IN THE CASE OF:	  

		BOARD DATE:	  7 June 2012

		DOCKET NUMBER:  AR20110016882 


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 Service Cross to the Medal of Honor. 

2.  He states that in 1969 Lieutenant General (LTG) (Retired) S (who was then a Lieutenant Colonel/O-5) recommended him for award of the Medal of Honor.  In 1985, LTG S learned his award had been downgraded to the Distinguished Service Cross as a result of administrative errors and offered to assist him in having this corrected.  LTG S has assisted with every step of the process in this application for correction and feels the downgrade to be unjust.  With the advent of the computer, he has been able to locate key witnesses for proper documentation in accordance with the regulations.  

3.  He provides:

* a DA Form 638 (Recommendation for Award)
* a proposed citation
* a narrative
* a summary of events
* letters of support from two Members of Congress
* a letter of support from a former Governor of the Commonwealth of the Northern Mariana Islands
* "certificates" consisting of questions answered by LTG S, Mr. D, the applicant, and Mr. B
* letters of support from two members of the Guam Legislature
* a letter from LTG S
* a diagram of the site of the action with a sequence of events
* Headquarters, U.S. Army Vietnam (USARV), General Orders (GO) 1730, dated 14 May 1969, awarding him the Distinguished Service Cross
* a DSC Certificate and citation
* his final 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 was inducted into the Army of the United States on 4 January 1962.  On 28 November 1963, he was honorably discharged.  On the following day, he enlisted in the Regular Army, where he continued to serve until he retired, on 31 January 1988, in the rank/grade of command sergeant major/E-9.  

3.  On 6 March 1969, Headquarters, 1st Cavalry Division, issued GO 2730 announcing award of the Silver Star to him for his gallantry in action on 23 February 1969.  The orders show that, at the time, he was serving as a staff sergeant/E-6 in Company A, 1st Battalion (Airmobile), 12th Cavalry.  The citation published in the orders reads as follows:

For gallantry in action while engaged in military operations involving conflict with an armed hostile force in the Republic of Vietnam.  [The applicant] distinguished himself by exceptionally valorous action on 23 February 1969, while serving as a platoon sergeant with Company A, 1st Battalion (Airmobile), 12th Cavalry during a reconnaissance in force mission in Tinh Bien Hoa Province, Republic of Vietnam.  When his unit became heavily engaged with a large enemy force, [the applicant], although wounded, quickly evacuated the other injured personnel to safety and then deployed his platoon into effective defensive positions.  Constantly exposing himself to the intense hostile fire, [the applicant] directed the fire of his men, kept them resupplied, and helped evacuate additional casualties during the long battle.  With complete disregard for his own safety, he moved to the most vulnerable sector of the perimeter and placed accurate suppressive fire upon the enemy emplacements.  When fragments from an enemy rocket blinded him, [the applicant] ordered his men to place him in a fighting position, aiming his line of fire at the hostile locations.  Only after contact had been broken did he allow himself to be medically evacuated.  [The applicant's] gallant action is in keeping with the highest traditions of the military service, and reflects great credit upon himself, his unit and the United States Army.

4.  On 14 May 1969, Headquarters, USARV, issued GO 1730 announcing award of the Distinguished Service Cross to him for his extraordinary heroism on 23 February 1969.  The citation published in the orders reads as follows:

For extraordinary heroism in connection with military operations involving conflict with an armed hostile force in the Republic of Vietnam:  [the applicant] distinguished himself by exceptionally valorous actions in the early hours of 23 February 1969 as a platoon sergeant during a reconnaissance-in-force mission in Tinh Bien Hoa Province.  His company's night defensive position was attacked by a North Vietnamese Army company using mortars, rockets and hand grenades and, in the first minutes of fighting, [the applicant], his platoon leader and the radio operator were wounded by an incoming mortar.  Despite his painful injury, he evacuated his stricken comrades and quickly deployed his men to effectively engage the enemy.  Braving the hostile fusillade, he resupplied his troops with ammunition, directed their fire, hurled grenades and helped evacuate other casualties.  While helping to defend the most vulnerable section of the perimeter, he was blinded by fragments from an enemy rocket.  [The applicant] ordered his men to place him so that his weapon was aimed at the communists, and [he] refused to be evacuated until the attack was repelled.  [The applicant's] extraordinary heroism and devotion to duty were in keeping with the highest traditions of the military service and reflect great credit upon himself, his unit, and the United States Army.

5.  His official military personnel file is void of documentation showing he was recommended for award of the Medal of Honor.  

6.  Records maintained by the Awards and Decorations Branch, U.S. Army Human Resources Command (HRC), show that on 10 January 2001 a U.S. Senator referred a recommendation to the Department of the Army for upgrade of the applicant's Distinguished Service Cross to the Medal of Honor.  The recommendation packet included a summary of events, a proposed award citation, a narrative, a diagram of the site of the action with a sequence of events, and "certificates" consisting of questions answered by the applicant and LTG S.  

7.  On 19 March 2001, the Chief, Military Awards Branch, U.S. Total Army Personnel Command (TAPC) (now HRC), informed a Member of Congress that the Army Decorations Board had determined the degree of action and service rendered by the applicant did not meet the criteria for the Medal of Honor, and that the Commanding General (CG), TAPC, acting on behalf of the Secretary of the Army, disapproved award of the Medal of Honor, affirming that the previously-awarded Distinguished Service Cross was the appropriate award for his actions.

8.  On 20 June 2011, the Chief, Awards and Decorations Branch, HRC, informed a Member of Congress that, per Department of Defense and Army policy, one-time reconsideration of a previously-approved award is conclusive and, should the applicant feel the previously-rendered decision was unfair or unjust, he could appeal to this Board.

9.  The applicant provides four "certificates" consisting of questions answered by LTG S, Mr. D, Mr. B, and the applicant.  

	a.  In a certificate dated 26 September 2000, LTG S states, in part:

* he became the applicant's battalion commander shortly after the engagement on 22 February 1969
* a Medal of Honor recommendation packet was submitted, but the unit was challenged by the procedures for submitting such an award
* as the brigade executive officer, he had witnessed first-hand the battalion's administrative difficulties
* he believes the unit "took the easy way out and did not aggressively push for the Congressional Medal of Honor [sic]"
* at the time of the event, he was assigned to the brigade and knew of the applicant's heroic actions
* due to heavy friendly casualties and the removal of the battalion commander, the applicant's valorous actions were never properly documented and submitted
* during his 2-year tour in Vietnam, the applicant's actions were the only ones he personally knew that warranted the Medal of Honor
* the applicant's actions to shield a fallen comrade and his willingness to expose himself while blinded to resist the incoming enemy so that his men could be evacuated were beyond the call of duty

	b.  In a certificate dated 9 February 2011, Mr. D states he was the applicant's platoon leader and provides his recollection of the enemy contact on 22 and 23 February 1969.  He states:

On the morning of 22 February, my platoon, which was the 2nd platoon in our company, was on point for the company.  [The applicant] was with the point squad way up front.  The jungle was very thick allowing only about 10 feet of visibility.  Around mid-morning, my point squad began receiving heavy fire.  [The applicant] called me on the radio saying that he had encountered enemy contact, and that they were being ambushed.  I moved the rest of the platoon up to the front.

I called our [commanding officer] on the radio and gave him the situation.  The rest of the company formed a perimeter defense, then our [forward observer] requested [artillery] and [an] air strike.  Around noon, our company started to [clear] the bunker complex and you could see body parts from the [artillery] and air strike.  Once we cleared the bunker complex, our company moved out…and set our night defense position.  My platoon was given the responsibility to defend our company perimeter from 12 o'clock to 4 o'clock.  Before midnight, our listening post started to hear heavy movement to their front.  Then all hell broke loose and we started receiving mortar fire then [rocket-propelled grenades] and small arms fire, soon followed by human waves of enemy attacking our platoon position.  I was at the platoon [command post] when the attack started.  [The applicant] was at the perimeter with the rest of my platoon and was fighting viciously against the enemy, as they overwhelmed our platoon defenses.  [The applicant] kept checking his men and resupplying ammo.  At one point, he was wounded and dragging his leg while protecting his wounded men on the perimeter.  His courage inspired his men to fight the enemy at all costs.

I was wounded during the initial attack and my platoon continued to repel the enemy so that they would not gain a foothold on our ground.

	c.  Mr. D also states:

* the company commander recommended the applicant for the Medal of Honor
* the applicant's heroic actions saved the platoon from being wiped out
* he has told his family he would not be alive were it not for the applicant
* he speculates "that someone in the chain of command failed to do their job and follow through with the proper processing"

	d.  In a certificate dated 28 December 2010, Mr. B states he was a radio telephone operator and the applicant was his platoon sergeant.  He recounts the events of 22 and 23 February 1969 as follows:

On [22 February 1969], I was following [the applicant], and he was following the point man, and over the next few seconds, the point man was hit and [the applicant] charged the bunkers where the fire was coming from and silenced it.  The rest of the platoon hit the ground and our platoon formed a wedge position so that we would not get ambushed.  [The applicant] called [the platoon leader] on the radio to let him know that we had contact with the enemy and [were] receiving a heavy volume of fire coming from the bunker complex.  

The second platoon returned fire while the rest of the company closed to form a perimeter of defense.  [Artillery] fire and air strikes were called and by late afternoon, our company began to clear the bunker complex.  Body parts were scattered everywhere, and it was clear the enemy had moved out quickly, even leaving some of their equipment behind.

Before dark, our platoon started digging our foxholes for our night defense position.  Around midnight, hell broke loose again, and [the platoon leader] was severely wounded at the platoon [command post] with the initial attack.  [The applicant] was at the perimeter checking his men, and I saw him dragging his wounded men to the platoon [command post], while also re-supplying his men with grenades and ammo.  

I saw him killing [North Vietnamese Army (NVA) soldiers] who were charging our perimeter.  Night flares were continually being fired by [artillery], lighting the skies like daylight.

The NVA formed human waves and rushed our perimeter, overwhelming our defenses.  At one point, I witnessed [an NVA soldier] with a bayonet rushing toward a foxhole where one of [the applicant's] soldiers lay wounded, and [the applicant] charged [the NVA soldier] and bayoneted him, thereby protecting his wounded soldier.  [The applicant] then jumped into another foxhole and continued to fire upon the rest of the charging enemy, to protect yet another wounded soldier.

I heard him yelling to us to "make every ammo count," and the next orders that I heard [were] to "hold our ground at all costs."

It was obvious that our perimeter was weakened and that the enemy might over-run our position before reinforcement troops could get to us.

I thought [the applicant] had been killed, until the enemy was repelled and the fire fight was over, and I saw him with bandages covering his head.

	e.  In a certificate dated 22 July 2000, the applicant provided an account of the events of 22 and 23 February 1969 that is substantially the same as the accounts provided by Mr. D and Mr. B and his citations for the Silver Star and Distinguished Service Cross.  He also stated:

* Mr. D and Mr. B were eyewitnesses to the event
* he was honored when his unit commander recommended him for award of the Medal of Honor
* in 1985, he ran into LTG S, who was astonished to learn his award had been downgraded to a Distinguished Service Cross for what may have been an administrative error

10.  LTG S's résumé is available on the General Officers Management Office website.  It shows he served as Commander, 1st Battalion, 12th Cavalry, from March to October 1969.

11.  Records available in the Awards and Decorations Computer Assisted Retrieval System, an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Awards and Decorations Branch of the U.S. Army Human Resources Command, confirm Mr. D was assigned to Company A, 1st Battalion, 12th Cavalry, during the period in question.

12.  The available records do not include official documentation of Mr. B's military service.  

13.  The applicant provides a narrative, summary of events, and a diagram of the site of the action that reflect the events of 22 and 23 February 1969 as they are described in the certificates addressed above.

14.  The Medal of Honor, Title 10, U.S. Code, section 3741, was established by Joint Resolution of Congress on 12 July 1862 (amended by acts on 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.

15.  Army Regulation 600-8-22 (Military Awards) states:

	a.  The DSC 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.

	b.  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.  

16.  Army Regulation 672-5-1 (Awards), in effect at the time, stated the CG, USARV, was authorized to approve award of the Distinguished Service Cross.

DISCUSSION AND CONCLUSIONS:

1.  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.  Shortly after the applicant's heroic acts, the CG, 1st Cavalry Division, awarded him the Silver Star, which appears to have been an interim award pending final approval of a higher award.  Later, the CG, USARV, determined his heroic acts were so extraordinary and so noteworthy as to warrant award of the Distinguished Service Cross.  

2.  The criteria for the Distinguished Service Cross state the award is given for "extraordinary heroism while engaged in action against an enemy of the United States not justifying award of the Medal of Honor."  This language requires any commander with Distinguished Service Cross approval authority to consider whether or not the evidence before him warrants the higher award.

3.  The applicant's award of the Distinguished Service Cross has since been reviewed, and the Army Decorations Board determined the degree of action and 


service rendered did not meet the criteria for award of the Medal of Honor.  Based on the board's recommendation, the CG, TAPC, on behalf of the SA, affirmed that the previously-approved award of the Distinguished Service Cross was the appropriate recognition for his heroic actions.  

4.  LTG S has indicated the applicant's unit may have made errors in processing his award recommendation.  Unfortunately, there is no documentary evidence to substantiate that claim, and there is no evidence that administrative errors may have colored the judgment of the CG, USARV, when he determined the Distinguished Service Cross was the appropriate award.

5.  A thorough review of the available documentation shows the account of the applicant's actions has remained substantially the same since 1969, and there is no evidence that would suggest any error or injustice in the original approval authority's decision to award the Distinguished Service Cross or the review authority's decision to affirm this award.  This being the case, there is no basis for considering upgrade of the applicant's Distinguished Service Cross.

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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  The applicant is a true American hero; his selfless act of bravery and devotion to duty were in keeping with the highest traditions of the military service.  The award of the Distinguished Service Cross, our Nation's second-highest award for valor, is the appropriate recognition for his heroism on 23 February 1969.  In making this determination, the applicant and all others concerned should know 


this action in no way diminishes the sacrifices he made in service to our Nation.  All Americans should be justifiably proud of his service in arms.



      _______ _   _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.


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