IN THE CASE OF:	  

		BOARD DATE:	  30 September 2014

		DOCKET NUMBER:  AR20130020063 


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 Bronze Star Medal (BSM) with "V" Device be upgraded to the Silver Star (SS).

2.  The applicant states:

	a.  his prior request for an upgrade of his BSM with "V" Device to the SS to the Army Decorations Board by his Senator contained factual errors and omitted significant documents;

   b.  he now submits new verifiable information not previously seen, that if considered in conjunction with his original application would result in an approval of his request;
   
   c.  the proposed citation inadequately states the enemy was "estimated to be an under-strength battalion"; however,
   
* a book titled "Memoirs of the First Team," published by the 1st Air Cavalry Division on 12 February 1970, reveals the enemy forces were much more formidable than previously estimated
* the 282 enemies who were killed in action supports the premise that the enemy force was significantly larger than reported
   
   d.  the proposed citation indicates he "organized a hybrid force of five platoons in the assault" but does not show:
   
* the difficulty of organizing such a disparate group under heavy enemy fire and, in spite of an expanded span of control, communications problems, minus ground fire support, he successfully led an assault which crushed the defending enemy force
* the platoons were from three separate battalions and consisted of troops who were never combat-tested

3.  The applicant provides a self-authored statement and the indexed list of documents included with his application.

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.  The applicant was commissioned a second lieutenant (2LT) in Regular Army on 1 June 1956.  His DA Form 2-1 (Personnel Qualification Record) includes an entry which shows he served in the Republic of Vietnam (RVN) from 16 August 1965 to 31 May 1966.

3.  He was awarded the Bronze Star Medal with "V" Device for heroism in connection with military operations against a hostile force on 1 November 1965.  General Orders Number 10188, Headquarters, 1st Cavalry Division (Airmobile), dated 25 April 1966, cited the following:

"[Applicant] was directed to airlift his unit to assist an element of the 1st Squadron, 9th Cavalry, which was pinned down by a well entrenched PAVN unit.  [Applicant] immediately reacted to the situation and led his company into the objective area.  Upon arrival, completely disregarding the intense enemy small arms fire, he moved to the forward edge of the battle area in order to better control his unit.  In the face of increasingly heavy mortar fire, he personally led an attack on the well emplaced enemy.  He dislodged them from their positions, then stood his ground and called aerial rocket fire and tactical air support in upon the enemy."

4.  The following general orders announced the applicant's two awards of the BSM for meritorious service:

* Headquarters, 1st Cavalry Division (Airmobile), General Orders Number 2597, dated 22 May 1967, for the period 17 January 1966 to 17 May 1966
* United States Military Assistance Command, Vietnam, General Orders Number 4114, dated 17 July 1969, for the period August 1968 to July 1969

5.  On 30 June 1986, the applicant retired from the Regular Army in the rank of colonel.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued him at that time shows he completed 30 years and 1 month of creditable active duty service.

6.  The applicant's DD Form 214 shows he earned two BSMs with "V" Device.  

7.  The applicant submitted a DD Form 149 (Application for Correction of Military Records Under the Provisions of Title 10, US Code, Section 1552) to the ABCMR on 2 February 2009, requesting the Legion of Merit (LOM), BSM with 2 Oak Leaf Clusters (OLC), and the Presidential Unit Citation be added to his DD Form 214. Accordingly, on 20 April 2009, a DD Form 215 (Correction to the DD Form 214) was issued to add these awards.

8.  On 21 May 2009, the applicant petitioned the Army Decorations Board, U.S. Army Human Resources Command (HRC), to upgrade his BSM with 2 OLCs and "V" Device to the SS.  On 12 August 2009, the Adjutant General (TAG), HRC, informed the applicant the BSM with "V" Device was the appropriate award for his actions and denied his request.

9.  The applicant provides nine witness statements from two platoon leaders, a platoon sergeant, squad leader, squad member, two captains, a colonel, and a lieutenant general who collectively indicate they served with him in the RVN and support his request for the award of the SS.  These individuals state, with complete disregard to his own personal safety, the applicant's performance of duty on 1 November 1965, included the following actions:

* he moved between assaulting platoons, directed fire, assisted with the wounded, and positioned his two remaining platoons into the battle line
* after two and a half hours of intense fighting, he reinforced a company of five platoons, exhibiting exemplary leadership in the face of withering fire in leading a hybrid company up the hill and driving the enemy off their position
* ensured the evacuation of the wounded
* established a defensive perimeter with all five platoons to ensure a 360 degree security against a possible enemy counter-attack
* his inspired leadership led troops who had no previous combat experience to destroy a numerically superior enemy force
* exhibited heroism in combat, excellent leadership, and courage

10.  The applicant provides a DA Form 638 (Recommendation for Award), completed on 11 September 2013.  It shows his battalion commander and brigade commander during the period in question recommended approval of the upgrade.

11.  The applicant provides five "Member Voting Sheets" from five general officers dated between 22 February and 29 July 2013.  The documents appear to have been provided to the Army Decorations Board as part of his awards packet, but they are not the actual vote sheets.  These documents show each of the general officers:

* voted "Yes" indicating the applicant's performance was well above the expected performance of duty when compared to others in comparable grades
* voted Yes" indicating the applicant's accomplishments enhanced the readiness or effectiveness of his organization
* recommended the applicant be awarded the SS

12.  Army Regulation 600-8-22 (Military Awards) provides that the BSM is awarded in time of war for heroism and for meritorious achievement or service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years

13.  Army Regulation 600-8-22 provides that the SS is awarded for gallantry in action against the enemy.  The required gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction.  

14.  Army Regulation 15-185 (ABCMR) provides that the Board begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to an upgrade of his BSM with "V" Device to a SS.

2.  The ABCMR acknowledges and applauds the applicant's valor and courage on 1 November 1965 under extremely 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 applicant’s record shows that he was clearly cited for his heroism when he distinguished himself by valorous action on 1 November 1965 in connection with military operations against an enemy of the United States in the RVN.  A decision was made to award him the BSM with "V" Device.  However, without the original award recommendation, a determination of the appropriateness of that decision cannot be made.  For instance, it is not known whether the applicant's immediate commander recommended he be awarded a SS or possibly a Distinguished Service Cross and the recommendation was disapproved in favor of a BSM.  Conversely, it is not known whether he was originally recommended for an Army Commendation Medal for valor that was upgraded to a BSM for Valor by the approving authority.

4.  The decision of whether to award an individual a decoration and which decoration to award is a judgment made by the commander having award approval authority.  Commanders at the time of the act, or shortly thereafter, determined that the applicant's actions were so extraordinary and so noteworthy as to warrant award of the BSM for Valor.  More than 40 years have passed since the events of 1 November 1965.  Consequently, the decision process used at that time is no longer available for the Board to review.

5.  The ABCMR considers individual applications that are properly brought before it.  In appropriate cases, it directs or recommends correction of military records to remove an error or injustice.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  Each case is assessed and analyzed based on its own merits.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

6.  Based upon the available evidence it is determined that the BSM with “V” Device was the appropriate award for the cited action.
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)                                         AR20130020063





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ABCMR Record of Proceedings (cont)                                         AR20130020063



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