IN THE CASE OF: BOARD DATE: 15 October 2020 DOCKET NUMBER: AR20200001197 APPLICANT REQUESTS: on behalf of a former service member (FSM), an upgrade of his Bronze Star Medal and Silver Star. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), dated 30 October 2019 * DD Form 214 (Armed Forces of the United States Report of Transfer of Discharge), dated 30 May 1969 * Headquarters, II Field Force Vietnam, General Orders Number 1673, dated 13 November 1968 * Headquarters, II Field Force Vietnam, General Orders Number 96, dated 14 January 1969 * Purple Heart Certificate, dated 12 November 1969 * State of Certificate of Death, dated 29 March 2016 * State of Surrogate's Court Letters Testamentary, dated 18 April 2016 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. The FSM’s Bronze Star Medal should be upgraded to the Silver Star and his Silver Star should be upgraded. b. The medals should be awarded due to the number of men saved by FSM, like Audie Murphy. 3. The FSM enlisted in the Regular Army on 30 September 1963. 4. The specific dates the FSM served in Vietnam are not available. 5. The FSM’s DA Form 20 (Enlisted Qualification Record) shows in: a. item 29 (Qualification in Arms) – he was awarded the Expert Marksmanship Qualification Badge with Rifle Bar (M-14); b. item 31 (Foreign Service) – service in Germany from 5 April 1964 through 28 May 1966; and c. item 41 (Awards and Decorations) – National Defense Service Medal. 6. On 29 September 1966, the FSM was honorably released from active duty. His DD Form 214 for this period of service shows in: a. item 24a(1) (Net Service This Period) – 3 years, 0 months, and 0 days; b. item 24b (Total Active Service) – 3 years, 0 months, and 0 days; c. item 24c (Foreign and/or Sea Service) – USAREUR (U.S. Army Europe); 2 years, 1 month, and 24 days; d. item 25 (Specialty Number & Title) – 11D40 (Armor Intelligence Specialist); e. item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) – * Expert Marksmanship Qualification Badge with Rifle Bar (M-14) * National Defense Service Medal * Army Good Conduct Medal 7. On 27 May 1968, the FSM reenlisted in the Regular Army. 8. The applicant provided a copy of the FSM's Purple Heart Certificate, dated 12 November 1968, which shows the medal was awarded for wounds received on 10 November 1968. 9. Headquarters, II Field Force Vietnam, General Orders Number 1673, dated 13 November 1968, awarded the FSM the Bronze Star Medal with "V" Device for service on 24 September 1968. The reason shows, in part: On this date, Troop B was conducting a mounted sweep operation in support of friendly units. The infantry platoon which [FSM] was supporting suddenly came under heavy fire from several Viet Cong hidden in a bunker and the vehicle on his right flank was hit by three enemy rockets, completely disabling it. Its wreckage prevented [FSM] from using his mounted .50 caliber machine gun against the enemy for fear of inflicting further wounds on the vehicle's crew. Without hesitation or regard for his personal safety, [FSM] exposed himself to the deadly volume of fire emanating from the hostile positions and returned fire with his personal weapon, enabling the crew of the demolished vehicle to withdraw to a secure area. Despite the effective enemy automatic weapons and antitank rocket fire being directed at his vehicle, [FSM] steadfastly remained exposed to the hostile bullets and forced the Viet Cong to withdraw. When reinforced by another platoon, [FSM] led the assault on the bunker, eliminating six and capturing one Viet Cong. 10. Headquarters, II Field Force Vietnam, General Orders Number 96, dated 14 January 1969, awarded the FSM the Silver Star for action on 8 November 1968. The reason shows, in part: On this date in the vicinity of Loc Ninh, [FSM] was participating in an assault on a large North Vietnamese Army force. During the course of the fierce firefight, a nearby tank suddenly received two direct hits from enemy antitank rockets, seriously wounding two of the crew members and causing the vehicle to burst into flames. [FSM], showing no concern for his personal safety, immediately dismounted his vehicle and ran through the concentrated enemy fire to the burning tank. Upon reaching the heavily damaged vehicle, [FSM] mounted it and manned its machine gun, placing highly-accurate fire into the ranks of the Communist forces. [FSM] continued to fire the machine gun from the top of the burning vehicle until his wounded comrades were safely evacuated, despite the fact that the ammunition stored in the vehicle could have exploded at any moment. At one point during this fierce action a group of thirty North Vietnamese Army soldiers made an all-out assault on [FSM]'s position, but he steadfastly remained at his position, killing five of the enemy soldiers and forcing the rest to scatter into the surrounding jungle. 11. Headquarters, II Field Force Vietnam, General Orders Number 2820, dated 18 October 1969, awarded the FSM the Army Commendation Medal for the period June 1968 to May 1969. 12. On 30 May 1969, the FSM was honorably released from active duty. His DD Form 214 shows in: a. item 22a(1) (Net Service This Period) – 1 year, 0 months, and 4 days; b. item 22a(2) (Other Service) – 4 years, 7 months, and 27 days; c. item 22a(3) (Total) – 5 years, 8 months, and 1 day; d. item 22b (Total Active Service) – 4 years, 0 months, and 4 days; e. item 22c (Foreign and/or Sea Service) – 0 years, 11 months, and 28 days; f. item 23 (Specialty Number & Title) – 11D40 (Armor Reconnaissance Specialist); and g. item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) – * National Defense Service Medal * Combat Infantryman Badge * Purple Heart * Vietnam Service Medal * Republic of Vietnam Campaign Medal with Device (1960) * Army Good Conduct Medal * Silver Star * Bronze Star Medal with "V" device 13. The FSM's DA Form 1577 (Authorization for Issuance of Awards), dated 24 May 1999, shows the FSM was authorized the following awards: * Silver Star * Bronze Star Medal * Purple Heart * Army Commendation Medal * Army Good Conduct Medal * National Defense Service Medal * Vietnam Service Medal * Combat Infantryman Badge * Republic of Vietnam Campaign Medal with Device (1960) 14. The applicant provided copies of the following: a. the FSM's Certificate of Death, dated 30 March 2016, that shows the FSM died on 27 March 2016 and b. a State of County Surrogate's Court Letters Testamentary, dated 18 April 2016, which named him executor and administrator of the FSM's will. 15. The FSM's records are void of evidence showing the request for an upgrade of his Bronze Star Medal and Silver Star was reviewed by the Awards and Decorations Branch, U.S. Army Human Resources Command. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that partial relief is warranted. 2. The Board found the applicant's request to upgrade the FSM's Bronze Star Medal with "V" Device and Silver Star to be premature. The U.S. Army Human Resources Command will review recommendations to upgrade awards when those recommendations are referred by a Member of Congress under the provisions of Title 10, U.S. Code, Section 1130. The Board found no evidence indicating the U.S. Army Human Resources Command has reviewed recommendations for upgrade, and determined this Board should not take action until such a review has occurred and the recommendations have been denied. Guidance on preparing and submitting a request to upgrade an award under the provisions of Title 10, U.S. Code, Section 1130, are available on the U.S. Army Human Resources Command website at: https://www.hrc.army.mil/content/Title%2010%20USC%201130%20Processing%20Guidance 3. The Board concurred with the corrections described in Administrative Note(s) below. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is 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 making the corrections described in Administrative Note(s) below. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading decorations prior to review by the U.S. Army Human Resources Command under the provisions of Title 10, U.S. Code, Section 1130. 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. ADMINISTRATIVE NOTE(S): The applicant was awarded or authorized the following awards is not listed on his DD Form 214: * Army Commendation Medal * Republic of Vietnam Gallantry Cross with Palm Unit Citation REFERENCES: 1. Title 10, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged 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. 2. Army Regulation 600-8-22 (Military Awards) provides Army policy, criteria, and administrative instructions concerning individual and unit military awards. a. The Silver Star is awarded to a person who, while serving in any capacity with the U.S. Army, is cited for gallantry in 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 armed conflict against an opposing armed force in which the United States is not a belligerent party. The required gallantry, while of a lesser degree than that required for the Distinguished Service Cross, must nevertheless have been performed with marked distinction. b. The Bronze Star Medal is awarded to any person who, while serving in any capacity in or with the Armed Forces of the United States, or a friendly foreign nation, after 6 December 1941, distinguished himself or herself by heroic or 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. Title 10, United States Code, section 1133 limits award of the Bronze Star Medal to service members receiving imminent danger pay, hostile fire pay or hazardous duty pay and members of a friendly military force who are serving in a geographic area in which special pay is authorized under Title 37, United States Code 310 or Title 37, United States Code, section 351(a) (1) and (3) or special pay under any of the following circumstances: (1) While engaged in an action against an enemy of the United States. (2) While engaged in military operations involving conflict with an opposing foreign force. (3) 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. c. Awards may be made for acts of heroism, performed under circumstances described above, which are of lesser degree than required for the award of the Silver Star. d. Paragraph 1-14 states except for award recommendations submitted in accordance with the provisions of section 1130, Title 10, United States Code, each recommendation for an award of a military decoration must be entered administratively into military channels within 2 years of the act, achievement, or service to be honored, with exception of the Medal of Honor, Distinguished Service Cross, and Distinguished Service Medal. An award recommendation will be considered to have been submitted into military channels when it has been signed by the initiating officer and endorsed by a higher official in the chain of command. However, pursuant to Title 10, United States Code, section 1130, a Member of Congress can request consideration of a proposal for the award or presentation of decoration (or the upgrading of a decoration), either for an individual or unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy. Based upon such review, the Secretary of the Army will make a determination as to the merit of approving the award or presentation of the decoration and other determinations necessary to comply with congressional reporting requirements under Title 10, United States Code, section 1130. e. Medal of Honor, Distinguished Service Cross, and the Distinguished Service Medal recommendations must be entered formally into official channels within 3 years of the act warranting the recommendation and awarded within 5 years, except as provided in Title 10, United States Code, section 3744. f. Preparing an award recommendation years after an action has occurred can be a challenge. However, the requestor is solely responsible for assembling a complete award recommendation package, which is submitted through a Member of Congress to the Commander, U.S. Army Human Resources Command. It is incumbent upon the requestor to conduct any historic research necessary to ensure the award recommendation is complete prior to submission. In the event an incomplete award recommendation is submitted, the Awards and Decorations Branch, U.S. Army Human Resources Command, will contact the requesting Member of Congress and provide specific guidance regarding the additional information required in order for the case to be considered g. A request for reconsideration or the appeal of a disapproved or downgraded award, or a request for an upgrade of a previously approved recommendation must be placed in official channels within 1 year from the date of the awarding authority’s decision. A one-time reconsideration by the award approval authority will be conclusive. However, pursuant to Title 10, United States Code, section 1130, a Member of Congress may request a review of a proposal for the award or presentation of a decoration (or the upgrading of a decoration) that is not authorized to be presented or awarded due to time limitations established by law or policy for timely submission of a recommendation. h. Recommendations are submitted for reconsideration or appeal only if new, substantive, and material information is furnished, and the time limits specified in paragraph 1-14 above do not prevent such action. Requests for reconsideration or appeal must be forwarded through the same official channels as the original recommendation. The additional justification for reconsideration or appeal must be in letter format, not to exceed two single-spaced typewritten pages. A copy of the original recommendation, with all endorsements, and the citation must be attached. If the original recommendation is not available, a reconstructed recommendation should be submitted. 4. Department of the Army General Orders Number 8, dated 19 March 1974, announced award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to Headquarters, U.S. Military Assistance Command and its subordinate units during the period 8 February 1962 to 28 March 1973 and to Headquarters, U.S. Army Vietnam and its subordinate units during the period 20 July 1965 to 28 March 1973. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200001197 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1