IN THE CASE OF:	  

		BOARD DATE:  17 May 2012

		DOCKET NUMBER:  AR20110020806 


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 his Army Commendation Medal, awarded for actions at the Pentagon on 11 September 2001, be upgraded to a Soldier's Medal.

2.  The applicant states his actions were no less than those who received the Solder's Medal for heroic action that day.  The write-up provided with his application and narration was not as strong as that for an individual who received the Soldier's Medal.  The timeliness of the award application was not prompt and played a role in the downgrade of the Soldier's Medal to an Army Commendation Medal.  

3.  He states he was working in his office on 11 September 2001 while assigned to the Army Deputy Chief of Staff for Programs (G-8).  

	a.  His immediate reaction following the impact of the aircraft and explosion of the fuel was to ensure the safety of his fellow Soldiers, a lieutenant colonel and a staff sergeant. 

	b.  After crossing the room through flame, smoke and debris, using his hands and arms to force his way through the electric cable and other burning material hanging from the ceiling he was unable to locate the staff sergeant and determine her condition.

	c.  He then moved toward the lieutenant colonel's office but was driven back by the extreme heat.  He later learned both of them had been sucked by the back draft into the path of the aircraft where they were later found.
	d.  He became acutely aware that the skin on both of his arms had been burned away and the shredded remains of it were dangling limply.  He made his way through the burning wreckage of the E-Ring and exited the building through the door near the hole made by the aircraft.

	e.  He provided a situation report to LTC D____y and requested to be allowed to return to look for the staff sergeant and colonel.  However, he was ordered to triage and was quickly evacuated to the Washington Hospital Center.  

4.  He states when he was departing G-8 at the completion of his assignment in August 2003 the leadership determined that his actions on 11 September 2001 warranted award of the Soldier's Medal.  He had received the Purple Heart soon after the attack but for some unexplained reason he had not been recommended for the Soldier's Medal.  Several other Soldiers were known to have been awarded the Soldier's Medal for saving or attempting to save people's lives on 
11 September 2001.  The new G-8, Lieutenant General G_____n, initiated the required paperwork for award of the Soldier's Medal and transmitted it to the U.S. Army Human Resources Command (HRC) where a review committee downgraded the award to an Army Commendation Medal.

5.  He states he learned of the downgrade after he was reassigned to the Joint Military Intelligence College (JMIC).  Upon completion of this assignment he was reassigned to Army Deputy Chief of Staff for Intelligence (G-2).  After obtaining specific information from him the G-2, Lieutenant General A_______r, directed his staff to immediately submit an award packet to HRC to have the Soldier’s Medal awarded to him.  However, the G-2 was reassigned and the incomplete award recommendation packet was given to the incoming executive officer (XO).  In July 2006, the XO was cleaning out his desk prior to reassignment and he placed the partially completed packet in his office chair while he was away from his desk.  He thus ended his efforts to rectify the situation out of concern that further pursuit of the matter might bring about a negative effect on his career.

6.  He states the date of submission of his award was a factor in it being downgraded.  It should have been submitted with the others by the G-8 in September 2001.  

	a.  Several Purple Hearts and Soldier's Medals were awarded in late October to members of the various Army staffs.  The attitude at the time was one of a desire to reward those who had performed on 11 September.  

	b.  In September 2003 the attitude had changed.  The euphoria that existed in the fall of 2001 with the first victories were forgotten as the dead and wounded started returning from Iraq.  The folks in personnel had seen many other awards for heroic combat actions against the enemy from the fields of Iraq and Afghanistan.  

	c.  His actions when compared to the actions presented in the narrations of other Soldier's Medals awarded for 11 September 2001 was equal to them and did not warrant a downgrade to an Army Commendation Medal.  

7.  He states he did nothing less, nor nothing more, than those who received the Soldier's Medal for 11 September 2001.  The write-up by the G-8 lacks the sensation of ones that were approved.  The citation for Captain O____r's Soldier's Medal is much stronger when compared to the one for him.  He then provides a proposed citation that he states should have been submitted.

8.  The applicant provides:

* a letter, dated 30 August 2010, from the Awards and Decorations Branch at HRC
* a diagram of Pentagon damage assessment after 11 September 2001
* a DA Form 638 (Recommendation for Award), dated 4 September 2003
* his certificate for the award of the Army Commendation Medal
* a note, 12 July (year unknown) from G-8
* a citation for the award of the Soldier's Medal for Captain O____r

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.  On 25 May 1988, he was commissioned a second lieutenant in the U.S. Army Reserve.  He entered active duty on 5 February 1989.  He had completed 1 year, 10 months, and 22 days of prior active service and 7 years, 6 months, and 

20 days of inactive service.  He was commissioned a second lieutenant in the Regular Army on 7 May 1990.

3.  The DA Form 638, dated 4 September 2003, submitted by the applicant indicates he was initially recommended for the Soldier's Medal for his actions on 
11 September 2001, by the Deputy, G-8.  The Deputy Chief of Staff, G-8 recommended approval of the award.  The proposed citation read in part:

For heroism above and beyond the call of duty on 11 September 2001, after a hijacked airline flight, with over 30,000 pounds of jet fuel was used by international terrorists as a weapon to attack the Pentagon.  Upon impact there was a thunderous explosion and a horrific fire that left both military and civilian personnel in a state of shock.  Without regard for his own life, overcoming the shock, chaos and deadly smoke, [the applicant] aided in the rescue effort by attempting to find his coworkers in their burning offices.  In doing so, he suffered severe burns on his arms and hands.

4.  On 19 September 2003, the Chief, Military Awards Branch, HRC, the approval authority, downgraded the award to an Army Commendation Medal.  His certificate for the award reads in part:

For heroic achievement after a hijacked airline flight with over 30,000 pounds of jet fuel was used by international terrorists as a weapon to attack the Pentagon.  (The applicant] aided in the rescue effort by attempting to find his coworkers in their burning offices.  In doing so, he suffered severe burns on his arms and hands.

5.  The applicant retired on 30 June 2008 having served 21 years, 3 months, and 12 days of active service.

6.  The applicant submitted the citation for the award of the Soldier's Medal to Captain O____r for his actions on 11 September 2001.  

7.  A letter, dated 30 August 2010, from HRC, was in response to his request to have his Army Commendation Medal upgraded to a Soldier's Medal.  HRC stated they were unable to forward his request to the Army Decorations Board for consideration because there was no new evidence for the board to review.  According to Department of Defense and Army policy, a request for reconsideration for possible upgrade of a previously approved recommendation 

for an award can be submitted for reconsideration only if new, substantive and material information is furnished.

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

	a.  Paragraph 3-1(c) states the decision to award an individual a decoration and the decision as to which award is appropriate are both subjective decisions made by the commander having award approval authority.  The regulation further states that awards for meritorious achievement or service will not be based upon the grade of the intended recipient; rather, the award should reflect both the individual's level of responsibility and his or her manner of performance.  Finally the regulation also states that the degree to which an individual's achievement or service enhanced the readiness or effectiveness of his or her organization will be the predominant factor. 

	b.  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.  Awards of the Soldier's Medal will not be made solely on the basis of having saved a life.

	c.  The Army Commendation Medal may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguished himself or herself by heroism, meritorious achievement or meritorious service.  

9.  Title 10 of the U.S. Code, section 1130 (10 USC 1130) provides the legal authority for consideration of proposals for decorations not previously submitted in a timely fashion.  Upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award of or upgrading of a decoration.  Based upon such review, the Secretary shall determine the merits of approving the award.

10.  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.

DISCUSSION AND CONCLUSIONS:

1.  He has not furnished any new, substantive, and material information that was not submitted with the original award recommendation in 2003.  

2.  Notwithstanding the recommendations of the chain of command, the award approval authority is solely responsible, in accordance with Army regulation, for the determination if recognition is warranted and, if so, the appropriate level of recognition.  

3.  He provided a citation for the award of the Soldier's Medal describing acts he considers similar to his own.  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.  HRC was able to evaluate his acts of heroism against other acts of heroism displayed on 11 September 2001.  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.  His acts did not rise to the same degree of heroism as required for the award of the Distinguished Flying Cross.

4.  The final decision to approve an award and which award is appropriate are both subjective decisions made by the commander having award approval authority.  Commanders carefully review every individual award recommendation to preserve the prestige and integrity of the Army’s military decorations.

5.  The decision to award the applicant an Army Commendation Medal instead of the Soldier's Medal was well within the authority of the award’s approval authority.  The fact that the applicant believes that he should have received a higher award does not serve as justification to upgrade his medal.

6.  While the available evidence is insufficient for awarding the applicant a Soldier's Medal, this in no way affects the applicant’s right to pursue his claim for the Soldier’s Medal by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

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 wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and 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.

ABCMR Record of Proceedings (cont)                                         AR20110020806



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110020806



7


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1