but upgraded to a Distinguished Flying Cross by the approving authority.

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 Distinguished Flying Cross.  Almost forty seven years have passed since the events of 29 December 1964 and the ABCMR, is not privy to the decision process used at that time.  Neither the evidence provided by the applicant nor the existing evidence in the record supports a Medal of Honor, Distinguished Service Cross, or the Silver Star.  Therefore, there is insufficient evidence upon which to base award of the Medal of Honor, Distinguished Service Cross, or the Silver Star.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  __X_____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board acknowledges and recognizes the valor, courage, and heroism displayed by the applicant on 29 December 1964 while under extremely hazardous conditions and the acts of personal bravery exhibited by the applicant during the Vietnam War.



      __________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)                                         AR20110005448





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ABCMR Record of Proceedings (cont)                                         AR20110005448



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