IN THE CASE OF: BOARD DATE: 2 February 2016 DOCKET NUMBER: AR20150006160 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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show that he was promoted to pay grade E-5 and upgrade of his Bronze Star Medal with "V" Device to the Medal of Honor. 2. The applicant states that he and his team of five other Soldiers fought against a large group of North Vietnamese Army and Viet Cong forces on 14 July 1971. The team was ambushed and he and two other Soldiers were critically wounded. He was wounded by shrapnel from a rocket propelled grenade and gunshots from an AK47 rifle. The wounds he sustained left him bleeding to death from damage to his femur, tibia, left elbow, left forearm, chest, rib, lung, and spine. Despite his wounds, his training as a Ranger and his will not to die in Vietnam gave him strength to keep firing his weapon. a. The citation for the award he received for his actions on 14 July 1971 does not contain information about the injuries other members of the team sustained during the action. b. He states, on 18 March 2014, the President of the United States awarded the Medal of Honor to 24 former Soldiers whose combat awards for heroism were upgraded. President Obama commented, "Vietnam veterans who were in combat never received the proper combat award for their valorous actions." c. He states that he and his team members conducted themselves as an elite unit against all odds. Their unit (Company C, Rangers) had the most "kills" in Vietnam. He concludes that his award and the awards of his team members should be upgraded to the Medal of Honor. d. He adds that his military service records should be reviewed to determine why he was not promoted to the rank of sergeant (SGT)/pay grade E-5. 3. The applicant provides copies of his Bronze Star Medal award documents, DD Form 214, and Combat-Related Special Compensation decision. 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's military record is not available to the Board for review. However, the applicant's DD Form 214 and award documents, along with available Vietnam-era databases, are sufficient for the Board to conduct a fair and impartial review of this case. 3. A DD Form 214 shows the applicant enlisted in the Regular Army on 23 July 1970 for a period of 3 years, he was honorably discharged on 18 April 1972, and Permanently Retired by reason of disability. He had completed 1 year, 8 months, and 26 days of total active service that included 5 months and 12 days of foreign service. It also shows in: * item 5a (Grade, Rate or Rank)/item 5b (Grade): Specialist Four (SP4)/E-4 * item 6 (Date of Rank): 1 June 1971 * item 12 (Last Duty Assignment and Major Command): Company C (Ranger), 75th Infantry (Airborne), I (First) Field Force, Vietnam * item 19 (Grade, Rate or Rank at Time of Entry into Current Active Service): Private (E-1) * item 23a (Specialty Number and Title): 11B2P, Light Weapons Infantryman, awarded 11 December 1970 * item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) – * National Defense Service Medal * Parachutist Badge * Vietnam Service Medal * Combat Infantryman Badge * Republic of Vietnam Campaign Medal with Device (1960) * Air Medal * Purple Heart * item 26a (Non-Pay Periods/Time Lost): Not Applicable * item 30 (Remarks): Vietnam service: 3 March 1971 – 14 August 1971; Indochina: Yes; Korea: No * item 32 (Signature of Person Being Transferred or Discharged), the applicant's signature 4. The DA Form 4980-5 (Bronze Star Medal Certificate), dated 25 October 1971 and Headquarters, 1st Aviation Brigade, General Orders Number 6920, dated 25 October 1971, that the applicant provides show he was awarded the Bronze Star Medal with "V" Device for heroism in connection with ground operations against a hostile force on 14 July 1971 in the Republic of Vietnam. The citation states, "Specialist Four [applicant's name] distinguished himself by exceptionally valorous actions while serving as point man for an Allied ranger team. During the morning, his team was ambushed by a numerically superior enemy force. Specialist Four [applicant's name] and two of his comrades were cut down at the instant of contact by the enemy's automatic and semi-automatic fire. Although seriously wounded, he still remained calm and set down as much protective fire as was possible after sustaining such severe wounds. His exemplary perseverance was an inspiration to all. Specialist Four [applicant's name]'s devotion to duty was in keeping with the highest traditions of the military service and reflects great credit upon himself, his unit, and the United States Army." 5. U.S. Army Human Resources Command, Alexandria, VA, Combat-Related Special Compensation Rating Decision, memorandum, dated 1 April 2009, that the applicant provides shows, in pertinent part, he was granted compensation based on combat-related disabilities, as follows – * Purple Heart related disability: 80% * Combat-related disability: 100% 6. A review of the applicant's available military personnel records failed to reveal evidence that he was recommended for or promoted to grade E-5. 7. A review of The Adjutant General's Office, Casualty Division's Vietnam casualty roster shows the applicant as a casualty on 14 July 1971 with casualty status code 22 (hostile wounded in action; serious, hospitalized). 8. Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the awards received by units serving in Vietnam. It shows Company C, 1st Battalion (Ranger), 75th Infantry Regiment, was cited for award of the – * RVN Gallantry Cross with Palm Unit Citation for the period 1 August 1965 through 16 April 1971 by Department of the Army General Orders (DAGO) Number 54, 1974 * RVN Civil Actions Honor Medal First Class Unit Citation for the period 15 April 1969 through 16 March 1971 by DAGO Number 5, 1973 9. A review of the applicant's available military personnel record failed to reveal any adverse or derogatory information, or any evidence of a commander's disqualification that would have precluded him from being recommended for or awarded the Army Good Conduct Medal (1st Award). 10. Army Regulation 672-5-1 (Military Awards), in effect at the time, provided that the Army Good Conduct Medal (AGCM) was awarded to individuals who completed a qualifying period of active duty enlisted service. This period was 3 years except in those cases when the period for the first award ended with the termination of a period of Federal military service of less than 3 years and more than 1 year. The enlisted person must have had all "excellent" conduct and efficiency ratings. There must have been no convictions by a court-martial. 11. Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations. a. The Vietnam Service Medal (VSM) is awarded to all members of the Armed Forces of the United States for qualifying service in Vietnam after 3 July 1965 through 28 March 1973. A bronze service star will be awarded for wear on the VSM for participation in each credited campaign. b. Appendix B contains a list of Vietnam Conflict campaigns. During the applicant's service in Vietnam, participation credit was awarded for the – * Vietnam Counteroffensive Phase VII (1 July 1970 - 30 June 1971) * Consolidation I (1 July - 30 November 1971) c. 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. d. The Glossary, Section II (Terms), in pertinent part, defines the following: * heroism: extreme courage demonstrated in attaining a noble end * gallantry and intrepidity at the risk of life: fearless spontaneous conduct at the certain risk of life, above and beyond the call of duty, which clearly sets the Soldier apart from all other comrades 12. Title 10, U.S. Code, section 3741 (The Medal of Honor: Award), was established by Joint Resolution of Congress on 12 July 1862 (amended by acts on 9 July 1918 and 25 July 1963). The Medal of Honor is awarded by the President in the name of Congress to a person who, while a member of the Army, distinguishes himself or herself conspicuously by gallantry and intrepidity at the risk of his or her life above and beyond the call of duty while engaged in an action against an enemy of the United States, while engaged in military operations involving conflict with an opposing foreign force, or while serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party. The deed performed must have been one of personal bravery or self-sacrifice so conspicuous as to clearly distinguish the individual above his comrades and must have involved risk of life. Incontestable proof of the performance of the service will be exacted and each recommendation for award of this decoration will be considered on the standard of extraordinary merit. 13. Title 10, United States Code, section 1130 (10 USC 1130), provides that the Service concerned will review a proposal for the award of, or upgrading of, a decoration that would not otherwise be authorized to be awarded based upon time limitations previously established by law. Requests for consideration of awards should be supported by sworn affidavits, eyewitness statements, certificates and related documents. Corroborating evidence is best provided by commanders, leaders and fellow comrades who had personal knowledge of the circumstances and events relative to the request. A request for award not previously submitted in a timely fashion will only be considered under this provision if the request has been referred to the Service Secretary from a Member of Congress. The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rest with the requester. 14. Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribed policies and procedures regarding separation documents. It also established standardized policy for preparing and distributing the DD Form 214. a. The purpose of a separation document is to provide the individual with documentary evidence of their military service at the time of separation. Therefore, it is important the information entered thereon is complete and accurate as of that date. b. Section III (Instructions for Preparation and Distribution of the Armed Forces of the United States Report of Transfer or Discharge) contained guidance on the preparation of the DD Form 214. It stated, in pertinent part, that all available records would be used as a basis for the preparation of the DD Form 214, including the Enlisted Qualification Record, Officer Qualification Record, and orders. It shows for – * item 5a, enter grade in which serving at time of separation * item 5b, enter pay grade (e.g., E-4) * item 6, enter DOR for the grade shown in item 5b * item 24, list all decorations, service medals, campaign medals, and badges awarded or authorized, omitting authorities cited therein DISCUSSION AND CONCLUSIONS: 1. The applicant's request for correction of his DD Form 214 to show he was promoted to grade E-5 and upgrade of his Bronze Star Medal with "V" Device to the Medal of Honor was carefully considered. 2. Records show the applicant was promoted to SP4 (E-4) on 1 June 1971. a. There is no evidence of record that shows he was promoted to grade E-5. b. Thus, it is concluded that the rank, pay grade, and DOR shown on the applicant's DD Form 214 are correct. 3. The applicant was awarded the Bronze Star Medal with "V" Device for heroism in connection with ground operations against a hostile force on 14 July 1971 in the Republic of Vietnam when he distinguished himself by exceptionally valorous actions (i.e., extreme courage demonstrated in attaining a noble end). Specifically, "he remained calm and set down as much protective fire as was possible after sustaining such severe wounds." a. The evidence of record fails to show the applicant demonstrated gallantry and intrepidity at the risk of life (i.e., fearless spontaneous conduct at the certain risk of life, above and beyond the call of duty, which clearly set the Soldier apart from all other comrades.) b. General orders awarded the applicant the Bronze Star Medal with "V" Device; however, his DD Form 214 does not show the award. 4. The evidence of record also shows: a. he qualified for award of the VSM and he participated in two campaigns during his service in Vietnam, which entitles him to two bronze service stars for wear on his already-awarded VSM; and b. general orders awarded his unit the – * RVN Gallantry Cross with Palm Unit Citation * RVN Civil Actions Honor Medal First Class Unit Citation 5. The applicant served a period of continuous, honorable active duty enlisted service from 23 July 1970 through 18 April 1972. a. There is no evidence of any disciplinary actions, adverse information, or a commander's disqualification for the first award of the AGCM. b. He was awarded the Bronze Star Medal with "V" Device, Purple Heart, Air Medal, and Combat Infantryman Badge during his tour of duty in the Republic of Vietnam and he was promoted to SP4 (E-4). c. Based on the available evidence, it would be appropriate at this time to award the applicant the AGCM for the period 23 July 1970 through 18 April 1972. 6. The evidence of record shows that award of a personal decoration requires a formal recommendation, approval through the chain of command, and announcement in orders. There is no evidence of record that shows the applicant was recommended for the Medal of Honor. In addition, the available evidence is insufficient for correcting the applicant's records to show award of the Medal of Honor. However, this in no way affects his right to pursue his claim for the award by submitting his request through his Member of Congress under the provisions of 10 USC 1130. 7. In view of the foregoing, it would be appropriate to correct the applicant's DD Form 214 to show his awards and decorations, as recommended below. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ____X____ ___X_____ ____X____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. awarding him the Army Good Conduct Medal (1st Award) for the period 23 July 1970 through 18 April 1972 (Standard Name Line: SP4, Company C (Ranger), 1st Battalion (Airborne), 75th Infantry Regiment, I Field Force Vietnam); b. deleting from item 24 of his DD Form 214 the entry "Vietnam Service Medal;" and c. adding to item 24 of his DD Form 214 the – * Bronze Star Medal with "V" Device * Army Good Conduct Medal (1st Award) * Vietnam Service Medal with 2 Bronze Service Stars * Republic of Vietnam Gallantry Cross with Palm Unit Citation * Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board As a result, the Board recommends denial of so much of the application that pertains to his rank, grade, and date of rank and upgrade of his Bronze Star Medal with "V" Device. ____________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) AR20150006160 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006160 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1