IN THE CASE OF:	  

		BOARD DATE:	  2 August 2012

		DOCKET NUMBER:  AR20120001435 


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 correction of his military records to show he was awarded the Soldier's Medal (SM).

2.  The applicant states, in essence, that he was recommended for award of the SM, but it was subsequently downgraded to an Army Commendation Medal (ARCOM).  He contends that the Army may have moderated or changed its policies since the downgrade occurred.  Furthermore, he believes that the recommendation was downgraded because of professional bias against Reserve component members during the immediate post-Vietnam era.  He believes that less restrictive standards may have been applied to the actions of others who were recommended for the SM allowing them to receive the SM rather than a downgraded award.  He contends that he has exhausted his administrative remedies, but has discovered a disparity between his award of the ARCOM that was downgraded from the SM and others who have received the SM.

3.  The applicant further states that many years ago, the commander of his Reserve unit in Oklahoma City recommended him for the SM.  The recommendation was endorsed by the 95th Division (Training) and forwarded to the Commander, 5th U.S. Army.  He contends that the recommendation was mishandled by both the originating command and 5th U.S. Army.  After reprocessing the recommendation, it was downgraded.  He believes the social climate of the 1970's was unfairly responsible for the fate of the award and contributed directly to the downgrade.

4.  The original recommendation for the SM was done during the immediate post-Vietnam era; however, and unlike today, Reserve component Soldiers were not held in very high esteem by their active duty counterparts.  He knows this because he had manifested such feelings himself when he was on active duty.

5.  Initially, the 5th U.S. Army denied the recommendation and returned it to the 95th Division Maneuver Training Command (MTC).  Reminded that 5th U.S. Army did not have authority to disapprove the recommendation, it was regenerated.  This time the 5th U.S. Army recommended disapproval and forwarded the recommendation to Headquarters, Forces Command.  Ultimately, the 95th Division (Training) had to prove the applicant was on active duty at the time.  Apparently 7 days of active duty for training as a recruiter was not sufficient to persuade awards personnel at higher headquarters.  His records were not forwarded with the recommendation; therefore, his many years of active component service which included his tour in the Republic of Vietnam (RVN) as an infantryman was not seen.  He contends that his previous awards of two Bronze Star Medals, two Air Medals, and an RVN Gallantry Cross were not considered.  The recommendation was downgraded to the ARCOM, a far less prestigious award, with an unsupportable claim that his act did not meet the requirements for a SM.  Specifically, it said there was not a sufficient degree of risk of life to qualify for the SM.  However, if running through four lanes of traffic to jump in front of a crazy driver's car to keep it from running over a small child does not involve a risk sufficient to qualify for the SM, he questions the award of others who have received it.

	a.  He cites the incident at My Lai, in the RVN in 1968, where a Soldier received the SM for loosely taking part in an event that allegedly prevented several Vietnamese civilians from being killed by pursuing American Soldiers.  The Soldier was a door gunner who had nothing to do with the landing of the aircraft, or the decision to do so.  He saw a small child wounded and lying in a ditch.  He left the aircraft, picked up the child and returned to the aircraft.  How those actions merited the SM is unclear, if the same standards to which he was held were also applied to the Solder in the RVN in terms of "voluntary" and "risk of life."

	b.  He cites that in 2006, a Soldier came upon a motorcycle accident.  He stopped his vehicle, crossed the road and rendered first aid to the victim.  The citation said only that the Soldier was "exposed" to gasoline and the victim's blood.  Everybody is exposed to gasoline when they fill up their vehicle.  The gasoline was not on fire and there was no mention that the victim's blood was toxic.  The Soldier's actions were clearly voluntary, but there is no mention of any risk to life on the Solder's part.  Saving a person's life is undeniably heroic; however, the standards that applied to him apparently imply a change in policy by the Army because his award was downgraded.

6.  In a separate mailing to the Board, the applicant states that in 1982 the Army Decorations Board reconsidered and denied an upgrade of his SM.  He also contends that 5 years ago he pursued this issue through his Congressman under the provisions of Title 10, U.S. Code, section 1130 (10 USC § 1130).

7.  The applicant provides copies of:

* Orders 59-9521012, 95th Division (Training), dated 6 December 1976
* DA Form 638 (Recommendation for Award) dated 22 November 1977 with two affidavits and a 1st Endorsement
* Letter, Oklahoma Crime Commission, dated 1 February 1978
* Letter, Headquarters, Fifth U.S. Army, dated 3 February 1978
* DA Form 2496 (Disposition Form) dated 8 February 1978
* Permanent Orders 14-1, (Corrected Copy), 95th Division (Training), dated 26 May 1978
* Affidavit, dated 19 November 1981
* Letter, U.S. Army Military Personnel Center (MILPERCEN), dated            28 January 1982, with a 1st ENDORSEMENT, dated 16 February 1982
* Letter, Army Decorations Board, dated 10 March 1982

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.  At the time of his application, the applicant was a retired Army lieutenant colonel.

3.  Orders 59-9521-12, provided by the applicant, dated 6 December 1976, indicate that he had been ordered to active duty for training for a period of 7 days commencing on 18 December 1976 for recruiting duty.
4.  The DA Form 638, dated 22 November 1977 shows:

* the applicant was recommended for award of the SM for his actions on
23 December 1976
* he was an infantry major at the time
* he was not awarded an interim award
* two affidavits were attached
* this recommendation was initiated by the Commander, 95th Division MTC

5.  The DA Form 638 contains the following proposed citation for the SM:

On 23 Dec 76, while transporting a prospective enlistee to the Armed Forces Examining Station, Maj [applicant's name] was approaching an intersection in his private auto when a school crossing guard entered the cross-walk with a group of children.  [The applicant] stopped to let them cross.  A car approaching the intersection from the opposite direction did not stop, however, and coasted into the intersection toward the cross-walk.  Most of the children jumped back to the curb, except for a 5-year old girl who, while scurrying back toward the curb, was struck by the car and knocked underneath the left front wheel.  The driver became panic-stricken and did not know whether to stop or to drive on.  Being confused, she started to continue on and began to roll forward.  Maj [applicant's name] had seen the situation developing from the outset, jumped out of his car, and, without regard for his own safety, dashed through the oncoming traffic toward the scene to rescue the young girl.  Placing himself in peril once more, he ran in front of the woman's car, laid his hands to the left front fender and physically stopped the car from rolling forward over the child.  After stopping the car, Maj [applicant's name] shouted to the panicking driver to back up.  The woman came to her senses, backed up, and Maj [applicant's name] picked the child up and moved her to the curbside and safety.  Maj [applicant's name] quick thinking and selfless actions allowed him to take command of the situation and save the child from certain death under the wheels of the car.  His timely and heroic act reflect great great credit upon himself and the military service.

6.  In one of the affidavits in support of the DA Form 638, the grandfather of the child who was struck by the car stated that the applicant ran from his car, crossed the street through traffic and jumped in front of the moving car.  Had he not done so when he did, the child, his granddaughter, would have been crushed because he had prevented the car from rolling forward and over her.

7.  In the second affidavit, an eyewitness to the nearly-fatal accident, which happened on 23 December 1976, stated that the applicant saved the life of a child in a school crossing.  He had clearly placed himself in physical danger when he ran across the street through traffic and placed himself in front of the car which was about to crush a small girl.  Had he not acted so quickly and so positively, no doubt the child would have been killed.

8.  In a 1st Endorsement, subject: Recommendation for Award, dated 17 January 1978, the Chief of Staff, 95th Division (Training), recommended approval of the award.  He further stated that the applicant's act of bravery and display of military professionalism reflects great credit to himself, his unit, and the military service.  His quick reaction at a critical time saved the life of a young girl, and while doing so, he endangered his own life.

9.  In a letter to the Assistant Adjutant, 95th Division (Training), dated 1 February 1978, a research psychologist with the Oklahoma Crime Commission contends that the driver of the car evidently did not see the child under the car, but knew that she had struck something or someone.  She would have known by the looks on everyone's faces that she was in trouble and therefore she decided to get away from the scene as soon as possible.  She was about to accelerate for that purpose when the applicant jumped in front of the car.  Considering that the driver was feeling increased confusion, anxiety, and fear of personal threat, the driver hastily left the scene of the accident when the applicant was no longer in front of her car.  It is obvious that the applicant's life was definitely in danger when he was in front of that driver.  The psychologist further stated that after interviewing the applicant and studying the facts of the event, he believes that the applicant knew his life was in danger and got in front of the car as a protective gesture so as to say "if you run over this child, you will have to run over me, too."  The applicant seemed to know the consequences of his actions but didn't care.

10.  A DA Form 2496, dated 8 February 1978, written by the Director of Administration, 95th Division MTC to the Assistant Adjutant, 95th Division (Training), added certain facts that were deleted from the description of the event which were pertinent and must be considered in evaluating the award recommendation.

	a.  It had since been determined that the driver of the car was so panick-stricken that she sped away from the area and the scene of the accident as soon as the applicant and the child were out of the way.

	b.  Other traffic was present in the zone as well.  However, traffic approaching from the opposite direction was unable to see the child pinned under the car.  Those cars would most likely have been traveling at the posted speed limit of 
20 miles per hour.  Two such cars came through the intersection narrowly missing the applicant as he ran across the street.

	c.  When the applicant ran in front of the car which had hit the child, the driver had begun to accelerate to leave the area and was rolling over the child pinning her left leg under the left front wheel.  At that precise moment the applicant ran in front of the car.  But for his timing, positive and aggressive actions as he shouted at the driver telling her what to do and momentarily bringing her to her senses, she would have run over him and the child in her haste to get away.

11.  Permanent Orders 14-1 (Corrected Copy) 95th Division (Training), dated 
26 May 1978, awarded the applicant the ARCOM for heroism on 23 December 1976.

12.  An affidavit, dated 19 November 1981, written by a major who professes he was the Staff Administrative Specialist in the Administration Section of the 95th Division MTC at the time the DA Form 638 was initially sent by the unit commander to the 95th Division (Training) he states:

	a.  the Commander, 95th Division (Training) failed to forward the award recommendation in a timely manner as he thought Reservists should receive awards only when they transferred from a unit;

	b.  after reconsideration, and nearly 1 year after the event, the commander forwarded the award recommendation to Headquarters, Fifth U.S. Army;

	c.  the Chief of Staff, Fifth U.S. Army recommended approval of the award recommendation;

	d.  Fifth U.S. Army returned the packet disapproved, but recommended award of the ARCOM; and

	e.  per conversations between two other parties, the author learned that the Awards and Decorations Committee at Fifth U.S. Army had recommended approval of the award recommendation, but the Command Group disapproved it and returned it to the 95th Division (Training).

13.  On 28 January 1982, the Chief, Military Awards Branch, U.S. Army MILPERCEN notified the Commander, U.S. Army Forces Command (FORSCOM) that FORSCOM had not received or processed the award recommendation.

	a.  To resolve this inquiry, FORSCOM was requested to provide verification of the applicant's eligibility for consideration for award of the SM.  Eligibility for award of the SM requires the individual to be on active duty, active duty for training or participating in an authorized drill period.
	b.  If the applicant was found eligible for the SM, then FORSCOM was directed to consider the recommendation under their normal procedures and furnish an appropriate recommendation to MILPERCEN.

14.  On 16 February 1982, the Adjutant General, FORSCOM, responded to MILPERCEN, informing the Chief, Military Awards Branch, that the applicant was in an active duty status on the date for which the award was recommended.  FORSCOM further stated in this reply that while the conduct of the applicant was indeed noteworthy and deserving of recognition, it did not meet the criteria for award of the SM.  Accordingly, the ARCOM as previously awarded was considered appropriate.

15.  In a letter, dated 10 March 1982, the Army Decorations Board advised the Commander, FORSCOM, that the recommendation for award of the SM to the applicant had received careful evaluation.  The board determined that the recommendation did not meet the criteria for the proposed award and concluded that the ARCOM appropriately recognized the applicant's actions.  Requests for reconsideration were authorized provided the original recommender discovered new and substantive information which was not previously considered by the Army Decorations Board.

16.  Army Regulation 600-8-22 (Military Awards) provides that the SM is awarded for distinguished heroism not involving actual conflict with the enemy.

	a.  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.

	b.  Awards of the SM will not be made solely on the basis of having saved a life.

17.  Army Regulation 600-8-22 further provides for award of the Distinguished Flying Cross (DFC).

	a.  The DFC is awarded to any person who, while serving in any capacity with the Army of the United States, distinguished 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.
 
b.  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 military records should be corrected by showing he was awarded the SM for his heroic act on 23 December 1976.  He argues, in effect, that this award was downgraded due to professional bias against Reserve component members and a change over time in the standards for this award.

2.  The available evidence clearly shows that the applicant acted in a heroic manner to save the life of a young child.  Furthermore, he risked his well being in doing so.  As a result, his commander recommended him for award of the SM.  However, the chain of command took more than a year to process the recommendation which was subsequently downgraded to an ARCOM.

3.  In 1981 an affidavit from the Staff Administrative Specialist at the time opined that the Commander may have delayed the award recommendation because he did not believe the applicant, a Reservist, should receive an award prior to leaving the unit.  However, this statement is not corroborated by any other witnesses or official documentation.

4.  In 1982 the recommendation for award of the SM was reconsidered.  During this process the FORSCOM awards board determined that the applicant's actions, while noteworthy and deserving of recognition, did not meet the criteria for award of the SM.  The Army Decorations Board concurred in this assessment and agreed that the previously awarded ARCOM was the appropriate award to provide such recognition.

5.  The applicant stated he has already submitted a request through his Congressman under the provisions of 10 USC § 1130.  The applicant has chosen not to discuss the arguments or contents of that request; but, apparently, it has also resulted in no change to the original determination.

6.  In this case, the applicant has not presented any new substantive information which has not been previously considered.  His contention that the award recommendation was downgraded because of a bias in the chain of command is not sufficiently substantiated in the available evidence.  Furthermore, there is no evidence showing that the regulatory standards for awarding the SM have changed at any time since his initial recommendation.

7.  The two citations for the SM pertaining to other individuals who received those awards in and of themselves are insufficient upon which to base a comparison.  Award citations are normally limited in the number of words so that they may fit on a particular page or certificate.  Therefore, many details that were considered by the awards boards are not included.

8.  In view of the above, the applicant's request should be denied.

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)                                         AR20120001435



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ABCMR Record of Proceedings (cont)                                         AR20120001435



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