IN THE CASE OF:	  

		BOARD DATE:  26 February 2014

		DOCKET NUMBER:  AR20130009295 


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 award of the Silver Star for combat action on 30 January 2005 and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show this award.

2.  The applicant states:

	a.  This award was submitted and recommended for approval by the entire wartime chain of command up to the U.S. Army Central Command (ARCENT) Commander who was the approving authority at the time of the incident.  The recommendation was lost and resubmitted to the U.S. Army Human Resources Command (HRC) with all combat command signatures and was denied.  He has exhausted all of his administrative processes.  He received his final denial from HRC in May 2012.  The commanders encouraged him to apply to this Board.

	b.  He believes this award was justly recommended by his wartime chain of command on the ground during the time of the action.  The chain of command, from the company commander to the ARCENT Commander (Lieutenant General (LTG) R. S____ W____) who was the wartime approval authority, recommended approval of award of the Silver Star.  The injustice was in the processing at HRC after the award recommendation was lost.  Valid requests and recommendations from the wartime commander were not honored.  In spite of extensive evidence, this award was denied due to perceptions at HRC that contradicted the judgment and integrity of the wartime command team.


3.  The applicant provides:

* DD Form 214
* three letters to Members of Congress
* reconsideration packet submitted to the HRC Awards and Decorations Branch
* historical documentation
* five letters of support

CONSIDERATION OF EVIDENCE:

1.  The applicant, a member of the Ohio Army National Guard (OHARNG), was ordered to active duty in support of Operation Iraqi Freedom and entered active duty on 2 January 2004.  He held an air defense artillery specialty as a first lieutenant.

2.  He served in Kuwait/Iraq from 3 February 2004 through 27 February 2005.  He was released from active duty to the control of the OHARNG on 28 March 2005.  His DD Form 214 shows he was awarded or authorized the:

* Bronze Star Medal with "V" Device (2nd Award)
* Bronze Star Medal
* Purple Heart (3rd Award)
* Meritorious Service Medal
* Army Commendation Medal (3rd Award)
* Army Achievement Medal (3rd Award)
* Army Good Conduct Medal
* National Defense Service Medal (2nd Award)
* Armed Forces Expeditionary Medal
* Southwest Asia Service Medal with two bronze service stars
* Global War on Terrorism Expeditionary Medal
* Global War on Terrorism Service Medal
* Humanitarian Service Medal (2nd Award)
* Armed Forces Reserve Medal with "M" Device
* Noncommissioned Officer Professional Development Ribbon with Numeral 2
* Army Service Ribbon
* Overseas Service Ribbon
* Kuwait Liberation Medal (Saudi Arabia)
* Kuwait Liberation Medal (Kuwait)
* Army Recruiter Badge
* Combat Infantryman Badge
* Drill Sergeant Identification Badge
* Driver and Mechanic Badge
* Gold German Marksmanship Badge

3.  He was ultimately discharged from the OHARNG on 23 August 2009 and placed on the Temporary Disability Retired List.

4.  He provided copies of the following:

	a.  His reconsideration request to HRC for award of the Silver Star which included the following summary prepared by Colonel (Retired) D____ T. M____ who stated:

		(1)  On 1 March 2011, the HRC Awards and Decorations Branch disapproved a number of awards including the Silver Star for the applicant, the Silver Star for First Sergeant J____ C____, and four awards of the Bronze Star Medal with "V" Device for Soldiers whom the applicant had recommended for those awards.  The awards were submitted for the heroic and extraordinary acts of bravery shown by these men on 30 January 2005 when they responded to a very organized ambush against coalition forces.  Subsequently, it was learned that a board member obtained a report that was not included in the packet.  To address this issue, it was recommended that the applicant make a Freedom of Information request with U.S. Forces Iraq.  To date, this effort has not revealed any results and the Significant Activities Central Command Reports unclassified for incidents on 30 January 2005 in the area of the battle do not contain any information that would reveal the Army Decoration Board's concerns.

		(2)  Therefore, the applicant is only able to speculate as to what might have caused the board to reject all these awards.  Additional efforts did find a copy of a report that had been redacted for a similar engagement that occurred on 30 January 2005.  This engagement was reported as friendly fire (green on blue).  If this is the report that impacted on the board's decision, then it should be noted that this report was submitted at 1533 hours on 30 January 2005 which was approximately 7 hours before the engagement involving the applicant and his Soldiers.  However, all the facts on the ground, eyewitness statements, and After Action Reviews, including British Quick Reaction Forces, and a historical study done by Mr. R. K____, the Transportation Corps Historian, clearly show this was an organized ambush against convoys moving in the area and subsequent action was initiated against the applicant and his team.

		(3)  If the Army Decorations Board found that the degree of action by the Soldier did not rise to the criteria for the proposed awards, then this would contradict the recommendation of four general officers, including LTG W____, the ARCENT Commander, who was the approval authority for the Silver Star on 30 January 2005.  The irony here is that the applicant would have received the Silver Star had it been processed in a timely manner.  It should be noted that the Army Decoration Board's disapproval of the four Bronze Star Medals with "V" Device did not conform with its previous approval of two Bronze Star Medals with "V" Devices to Sergeant (SGT) S. M. L____ and SGT D. H____ on 10 May 2007 for the same action.

		(4)  SGT S. M. L____ was under the command of the applicant and the sergeant was submitted for an Army Commendation Medal with "V" Device.  However, the applicant did submit the other sergeant for the Bronze Star Medal.  Again, in the judgment of LTG W____ and others in the applicant's wartime chain of command down to the company commander, they all found that the applicant should be awarded the Silver Star because he acted with extraordinary heroism when:

* he and his subordinates left a position of safety to enter the kill zone of an ambush on a convoy in soft vehicles to help defend Soldiers in a convoy
* he exposed himself a number of times to enemy gun fire to gain the initiative and advantage over a superior number of attackers
* he captured 8 enemy combatants, assisted in the capture of 25 other enemy combatants and 2 enemy killed in action, and captured numerous weapons

	b.  A reconstructed DA Form 638 (Recommendation for Award) recommending the applicant for award of the Silver Star for heroism for the period 30 to 31 January 2005 contains the chain of command approvals, dated between May and June 2007, and LTG W____'s approval, dated 17 August 2010.

	c.  A narrative for award of the Silver Star for the applicant stated:

On 30-31 January 2005, [Applicant] was the commander of the 106th Route Security Element (RSE) that was TACOM [tactical command] to the 1/178 FA [1st Battalion, 178th Field Artillery Regiment] to conduct security patrols of the area in and around Safwan, Iraq.  While leading a patrol, [Applicant] positioned his two "HMMV's" [high mobility multipurpose wheeled vehicle (HMMWV)] on bridge 6A, used as an overwatch position on ASR [Alternate Supply Route] Heart overlooking MSR [Main Supply Route] Tampa.  At 2115 hours, a convoy under the command of 1LT [First Lieutenant] K____ K____ of the 1158th Transportation Company came under a well organized ambush that included small arms fire, RPG's [rocket-propelled grenades], and mortar fire.  [Applicant], seeing the convoy under attack, ordered his two [HMMWV's] into the kill zone to assist and repel the attack.  The convoy had stopped fighting back but appeared to be stalled.  Upon entering the kill zone, [Applicant] exited his [HMMWV] and started to fire flares to expose the enemy and allow the convoy to move out of the kill zone.  Within minutes, the fire had ceased and the convoy left the area.  [Applicant] then ordered his vehicles back to the original overwatch position to report the incident but due to communication issues, he was forced to call the 106th TOC [Tactical Operations Center] using his cell phone.  Once the incident was reported, two vehicles approached the base of the bridge and flashed lights at [Applicant] and his crew.  The vehicles then exited Rt Tampa and drove towards the two U.S. [HMMWV's].  Both unidentified vehicles stopped approximately 100 meters from [Applicant's] crew and opened fire on them.  Without hesitation, [Applicant's] patrol returned fire and drove the hostile forces back.  [Applicant] then ordered his two vehicles to overwhelm the enemy forces and in the process, they captured nine insurgents and confiscated seven weapons.  Two of the insurgents were wounded and one was killed in the initial firefight.  [Applicant] contacted the TOC again and requested assistance from the British forces stationed ten miles from the location of the attack.  [Applicant] tightened up his forces and established a small perimeter with his two vehicles and six Soldiers, all while detaining nine enemy insurgents and treating the two wounded insurgents.  [Applicant] inspired his men to hold their ground and secure his section of the MSR that was heavily traveled.  Within a few minutes of reporting his position, [Applicant] was approached by other vehicles that looked exactly like the two which had previously attacked them.  At one point the vehicles stopped and a man yelled out to them stating that he wanted to take the prisoners and weapons.  [Applicant] yelled back stating he was not giving up anything and he would have to fire on them if they came any closer.  The unidentified vehicles left the area and drove toward a factory.  Within minutes the U.S. perimeter came under heavy attack from the direction of the factory and the west side of the road.  [Applicant] immediately returned fire and moved to the most forward position and fired on multiple insurgents, hitting many of the attackers.  [Applicant] then had to go out in the open to call in his report from his cell phone while the attacks continued and ammunition stated running low.  [Applicant] had his Soldiers consolidate ammo and maintain positions.  It was at this point that [Applicant] fixed his bayonet on his rifle and told his Soldiers they had to hold the ground because help was on the way.  The firefight continued but [Applicant's] small force beat the enemy back until reinforcements under the command of SFC [Sergeant First Class] C____ arrived….While dismounted and under fire, [Applicant] coordinated with SFC C____.  LT [Lieutenant] P____ of the 2nd British PWRR [Princess of Wales's Royal Regiment] showed up with a platoon of Soldiers shortly after this engagement and together they established a larger perimeter….[Applicant] was exposed and with rounds impacting in and around his position, he returned fire and moved along the entire perimeter to reposition Soldiers and reconsolidate ammo and water between U.S. and British forces.  This battle went on until additional support arrived and the order was given to assault the factory with the assistance of six Warrior Vehicles, two helicopters, and an additional platoon of British Soldiers.  The British, seeing the tenacity of [Applicant] and his Soldiers requested they provide support by fire for the assault.  The assault started at 0104 hrs and at 0202 hrs, the assault was over with 25 additional prisoners from the compound and a large number of weapons.  The enemy KIA [killed in action] was reported by British helicopters in the area as "multiple bodies."

	d.  A citation for award of the Silver Star to the applicant stated:

For acts of gallantry and extreme courage under fire at great risk to his life while engaging hostile forces on the night of 30 January 2005.  [Applicant], while leading a security patrol, found a U.S. convoy under enemy attack and led his patrol into the firefight to deter the enemy and allow the convoy to continue on its mission.  [Applicant's] patrol captured nine insurgents and subsequently came under several more attacks before the arrival of British reinforcements, at which time an assault on a nearby factory was ordered that resulted in the capture of 25 more insurgents and numerous weapons.  [Applicant's] unselfish acts of heroism, superb leadership, and personal courage bring great credit upon him, the 1487th Transportation Company, the Transportation Corps, and the United States Army.

	e.  A copy of a DA Form 638 and resulting certificate for award of the Bronze Star Medal with "V" Device for S. M. L____ for heroic achievement on 30 January 2005 in ground combat against the enemy on 30 January 2005 shows the Soldier was recommended for this award by the applicant who was his platoon leader.

	f.  A copy of a DA Form 638 for award of the Bronze Star Medal with "V" Device for SGT D. H____ for heroic achievement on 18 October 2004 shows the Soldier was recommended for this award by the applicant who was his platoon leader.

	g.  A Historian Investigation by Mr. R. K____ stated the RSE ran two patrols on 30 January 2005.  The applicant ran the night mission which he preferred because it was when the most trouble occurred and he knew if there were trouble the RSE needed an officer to coordinate with the British who owned the sector.

5.  On 9 July 2012, the Chief, Awards and Decorations Branch, HRC, advised a Member of Congress by letter of the following:

	a.  As stated in their correspondence of 7 May 2012 to another Member of Congress, the recommendation for award of the Silver Star was forwarded to the Army Decorations Branch for reconsideration.  The Army Decorations Board determined the degree of action and service rendered did not meet the strict criteria for the proposed award.  Based on the board's recommendation, the Commanding General, HRC, acting on behalf of the Secretary of the Army, reaffirmed the disapproval of the Silver Star.  Per Department of Defense and Army policy, a one-time reconsideration by the approval authority would be conclusive.

	b.  With regard to the applicant's concerns that other circumstances may be influencing the approval authority's decision, each recommendation is reviewed based upon its own merits.  If the applicant felt the decision was unfair or unjust, he had the right to appeal to the Army Board for Correction of Military Records (ABCMR) for relief.

6.  In a memorandum to the ABCMR, dated 3 January 2013, the Acting Chief, Personnel Policy Division, National Guard Bureau (NGB), reiterated the applicant's request.  The NGB official stated the original submission for that award was lost in country.  The OHARNG concurred with the recommendation.  The NGB official also stated:

	a.  The recreated DA Form 638 which the applicant included in his request recommending him for award of the Silver Star should be submitted for approval to HRC based on the merits of his actions while serving his country in combat.  It suggested that he should receive full administrative relief in this matter and be presented the Silver Star or appropriate level award for the action described in the DA Form 638 provided with his request.  It should be noted that previous awards of the Bronze Star Medal for valor for the applicant were for different engagements he encountered while deployed.

	b.  The applicant requested a review/approval of the submission for award of the Silver Star for combat action while serving in Iraq in 2005 based on the new documents/video he supplied to support his claim.

	c.  The original DA Form 638 was completed in 2005 while the applicant was still deployed to Iraq; however, it was never acted upon so it was considered lost. Once the unit redeployed, attempts were made by the applicant, the unit, the commanders, as well as the Ohio State Adjutant General, to ensure that several Soldiers, including the applicant, were recognized for their gallant efforts during the incident in question.  As a result of these efforts, two Soldiers who served under the applicant during the incident in question have been awarded the Bronze Star Medal with "V" Device.  That provided proof that the incident in question was not a friendly fire situation as was suggested in the case of the applicant's Silver Star request.

	d.  One of the primary reasons HRC denied the first request for award of the Silver Star was that the DA Form 638 did not have the signature of the wartime commander in theater at the time of the incident.  The appropriate signature was received in the original document that was lost.  In the new evidence provided as part of the case file, LTG (Retired) W____ signed the DA Form 638 and recommended approval even though he has since retired from the Army.

	e.  Considering the request for the award was now over 7 years old, it suggested that some leniency be given regarding the proper administrative award protocols.  It suggested that had the award not been lost in country and the paperwork submitted in a timely manner, the applicant would have had a much greater chance of receiving the award than he does today.  It was difficult to recreate awards once a unit had redeployed.  The level of difficulty increases when various commands and branches of military are involved in the process.

	f.  Considering the award submissions were lost in country, the effort to rebuild the facts around the case was daunting.  One significant challenge arose from the fact that signatures from wartime commanders had to be obtained.  Additionally, the fact that two Soldiers involved in that incident were awarded the Bronze Star Medal for valor warrants serious consideration for the applicant since he was providing direction during the same incident.  To deny the applicant recognition based on "administrative issues" would not be in keeping with the best interests of the Army and the Soldiers who served in combat operations in Iraq and around the world.

	g.  The HRC Awards and Decorations Branch previously denied the award and stated the following opinion:

The Army Decorations Branch determined that the degree of action and service rendered did not meet the gallantry required for the proposed award.  Based on the recommendation, service rendered did meet the strict criteria for the proposed award.  Based on recommendation, the Commanding General, United States Army Human Resources Command, acting on behalf of the Secretary of the Army, disapproved award of the Silver Star.  Per Department of Defense and Army policy, one-time reconsideration by the approval authority will be conclusive.

	h.  The documentation in the case was overwhelming, well written, and it should be reviewed by an impartial representative to ensure the validity of the recommendation for the Silver Star.  Included in that filing are all of the witness statements from various Soldiers who participated in the incident as well as the written work provided by the military historian who documented the incident after interviewing all involved.  While the action that resulted in the request occurred in 2005, it should not have a negative bearing on the case considering it very well would have been approved, or at least downgraded to a Bronze Star Medal for valor, and the applicant and his Soldiers would have received their awards in a timely manner.

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

	a.  The Silver Star is awarded to any person who, while serving in any capacity with the U.S. Army, is cited for gallantry in 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 armed conflict against an opposing armed force in which the United States is not a belligerent party.  The required gallantry, while of a lesser degree than that required for the Distinguished Service Cross, must nevertheless have been performed with marked distinction.

	b.  The Bronze Star Medal is awarded to any person who, while serving in any capacity in or with the Army, distinguished himself or herself by heroic or meritorious achievement or service not involving participation in aerial flight in connection with military operations against an armed enemy or while engaged in military operations involving conflict with an opposing armed force in which the United States is not a belligerent party.

	c.  The "V" device is worn to denote participation in acts of heroism involving conflict with an armed enemy.

	d.  For lost recommendations, the proponent for an award will provide conclusive evidence of the formal submission of the recommendation into military channels, conclusive evidence of the loss of the recommendation or the failure to act on the recommendation through inadvertence, and a copy of the original recommendation or its substantive equivalent to the Commander, HRC.  As a minimum, the recommendation should be accompanied by statements, certificates, or affidavits corroborating the events or services involved.  The proponent must provide Commander, HRC, with adequate information for Secretarial evaluation of the deed or service to determine if an award is to be made.  The person signing a reconstructed award recommendation must be identified clearly in terms of his or her official relationship to the intended recipient at the time of the act or during the period of service to be recognized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request and documentation he submitted for award of the Silver Star were carefully considered.  The third highest award for valor is the Silver Star which requires gallantry in action against the enemy.  The gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction.

2.  The applicant and his platoon were involved in a firefight in Iraq on 30 January 2005.  Based on the reconstructed evidence he provided, his platoon was ambushed by a force of over two dozen locals/insurgents.  The platoon, under his leadership, repelled the attack and several hours later was joined by a reaction force and some British soldiers.  The platoon with reinforcements was able to kill some of the attackers and capture several others and/or their weapons/equipment.

3.  The decision whether to award an individual a decoration and which decoration to award is a judgment call made by the commander having award approval authority.  This is based on the judgment of the commander with approval authority, the action performed by the individual, and the totality of the situation.  Almost 8 years have passed since the events of January 2005 and the ABCMR is not privy to the decision process used at that time.

4.  Regulatory guidance allows for award of the Silver Star for gallantry in action against an enemy of the United States while engaged in armed conflict against the enemy, with marked distinction.  

5.  After a comprehensive review of all the evidence provided by the applicant, to include the recommendations and support of his chain of command including that of LTG W____, the ARCENT Commander, it is determined the degree of the action performed by the applicant did not rise up to the level of gallantry required for award of the Silver Star.

6.  As the applicant did not request consideration of a lesser award in the event the Board denied him the Silver Star, eligibility for a lesser award was not considered.

7.  In view of the foregoing, the applicant is not entitled to the requested relief.

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 ABCMR acknowledges and applauds the applicant's service during that firefight under hazardous conditions; he is truly an American hero.  However, it is extremely difficult to make the necessary distinctions as to whether a particular act constitutes "conspicuous gallantry and intrepidity," "extraordinary heroism," or "gallantry in action."

3.  The Board wants the applicant and all others concerned to know this action in no way diminishes the sacrifices made by him 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)                                         AR20130009295



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ABCMR Record of Proceedings (cont)                                         AR20130009295



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