IN THE CASE OF:	  

		BOARD DATE:	  15 October 2015

		DOCKET NUMBER:  AR20150000339 


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 that his award of the Army Commendation Medal (ARCOM) with "V" Device be upgraded to its original recommendation of the Silver Star.

2.  The applicant states that the award of the ARCOM with "V" Device should be upgraded to award of the Silver Star based on new information obtained about the sheer size of the numerically larger enemy force faced and modern aerial imagery showing the large size and well protected village that had to be fought through.  He goes on to state that the much larger size of the enemy force encountered was determined by open source data from the Central Intelligence Agency (CIA) World Facebook during his 2013 Operation Enduring Freedom deployment, as well as access to modern aerial imagery.

3.  The applicant provides:

* a copy of an award recommendation to a Soldier for the Bronze Star Medal with “V” Device 
* DA Form 638 (Recommendation for Award) with correct wartime endorsements with narrative and proposed citation
* concept of operations summary and design for 19 September 2003
* eyewitness statements 
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Congressional referral documents
* ARCOM with "V" Device award certificate

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 serving as a Special Forces captain in the Maryland Army National Guard (MDARNG) when he was ordered to active duty in support of Operation Enduring Freedom on 27 January 2003.

3.  He deployed to Afghanistan during the period 13 March 2003 through 8 November 2003.  He was released from active duty on 21 November 2003.   

4.  On 18 December 2004, the applicant submitted a request for himself to be awarded the Silver Star and that all members of his team (one master sergeant and three sergeant first classes) be awarded the Bronze Star Medal with "V" Device for their actions in Afghanistan on 19 September 2003.  The master sergeant actually signed the DA Form 638 recommending the applicant for the award of the Silver Star.  The applicant’s narrative summary stated he risked his life to protect a senior Taliban leader that his team captured during an intense fire fight with opposing forces estimated to be between 60 to 80 insurgents.  It appears this award recommendation was not processed at the time because the U.S. Army Awards and Decorations Board required the endorsement of the senior Special Forces commanders in 2003 during Operation Enduring Freedom.  

5.  In 2008, the applicant’s Congressman submitted a letter to the Department of the Army requesting the applicant’s award recommendation and that of his teammates be thoroughly reviewed in accordance with Public Law 109-364 (John Warner National Defense Authorization Act for Fiscal Year 2007), section 557 pertaining to the requirement for the Department of Defense to provide a report to Congress on the policies, procedures and processing of award recommendation timeliness between active duty and Reserve component personnel. 

6.  In December 2010, the applicant’s award recommendation was reinitiated.  The endorsing officials were the applicant’s former Special Forces group commander and the former commanders of U.S. Army Special Forces Command and U.S. Army Special Operations Command.  Two letters of endorsement accompanied the award recommendation that attest to problems with award recommendations for Reserve component Soldiers upon their redeployment.  In one endorsement the former Chief, National Guard Bureau concurred with the Silver Star award recommendation. 

7.  On 17 February 2011, the Army Decorations Board convened to consider the late recommendations and the board members separately and unanimously determined that while their actions were heroic, they did not warrant awards of the Silver Star and Bronze Star Medal with "V" Device.  The board voted unanimously to downgrade the awards for all five Soldiers to the ARCOM with "V" Device.  Accordingly, on 1 March 2011, the applicant was awarded the ARCOM with "V" Device for valorous achievement on 19 September 2003. 

8.  On 12 December 2012, the applicant’s commander (a colonel) who was in Afghanistan at the time, submitted a command endorsement to the Assistant Adjutant General of the MDARNG requesting reconsideration of the award of the Silver Star to the applicant, who was now serving in the rank of lieutenant colonel, based on new information that revealed that the enemy force the applicant encountered was 150 instead of the original estimate of 60 to 80.  The Assistant Adjutant General of the MDARNG favorably endorsed the recommendation.

9.  The applicant submits a copy of an award recommendation for the Bronze Star Medal with "V" Device to a Special Forces staff sergeant for what he describes as less valorous actions than he and his team encountered.

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

	a.  The Silver Star 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.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

	b.  The Bronze Star Medal is awarded in time of war for heroism and for 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 Army Commendation Medal may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguishes himself or herself by heroism, meritorious achievement, or meritorious service.  

	d.  The bronze "V" device indicates acts of heroism involving conflict with an armed enemy and authorizes the device in conjunction with awards of the Bronze Star Medal, the Army Commendation Medal, and the Air Medal.  

	e.  It is the responsibility of any individual having personal knowledge of an act, achievement, or service believed to warrant the award of a decoration to submit a formal recommendation into military command channels for consideration within 2 years of the act, achievement, or service to be honored.  The Army does not condone self-recognition; therefore, a Soldier may not recommend himself/herself for award of a decoration.

	f.  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 authority.  An award decoration should reflect both the individual’s level of responsibility and his or her manner of performance.  The degree to which an individual’s achievement or service enhanced the readiness of effectiveness of his or her organization will be the leading factor.  No preconditions for an award may be established. 

DISCUSSION AND CONCLUSIONS:

1.  Throughout the award recommendation process, both his ARNG chain of command and the Special Forces chain of command recommended award of the Silver Star for his heroic actions in 2003.  However, the Department of the Army Awards and Decorations Board downgraded his award to the ARCOM with "V" Device.  The applicant with the support of his current chain of command provided new evidence that the opposing forces were a larger contingent estimated at 150 enemy forces instead of the initial estimate of between 60 to 80 enemy forces.  

2.  The applicant also provided as new evidence to support award of the Silver Star an award recommendation for a Special Forces staff sergeant who was recommended for award of the Bronze Star Medal with "V" Device for actions in Afghanistan.  This Board, based on the guidance of Army Regulation 600-8-22, is not in a position to determine the merits of the subjective decision of the staff 
sergeant’s chain of command.  Each award recommendation is reviewed and a determination made based on the subjective decision of the commander with final award approval authority or by the Awards and Decorations Board. 

3.  The applicant has failed to show through the evidence submitted with his application and the evidence of record that an error or injustice exists in his case.  Absent such evidence there appears to be no basis to grant his request to upgrade his award of the ARCOM with "V" Device to a Silver Star. 

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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  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)                                         AR20150000339





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ABCMR Record of Proceedings (cont)                                         AR20150000339



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