IN THE CASE OF:  

		BOARD DATE:  7 January 2015	  

		DOCKET NUMBER:  AR20140010262 


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, the sister of a deceased former service member (FSM), requests reconsideration of the request for an upgrade of the FSM's Distinguished Service Cross to the Medal of Honor.

2.  The applicant requests definitive answers to the following questions:

   a.  What more does the Secretary of the Army need to declare that the actions of the FSM met the criteria for award of the Medal of Honor?

   b.  Why are the Commanding General's eyewitness statements not adequate or accepted as new evidence?

   c.  With the recent 24 Soldiers who were honored with the Medal of Honor, do any of them have an original recommendation for the Medal of Honor or are they too Distinguished Service Cross recipients who should have been recipients originally for their heroic action?  (She states many of the recipients' actions are the same actions of the FSM and she lists 24 phrases presumably from the award citations of the 24 recipients.)

3.  She states the FSM already had an honorable discharge, but he volunteered for Vietnam.  He left the safety of his unit to go after another comrade.  All medics were down in his unit due to multiple failed attempts to reach the wounded Soldier.  Nobody would have faulted the FSM if he had not gone to the aid of the Soldier.

4.  She concludes that, "If mistakes were made (with regard to the award recommendation), they were in the 'heat of battle!'  We do not fault anyone; this 'heat of battle' would clearly support anyone's lack of attention to paperwork or quick decisions."

5.  She questions the need for an original Medal of Honor citation when there are nine eyewitness statements, along with the additional information that was previously submitted.  She states any errors in recordkeeping in 1967 should have no bearing on a decision pertaining to the FSM's heroic actions.  She adds, "The primary error in the record is the original citation was never found, thus making it impossible to determine if the FSM was recommended for the Medal of Honor or the Distinguished Service Cross."

6.  The applicant provides no documentary evidence in support of her request for reconsideration.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the FSM's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120014868, on 23 April 2013.

2.  The FSM had prior honorable active duty service in the Regular Army (RA) from 13 June 1963 through 26 May 1966.  He was awarded military occupational specialty 91B (Medical Specialist).

3.  On 4 January 1967, he again enlisted in the RA.  He was assigned to duty in Vietnam as a medical aidman with Headquarters and Headquarters Company, 1st Battalion (Airborne), 503d Infantry, effective 19 January 1967.  The FSM was killed in action in Vietnam on 8 February 1967.

4.  Headquarters, 173d Airborne Brigade (Separate), General Orders Number 252, dated 17 February 1967, announced the posthumous award of the Bronze Star Medal with "V" Device to the FSM for heroism on 5 February 1967.

5.  Headquarters, U.S. Army Vietnam (USARV), General Orders Number 1178, dated 17 March 1967, announced the posthumous award of the Distinguished Service Cross to the FSM for extraordinary heroism on 8 February 1967.  (The citation in the general orders also appears in the original Record of Proceedings. The original award recommendation for the FSM's actions on 8 February 1967 is not available.)

6.  A review of the FSM's military personnel record failed to reveal a copy of a recommendation for award of the Medal of Honor for actions on 8 February 1967.  

7.  On 15 March 2000, Senator William V. Roth submitted a request to the Secretary of the Army nominating the FSM for award of the Medal of Honor for his actions on 8 February 1967.

   a.  The documentation, included a letter, dated 24 February 2000, from General (Retired) J--- R. D----, Jr., Commander of the 173d Airborne Brigade (Separate) on the date of the action.  He summarized numerous documents listed in a table of contents and described efforts he made to obtain additional documents and eyewitness statements.  He noted, in part –

* the FSM's battalion commander was killed in action during a subsequent tour of duty in Vietnam and could not comment on the rationale for not recommending the Medal of Honor
* he was unable to determine who submitted the award recommendation
* the original award recommendation could not be located
* he had determined there were additional eyewitnesses to the action in addition to the eyewitnesses he was aware of at the time
* he does not know why he did not recommend an upgrade to the Medal of Honor at the time
* had he known then what he knows now, he would have pursued award of the Medal of Honor

   b.  Also provided was a reconstructed recommendation for award of the Medal of Honor, several notarized statements/letters, and supporting documents.

8.  On 18 October 2000, the Secretary of the Army informed Senator Roth that the Army had considered the proposal to award the Medal of Honor to the FSM under Title 10, U.S. Code, section 1130, which provides that, upon the request of a Member of Congress, the Secretary will review a proposal for award (or upgrade) of a decoration that is not otherwise authorized to be presented or awarded due to limitations established by law or policy.  The Secretary of the Army determined the previously-approved award of the Distinguished Service Cross was the appropriate award.

9.  On 16 July 2004, the Chief, Awards and Decorations Branch, U.S. Army Human Resources Command (HRC), responded to Senator Thomas R. Carper's request concerning the applicant's desire to have the FSM's Distinguished Service Cross upgraded to the Medal of Honor.  HRC informed Senator Carper that Department of Defense policy allowed for reconsideration of an award recommendation only if there was new evidence presented that was not previously considered by a board.  HRC noted that a thorough review of the documentation provided by the applicant had revealed no new or substantial evidence to support a request for reconsideration.

10.  On 7 June 2012, HRC informed Senator Carper that the Secretary of the Army had determined the Distinguished Service Cross was the appropriate award for the FSM's actions on 8 February 1967.  HRC noted the one-time reconsideration by the award approval authority had been exhausted and they were unable to reveal the specific reasons for disapproval by the Secretary of the Army per Department of Defense policy.

11.  The submissions in the original application to this Board, including the recommendation for award of the Medal of Honor with a proposed citation, narrative, summary of events, notarized eyewitness statements/letters, and supporting documents were summarized and previously considered in the original Record of Proceedings of this case.  On 24 April 2013, the applicant was informed that the ABCMR denied the application to correct the FSM's military records to show award of the Medal of Honor.  She was also provided a copy of the Board's Record of Proceedings that explained the reasons for denying the application.

12.  On 18 March 2014, the President of the United States awarded 24 Army veterans the Medal of Honor who had been previously recognized with the Distinguished Service Cross.  The applicant was not one of the 24 Army veterans recognized.

13.  Title 10, U.S. Code, section 3741 (The Medal of Honor:  Award), was established by Joint Resolution of Congress on 12 July 1862 (amended by acts on 9 July 1918 and 25 July 1963).  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 or her life above and beyond the call of duty while engaged in an 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 an armed conflict against an opposing armed force in which the United States is not a belligerent party.  The deed performed must have been one of personal bravery or self-sacrifice so conspicuous as to clearly distinguish the individual above his comrades and must have involved risk of life.  Incontestable proof of the performance of the service will be exacted and each recommendation for award of this decoration will be considered on the standard of extraordinary merit.

14.  Title 10, U.S. Code, section 3754 states the President may delegate his authority to award the Medal of Honor, Distinguished Service Cross, and Distinguished Service Medal to a commanding general of a separate Army or higher unit in the field.

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

	a.  Chapter 3 (U.S. Army Individual Decorations), paragraph 3-1 (Intent), shows U.S. Army military decorations are awarded in recognition of heroism, meritorious achievement, or meritorious service.  It also shows the decision to award an individual a decoration and the decision as to which award is appropriate are both subjective decisions made by the commander having award approval authority (emphasis added).

	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.

16.  Army Regulation 672-5-1 (Awards), in effect at the time, prescribed Department of the Army policy, criteria, and administrative instructions concerning individual military awards.

	a.  Paragraph 4 (By Whom Awarded – Wartime Criteria) provided that award of the Medal of Honor was made only by the President.  Awards of other decorations were made by the President, the Secretary of Defense, and the Secretary of the Army.  When wartime criteria applied, authority to award decorations was automatically delegated as follows:  the Distinguished Service Cross, Silver Star, Distinguished Flying Cross, Soldier's Medal, Bronze Star Medal, Air Medal, and Army Commendation Medal could be awarded to members of the Armed Forces of the United States by the senior Army commander of any separate force or by subordinate commanders to whom he may delegate this authority, provided that the authority would not be delegated to any commander below the grade of major general, except to a brigadier general commanding a tactical unit and occupying the position vacancy of a major general.

	b.  Paragraph 6 (Recommendation for Awards) provided that processing of a recommendation for the Medal of Honor would not be interrupted prior to its referral to Headquarters, Department of the Army.
	c.  Paragraph 7 (Interim Awards and Awards of a Lesser Decoration) specified in:

		(1)  subparagraph a, to insure that a deserving act, achievement, or service received recognition, the appropriate authority should promptly award a suitable lesser military decoration pending final action on a recommendation for a higher award.  If the higher award is approved, the interim award is rescinded and the decoration returned by the recipient, unless the higher award is approved posthumously in which case the next of kin will be permitted to retain both awards; and

		(2)  subparagraph b, the authority taking final action could award the decoration recommended, award a lesser decoration (or consider the interim award as adequate recognition), or, in the absence of an interim award, disapprove award of any decoration.

17.  Headquarters, U.S. Army Vietnam (USARV) Regulation 672-1 (Decorations and Awards), in effect at the time, prescribed policies, responsibilities, and criteria for awards in order to ensure prompt and proper recognition of individuals.

	a.  It contained several appendices outlining the criteria for award of individual decorations, delegation of awards authority, and procedures for preparing and submitting recommendations.  It also contained numerous annexes providing instructions for preparation of the DA Form 638 (Recommendation for Award) and USARV Form 157-R (Recommendation for Decoration for Valor or Merit), sample citations, and a summary of recommendation format for a Medal of Honor recommendation (Annex E).

	b.  In accordance with Army Regulation 672-5-1, the Deputy Commanding General, USARV, was authorized to approve award of the Distinguished Service Cross.

18.  Public Law 104-106, enacted 10 February 1996, promulgated the Fiscal Year 1996 (FY96) National Defense Authorization Act (NDAA) that included section 526 (Procedure for Consideration of Military Decorations Not Previously Submitted in Timely Fashion).  It incorporated the legal authority for consideration of proposals for decorations not previously submitted in a timely fashion into Title 10, U.S. Code, section 1130.  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.

19.  Public Law 107-107, enacted 28 December 2001, promulgated the Fiscal Year 2002 (FY02) NDAA that included section 522 (Review Regarding Award of Medal of Honor to Certain Jewish American and Hispanic American War Veterans).

	a.  A review Required:  The Secretary of each Military Department shall review the service records of each Jewish American war veteran or Hispanic American war veteran described in subsection b to determine whether that veteran should be awarded the Medal of Honor.

	b.  War Veterans Covered:  The Jewish American war veterans and Hispanic American war veterans whose service records are to be reviewed under subsection a are the following:

		(1)  any Jewish American war veteran or Hispanic American war veteran who was awarded the Distinguished Service Cross, the Navy Cross, or the Air Force Cross before the date of the enactment of this act; and

		(2)  any other Jewish American war veteran or Hispanic American war veteran whose name is submitted to the Secretary concerned for such purpose before the end of the 1 year beginning on the date of the enactment of this act.

	c.  Consultations:  In carrying out the review under subsection a, the Secretary of each Military Department shall consult with the Jewish war veterans of the United States of America and with such other veterans service organizations as the Secretary considers appropriate.

	d.  Recommendation Based on Review:  If the Secretary concerned determines, based upon the review under subsection a of the service records of any Jewish American war veteran or Hispanic American war veteran, that the award of the Medal of Honor to that veteran is warranted, the Secretary shall submit to the President a recommendation that the President award the Medal of Honor to that veteran.

	e.  Authority to Award Medal of Honor:  A Medal of Honor may be awarded to a Jewish American war veteran or Hispanic American war veteran in accordance with the recommendation of the Secretary concerned under subsection d.

	f.  Waiver of Time Limits:  Any award of the Medal of Honor may be made under subsection e without regard to Title 10, U.S. Code, section 3744, 6248, or 8744, as applicable, and any regulation or other administrative restriction on the time for awarding the Medal of Honor or of awarding of the Medal of Honor for service for which a Distinguished Service Cross, Navy Cross, or Air Force Cross has been awarded.

	g.  Definition:  For the purpose of this section, the terms Jewish American war veteran and Hispanic American war veteran mean any person who served in the Armed Forces during World War II or a later period of war and who identified himself or herself as Jewish or Hispanic on his or her military personnel records.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reconsideration of the request for an upgrade of the FSM's Distinguished Service Cross to the Medal of Honor based on the contention that he was actually recommended for award of the Medal of Honor for his heroic actions was carefully considered.

2.  The evidence of record shows USARV Regulation 672-1 provided detailed information regarding delegation of awards authority and the procedures for preparing and submitting award recommendations, including the Medal of Honor. 

   a.  General orders were issued by USARV on 17 March 1967 awarding the FSM the Distinguished Service Cross just 37 days after his heroic acts on 
8 February 1967.

   b.  Thus, the evidence of record shows the award recommendation was processed through command channels and approved by the Commanding General, USARV, in a timely manner.

3.  The procedures for processing a recommendation for award of the Medal of Honor through command channels in USARV were well-defined and published.  Moreover, the evidence of record shows the regulatory guidance required a recommendation for the Medal of Honor to be referred to Headquarters, Department of the Army, and for the award authority to award a suitable lesser military decoration pending final action on a recommendation for a higher award.

4.  The applicant's contention that the FSM was recommended for award of the Medal of Honor is acknowledged.

	a.  However, the evidence of record shows the award approval authority determined the applicant's heroic acts were so extraordinary and so noteworthy as to warrant award of the Distinguished Service Cross.

   b.  The FSM was awarded the Distinguished Service Cross based on the award recommendation submitted immediately following his heroic actions. 
   c.  There is no evidence of record that the Distinguished Service Cross was awarded as an interim award.

   d.  There is also no evidence of record that shows the FSM was originally recommended for award of the Medal of Honor.  In fact, the former Commanding General, 173rd Airborne Brigade (Separate) acknowledges in his statement that "he does not know why he did not recommend an upgrade to the Medal of Honor at the time."

   e. 	Thus, the evidence of record offers strong evidence that the original award recommendation to recognize the FSM's actions on 8 February 1967 was a recommendation for award of the Distinguished Service Cross, not a recommendation for award of the Medal of Honor as the applicant contends.

   f.  Therefore, it is concluded that the applicant's contention that the FSM was originally recommended for award of the Medal of Honor is not supported by the evidence of record.  In addition, it is concluded that the evidence of record does not support the applicant's contention that "the primary error in the record is that the original citation was never found" and it must be presumed that the FSM was recommended for the Medal of Honor.  Moreover, suggestions about "errors in recordkeeping in 1967" also appear to be unfounded with respect to the FSM's award recommendations because the evidence of record shows his heroic actions on 5 February 1967 and 8 February 1967 were recognized in a very timely manner on both occasions.

5.  The evidence of record shows the original application submitted to this Board (that included the recommendation for award of the Medal of Honor with a proposed citation, narrative, summary of events, notarized eyewitness statements/letters, and supporting documents) was thoroughly reviewed.

   a.  There is no evidence of record that shows the FSM was eligible for the mandated review under section 522 of the FY02 NDAA.

	b.  The heroic actions of any Soldier considered for award of the Medal of Honor are independently reviewed, assessed, and deliberated upon.  The fact that award recommendations may contain similar language or phrases do not, in and of themselves, determine the actual level of heroism performed by the Soldier.  Each combat deed is independently evaluated and considered in the context of the environment, terrain, circumstances, combat situation (e.g., mission, circumstances, level of combat heroism, duration of action, inspiration to comrades, etc.), and the considered judgment of commanders throughout the chain of command, including the Commander-in-Chief in the case of the Medal of Honor.
6.  Therefore, in view of all of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief as there is no new substantive evidence that merits a change to the original decision.

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 ABCMR Docket Number AR20120014868, dated 23 April 2013.



      _______ _  _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)                                         AR20140010262



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ABCMR Record of Proceedings (cont)                                         AR20140010262



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