IN THE CASE OF:	  

		BOARD DATE:  23 January 2014

		DOCKET NUMBER:  AR20130006725 


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, in effect, reconsideration by the U.S. Army Human Resources Command (HRC) of an upgrade of his Distinguished Service Cross to the Medal of Honor.

2.  The applicant states:

   a.  He is requesting an exception to the one rule review process.  Per information from HRC, only the authority within the Army Board for Correction of Military Records (ABCMR) is adequate to impose a change on this procedure.  Mr. Jxxn Fxxxx, an official at HRC, stated, "all lower level remedies have been exhausted."

   b.  Lieutenant Colonel (LTC) Pxxxr Kxxa (Retired), his former immediate commander during the entire action, previously submitted a request and stated that the applicant fought a death-defying battle as the sole advisor of a 471 member Vietnamese Airborne Battalion, inflicting over 1,000 enemy casualties, and delaying the Easter Offensive push by the North Vietnamese Army (NVA) in the Central Highlands in April 1972.  The applicant and others were rescued in a bullet-riddled helicopter by a courageous crew.  

   c.  LTC Kxxa also stated that during that action the applicant was wounded five times, twice refused medical evacuation, effectively destroyed two enemy battalions, and destroyed numerous enemy artillery pieces and anti-aircraft guns. LTC Kxxa was the rear guard and the last man to leave the firebase.  LTC Kxxa verbally recommended the applicant for the Medal of Honor.  Upon his return to headquarters, the submission for a Distinguished Service Cross was approved.
   
   d.  In 1998, he submitted a request for an upgrade through a Congressional liaison.  It was boarded, reviewed, and disapproved by HRC.  In 2012, after discovery of a tape recording of the helicopter escape segment and five new witnesses, a resubmission with statements and copy of the tape transcription were submitted through a Member of Congress.  Due to the one review limit, no board was appointed.

   e.  He has over 60 decorations and awards, more than 20 for valor.  The ABCMR should consider and approve this request.  He would be the Army’s most decorated living recipient of the Medal of Honor.  It is noted that the Vietnamese honored him with their highest decoration.  An award winning book was written about this battle.  A song was also written and is still sung around the world about the battle for "Firebase Charlie."

3.  The applicant provides:

* DD Form 214 (Report of Separation from Active Duty)
* Letter from HRC, Awards and Decorations Branch
* Seven witness and support statements
* Statements from LTC Kxxa, LTC VxxLx, Majors (MAJ) Gxxxxxxx and Dxxx, and Colonel (COL) Rxxxxx
* Telephone Conference Memorandum for Record
* Tape transcription

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 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 commissioned in the Regular Army on 11 September 1963. He served in primary specialty 11A (Special Forces Officer).  He served in Vietnam from January 1967 to January 1968, August 1969 to August 1970, and July 1971 to May 1972.  

3.  He was honorably retired in the rank of major on 31 May 1977.  His 
DD Form 214 lists the:

* Distinguished Service Cross
* Soldier’s Medal
* Bronze Star Medal with "V" Device and 3rd Oak Leaf Cluster (OLC)
* Meritorious Service Medal
* Air Medal with "V" Device and 7th OLC
* Joint Service Commendation Medal
* Army Commendation Medal with "V" Device and 2nd OLC
* Purple Heart with 7th OLC
* Army Good Conduct Medal
* Army of Occupation Medal (Berlin)
* National Defense Service Medal
* Armed Forces Expeditionary Medal
* Vietnam Service Medal with nine bronze service stars
* Armed Forces Reserve Medal
* Republic of Vietnam Campaign Medal with 1960 Device
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* Republic of Vietnam Gallantry Cross with Silver Star and 1st OLC
* Republic of Vietnam Civil Actions Honors Medal First Class Unit Citation
* Combat Infantryman Badge
* Master Parachutist Badge
* Republic of Vietnam Jump Wings
* Thai Parachute Badge
* Thai Fourragere 
* Presidential Unit Citation with 1st OLC
* Presidential Unit Citation (Naval)
* Valorous Unit Award
* Meritorious Unit Commendation with 1st OLC
* Seven overseas service bars

4.  General Orders Number 2557, issued by Headquarters, U.S. Army Vietnam, on 1 December 1972, awarded him the Distinguished Service Cross.  The orders cited the following: 

For extraordinary heroism in connection with military operations involving conflict with an armed hostile force in the Republic of Vietnam.  [Applicant] distinguished himself while serving as the Senior Advisor, 11th Airborne Battalion, Airborne Division, Army of the Republic of Vietnam at Fire Support Base Charlie, Kontum Province, Republic of Vietnam during the period 14 and 15 April 1972.  Beginning with the morning of the 14th and continuing for a period of approximately twenty-four hours, [Applicant] repeatedly made heroic contributions to the defense of the fire base.  When attempts at resupplying the base were still being considered, [Applicant] exposed himself to the effects of the continuous bombardment the base experienced as he targeted anti-aircraft weapons and adjusted airstrikes on them.  When the resupply attempts were abandoned [Applicant] moved about the base, continuing to expose himself to the enemy fire, treating and finding shelter for wounded Vietnamese defenders.  During the early evening initial ground assault, [Applicant] ignored the massive small arms fire as he adjusted gunships and artillery on the advancing enemy formations.  When the enemy finally gained control of a portion of the base and advanced to within ten meters of his position, [Applicant] had the supporting a unships make a run directly on him.  Eventually the fire base had to be abandoned.  [Applicant] was the last man off the base, remaining behind to adjust the covering gunships until the last possible moment.  After the Battalion Commander was wounded, [Applicant] assumed command and led the formation through the night.  Finally, when the battalion was ambushed and the unwounded Soldiers abandoned their wounded comrades, [Applicant] remained with the wounded and eventually was able to arrange for their extraction.  [Applicant's] conspicuous gallantry in action was in keeping with the highest traditions of the military service and reflects great credit upon himself, his unit and the United States Army.

5.  He provided copies of the following:

   a.  A statement from LTC Kxxa, the Senior Advisor to the 2nd Airborne Brigade, dated 19 September 2012; wherein the individual stated:

		(1)  He was directly senior to the applicant.  The recommendation for the Medal of Honor covered multiple acts of conspicuous gallantry and intrepidity in action at the risk of his life above and beyond the call of duty during the period 12 to 15 April 1972.

		(2)  During the period 12 to 15 April 1972, at Fire Support Base "Charlie," the applicant had been wounded five times during the battle, he refused medical evacuation two times, exposed himself continuously to enemy fire directed at him, for four days.  Directing air and gunship support, he stopped the enemy from over running the battalion, destroyed numerous enemy, their guns, and their ammunition.  On the night of withdrawal, he volunteered to be the rear guard, stopped the enemy once again at extremely close quarters and destroyed the abandoned "Charlie" position after the withdrawal.  He assumed command of the battalion in a difficult night withdrawal.  The applicant successfully led the battalion and returned the command to the Vietnamese as appropriate.

		(3)  The applicant's actions contributed to the victory in the follow-on battle in the Central Highlands.  The applicant delayed the enemy for over a week as they had to regroup after suffering losses and depleting ammunition, giving time to reinforce the Commander.  His "danger close" tactics with B-52's were utilized and proven critical in destroying the enemy.  The Coastal Plains had been captured by the NVA and a defeat in Kontum would have linked up enemy forces, cutting South Vietnam in half.  This would have demoralized the people of South Vietnam significantly.  He recommended the applicant for this nation's highest award of valor, the Medal of Honor, for conspicuous gallantry and intrepidity in battle at the risk of his life above and beyond the call of duty.

   b.  A statement from an Airborne Division Operations Officer, wherein the individual stated the applicant was an expert and was where they needed him.  He routinely exposed himself to enemy fire.  His fighting abilities, especially with the strike aircraft, were incredible.  Though he was wounded several times, he never flinched.   He held the command together during a night withdrawal and was the last man to get on the rescue helicopter.  He personally thanked the applicant for saving his life.  The applicant performed with distinct bravery, expert knowledge, and tenacious fighting abilities.  This officer believes the applicant deserves this nation's highest decoration for valor.
   
   c.  A statement from the Deputy Senior Advisor of his unit, wherein the individual stated:
   
        (1)  On the morning of 13 April the applicant reported heavy mortar and automatic rifle fire from enemy probes.  He was instructed to tell the applicant to take cover because he was exposed to heavy and accurate enemy fire.  After radio contact was reestablished the applicant reported the death of the battalion commander.  The applicant assisted the executive officer in reestablishing control and continued to call in airstrikes.  The applicant's bunker was destroyed by a direct hit from enemy 130mm artillery fire and communications with him was again lost.
   
        (2)  It was reported the applicant had sustained head wounds and he refused medical evacuation and informed them that the fire base was surrounded by the enemy.  The assault was stopped through the accurate employment instructions provided by the applicant to U.S. and Vietnamese tactical air strikes, as well as Cobra gunships.  
   
        (3)  The applicant's courage, leadership, self-sacrifice, and professionalism during the battle for Fire Support Base Charlie were unparalleled.  His actions helped de-rail the NVA's time table for the Easter Offensive in the Central Highlands.  He was seriously wounded and yet refused to be evacuated from his battalion,  He carried out his duties while constantly subjected to direct and indirect fire.  When forced off the fire base, he saved the lives of over fifty paratroopers.  There was no doubt in his mind that the applicant's actions deserved consideration for and the award of the Medal of Honor.
   
   d.  A statement from the Operations Officer of his unit, wherein the individual stated the applicant risked his own life to save them, he refused to be evacuated before all the paratroopers were safely aboard the lift ships.  He lead by example.  The applicant performed in the highest tradition of bravery and he was very lucky.  The applicant was deserving of the nation's highest award for valor, the Congressional Medal of Honor.
   
   e.  A statement from the unit's wingman, wherein the individual stated the applicant told them he was wounded, but he would continue working with them.  He never heard the applicant express any concern for himself.  He would not ask for extraction.  He seemed committed to fighting to the death with his battalion.  He had no doubt that without the actions of the applicant as the American advisor for that unit, all would have been killed or captured.
   
   f.  A statement from the unit's advisor, wherein the individual stated he witnessed the acts of extraordinary heroism by the applicant in the performance of his duties to the 11th Airborne Battalion.  He was convinced that the applicant's heroic actions that night cause many lives to be saved.
   
   g.  A statement from the section leader assigned to the 361st Aerial Weapons Company, wherein the individual stated they followed the action at Charlie on the radio as they flew northward.  
   
   h.  A statement from the commander, B Troop, 7th Squadron, 17th Cavalry, wherein the individual stated the applicant composure, knowledge of the situation and those VN Soldiers with him, coupled with his leadership under enemy fire was undoubtedly responsible for the extraction of all those with him.  His decision to remain for the last aircraft to be personally extracted, knowing the inherent risk to his own life, ensured those he was responsible for had the best chance to survive.  His selflessness continued even when he boarded that last aircraft by ensuring those wounded while getting aboard under the fire were administered medical care.
   
   i.  A statement from the co-pilot for the Troop B Commander, wherein the individual stated they learned that the Firebase Charlie had been under assault for three days before being overrun on 15 April.  An American [the applicant], whose name he would not learn for more than 30 years, led the evasion of approximately 35 soldiers.  From the moment he heard the applicant's voice until the last, the applicant was a skilled fearless leader who was selfless to the end.  

   j.  A letter, dated 17 January 2013, from the Chief, Awards and Decorations Branch, HRC, wherein a Member of Congress was advised of the following:

		(1)  HRC officials were unable to process the request submitted by LTC Kxxa concerning his desire have the applicant awarded the Medal of Honor.  On 18 August 1998 and 27 January 2000, the Army Decorations Branch determined that the degree of action and service rendered did not meet the strict criteria for the proposed award.  

		(2)  The Commanding General (CG), U.S. Total Army Personnel Command (now known as HRC), acting on behalf of the Secretary of the Army, disapproved the Medal of Honor.  Per Department of Defense and Army policy, a one-time reconsideration of this award recommendation shall be conclusive.

   k.  A transcript of an audio recording he made and transcribed pertaining to the night of the battle for Fire Support Base Charlie.

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

   a.  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 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 Distinguished Service Cross 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions and the evidence submitted were carefully considered and found to have merit.

2.  The applicant believes he was not properly recognized for his valor, heroism, and meritorious service through a fair and consistent decorations and awards policy and process.

3.  The witness and support statements he submitted clearly state his actions were one of personal bravery or self-sacrifice so conspicuous as to clearly distinguish him above his or her comrades and did involved countless risk of life and saved other's lives.  

4.  Army policy allows any Soldier to recommend another Soldier for an award.  The Army's awards program relies on those with first-hand knowledge of a Soldier's heroic or valorous action to recommend the Soldier for the appropriate award.  Award recommendations are sent up through the Soldier's chain of command to company, battalion, brigade, division, and corps commanders.  Commanders at every level of review can recommend approval or upgrade of the award based upon their authority.  Commanders with authority to approve awards also have the authority to downgrade or disapprove awards based on their judgment, knowledge, and the criteria established for the award.  Command involvement is critical for program success.

5.  The applicant's valor and courage in April 1972 under extremely hazardous conditions is acknowledged and applauded; he is truly an American hero.  Therefore, the documents he recently submitted are deserving of a thorough review by HRC.  Therefore, his case should be forwarded to HRC for review of all material information pertinent to the case and further processing of the nomination in accordance with decoration board standards.






BOARD VOTE:

____X___  ____X___  ___X__ _  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends the case be forwarded to HRC for them to review all materials information pertinent to the case and, if information so warrants, further process the nomination in accordance with Army Decorations Board standards.  The applicant should provide all pertinent documents to HRC, Awards and Decorations Branch, within 90 days of the date of this ABCMR action.



      _______ _  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)                                         AR20130006725



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ABCMR Record of Proceedings (cont)                                         AR20130006725



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