BOARD DATE:	  29 May 2012

		DOCKET NUMBER:  AR20110022486 


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 reconsideration of his earlier request for upgrade of his Distinguished Flying Cross (DFC) to the Medal of Honor (MOH), or in the alternative, to the Distinguished Service Cross (DSC).

2.  The applicant states, in essence, the following arguments in support of his request for reconsideration:

	a.  He contends that award recommendations submitted in accordance with the provisions of Title 10, U.S. Code, section 1130 require the personal review by the Secretary of the Army.  He bases his interpretation of the law on the use of such words as "shall" and "directs," which allow for no flexibility in action that could be taken.  He believes the letter and intent of the law was meant to set standards of review and determination at the highest level, especially when considering the award of the MOH and possibly the DSC in those cases where a MOH is not merited.

	b.  He argues that the Commander, U.S. Army Human Resources Command (HRC), Fort Knox, KY deviated, without authority, from the provisions of Title 10, U.S. Code, section 1130 when he disapproved forwarding the applicant's recommendation packet to the Senior Army Decorations Board (SADB) and the Secretary of the Army.

	c.  He states, in reference to the discussion in the original Army Board for Correction of Military Records (ABCMR) Record of Proceedings (ROP) that the 


original recommendation for award of the DFC with proposed citation, original eyewitness affidavits, and original chain-of-command endorsements was needed.  In a letter, dated 27 August 2008, the Chief, Military Awards Branch recommended a search of the National Archives to locate these documents.  In response to such a search, the National Archives stated in a letter, dated 
15 October 2008, that they were unable to locate any of the original documents.

	d.  He further states that efforts to obtain statements from individuals who were originally involved with the award recommendation were unsuccessful due to death or disability of the participants to provide any useful input.

	e.  He argues that the Board's discussion and conclusion in the ROP concerning what might or might not have been contained in the original recommendation made in 1964/1965, is clearly speculation and conjecture.  Efforts already undertaken to locate those documents/information clearly indicate that none of this is likely to ever be available.

	f.  He contends that what information is known has been provided in the six eyewitness statements/affidavits from individuals who were there and had participated in the action.  They have now provided their original testimony in strong support of the recommendation for the MOH.  There were only two other pilots known to have been in the action; however, they are both deceased.  The individuals who have provided eyewitness statements indicate that they did not provide such statements for any other award recommendation in 1964/1965.

	g.  He believes that the current proposal is the most detailed and complete narrative ever authored to describe all of the actions taken that day.  When reviewed in total by the appropriate authority it provides sufficient information upon which to judge whether his actions merit approval of the MOH or the DSC in lieu of the DFC he received.

3.  The applicant provides:

* A self-authored letter to his Representative in Congressional, dated
22 September 2008
* A letter from the National Archives to his Congressional Representative, dated 15 October 2008
* A DA Form 759 (Individual Flight Record - Army Aviator), for the period
20 December 1964 through 6 February 1965
* A history of the 68th Aviation Company for the period 15 August to
31 December 1964
* Page 9 of a DA Form 1594 (Daily Staff Journal or Duty Officer's Log), dated 28 December 1964
* Pages 8-11 of a DA Form 1594, dated  29 December 1964
* Pages 5-6 of a DA Form 1594, dated  30 December 1964
* His DA Form 67-5 (U.S. Army Officer Efficiency Report (OER)) for the period 26 May to 5 October 1964
* His DA Form 67-5 for the period 6 October 1964 to 9 February 1965
* An undated letter from an award recommender to the Chief, Military Awards Branch
* A letter of support, dated 29 December 2004
* An eyewitness statement, dated 17 August 2006
* An eyewitness statement, dated 7 December 2007
* An eyewitness statement, dated 16 January 2008
* A newspaper account of the battle at Binh Gia, Vietnam, on 28 December 1964
* A letter from HRC Military Awards Branch to his Congressional Representative, dated 27 August 2008
* An eyewitness statement, dated 8 December 2008
* An eyewitness statement, dated 7 January 2009
* A letter from the Secretary of the Army to the Honorable Lxxx, dated        27 May 2010, concerning another Soldier's MOH recommendation

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20110005448 on 15 September 2011.

2.  The applicant has provided additional arguments concerning the administrative processing of the MOH and whether the Commander, HRC exceeded his authority.  Accordingly, this new argument warrants consideration by the Board.

3.  A review of the original ROP and the records on file at the Army Decorations Board (ADB) confirm that, except for the two OER's, all of the documents submitted with this request for reconsideration have been previously considered and do not constitute new evidence.

4.  The original ROP states:

	a.  the applicant was awarded the DFC for his heroic actions in the Republic of Vietnam (RVN);

	b.  in August 2009, the Commander, HRC disapproved forwarding a recommendation to the Senior Army Decorations Board for consideration to upgrade his DFC to the MOH or in the alternative, the DSC;

	c.  the Commander, HRC determined the DFC was the appropriate award for his heroic action;

	d.  without the original recommendation for the DFC, to include the proposed citation, eyewitness statements, and the chain-of-command endorsements, it was impossible to make an accurate determination about the appropriateness of the original decision;

	e.  decisions concerning individual decorations are judgments made by commanders at or near the time of the action; and

	f.  the passing of almost 47 years has resulted in the loss of the original decision process denying this Board the documents and information necessary to determine if that process was correct or incorrect.  The available evidence was insufficient upon which to base award of any higher decoration.

5.  The applicant was awarded the DFC for heroism while participating in aerial flight in Vietnam on 29 December 1964.  General Orders Number 2156, issued by the U.S. Military Assistance Command, Vietnam, dated 20 October 1965, contains the following citation:

[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.


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

7.  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
* DFC (3rd Award)
* Soldier's Medal (2nd Award)
* Bronze Star Medal
* Meritorious Service Medal (2nd Award)
* Air Medal with Numeral 40 and with "V" Device
* Joint Service Commendation Medal
* Army Commendation Medal (2nd Award) and with "V" Device
* Purple Heart
* National Defense Service Medal
* Vietnam Service Medal with five bronze service stars
* Republic of Vietnam Campaign Medal
* Meritorious Unit Commendation
* Master Army Aviator Badge
* Special Forces Parachutist Badge
* General Staff Identification Badge

8.  The two OERs submitted by the applicant report the applicant's performance of duty from 26 May 1964 through 9 February 1965.  Together, they show:

	a.  he was a platoon commander with the 68th Aviation Company;

	b.  he was responsible for training aviators and crews in the tactical employment of armed helicopters;

	c.  he supervised the maintenance of individual helicopters and weapons systems;

	d.  he led the platoon on missions;

	e.  he was medically evacuated from the theater; and


	f.  he was recognized for his outstanding courage as evidenced by his Air Medals and "V" Device, Purple Heart, and recommendations on two occasions for award of the DFC.

9.  Title 10, U.S. Code, section 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.  (This provision of law does not direct how or in what format the Secretary shall complete this requirement, nor does it forbid his delegation of specific tasks or responsibilities.)

10.  In a memorandum, subject: Composition and Operations of Army Decorations and Unit Awards Boards, dated 9 November 2006, the Secretary of the Army delegated the following authorities:

	a.  that award recommendations submitted under the provisions of Title 10, U.S. Code, section 1130, for award of the MOH and DSC, for which the ADB determines to have merit are forwarded to the SADB for further consideration;

	b.  that for MOH and DSC reviews conducted under the provisions of Title 10, U.S. Code, section 1130 or any other Congressionally directed review, the ADB will recommend whether to approve or disapprove the award.  If the ADB recommends disapproval, it will forward the recommendation and action to the Commander, HRC.  The Commander, HRC will either forward the recommendation and action to the SADB for further review or take final action by disapproving the award.

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

	a.  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.  

	b.  The DSC is awarded to a person, who while serving in any capacity with the Army, distinguishes 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.  

	c.  The DFC is awarded to any person who, while serving in any capacity with the Army, distinguishes himself or herself by heroism or extraordinary achievement while participating in aerial flight.  The performance of 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 available evidence of record clearly shows that the applicant was recommended for and subsequently awarded the DFC for his heroic actions in the RVN in December 1964.

2.  In August 2009, the ADB considered a request to upgrade the applicant's DFC.  That request was disapproved by the Commander, HRC, which was within his authority as delegated by the Secretary of the Army.  There is no evidence indicating that this action was improper, in error, or unjust.

3.  In September 2011, this Board considered the same issue of upgrading the applicant's DFC to the MOH or in the alternative, to the DSC.  The Board determined, in essence, that because much of the original documentation was no longer available for review, it was now impossible to know and understand the intentions of the original chain-of -command.  

4.  The two OER's submitted by the applicant in support of this request have been reviewed.  While the information in these reports do not sufficiently show that the subsequent decision to deny him an upgrade of his DFC was in error or unjust, they do show that he had been recommended twice for the DFC during 1964 and 1965.

5.  The applicant now argues that the Commander, HRC did not have the authority to disapprove the request to upgrade his DFC.  He contends that
Title 10, U.S. Code, section 1130 requires the personal consideration of this action by the Secretary of the Army.  However, a review of the law fails to show such a requirement.  Furthermore, the Secretary of the Army has issued clearly written guidance concerning this matter wherein he has delegated such authority to the ADB and the Commander, HRC.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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 to amend the decision of the ABCMR set forth in Docket Number AR20110005448, dated 15 September 2011.



      _________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)                                         AR20110022486



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ABCMR Record of Proceedings (cont)                                         AR20110022486



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