PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           8 June 2000                   
	DOCKET NUMBER:   AR2000037513

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mrs. Judy Blanchard-Miller		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Mr. Arthur A. Omartian		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests in effect, reconsideration for promotion to warrant officer three, on the grounds that his original promotion board was biased.  He also requests the Soldier’s Medal (SM) in lieu of the Army Commendation Medal (ARCOM).  He further states that he deserves the SM because he risked his life in saving the life of two young men in an automobile accident.  In addition he requests that the English research paper, describing the events of the accident and award denial as they occurred be read out loud to the panel.  The applicant also, cited examples of court decisions, which he claims supports his contentions of racial discrimination. 

3.  The applicant states, in effect, that the problem began on 29 August 1996, while stationed at Fort Bragg, North Carolina, when the applicant and his brother, who was also a soldier, risked their lives to save two civilians from a severe automobile accident.  The parents of the two injured young men feverishly communicated for 5 months with the commands requesting that the applicant and his brother be recommended for the SM.  After receiving hostility from the applicant’s command, the parents of the two young men, wrote their Senator, their Congressman and the National Association for the Advancement of Colored People (NAACP) for support.  In January 1997, the applicant’s Company Commander and Battalion Commander recommended the issuance of the SM for heroism.  The award was later downgraded to an ARCOM.  The Commanding General of FORSCOM, approved the applicant’s award for the ARCOM.  The applicant declined to accept the ARCOM, because he had received several ARCOMs already for digging holes and other fairly routine tasks.  

4.  The applicant believes that as a result of his quest for fairness and justice, he was ostracized.  The applicant believes that his strongest threat in the attempt to damage his career came from CW5 R_ L.  The applicant contends that they were assigned to the same unit and worked in the same building, but the CW5 was not in his chain of command.  The applicant also alleges, that CW5 R _ _L, approached him one day and threaten to damage his career if he did not accept the ARCOM; that the CW5, frequently expressed anger and hostility toward him primarily due to his recommendation for the SM; that the CW5 tried to remove critical data from his Officer Evaluation Report (OER), 3 months before the convening of the United States Army 1999 Chief Warrant Officer Three Promotion Board; that the CW5 was livid because the applicant’s rater agreed that the data should remain on his OER and that the CW5 made numerous threats of retaliation.  The applicant further states, that he was disappointed to learn of his non-selection for promotion, but even more devastated when he discovered that CW5 R_ _ L was a sitting board member on the CW3 promotion board.  The applicant finally requested an investigation of the CW5’s promotion work sheet as it related to his promotion file and how CW5 R _ _L scored his records.  The applicant continues to say that, CW5 R _ _L’s conduct prior to the promotion board demonstrated clear, improper and illegal bias, sufficient to disqualify him from sitting on any promotion board evaluating the applicant and that his attempt to sabotage the applicant’s OER is verified by a letter from the rater.  The applicant submitted two briefs and letters in support of his application. 

5.  The applicant’s military records show that he was appointed as a reserve warrant officer on 2 April 1993:  On 29 October 1994, the applicant was assigned to the 39th Ordnance Company at Fort Bragg, North Carolina.  He was promoted to CW2 on 2 April 1995.

6.  On 29 August 1996, the applicant and his brother witnessed a single-car accident on Interstate 20.  The car had veered from the interstate, and struck trees, which caused a gas leak.  The vehicle was a total loss and the driver and the passenger sustained multiple and serious injuries.  The applicant and his brother immediately pulled over and went to the wrecked vehicle which was surrounded by smoke.  They observed that the victims were pinned under the dashboard, one victim was bleeding profusely from the head, and the other was choking.  They pulled the two victims from the wreckage and started first aid.  The applicant’s brother continued to administer first aid while the applicant went for help.  After the rescue personnel were notified, the applicant returned to the scene, where he and his brother treated the victims for shock, and remained with the victims until emergency personnel arrived.  The Fire Department opined the vehicle could not be moved until the gas leak was under control because a spark or sudden movement of the vehicle might start a fire.

7.  On 13 January 1997, the applicant’s company commander and battalion commander recommended the issuance of the SM for heroism.  The group commander, a Brigadier General, however, believed that the applicant’s action did not meet the criteria for a SM, and downgraded the award to an ARCOM.  The Commanding General, FORSCOM, approved the applicant’s award of the ARCOM.     

8.  The family members of the two young men involved in the automobile accident believed that the applicant deserved a SM and so informed the chain of command, Senator Thurmond, Representative Clybum, and the media.  Mrs. G_ R, mother of one of the injured men, claims that she received what she regarded as harassing telephone calls from members of the military who questioned her regarding how she knew about the SM, whose idea was it for the family to request the award, and how she knew about writing the Department of the Army. As a spouse of a military retiree, she stated that she was frustrated with her perception of the command’s efforts to bring discredit on the efforts of the applicant and his brother for rescuing her family members.  Suspecting racial bias against the applicant, and his brother, Mrs. G_ _R, requested the Fayettville, North Carolina, Chapter of the NAACP to conduct an investigation into the matter.  The NAACP opined, that race was the reason the applicant did not receive a SM.  

9.  On 15 August 1997, the Commanding General, XVIII Airborne Corps and Fort Bragg, advised the families and the NAACP, that race was not a factor in the declination of the award of the SM; and that the award is extremely rare, with stringent criteria requiring heroic action and personal danger.   

10.  The Army Decorations Board reviewed the award recommendation.  The board determined that the degree of action displayed did not meet criteria for a SM.  The Commanding General, PERSCOM, on behalf of the Secretary of the Army, disapproved the award of the SM. 

11.  Since the applicant became a warrant officer, he has received seven OERs- Five of the applicant’s OERs have been rated in the top potential block, and commented promote ahead of peers/ his potential is unlimited.  June 1998, was the applicant’s initial OER under the new rating system he was rated best qualified and in center mass; and commented that he was ready for immediate promotion to CW3 and select now for the Advanced Course.  In a February 1999, a new senior rater observed the applicant during this rating period, he was rated best qualified and in center of mass.  The senior rater commented that he should be promoted to CW3 and groomed for promotion to CW4 (copies of his OER are attached).  
 
12.  Also, in February 1999, CW5 R _ _L reviewed a draft of the applicant’s 1999, closeout OER prior to the CW3 Promotion Board.  CW5 R _ _L recommended the deletion from the potential block of references to the applicant’s previous schooling as a jumpmaster and expertise in load planning or additional duties that the applicant performed during his rating period.  However, after conferring with the applicant, the applicant’s senior rater retained the comments. 

13.  The applicant alleges that he and CW5 R_ _ L, who was in the same organization, had a history of differences.  He alleges that the CW5 frequently expressed anger and hostility toward him primarily because of the command’s recommendation that the applicant should receive the SM; that according to the applicant, three months before the promotion board convened, CW5 R_ _L allegedly was angry because the applicant’s senior rater declined to adopt his suggestions for modifying the applicant’s last OER before the promotion board convened.  The applicant alleges that CW5 R _ _ L criticized his airborne status, his pursuit of a college degree and other accomplishments, and that he often made snide remarks such as “that airborne, air assault, pathfinder, ranger, jumpmaster will not get you promoted”.  The applicant also alleges that CW5 R _ _ L threatened retaliation and stated openly before the board met, that the applicant’s military prowess would not help get him promoted.  
14.  In September 1999, PERSCOM released the CW3 Promotion Board results. The applicant was non-selected for promotion.  He later learned that CW5 R_ _L was a member of the CW3 Promotion Board.

15.  On 12 October 1999, the applicant appealed to the PERSCOM Promotion Branch and asked for reconsideration on the grounds that CW5 R_ _L was biased against him during the CW3 Promotion board process.  On 28 December 1999, the PERSCOM Promotion Branch denied relief on the grounds that the applicant failed to present evidence in support of his allegations.

16.  On 17 January 2000, the applicant requested consideration before this Board.  On 24 February 2000, the Board requested an advisory opinion from the PERSCOM Military Awards Branch.

17.  On 22 March 2000, the Military Awards Branch at PERSCOM, after giving a comprehensive summary of the award history, denied the applicant’s petition requesting the award of the SM in lieu of the approved award of the ARCOM.    

18.  Army Regulation 600-8-22 prescribes Army policy, criteria and administrative instructions concerning individual military awards.  The regulation states that, to ensure that a deserving act, achievement or service receives recognition, the appropriate authority may promptly award a suitable lesser military decoration pending final action on a recommendation for a higher award.  The Army Commendation Medal (ARCOM) may be awarded as an interim award in those cases involving heroism and for which a recommendation for the award of the Distinguished Flying Cross or the Soldier’s Medal has been submitted.

19.  Army Regulation 600-8-22 also provides, in pertinent part, that the Soldier’s Medal is awarded for distinguished heroism not involving conflict with the enemy. The action must have involved personal danger or hazard and the voluntary risk of life.  The same degree of heroism is required as for the award of the Distinguished Flying Cross.  Awards are not to be based solely upon the saving of a life.  The performance of the act of heroism must be evidenced by voluntary action above and beyond the call of duty.  The extraordinary achievement must have resulted in an accomplishment so exceptional and outstanding as to clearly set the individual apart from his comrades or from other persons in similar circumstances.  

20.  In the processing of this case, an advisory opinion was obtained from the Legal Advisor from the Army Review Boards Agency.  The applicant rebutted this advisory opinion, contending that he deserves the SM.  However on 11 May 2000, the applicant concurred with the advisory opinion dated 11 April 2000 (copy attached).

CONCLUSIONS:

1.  Board concludes, that an injustice occurred in this case.

2.  There is no scientific formula for determining when acts constitute the quantum of heroism, personal hazard, and voluntary risk of life entitling a person to the SM.  That is a matter within the discretion and judgment of the chain of command and approving officials.  The examples cited by the applicant do not support racial discrimination, but, rather, illustrate the significance of subtle factual distinctions as interpreted through the filter of command discretion in applying the criteria.  The award of the SM requires the same degree of heroism as is required for the award of the Distinguished Flying Cross.  The awards are not to be based solely upon the saving of a life.  The extraordinary achievement must have resulted in an accomplishment so exceptional and outstanding as to clearly set the individual apart from his comrades or from other persons in similar circumstances.  Examples of jeopardy the Board would consider as likely meeting the standard would be a non-swimmer jumping into a flooding river to save a drowning person; a non-fireman entering a burning building whose roof is already starting to collapse to save a person; or even an individual trying to extract a trapped person from a wrecked vehicle which is already a blazing inferno. 

3.  The Board does not doubt that the applicant’s actions saved two lives, nor does the Board doubt that his actions in attempting to save those lives put his own life into serious jeopardy.  The applicant’s actions were commendable and in the finest tradition of a soldier.  They simply did not constitute the magnitude of heroism or danger to life contemplated by Congress for the SM, as it is applied in the contemporary Army.  This Board is also convinced that officials at Fort Bragg, the Army Decorations Board, and the PERSCOM Commander applied the proper criteria and reached a reasonable and fair result.  The Board is also satisfied that race had absolutely no involvement in the decision by Fort Bragg or PERSCOM officials.  

4.  The applicant believes that a member on his promotion board was impermissibly biased.  The applicant regards CW5 R_ _ L as his strongest threat. He stated, in effect, that the CW5 made numerous threats of retaliation and that he frequently expressed anger and hostility toward him.  He believes, that CW5 R_ _ L’s, conduct prior to the promotion board demonstrated clear, improper and illegal bias, sufficient to disqualify him from sitting on any promotion board evaluating the applicant.  Also, the applicant’s record does not contain any contrary evidence, and there is no reason to doubt the applicant’s credibility in light of his outstanding record.  The Board believes that the applicant has raised enough material doubt about fairness and the possibility of bias of the promotion system in his case.  The applicant’s non-selection for promotion to CW3 is problematic and therefore warrants relief.  

5.  The applicant also requested an investigation of the CW5’s promotion work sheet as it related to his promotion file and how CW5 R _ _L scored his record.  The selection board proceedings are secret and the records of these proceedings are routinely and promptly destroyed soon after the boards have completed their selections.  

6.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by submitting the applicant’s records to a duly constituted Special Selection Board to consider him for promotion to CW3, by applying the rules governing the 1999 CW3 Promotion Board.  

2.  That if the applicant is selected for promotion, promote him effective the date he would have been promoted had he been originally selected in that 1999 CW3 zone, correct all of his records to reflect his promotion as of that date, and pay him all due back pay and allowances.

3.  That if the applicant is not selected for promotion, he be notified accordingly.   

4.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__slp___  __lem___  __aao___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Shirley L. Powell
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000037513	
SUFFIX		
RECON		
DATE BOARDED	20000608	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	107.0010	
2.	131.0100	
3.		
4.		
5.		
6.