IN THE CASE OF:	  

		BOARD DATE:	  27 October 2015

		DOCKET NUMBER:  AR20150001823 


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 General Orders (GO) Number 1037, issued by Headquarters (HQ), United States Army Vietnam (USARV), on 16 May 1972, be revoked.  This order was a revocation of GO previously issued by the same HQ on 13 April 1969, awarding him the Distinguished Service Cross (DSC).  He also requests a personal appearance.

2.  The applicant states GO Number 1037 was issued to revoke his award without proper investigation or substantiation.

3.  The applicant defers his evidence to counsel.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests GO Number 1037, issued by HQ, USARV on 16 May 1972, be revoked.  This order was a revocation of orders previously issued by the same HQ on 13 April 1969, awarding the applicant the DSC. 

2.  Counsel states 

	a.  In a previous request to this Board, the applicant indicated that he did not discover the error until 1 December 2011.  This Board previously considered his request and administratively closed this case after directing him to the Army Decorations Board at the U.S. Army Human Resources Command (HRC).  He enlisted the assistance of Congressman Fin---- and he was provided the same response.  He argues that referral of this case to the Army Decorations Board is in error and this Board is the proper forum to take the action requested.  The Army Decorations Board accepts nominations for new awards or for downgraded awards.  He is not attempting to be nominated for an award.  He is asking that GO Number 1037 be revoked.  He (counsel) spoke directly to the HRC Awards Branch regarding the applicant and after hearing the background of this case, they concurred with his opinion that the action he is seeking is one that would be appropriately decided by this Board and could not be resolved at HRC.  The applicant was awarded the DSC by GO Number 1299, dated 13 April 1969. There is no need to nominate him again for this honor.  It is for this reason that an application to HRC is improper.  The Army Decorations Board is the proper option for veterans who had their initial awards either downgraded or rejected.

	b.  The origins of this case started 46 years ago in Vietnam.  A mission by a small team from U.S. Military Assistance Command-Vietnam (MACV), Studies and Observation Group (SOG) on 30-31 October 1968 and the fight that ensued resulted in the applicant's nomination for the Medal of Honor (MOH).  In May 1968, the applicant was assigned to MACV-SOG in DaNang.  MACV-SOG at Command and Control North Forward Operating Base Number 4 (CCN-FOB4) assigned the applicant to teams that performed cross border operations into Laos and Cambodia that were called "Prairie Fire" or "Shining Brass" missions.  These teams performed interdictions and reconnaissance deep into enemy territory.  He was assigned as the assistant team leader for one of these missions during the last week of October 1968.  Staff Sergeant (SSG) Th---s B. To----ns (hereafter referred to as SSG TBT) was the team leader on this mission.  He and the applicant were the only Americans on the 6-member team.  The remaining four members of the team were Vietnamese.  As the team prepared their night defensive positions on the evening of 30 October, they were attacked by the enemy and SSG TBT was wounded.  The applicant provided first aid during the night to his teammates and served as the team leader when SSG TBT went down.  The fight resumed the following morning as the team waited for extraction.  The applicant and the team fought off additional enemy attacks and he was hit by a grenade before the team was successfully extracted.  All members of the team were wounded during the battle. 

	c.  He was evacuated from theater due to his injuries and spent considerable time recovering from them.  He was initially recommended for a Silver Star that was based primarily on the eyewitness account of SSG TBT.  The statement that accompanied the award is signed in a signature that is strikingly similar to the signature of SSG TBT on letters later provided to his command.  At some point, his commander, Captain (CPT) D---g M. W---h (DMW), submitted a recommendation that the applicant receive the MOH for his actions.  Included with this recommendation was a transcript of a handwritten letter by SSG TBT that was verified by the Adjutant, CPT Th----s P. Ni-----on (TPN), as a true copy of the same.  The recommendation for the MOH was endorsed by both his battalion and group commanders.  Higher level commanders recommended that he receive the DSC.  These included recommendations by:  Lieutenant General (LTG) Fr--k T. Mi----n, Deputy Commander of USARV; General (GEN) Cre-----n W. Ab---s, Commander of MACV; LTG Mi---l S. Da---on, Deputy Commander in Chief of U.S. Army, Pacific (CINCPAC); and Admiral Jo--n S. McC--n, Jr., CINCPAC.  Ultimately, he received the DSC instead of the MOH.

	d.  At some point, SSG TBT became aware that the applicant was recommended for the MOH and that he received the DSC.  This discovery evidently offended SSG TBT as he wrote a letter to the Group Commander that led to the appointment of an investigating officer (IO), Major (MAJ) Wil--am E. An--l (WEA), to conduct an investigation.  Based on letters from SSG TBT and the IO's investigation, correspondence was initiated to request revocation of the applicant's DSC.  The recommendation for revocation of the DSC from the Personnel Actions Division stated that "available evidence" indicated the award should be revoked.  It also noted that a request for further investigation was sent to the U.S. Army Criminal Investigation Command (CID) and that CID attempted to locate the applicant, but were unsuccessful in their efforts.  Based on the available information, GO Number 1037 was issued on 16 May 1972.

	e.  The applicant was not aware that his award had been revoked until he was contacted by military historian Mr. Bruce Sw---der.  Mr. Sw--der is a Marine who served from 1966-70 and he undertook various research projects related to awards for valor and heroism.  One such project included the compilation of a list of all Army DSC awards issued during the Vietnam War.  His research identified over 1,100 DSCs for this period.  He found that a total of seven DSCs were revoked after issuance.  Of these seven, six DSCs were reissued under a new GO that corrected either spelling or grammar in the initial order.  That left one award that was revoked by order and never reissued, the DSC awarded to the applicant.  Mr. Sw--der was intrigued as to what happened and through extensive research he was able to secure many documents related to this case.  Nearly all of the enclosures to this brief were uncovered through Mr. Sw--der's efforts.  Unfortunately, there are numerous records from that era that have been destroyed.  Mr. Sw--der's research included a search for the key witnesses surrounding the applicant's DSC.  He determined that SSG TBT passed away in 1991 and he was unsuccessful in finding the Adjutant, CPT TPN.  He was able to locate CPT DMW, the applicant's/unit's commanding officers and the man who initiated the recommendation for the MOH.  Mr. Sw--der also found the applicant and delivered the surprising news to him that his DSC had been revoked.  The applicant stated he was never contacted by anyone regarding the DSC and he felt that the language used in the citation for his DSC was accurate in its description of his actions.  He thus felt it was important to appeal the revocation.
	f.  The applicant is 100 percent disabled.  With the assistance of Mr. Sw--der, he appealed to this Board.  In a response to a Member of Congress, dated 27 December 2013, the Army Review Boards Agency indicated that this Board informed the applicant in January of 2012 that he had to submit an award recommendation through his Congressman to the Army Decorations Board.  The applicant enlisted the assistance of his Congressman.  This led to the correspondence previously cited.  The applicant's subsequent application to this Board, dated 15 March 2013, was filed without action, review or consideration.

3.  Counsel further states: 

	a.  The error in question is that GO Number 1037 was issued in error without proper investigation or documentation.  The decision reached to revoke the DSC was made due to the persistent efforts of SSG TBT.  The decision was made without speaking to the applicant and without input of the officer who recommended the award, CPT DMW.  The investigation conducted by the IO was admittedly inconclusive.  The decision to revoke the order overlooked the scrutiny that accompanies awards of this magnitude.  As demonstrated by Mr. Swa--er's research, this is the only DSC revoked and not subsequently reissued during the Vietnam era.  The passage of time and the unavailability of documents complicate the matter at hand, but this issue is still capable of resolution in favor of the applicant.  Review of the documents that do exist, coupled with critical analysis, shows the decision to revoke was an error.

	b.  The impetus behind the revocation in question was clearly SSG TBT.  Not all of his correspondence exists from the time period, but it is clear from his letters and from the correspondence of others that does survive, that SSG TBT was determined to see the DSC taken from the applicant.  Determining his true motivations so many years later is not feasible.  SSG TBT is no longer with us to provide insight as to why he so doggedly pursued the revocation of this order.  Yet, one can determine through his conduct and through the documents that do exist that the Army Adjutant General was unduly swayed by his agenda.  Closer inspection of SSG TBT statements and conduct is therefore appropriate.  There are three documents that bear the signature of SSG TBT.

		(1)  The first statement is undated and the contents of it and the signature were later disputed by SSG TBT.  Although this statement was later disputed, the signature appears to be that of SSG TBT when compared to letters that he admittedly wrote.  This disputed statement establishes at a minimum that the applicant "took control of the team after SSG TBT was injured; displayed coolness under fire; inflicted heavy losses on the enemy; maintained radio contact throughout the night; administered first aid to teammates; directed close air support; and displayed leadership and courage." 
		(2)  The other documents signed by SSG TBT are a letter to Colonel (COL) He-ly, Commander, 5th Special Forces Group (Airborne) (SFGA), dated 1 November 1969, and a letter to the Adjutant General dated 10 April 1971.  These letters directly contradict the first letter signed by SSG TBT.  The letter to COL He-ly passionately denies the substance of the first letter.  SSG TBT indicates he was filled with "anger and disgust" when shown the first letter.  This letter indicates that the applicant acted cowardly and that his own incompetence was the reason he was severely wounded by the grenade.  The 1971 letter to the Adjutant General is a reaction to a letter received by SSG TBT in 1970 that included a statement "supposedly made by me (TBT) that ended in the award."  The award in question was the DSC.  SSG TBT continues in his letter that he has a personal interest in seeing the DSC rescinded and that he would be available to the Adjutant General to answer any questions to help close the affair.

	c.  SSG TBT clearly made statements regarding his opposition to the DSC prior to the 1 November 1969 letter to COL He-ly.  This is evidenced by the investigation performed by MAJ WEA (the IO).  This report references a letter from SSG TBT that has not survived.  The existence of this letter, apparently dated 11 September 1969, is confirmed by the memorandum signed by 
COL He-ly.  Based on the report, it can be surmised that the letter from SSG TBT contained allegations of fraud or wrongdoing on the part of those who submitted the award recommendations.  This can be surmised by the fact that MAJ WEA advised CPT TPN (the Adjutant) of his Article 31 rights when he took his statement for his investigation.  Still, CPT TPN indicated that the statement to which he attested as a true copy was in fact a verbatim copy of a statement written in long hand on stationary.  According to CPT TPN's statement, the eye-witness statement was part of the packet that would recommend a Bronze Star Medal (BSM) with "V" Device for the applicant.  This is interesting as it is clear from the correspondence that SSG TBT believed that the applicant was going to receive a BSM with "V" Device.  One of the conclusions from MAJ WEA's report supports this.  In paragraph 2.b it states, "A signature of [TBT] is located on an eye-witness statement attached to a recommendation for the Silver Star for [the applicant].  In the basic letter signed by SSG TBT, and addressed to Commander, 5th Special Forces, SSG TBT stated that any award higher than the BSM with "V" Device is being awarded without his knowledge or recommendation."

	d.  SSG TBT continued his efforts to have the DSC overturned.  A DA Form 496 (Disposition Form) signed by COL Do--ld Ai-es indicates that SSG TBT visited the Adjutant General's Office on two occasions to affirm that he did not initiate and sign the eyewitness statement used to recommend the applicant for the award.  It is clear from the tone of the letters signed by SSG TBT and from 
the fact that he made allegations of fraud against his command that he was vehemently opposed to the applicant receiving an award higher than a BSM.  At first glance there are two plausible explanations for SSG TBT's reaction to the DSC awarded to the applicant.  The first is that there was some type of fraud involved and he was justifiably angry that his name was attached to a statement used to honor a person he felt acted cowardly when confronted by the enemy.  The second plausible explanation is that SSG TBT was jealous and personally insulted that the applicant received a higher award for this mission than he did.  The record supports this second explanation.

	e.  SSG TBT received a Silver Star for the events of 30-31 October 1968.  As previously noted, SSG TBT stated that any award higher than a BSM with "V" Device was awarded without his knowledge or recommendation.  This implies that SSG TBT understood that his statement would be used as an award recommendation for the applicant.  It also implies that there was in fact a statement written by SSG TBT that describes the conduct of the applicant in a valorous manner.  How can such a statement be reconciled with the subsequent letter to COL He-ly that describes the applicant’s actions as those of a coward?  It can't be reconciled with logic.  Only with the understanding that while SSG TBT was okay with the applicant being recognized, it was clear that he intended to be the real hero of that mission.  SSG TBT was career Army.  It is likely that he did not want to be upstaged by a younger man who was on the mission because his regular assistant team leader was unavailable on that day.  This is alluded to in the "true copy" statement signed by CPT TPN.  It states, "Unbelievable was his leadership since this was his first and only combat mission."  SSG TBT was clearly upset with the command for recommending the applicant for a higher level award than the one for which he was recommended.  There is no doubt that for whatever reason, SSG TBT pictured himself as the true hero for this mission.  And it should be noted that both SSG TBT and the applicant, along with their team, deserve thanks and recognition from their government.  It is unfortunate that sometimes disputes of this nature arise and cause pain for the individuals involved so many years after the fact.  That is the case here.  The applicant deserves proper recognition for his actions.

	f.  It is unfortunate that SSG TBT pursued the revocation with such fervor and it is unfortunate that the command ultimately gave in to his pressures and persistence.  The initial investigation by the IO only reached three conclusions and none of them support the veracity of the allegations made by SSG TBT.  To the contrary, the conclusions support the fact that SSG TBT was aware that his statement would be used to substantiate an award for the applicant.  The conclusions also reinforce the rank structure of the military as it was found that the company commander exercised his prerogative to recommend the applicant for a higher award.  Such an action was clearly within the company commander's authority.  Finally, the conclusion of the investigation supports the word of another officer, CPT TPN.

	g.  Ultimately, the higher echelons in the chain of command effectively disregarded the IO findings and they overlooked what he actually concluded about the case.  They were persuaded by SSG TBT's repeated statements that this was all a lie and perhaps they concluded that the vehemence and persistence and determination of SSG TBT could only mean that the statements used to support the DSC were in fact mistakes.  The biggest mistake made was in not actually speaking with the applicant and with the commander who made the decision to upgrade the recommendation to the MOH.  Mr. Sw--der located CPT DMW and he (counsel) also communicated with him via email.  It is unclear and unfortunate as to why CPT DMW was not questioned in 1969.  CPT DMW no longer remembers the specifics of this particular mission as all but a few incidents have left his memory in the ensuing 46 years.  This is to be expected.  In his email, specifically his final paragraph, he states: 

Finally, I am reasonably confident that the team had an awful time before extraction or something would never had been put in writing. [The applicant] must have been instrumental in the team surviving.  Also, although not being an eyewitness on the ground at the time of the fire fight, there would have been a deliberative attempt from information received from the Forward Air Controller (FAC) right seater, team members and de-briefers, to make the narrative of MOH standard.

	h.  CPT DMW has no reason and had no reason to make the applicant out to be something that he was not.  He took information from debriefings that was ultimately used to nominate two Soldiers for Silver Stars and he evaluated the information and made the call to turn one of those award recommendations into a nomination for the MOH.  There is nothing wrong or erroneous in this course of action.  He determined that both of his men were heroes and deserved recognition.  He also determined that one deserved a little bit more recognition.  After all, it is reasonable to think that since SSG TBT's was seriously wounded in the chest by fire from AK-47s that it was up to the applicant to ensure that the team survived the night.  It is conceded by SSG TBT that the applicant was in control of the radio.  The fact that the team survived the night indicates that he was able to call in some close air support.  The documents submitted with the Silver Star recommendations indicate that the applicant exposed himself to fire and was hit by grenades and seriously wounded.  CPT DMW made a detached evaluation of the proposed awards and the eyewitness statements that accompanied them and he decided to recommend SSG TBT for a Silver Star, which was awarded by GO Number 995 on 21 March 1969.  He then used the same information to recommend the applicant for the MOH.  This recommendation was endorsed by Lieutenant Colonel (LTC) Is--r and COL Aa--on.  HQ, USARV approved the DSC as an interim award and ultimately recommended that the DSC be the final award.  GEN Ab--m's endorsement states: 

The recommendation does not meet the restrictive criteria for award of the MOH.  The degree of danger to the team was shared equally by all members.  The applicant did demonstrate outstanding courage and leadership ability; however, it was determined that the acts described more closely equate those for which the DSC is awarded. 

	i.  The statements by both SSG TBT and applicant were evaluated for their respective awards up through HQ, USARV.  The applicant's award was reviewed by even higher echelons due to the level of award recommended.  As stated by Mr. Sw---der, this is the only DSC from the Vietnam era that was revoked and not reissued.  Awards at this level receive extensive scrutiny.  It is not the place of the eyewitnesses who submit statements to determine the appropriate level of award.  It is their place to honestly convey the actions that they witnessed.  SSG TBT is the only individual who provided conflicting information to the command. The evidence is overwhelming that SSG TBT provided a statement that he knew would be used to recommend the applicant for a BSM with "V" Device.  He therefore provided a statement to his command that described the actions of the applicant as valorous and courageous.  Regardless of whether or not that statement was properly transcribed, it is indisputable that such a statement existed.  There is no way to then reconcile SSG TBT's subsequent assertions that the applicant acted incompetently and cowardly during the action of 30-31 October 1968 with a statement that previously described his conduct as valorous.

	j.  The Adjutant, CPT TPN, took statements provided by SSG TBT and applicant and had them transcribed for presentation to the higher command.  When the IO investigated the allegations of wrongdoing, CPT TTN was actually advised of his Article 31 rights.  Still, he gave a statement under oath that describes the process he used to submit awards.  This statement is a reinforcement of the routine process used to submit award recommendations.  Although he allows that he did not personally know the handwriting of SSG TBT, it is clear that SSG Tompkins did sign at least one statement that commended the valor and courage of the applicant.  Further, there is no finding in any investigation that someone forged a statement by SSG TBT.  
	
   k.  The revocation orders were issued in error.  The applicant was never questioned or given the opportunity to respond to the allegations of SSG TBT.  He was evacuated from theater and discharged in December 1968.  He spent considerable time under Department of Veterans Affairs (VA) care after his discharge.  CID submitted a memorandum that they were unable to locate and interview him.  He was not in hiding.  In fact, he actually wrote to SSG TBT in the spring of 1971 looking for advice and guidance on whether or not he should return to active duty.  He was completely unaware of the efforts under way to revoke the DSC.  He even mentioned the DSC in his letter to SSG TBT and discussed the fact that he expected to receive it later in the spring.

	l.  Mr. Ed He---rson is an eye witness to the events in question.  He was a MACV-SOG team leader also assigned to CCN FOB4 and he also knew the applicant at Fort Bragg and considered him a friend.  Because of this friendship, he was called over to the command and control tent as the events of 
30 - 31 October 1968 unfolded.  The action was being monitored over radio and Mr.   He---son was told that the applicant's team was in trouble.  He listened to the traffic as he worried about his friend.  While Mr. He----son does not remember the specifics of the communications, he knew that the team was in a perilous situation.  He was recently given a copy of SSG TBT's disputed statement and he verified that the statement was an accurate reflection of what he heard over the radio.  The investigation conducted to determine whether or not the applicant's DSC should be revoked was insufficient.  It is clear from the correspondence that the command relied too heavily on the testimony of SSG TBT.  Due to his conflicting statements, this is a clear error.  Additional efforts should have been made to contact the applicant as well as the officer who recommended the award, CPT DMW.  Efforts could have been made to record the impressions of others who monitored the radio traffic, such as Mr. Hen---rson.  This was not done.  This Board has the opportunity to correct the error that was made when GO 1037 was issued.  This is the only appropriate outcome in this matter.

	m.  In conclusion, for the foregoing reasons, GO Number 1037 should be revoked by action of this Board.  The claims made by SSG TBT were clearly motivated by personal animosity and are contradicted by his own previous statements.  The decision to issue GO Number 1037 was made without contacting the applicant and providing him the opportunity to respond to the allegations of SSG TBT.  The interests of justice will be served by revocation of this order and a true hero will once again be recognized.   

3.  Counsel provides 

* Orders awarding DSC and revocation Orders
* Excerpt from applicant's previous submission to the Board
* Congressional Inquiry by Congressman Fi---er and ARBA response
* Applicant's biography and DD 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Silver Star recommendation with statement from SSG TBT
* Recommendations and endorsements for MOH/DSC
* Information from CPT DW (Unit Commander)
* Sworn Statement of CPT TPN (Adjutant)
* Letters and statement signed by SSG TBT

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 enlisted in the Regular Army on 29 April 1966.  He initially held military occupational specialty (MOS) 71B (Clerk Typist).  He also completed the Basic Airborne Course and the SF Communications Specialist Course and then held MOS 05B2S (Radio Operator). 

3.  He served in Vietnam from on or about 28 July 1968 to 8 November 1968.  He was assigned to Special Operations Augmentation, Command and Control North, 5th SFGA, 1st SF.

4.  He was wounded in action on 30 October 1968.  He was initially treated in theater but later transferred on 17 November 1968 to the Military General Hospital at Fort Lewis, WA. 

5.  The applicant was honorably released from active duty on 27 December 1968.  His DD Form 214 as amended by his DD Form 215 (Correction to DD Form 214) shows he was awarded or authorized the: 

* National Defense Service Medal
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-14)
* Sharpshooter Marksmanship Qualification Badge with Pistol Bar (.45 Caliber)
* Vietnam Service Medal with 2 bronze service stars
* Parachutist Badge
* Vietnam Parachute Badge
* Bronze Star Medal with "V" Device
* Purple Heart
* Republic of Vietnam Campaign Medal with Device (1960)
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* Republic of Vietnam Gallantry Cross with bronze star
* Republic of Vietnam Civil Actions Honor Medal with First Class Unit Citation
* Combat Infantryman Badge
* Expert Marksmanship Qualification Badge with Rifle Bar (M-16)

6.  His records contain a USARV Form 157-R (Recommendation for Decoration for Valor or Merit), undated (but appears to have been initiated by LTC JSW in or around February 1969).  This form shows LTC JSW recommended him for award of the Silver Star for gallantry in action during the period 30-31 October 1968.  The recommendation states "Names of Witnesses:  SSG TBT."  Attached to the recommendation is a statement that contains SSG TBT's name and signature.  This statement reads: 

On 30 October 1968, I was the team leader of a six man reconnaissance team which was operating deep in enemy territory.  We were setting up our night defensive positions when we were attacked by an estimated enemy platoon armed with automatic weapons, small arms, and grenades.  I was severely wounded between the enemy and the remainder of the team.  He directed the Vietnamese members of the team, allowing me to get into the team area, displaying coolness under fire that showed professionalism and courage.  After getting back into the team area and establishing radio contact, I gave him complete control over the team.  He continued to place fire on the enemy and contact was broken with heavy losses to the enemy, two hours after the initial contact.  He kept radio contact throughout the night directing aircraft to our location.  He administered first aid to one of the Vietnamese members of the team and administered morphine to myself after I felt it was necessary.  He continued to treat me throughout the night.  The following morning a company size element assaulted our positions and [the applicant] remained cool, directing air, until he himself was severely wounded.  He displayed leadership and courage that held the team together and inflicted heavy losses on the enemy.  [The applicant] and the remaining team members were wounded during the morning assaults.  Despite this, we were extracted without the loss of one life. 

7.  GO Number 232, issued by HQ, 5th SFGA, 1st SF, Vietnam, on 24 February 1969, awarded the applicant the BSM with "V" Device for heroism in connection with military operations against a hostile force in the Republic of Vietnam.  The GO stated: 

[The applicant] distinguished himself during the period 30 through 31 October 1968.  At this time [the applicant] was acting as assistant patrol leader of a six man reconnaissance team.  After completion of their primary mission, the reconnaissance team was preparing for a night defensive position to await extraction the following morning when they were attacked by an estimated forty-man enemy platoon.  A fierce fire fight ensued, during which the team leader and one other member of the team were severely wounded.  [The applicant] immediately took command of the team and the enemy were repulsed on two separate occasions with heavy losses.  Throughout the night, [the applicant] rallied his men, consolidated his defensive position, and provided first aid to the wounded.  The following morning, the enemy launched another determined assault against the team's position.  During this attack [the applicant] and the remainder of his team were all wounded, but they again repulsed the enemy with heavy losses.  [The applicant's] courage, resourcefulness and leadership was a constant inspiration to his team and due mainly to his efforts at the risk of his life, the team was eventually extracted without loss of life. 

8.  On 27 February 1969, CPT DMW, the commanding officer, SOA/CCN, 5th SFGA, 1st SF submitted a DA Form 638 (Recommendation for Award) recommending the applicant for award of the MOH for heroism.  This form: 

* indicated the applicant had been awarded the BSM with "V" Device on 2 November 1968 by HQ, 5th SFGA
* indicated the recommending official had personal knowledge of the act
* listed the name of the person in immediate proximity or who assisted in the act or shared the hazard as SSG TBT
* listed a narrative description of the act or deed similar to the one indicated on the statement allegedly made by SSG TBT
* attached a witness statement that contained SSG TBT's name, rank, and service number but not his signature as well as the entry "A true copy, CPT TPN, Adjutant," and his signature
* included a summary of the recommendation and a proposed citation 

9.  On 11 March 1969, by endorsement to the Commanding Officer, 5th SFGA, the Commander, SOA/CCN, recommended approval of the award.  He stated that the applicant had been awarded the Bronze Star Medal with "V" Device for the cited actions but that it was the opinion of the command that he was deserving of a much higher award.  He added that this recommendation was submitted late due to the fact that the individual writing the eye witness statement was medically evacuated to the States and obtaining a statement through mail channels was very slow.  

10.  On 17 March 1969, by endorsement to the Commanding General (CG), USARV, COL HRA, Commander, 5th SFGA stated he strongly recommended approval for award of the MOH as cited in the recommendation and that his actions were far and above the call of duty. 

11.  On 13 April 1969, HQ, USARV, published GO Number 1299, awarding the applicant the DSC for extraordinary heroism on 30-31 October 1968.  The GO cited the following action: 

For extraordinary heroism in connection with military operations involving conflict with an armed hostile force in the Republic of Vietnam.  [The applicant] distinguished himself by exceptionally valorous actions on 30 and 31 October 1968 deep in enemy-held territory as assistant leader of a reconnaissance team composed of four Vietnamese, himself, and the American Team Leader.  The tem was inserted by helicopter on the side of the mountain and after five and a half hours it reached the summit where a defensive perimeter was established.  An hour later an enemy platoon assaulted, seriously wounding the team leader.  Exposing himself to a hail of bullets, [the applicant] fired his carbine, threw grenades, and directed his men until the attack was repelled.  After he had treated his team leader's wounds and began calling in air strikes, a second attack was suddenly launched only 30 meters from his position, but claymore mines and grenades stopped the communists' advance.  During the ensuing fire fight, he personally killed five of the aggressors and performed an emergency tracheotomy on one of two Vietnamese team members who was seriously wounded.  Throughout the night [the applicant] directed flare ships, keeping the foe downhill.  At daylight, as the team was waiting to be extracted, the enemy attacked in force from three directions.  [The applicant] fired his carbine and hurled grenades, killing three hostile soldiers before directing his men to pull back to a landing zone on the edge of a cliff.  He covered the withdrawal by firing a grenade launcher and smoke grenades, and carried his team leader to the pickup site.  Soon after he directed an airstrike on the communists, they made a final rush on his position.  [The applicant] shielded his team leader and killed another enemy soldier with his carbine, but was himself wounded in the face by a hostile grenade.  Despite his injury, he used his radio to call in the extraction ship and the team was safely evacuated.  
12.  On 23 April 1969, by endorsement to the Commander, MACV, the Deputy CG, USARV recommended award of the DSC, approved as an interim award, be awarded as a final award.  He opined that the recommendation for award of the MOH did not meet the criteria outlined in the governing regulation (Army Regulation (AR) 672-5-1 (Awards)). The applicant displayed extraordinary heroism; however, the degree of heroism was not sufficient to merit award of the MOH. 

13.  On 17 May 1969, by endorsement to the CINCPAC, the CG, MACV 
(GEN CWA) recommended approval of the DSC in lieu of the MOH.  He opined the recommendation did not meet the criteria for award of the MOH.  The degree of danger to the team was shared equally by all members.  The applicant did demonstrate outstanding courage and leadership ability; however, it was determined that the acts described more closely equate to those for which the DSC is awarded.  

14.  On 31 May 1969, by endorsement to the Secretary of the Army, the CINCPAC concurred that the DSC should be awarded instead.  The inspirational take-command performance displayed by the applicant was undoubtedly a key factor in the team successfully defending their position and being extracted by friendly forces.  His decisive actions in the face of intense enemy fire characterized the dedication to duty and gallant leadership expected of a well-trained combat noncommissioned officer.  

15.  On 10 June 1969, by endorsement to the Adjutant General, HQ, Department of the Army (DA), the Deputy CINCPAC stated after careful evaluation of the recommendation for the MOH, it was concluded that although the act performed was heroic, it did not meet the restrictive criteria for the proposed award.  The DSC awarded by USARV as an interim award is considered appropriate recognition for this act.

16.  On 13 June 1969, by endorsement to the CG, 6th United States Army, the Deputy Commander stated that GO Number 1299, issued by HQ, USARV awarded the applicant the DSC.  The applicant had been honorably separated.  His award certificate and orders were attached.  A note to the bottom of this endorsement states "Memorandum for Record; per telephone conversation, dated 12 June 1969, with the Awards Branch, Office of the Adjutant General, HQDA, the applicant is being considered for the MOH at the same time as the DSC.  He should be presented with the DSC since the MOH could be denied." 

17.  On 16 June 1969, the Senior Army Decorations Board convened to consider the recommendation to award the applicant the MOH for heroism.  The board recommended disapproval of the recommended award and approval of the DSC. The reason for disapproval is that the degree of heroism did not meet the criteria for award of the MOH. 

18.  On 3 July 1969, the Chairman, Joint Chiefs of Staff, reviewed the recommendation for award of the MOH in the case of the applicant and recommended disapproval.

19.  On 22 July 1969, The Adjutant General, HQDA, responded to the CINCPAC and stated the recommendation for award of the MOH received careful evaluation and was not favorably considered.  It was concluded that the DSC awarded by the CG, USARV, as an interim award was the appropriate recognition.  

20.  On 11 September 1969, SSG TBT sent a letter to the Commanding Officer, 5th SFGA.  He stated: 

* he recently heard about the award for the applicant and that the award was being made on a false statement not made by himself
* he believed the applicant's actions were worthy of the BSM with "V" Device as an impact award
* anything other than the BSM with "V" device was being made without his knowledge or recommendation 
* he believed that someone had fabricated a story that was untrue 
* an eye witness statement was sent to him but he refused to sign it due to its being untrue 
* 5th SFGA requested he make a statement, which he did, but this was not the statement he made 

21.  Later that year, SSG TBT sent a second letter to the Adjutant, 5th SFGA. He stated that in January, he sent letters made by himself and other individuals disputing the "false statements he was to have made that gave [the applicant] the DSC.  These statements were sworn and disputed the original that was never signed by him."  He was inquiring what the final disposition was regarding this issue. 

22.  On 26 September 1969, by letter to HQ, 5th SFGA, the Group Adjutant stated an investigation into the facts and circumstances of the allegations made in the letter from SSG TBT would be conducted.  Accordingly, an IO was appointed (MAJ WEA) on 10 October 1969.  He obtained witness statements as follows: 

	a.  CPT TPN stated he was the S-1 for CCN during the period in question. The first time he saw the recommendation was when it was presented in final form prior to presentation to the Commanding Officer, CCN, for signature.  The eye witness statement was in long hand on plain stationary so he had it typed verbatim and he signed it as a "true copy."  To the best of his knowledge the original hand written account was signed by SSG TBT but could have been signed by someone else as he did not know SSG TBT’s handwriting.  The eyewitness statement was part of the back-up for award of the BSM with "V" Device impact award. 

	b.  SSG TBT stated, in a long sworn statement, that essentially many of the events stated in the statement allegedly made by him were untrue.  For example, after he (SSG TBT) was wounded, the applicant did not fire his weapon and stop the enemy assault; it was the Vietnamese members of the team who fired their weapons.  Another example, the applicant did not apply first aid even when asked by SSG TBT to do so and he did not attempt to move him to safety.  He also did not call out to the Vietnamese members to blow the claymores and did not even know they were there.  Additionally, he did not kill the number of enemy troops as alleged and he did not direct an air strike.  SSG TBT gave multiple other examples disputing the facts in his sworn statement. 

	c.  Sergeant First Class (SFC) KOB stated in his sworn statement he was forward air controller at FOB4, CCN, Vietnam.  He stated when they established radio contact with the team, he learned that SSG TBT was seriously wounded and one Vietnamese member was slightly wounded.  It took him several minutes to ascertain this as the applicant appeared to be near hysteria and it was necessary to calm him down somewhat before he could get any information from him.  At no time was the applicant calm enough to direct air strikes.  The interpreter told him at no time did the applicant attempt to direct or organize the team.  He opined that giving the applicant a valor award would cheapen it.  

	d.  Sergeant (SGT) AFD stated in his sworn statement that he was SSG TBT's assistant team leader.  He was not present during the mission, but upon his return from school he became the team leader because SSG TBT was medically evacuated.  He was curious to know what had happened.  He was informed by the interpreter and Vietnamese team leader that the applicant was "near hysteria immediately after initial contact with the enemy and upon seeing SSG TBT seriously wounded, he was completely incapable of leading the rest of the team, nor was he able to direct an air strike or even communicate on the radio with the Forward Air Control."  When he (SGT AFD) informed the Vietnamese team members that the applicant was being recommended for a valor award they became upset and shocked and told him he should not be considered for any type of award because it was SSG TBT and one of the Vietnamese soldiers who led the team and directed all air assets because the applicant was near shock most of the time and could not even bring himself to fire his weapon.  

	e.  SSG LJS stated in his sworn statement that he was the mission launch noncommissioned officer and he briefed the team leader (SSG TBT) and applicant before the mission.  He later learned the team had been hit.  They initiated action to extract the team especially after SSG TBT and one Vietnamese Soldier had been wounded.  The weather precluded extraction that night.  He monitored SFC KOB talking to the applicant on the radio and reassuring him.  After extraction, he went to visit the applicant at the hospital and found him incoherent and making rash statements wanting the forward air controllers court-martialed and that he had thrown himself on a grenade to protect SSG TBT.  The nature of his wounds did not support this statement and his radio had been destroyed.  SSG TBT on the other hand was in better condition and was very clear.  He credited the three Vietnamese soldiers with saving his life.  Those Vietnamese soldiers also indicated the applicant had been hysterical and did not do what he said he did.  

23.  On 10 October 1969, the IO submitted his Report of Investigation (ROI) to the Commanding Officer, 5th SFGA.  The IO stated: 

	a.  An investigation by him into the facts and circumstances of the allegations made in the letter from SSG TBT was conducted.  A sworn statement was obtained from CPT TPN, who during the period in question was serving as Adjutant, CCN.  Additional statements were also enclosed.  A survey among the awards and decorations files of CCN revealed a recommendation for the Silver Star for the applicant.  Included in this recommendation is an eye-witness·statement with a signature of SSG TBT. All other personnel records and files pertaining to the preparation and information concerning the award were not available within the organization.

	b.  A signed eye-witness statement was received by CCN.  This statement was then prepared in final typed written form.  The Adjutant then signed it and certified it as a "true copy."  A signature of SSG TBT is located on an eye-witness statement attached to a recommendation for the Silver Star for the applicant.  In the basic letter signed by SSG TBT and addressed to the Commander, 5th SFGA, SSG TBT stated that any award higher than the BSM with "V" Device was being awarded without his knowledge and recommendation.  

	c.  The attached DA Form 638 recommending the MOH for the applicant indicates to him that CPT DMW, then serving as the Commanding Officer, Reconnaissance Company, CCN, exercised his prerogative and upgraded the Silver Star recommendation to a recommendation for the MOH.  The eye witness statements utilized were identical to the one signed by CPT TPN as a true copy.  

	d.  The above facts and conclusions were the result of his unbiased investigation.  Recommendations or additional required action regarding the allegations made in the letter from SSG TBT would be at the discretion of HQ, 5th SFGA. 

24.  On 1 November 1969, by letter addressed to COL MD, Commanding Officer, 5th SFGA, SSG TBT stated:

	a.  The statement concerning the applicant's award was not the statement he signed.  It was filled with so many untruths that it left him with a feeling of complete anger and disgust.  He showed the statement to some of the personnel that were either directly involved in the action or had a very high interest in the results.  All felt much the same as he did to a lesser degree and all felt that a statement from them would further bring to light the true facts.  At no time did the applicant attempt to come to him during contact with the enemy and at no time did he place a bandage on him although he did give him shots of morphine.  At no time did he yell to the team members and they never got a claymore blown as they were putting them in when they were hit.  It was due to this fact that he was initially wounded about 30 feet from the team.  The applicant did not attempt to come to him and when told by him (SSG TBT) to lay down a base of fire so he (SSG TBT) could get to the team, the applicant threw one white phosphorous grenade and got behind a rock where he did not move until he (SSG TBT) got back to the team perimeter.  Only through the efforts of the Vietnamese soldiers did he get back to the team.  

	b.  Never during the night did the applicant move from his position even with a direct order from him and he also had the interpreter check the perimeter as the applicant would not.  The following day the applicant was incapable of directing the aircraft to their position; he refused to give him (SSG TBT) the radio to direct them.  The enemy was assaulting their position from a short distance away and all team members but the applicant were hit; this was due to him not exposing himself.  The grenade that wounded him came in with all the team shouting "grenade."  All members, including him (SSG TBT), moved behind a rock or other cover.  The applicant did not move and got hit.  After this, he did not move until the helicopter came onto their position.  He, SSG TBT, called and directed all the airstrikes.  

25.  On 28 January 1970, by letter to the chain of command, the IO stated the three Vietnamese soldiers were no longer employed by CCN and attempts to find their location were unsuccessful. 

26.  On an unknown date, by letter to the CG, USARV, COL MDH, the Commander, 5th SFGA requested revocation of the DSC.  He stated: 

	a.  The applicant was awarded the DSC.  A letter, dated 11 September 1969, was received from SSG TBT refuting the facts.  SSG TBT was the team leader and only other American on the mission for which the applicant received this award.  From personnel who had just returned from Vietnam, SSG TBT learned about the DSC and to his surprise, his name was signed to the eye witness statement.  He stated that he had neither signed a DSC recommendation for the applicant nor did he believe the applicant worthy of an award higher than the BSM with "V" Device. 

	b.  An investigation was initiated into the allegations made by SSG TBT and it was directed to his former unit.  An IO was appointed by the Commander, CCN, and although his findings were inconclusive, two points in his report stand out: a signature of one SSG TBT is located on an eye-witness statement attached to the recommendation for the Silver Star for the applicant and the Silver Star recommendation was rewritten as a MOH recommendation. 

	c.  The eyewitness statement which CPT TPN signed states he signed it as a true copy.  Following this document is a letter and a sworn statement by SSG TBT.  SSG TBT denies having knowledge of the eye-witness statement and in detail refutes the claims made by it.  Also included are supporting statements by several personnel who were in radio communication with the applicant during the cited action.  In view of the testimony of SSG TBT, this HQ strongly recommends the DSC be revoked. 

27.  On 23 July 1970, by endorsement to the Army Adjutant General, the USARV Adjutant General stated the action to revoke the DSC was forwarded for appropriate action and coordination with the Office of the Provost Marshal General.  Investigations conducted in Vietnam had not been of sufficient magnitude to obtain positive conclusion due to reassignment of those personnel.  There appeared to be enough dissimilarities between available signatures to warrant a more detailed evaluation and investigation.  

28.  On 9 October 1970, by letter to CID, the Chief, Personnel Actions Division, HQDA, requested an investigation be conducted to determine the validity of the statement used to support the recommendation for award of the MOH to the applicant.  The investigation that was conducted in Vietnam was inconclusive.  A conclusive finding was necessary to determine whether or not action should be taken to revoke the award of the DSC.  

29.  On 5 April 1971, the applicant wrote a personal letter to SSG TBT informing him that he was considering reentering the SF community as an operator and seeking his feedback.  In the letter the applicant mentions the DSC. 

30.  On 10 April 1971, by letter to the Adjutant General, HQDA, SSG TBT stated he received a letter from the applicant concerning award of the DSC to the applicant together with the statement that was "supposedly made by him that ended in this award."  He indicated that he planned to be in the States during June 1971 and he was personally interested in seeing this award rescinded.

31.  On 20 May 1971, by endorsement to the Adjutant General, HQDA, the Chief, Field Assistant Division, CID, stated that all efforts to locate and interview the applicant had been unsuccessful.  It appeared that the statement that SSG TBT denied executing was the same statement that CPT TPN stated he saw and later attested to as a true copy.  Efforts to locate this letter in 1969 were unsuccessful.  Attempts to locate the three Vietnamese nationals was not considered feasible.  There was no further action contemplated by CID. 

32.  On 10 January 1972, by Disposition Form, the Chief, Personnel Actions Division, HQDA, stated that the purpose of this Disposition Form was to obtain approval for the revocation of the DSC awarded to the applicant.  He added: 

	a.  The Commanding Officer, SOG, 5th SFGA submitted a recommendation for award of the MOH on 27 February 1969.  The CG, USARV awarded the DSC as an interim award and recommended it as the final award.  The higher chain of command together with the Senior Army Decorations Board recommended award of the DSC.  The CINPAC was advised of the final decision to award the DSC on 22 July 1969.  The award had been announced on 13 April 1969. 

	b.  In late 1969, the Commanding Officer, 5th SFGA initiated a request for the revocation of award of the DSC awarded to the applicant.  This request was based on a letter he received from SSG TBT who stated "he never recommended [the applicant] for a DSC or considered him worthy of an award higher than a BSM with "V" Device for the action in question."  He refuted the statement that accompanied the initial recommendation and indicated this statement was neither initiated nor signed by him.  

	c.  SSG TBT visited this office twice, the last time occurring in November 1971.  He reaffirmed that he did not initiate and sign the eyewitness statement used in recommending the applicant for the award.  There had been no communication with the applicant by this office.  The available evidence indicated the award should be revoked.  The authority for revocation was contained in Army Regulation 672-5-1 (Military Award).  The DSC had not been presented to the applicant.  It was recommended that the letter be approved for dispatch to the CG, USARV directing revocation of the DSC. 

33.  On 22 February 1972, the Chief, Personnel Services Division, HQDA approved the recommendation to revoke the award.  Following that decision, the Adjutant General requested the CG, USARV revoke GO Number 1299, dated 13 April 1969, awarding the applicant the DSC. 

34.  On 16 May 1972, HQ, USARV published GO Number 1037 revoking GO Number 1299, issued by the same HQ, awarding the applicant the DSC. 

35. On 6 July 2011 (ABCMR Docket Number AR20110006712), the Board recommended partial relief by adding multiple awards to his DD Form 214 and denied the addition of the DSC because it had been revoked. 

36.  On 30 January 2012 (ABCMR Docket Number AR20110015696), his request for reconsideration was returned without action and he was directed to apply to HRC via Title 10, U.S. Code, section 1130 (10 USC 1130), to upgrade his existing award of the BSM with "V" to a DSC.  

37.  On 27 December 2013 his Member of Congress was advised by Congressional and Special Actions, ARBA, of his option to submit his request to HRC utilizing the provisions of 10 USC 1130. 

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

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

	b.  The DSC 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.  

	c.  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.  

	d.  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.    

	e.  The bronze "V" device indicates acts of heroism involving conflict with an armed enemy and authorizes the device in conjunction with awards of the Army Commendation Medal, the Air Medal, and the Bronze Star Medal.  Only one "V" device may be worn on these awards.

39.  Army Regulation 672-5-1, in effect at the time, provided for awards, decorations, medals, and badges.  It states: 

	a.  Under war criteria, the DSC may be awarded by the senior Army commander of any separate force.  He may delegate his authority to (a) any subordinate commander in the grade of major general or higher and (b) any brigadier general who commands a tactical unit and, as such, occupies a position vacancy of a major general.  The DSC and Silver Star may be awarded by the commanding general of a US Army force in a theater of operations.

	b.  Awards of decorations made by the President, the Secretary of Defense, and the Secretary of the Army will be announced in Department of the Army General Orders.  Revocation of awards will be announced in GO.  

40.  Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body. The ABCMR may, in its discretion, hold a hearing.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant served in Vietnam from on or about 28 July 1968 to 8 November 1968.  He was assigned to Special Operations Augmentation (Command and Control North), 5th SFGA.  He was wounded in action on 30 October 1968.  He was released from active duty on 27 December 1968. 

	a.  On 30 and 31 October 1968, while serving as an assistant team leader, inserted behind enemy lines, his reconnaissance team, consisting of SSG TBT, the team leader, himself, and four Vietnamese soldiers was involved in a fierce firefight that initially resulted in the team leader being wounded.  It appears the applicant took charge of the team and repelled the attack.  It also appears the team was pinned down during the night and encountered more enemy soldiers the next morning during which he was wounded by a grenade.  The team was extracted by friendly forces.

	b.  A witness statement, allegedly signed by SSG TBT, the team leader, was used to recommend the applicant for award of the MOH.  The recommendation was favorably endorsed by the chain of command but was found not to have met the criteria for award of the MOH.  He was awarded the DSC as an interim award until HQDA made a decision to deny the MOH and award the interim DSC as a final award. 

	c.  Following his separation, it appears SSG TBT learned the applicant had been awarded the DSC.  He wrote to the Commander, 5th SFGA refuting some of the facts mentioned in the statement that was allegedly written by him and reaffirmed his position that he never wrote or signed that statement.  He insisted that he recommended the applicant for the BSM with "V" Device and that the applicant's actions were only worthy of a BSM with "V" Device.  

	d.  An investigation was conducted in Vietnam but was not conclusive.  It was unclear if the signature on the statement that was used to support the recommendation for award of the MOH/DSC was the same signature of SSG TBT.  CID attempted to conduct a separate investigation but was unable to reach the applicant despite their attempts.  

	e.  Armed with these facts and circumstances and the new information provided by SSG TBT, the Commander, 5th SFGA made a command decision and opined that the DSC should be revoked.  This recommendation was acted upon by the chain of command all the way to HQDA.  A final decision was made to revoke the DSC and keep the BSM with "V" as the appropriate award for the applicant's actions on that date.  The DSC was revoked.

2.  The Army awards system recognizes and reacts to distinguishing acts of valor and bravery for Soldiers and it is the commander on the ground who is the steward to ensure proper recognition of our brave men and women.  The Army has always been fully committed to the responsibility to properly recognize Soldiers for their valor, heroism, and meritorious service through a fair and consistent decorations and awards policy and process.

   a.  Awards and decorations are very important to Soldiers.  Equally important is the governance of the awards program.  For the awards program to be credible to the Soldiers and the American people, it must ensure that it recognizes the right individuals for the proper award.  It must ensure the integrity of the award is maintained through strict procedures and proper justifications.  Finally it must place trust and confidence in commanders to execute the program.

	b.  The criteria for military awards are set forth in statutes, executive orders and appropriate regulations.  Established by law, the criteria for the three highest valor awards have not changed from what they were in past conflicts.  Army regulation and policy establish the standards by which those awards are processed, approved, and presented.  This consistency upholds the heritage of the awards and the legacy of the heroes who have earned them.

	c.  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, and division 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.

	d.  The three highest decorations for valor are the MOH, DSC, and the Silver Star.  During Vietnam, the MOH and DSC were processed and approved above the division commander's authority.  Recommendations for the MOH were forwarded through command channels to HQDA and reviewed by the Senior Army Decorations Board consisting of Army lieutenant generals.  The President of the United States is the final approving authority.  Recommendations for the DSC were forwarded through command channels to HQ, USARV.  The CG or Deputy CG, USARV were the final approving authority. 

3.  There exists a very fine distinction between "conspicuous gallantry and intrepidity," "extraordinary heroism," and "gallantry in action."  Oftentimes, the degree of heroism required for a particular award is blurred and subject to personal interpretation.  What is not subject to interpretation is the selfless sacrifice demonstrated by all recipients of awards for valor.  All recipients are, without doubt, true American heroes.

	a.  The decision of whether to award an individual a decoration and which decoration to award is a judgment call 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 DSC.  

	b.  However, the chain of command also determined, based on an eyewitness statement, together with statements from others who were present at the scene, albeit after the action, and the IO's investigation, the events that took place were different from the events that led to his award of the DSC.  Because the suspect eyewitness statement was the sole document used to award him the DSC, once this document became questionable and once the chain of command investigated the issue, it became clear that the DSC was not the appropriate award.  As a result, it was revoked.  

	c.  All regulatory requirements were followed.  CID also attempted to contact the applicant on more than one occasion but his location was unknown.  A final decision was made that the BSM with "V" Device was the appropriate award at the time.  The decision was neither capricious nor arbitrary.  HQDA officials evaluated the facts and circumstances and seasoned senior officers opined that the DSC should be revoked.  There is neither an error nor an injustice in his case.  

4.  Should the applicant desire to upgrade his award to the Silver Star, DSC, or MOH, the law (10 USC 1130) allows him to pursue that option.  The criteria for submitting a request to upgrade an existing award to HRC remains the same as previously explained to the applicant and his Member of Congress. 

5.  Finally, the applicant's request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

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.
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