BOARD DATE: 30 April 2020 DOCKET NUMBER: AR20200001277 APPLICANT REQUESTS: through counsel, an upgrade of his Distinguished Service Cross to the Medal of Honor. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), dated 25 January 2020 * Self-authored letter, dated 20 July 1976 * letter, CPT Retired (Ret) J____ R. C____, dated 15 November 1978 * letter, CPT Ret J____ R. C____, dated 8 June 1985 * two versions, "Night Assault," CPT Ret J____ R. C____, dated 1989 * letter, Military Awards Branch, U.S. Total Army Personnel Command, dated 20 June 1991 * letter, CPT Ret J____ R. C____, dated 23 March 1994 * letter, Military Awards Branch, U.S. Total Army Personnel Command (now call U.S. Army Human Resources Command (HRC)), dated 5 May 1994 * letter, CPT Ret J____ R. C____, dated 16 November 1995 * letter, CPT Ret J____ R. C____, dated 9 March 1996 * excerpt, National Defense Authorization Act, Section 1124, dated 1996 * letter, W. T____ C____, undated * letter, Awards and Decorations Branch, HRC, dated 12 May 2014 * letter, Awards and Decorations Branch, HRC, dated 12 September 2019 * letter, Congressional Correspondence, U.S. Senate, dated 25 November 2019 * letter, Office of the Adjutant General, HRC, dated 5 December 2019 * letter, B____ J____, Northeast Prisoner of War/Missing in Action Network (POW/MIA), dated 15 January 2020 * Distinguished Service Cross Timeline (Applicant), undated * Distinguished Service Cross Upgrade Flowchart (Applicant), undated * Awards Listing (Applicant) * Photograph (Applicant), undated 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. Counsel states: a. He met with the applicant and another POW who had been held captive together at a POW camp in the Republic of Vietnam. They told him about those who were held prisoner in the camp, life in the camp, and how they were able to communicate despite being separated in cages. b. The applicant communicated with other POWs through a dead letter drop method by placing notes in a small bottle which he buried in a hole near a well and identified its location by placing small crossed sticks over it. c. The applicant and another Solder, Sergeant (SGT) G____ E. S____, were held in 8 feet by 6 feet cages. The applicant continually looked for ways to escape. In July 1965, he was successful after his chains had been removed for use on several new POWs. He slipped through the bars of his cage and ran into the jungle under cover of a monsoon. c. Although suffering from starvation and disease, the applicant evaded capture for 4 days and made his way to the village of Minh Thanh. 3. On 6 June 1955, the applicant enlisted in the Regular Army. 4. Having prior assignments in Okinawa and the Republic of Vietnam, the applicant was reassigned in the Republic of Vietnam on 10 July 1963 to Company B, 5th Special Forces Group (Airborne), 1st Special Forces Division. 5. On 24 November 1963, the applicant was captured by enemy forces and held as a POW in the Republic of Vietnam. 6. On 26 November 1963, the Commander, U.S. Army Special Forces (Provisional), Republic of Vietnam, appointed an investigating officer to determine the status of the applicant and three other Soldiers, Specialist (SP5)/E-5 C____M____, Sergeant First Class (SFC)/E-7 K____ M. R____, and SGT G____ E. S____. 7. U.S. Army Special Forces, Republic of Vietnam, memorandum, dated 8 December 1963, subject: Report of Investigation, Status Determination, reported the applicant and three other Soldiers assigned to Camp Hiep Hoa, Hau Nghia Province, had been taken prisoner from the unit and were designated as missing in action. The report detailed the events of the early morning hours on 24 November 1963, when 200 to 300 Viet Cong enemy forces attacked and overran Camp Hiep Hoa. The report contains attachments of the interview of 1LT J____ R. C____, the statements of one Cambodian national and two Vietnamese nationals, and a hand-drawn map illustrating key aspects of Camp Hiep Hoa, Republic of Vietnam. 1LT J____ R. C____ reported: a. He had guard duty until 2300 hours. The attack started at about 0100 hours. He, [Applicant], SSG K____M. R____, SGT C____ M____, and SGT G____ E.____ were asleep. He heard firing and mortars and the firing was close. The Viet Cong were attacking the northwest corner of the compound from 25 to 30 yards. He had not seen any other U.S. personnel except the applicant. Weapons were firing point blank into the northwest bunker. Many hand grenades and mortars were going off inside the camp at the northwest bunker. He ran along the wall towards the gate and was shot three times, once in the arm, the leg, and the chest. b. He saw the applicant at the 81 millimeter mortar firing the mortar from the southwest bunker. He saw the applicant was alone in the 81 millimeter mortar position and he did not think the applicant was hurt, so he assisted him. He asked the applicant to look at his wounds, where upon he realized the extent of his injuries, but he decided to fight it out anyway. The mortars ceased fire and he knew that an assault was coming so he decided the camp would soon be unattainable. He saw friendly forces leaving the camp through the gate so he ordered the applicant to get out of the camp. He and the applicant covered each other during their exit and as they escaped, he lost contact with the applicant. He was ultimately evacuated to Saigon for treatment of his wounds. 8. On or about 9 July 1965, the applicant escaped his POW camp. 9. On 13 July 1965, the applicant returned to military control. 10. On 22 July 1965, the applicant was honorably discharged for the purpose on reenlistment. His DD Form 214 for this period shows in: a. item 27 (Wounds Received as a Result of Action with Enemy Forces (Place and Date if Known)) – "Scalp Laceration-24 November 1963-Vietnam," b. item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) – he was awarded or authorized the following: * Sharpshooter Marksmanship Qualification Badge with Rifle Bar and Carbine Bar * Master Parachutist Badge * Army Good Conduct Medal (1st Award) * Armed Forces Expeditionary Medal with one bronze service star * Combat Infantryman Badge * Letter of Appreciation 11. An Office of the Adjutant General (AGEZ) Form 11 (Extract from Duty Officer's Journal), dated 7 August 1965, shows he returned to military control and his return date to the continental United States was listed as 20 August 1965. 12. Headquarters, U.S. Military Assistance Command, Republic of Vietnam, General Orders Number 1879, dated 1 September 1965, awarded him the Silver Star for gallantry in action on 24 November 1963 in the Republic of Vietnam. The citation stated: [Applicant] distinguished himself by gallantry in action during the early morning on 24 November 1963, when an estimated reinforced battalion of Viet Cong attacked a Special Forces Camp at Hiep Hoa, Republic of Vietnam. Taking the camp by complete surprise the insurgents began their attack with withering automatic weapons and small arms fire followed within a few seconds by an intense mortar barrage. The heavy volume of high and flat trajectory fire pinned down the entire Vietnamese strike force within the compound. At the beginning of the attack, [Applicant] had run from his sleeping area to a mortar position. Having successfully maneuvered through a hail of bullets and mortar fragments, [Applicant] calmly manned the mortar and began to concentrate his fire on the Viet Cong who were attempting to breach the wall of the compound. Disregarding his own personal safety and realizing that he was the only man not pinned down by the Viet Cong, [Applicant] valiantly engaged the enemy until he was ordered by his commanding officer to withdraw from the camp. Reluctantly he gave up his position and moved into the darkness. In the confusion of battle, [Applicant] and his commanding officer became separated. [Applicant] was captured by the Viet Cong only when he no longer had any means to resist. 13. Headquarters, U.S. Military Assistance Command, Republic of Vietnam, General Orders Number 1878, dated 1 September 1965, awarded him the Bronze Star Medal for meritorious service in connection with military operations against a hostile force from 10 July 1963 to 14 July 1965. 14. The applicant's U.S. Military Assistance Command, Republic of Vietnam, Bronze Medal Citation reads, in part: For distinguishing himself by outstandingly meritorious service from 10 July 1963 to 14 July 1965 in the Republic of Vietnam. From 10 July 1963 to 24 November 1963 [Applicant] served with the United States Army Special Forces in their role of advising and assisting the people of the Republic of Vietnam to rid their country of the communist insurgents. He participated in numerous combat operations at great personal risk, and at all times conducted himself in accordance with the highest standards of the American fighting man. Through his untiring efforts and professional ability [Applicant] consistently obtained outstanding results. When on 24 November 1963 he was forcibly taken into custody and detained against his will by the Viet Cong, he remained ever alert for conditions which would permit his escape. [Applicant] found such an opportunity on 9 July 1965, and through great skill and daring made his way through miles of communist infested territory to freedom. 15. Records show that on 4 September 1965, the applicant was presented the Silver Star and Bronze Star Medal at Fort Bliss, TX. 16. 10th Special Forces Group (Airborne), 1st Special Forces, General Orders Number 71, dated 15 December 1965, awarded the applicant the Army Good Conduct Medal (2nd Award). 17. On 6 June 1966, the applicant was awarded the Purple Heart (First Oak Leaf Cluster) by order of the Secretary of the Army for wounds received in the Republic of Vietnam on 24 November 1963. 18. Headquarters, 1st Special Forces Group (Airborne), 1st Special Forces Division, General Orders Number 81, dated 14 December 1968, awarded the applicant the Army Good Conduct Medal (3rd Award) for the period 16 December 1965 to 1 December 1968. 19. On 1 October 1969, the applicant received approval of an exception to policy for an appointment as a Reserve commissioned officer in the rank of captain with concurrent active duty. 20. On 11 January 1971, the applicant received approval for acceptance of the Chinese Parachutist Wing. 21. Headquarters, U.S. Army Base Command, Okinawa, General Orders Number 410, dated 29 November 1973, awarded the applicant the Army Commendation Medal for the period 13 November 1971 to 27 August 1973 for meritorious service. 22. Headquarters, U.S. Army Air Defense Center and Fort Bliss, General Orders Number 75, dated 27 May 1975, awarded the applicant the Meritorious Service Medal for outstanding meritorious service from 1 July 1965 and 30 June 1975. 23. Headquarters, U.S. Army Air Defense Center and Fort Bliss, Special Orders Number 120, dated 20 June 1975, directed his release from active duty effective 28 June 1975, assignment to the U.S. Army Reserve Control Group (Reinforcement) for the purpose of reenlisting in the Regular Army for retirement, and termination of his appointment. 24. His DD Form 214 for the period ending 28 June 1975 shows he was honorably released from active duty and transferred to the U.S Army Reserve Control Group (Reinforcement) for immediate enlistment or reenlistment. Item 26 of his DD Form 214 shows he was awarded or authorized the following: * Parachutist Badge * Master Parachutist Badge * Armed Forces Expeditionary Medal * Combat Infantryman Badge * Bronze Star Medal * Silver Star * Purple Heart with 1st Oak Leaf Cluster * National Defense Service Medal * Republic of Vietnam Campaign Medal with Device (1960) * Army Good Conduct Medal (3rd Award) * Republic of Vietnam Jump Wings * Chinese Parachutist Wings * Army Commendation Medal * Vietnam Service Medal 25. On 29 June 1975, the applicant enlisted in the Regular Army in the rank of sergeant major (SGM). 26. On 30 June 1975, he was retired in the rank/grade of SGM/E-9. Item 26 of his DD Form 214 shows he was awarded or authorized the following: * Parachutist Badge * Master Parachutist Badge * Armed Forces Expeditionary Medal * Combat Infantryman Badge * Bronze Star Medal * Silver Star * Purple Heart with 1st Oak Leaf Cluster * National Defense Service Medal * Republic of Vietnam Campaign Medal with Device (1960) * Army Good Conduct Medal (3rd Award) * Republic of Vietnam Jump Wings * Chinese Parachutist Wings * Army Commendation Medal * Vietnam Service Medal * Republic of Vietnam Gallantry Cross with Palm Unit Citation * Meritorious Service Medal 27. Counsel provided copies of the following: a. A self-authored letter from the applicant to Retired (RET) CPT J____ R. C___, dated 20 July 1976, in which he described the incident from the Republic of Vietnam and stated, in part: (1) He made the decision to return to camp and he could still see mortar fire coming in. He saw the enemy swarming at the southwest point of the camp. He threw his last grenade and ran to hide in the 60 millimeter bunker. He was seen and caught as the enemy surrounded him. (2) The enemy tied him up and an insurgent struck him on his head with an M-1 weapon, knocking him out. When he woke, SGT G____ E. S____ was telling the enemy he was a medic. There was blood from a gash on the back of his head. The enemy bound his hands and dragged him and SGT G____ E. S____ across the barbed wire in the northeast corner. (3) A few minutes later, aircraft began dropping napalm and making strafing runs on the camp. They were taken along a road and the enemy prepared to kill them. A higher ranking insurgent came and gave a different order, sparing them at the last minute. (4) He did not surrender of his own free will. He was taught to never leave his buddies behind. He made every effort to escape and eventually succeeded. b. A self-authored letter written by Retired (RET) CPT J____ R. C____, dated 15 November 1978, to Headquarters, Department of the Army, subject: Recommendation to Raise Silver Star Awarded to [Applicant] in 1965 to the Medal of Honor, wherein he stated, in part: (1) He was the team's Executive Officer and the applicant was a member of Detachment A-21, 5th Special Forces Group (Airborne) in 1963. Their unit was assigned to Camp Hiep Hoa 40 miles northwest of Saigon and the unit was near the end of their 6 month tour. A Vietnamese A Detachment Commander was commander of 250 Civilian Irregular Defense Group (CIDG) volunteers and the Camp was an approximate square area of 125 meters by 100 meters. (2) On 19 November 1963, toward the end of their tour, the detachment commander left by helicopter on a reconnaissance mission with half of their detachment and a platoon of CIDG, which only left only four team members and himself in the camp. The team members were the applicant, SFC K____ R____, and Specialists C____ M____ and G____ S____. (3) Unknown to them, a reinforced battalion of Viet Cong had been planning and rehearsing to attack Camp Hiep Hoa and to capture a U.S. Special Forces team. On the morning of Sunday, 20 November 1963, the Viet Cong infiltrated past the security, and took positions within 20 meters of the camp walls. The Viet Cong spies within the camp made silent kills on the guards and machinegun gunners within the camp. At approximately 0100 hours, two shots were fired to signal the start of the attack. Except for one U.S. guard, the team was asleep in their shack located in the middle of the camp. (4) The applicant, the team's heavy weapons specialist, ran to his assigned mortar bunker and began firing his 81 millimeter mortar. He was still firing 20 to 30 minutes after the attack began and he did not know the CIDG forces were not fighting back. (5) He ordered the applicant to leave with him and they covered each other as they went out the gate, but quickly got separated. It was certain death to go back into the camp and the applicant did return. It was for this act of bravery that he recommended his Sliver Star be upgraded to the Medal of Honor. The applicant was captured as he fought his way through the camp. He was held in a POW camp for 18 months until he escaped on 9 July 1965, the first American serviceman to successfully escape from the Viet Cong. c. A self-authored letter from CPT J____ R. C____ to Headquarters, Department of the Army, dated 8 June 1985, in which he recommended the applicant for an upgrade his award of the Silver Star to the Distinguished Service Cross. He outlined the events at Camp Hiep Hoa, Republic of Vietnam, on the night of 24 November 1963, which is, in effect, a repeat of his letter dated 15 November 1978. 28. On 20 August 1985, the Chief, Military Awards Branch, U.S. Army Personnel Center, responded to a request from CPT J____ R. C____ pertaining to an upgrade of the applicant's Silver Star Medal to the Medal of Honor. The Chief, Military Awards Branch, provided CPT J____ R. C____ a copy of an earlier response from 1978 which advised him why the applicant's Silver Star could not be upgrade to the Medal of Honor and the same law applied to the Distinguished Service Cross. CPT J____ R. C____ was further advised no recommendation for either of the awards could be considered if the recommendations or requests for reconsideration were submitted after 31 October 1975. 29. On 19 May 1988, the Secretary of the Army presented the applicant the Prisoner of War Medal. 30. Counsel provided copies of the following: a. a letter from the Military Awards Branch, U.S. Total Army Personnel Command, to General W. B R____, dated 20 June 1991, which stated, in part: (1) Attempts were made to locate the 1965 Military Assistance Command- Vietnam military award case files at the National Archives in Suitland, Maryland, to review the Silver Star recommendation submitted by Ret CPT J____ R. C____ for the applicant in 1963. However, prior to 1968, the Army did not require permanent retention of military award case files, and that the 1965 files were destroyed in the Republic of Vietnam. (2) CPT J____ R. C____'s desire to honor the applicant with a higher award for valor was understood. However, the applicant's Silver Star recommendation prepared in 1963 and debriefing statements upon his repatriation in 1965 were reviewed by the chain of command and a duly constituted Military Assistance Command-Vietnam awards board. Upon review, the Commanding General, Military Assistance Command- Vietnam, could have approved an award of the Distinguished Service Cross or recommended approval of an award of the Medal of Honor had he felt the award was warranted. He elected to honor the applicant's valorous actions with an award of the Silver Star. (3) Further, Public Law required that recommendations for awards of the Distinguished Service Cross and Medal of Honor for actions during the Vietnam Conflict had to have been submitted by October 1975 and approved by October 1976. b. A self-authored letter from the applicant, undated, to CPT J____ R. C____, in which he thanked those who had supported his request for upgrade of his Silver Star Medal to the Medal of Honor. He also stated he felt that the Distinguished Service Cross would be a more appropriate decoration for his actions at Hiep Hoa and it might have been different had he succeeded in rescuing his fellow Soldiers when he returned to the camp. He felt his return to the camp under intense enemy fire and engaging the enemy and his escape from the prisoner of war camp merited more than a Silver Star. He requested he be written up for a Distinguished Service Cross. He also believed that higher ranking Army officials would probably act more favorably on the Distinguished Service Cross instead of the Medal of Honor. c. A self-authored letter from CPT J____ R. C____, dated 23 March 1994, wherein he reiterated the events at Camp Hiep Hoa, and added: (1) He recommended the applicant for award of the Silver Star on 26 November 1963 when he was in the hospital because of his courage in fighting back when everyone he had witnessed would not. (2) He did not know the applicant had returned to the camp when he wrote his after action report. He learned of the capture of four Americans after he was in the hospital. The applicant's return to the camp while under heavy enemy fire to rescue his fellow Soldiers and take out the enemy manning the machine gun was not a consideration when his Silver Star citation was written. (3) He did not write to Headquarters, Department of the Army about upgrading the Silver Star to a Medal of Honor until November 1978 and he assumed the matter would be reviewed. The recommendation did not state he had requested the Medal of Honor for the applicant in the Republic of Vietnam contingent upon his return to the camp. He did this and he knew it in his 15 November 1978 letter to Headquarters, Department of the Army, but for some reason he did not. He thought in light of the new information, the applicant's Silver Star would be reviewed, but the request was turned down. By the 1980s, the applicant had written to him and indicated he felt a Distinguished Service Cross was more in order for his going back inside the camp. (4) He made attempts between 1985 and 1991 to have the applicant's Silver Star Medal upgrade to the Medal of Honor without success. d. A letter from the Chief, Military Awards Branch, U.S. Total Army Personnel Command, dated 5 May 1994, in response to Mr. W. T____ C____'s inquiry regarding an upgrade of the applicant's Silver Star Medal. The Chief, Military Awards Branch advised: there was little they could add to previous replies from this office concerning this matter; the facts had not changed since the first inquiry was received in this office in 1991; the applicant clearly distinguished himself by his actions in Vietnam and was properly recognized by being awarded the Silver Star; it was unfortunate that those who had knowledge of the applicant's deeds did not take advantage of the opportunity to submit a recommendation for the Medal of Honor; and this failure to act could not form the basis to now consider him for the award more than 29 years after the fact. e. An excerpt from the National Defense Authorization Act for Fiscal Year 1996, which provided provisions on authority to award decorations recognizing acts of valor performed in combat during the Vietnam Conflict and a 1-year time limit. 31. On 24 January 1997, the U.S. Total Army Personnel Command updated the applicant's records to show his awards of the Silver Star (1st Oak Leaf Cluster), for gallantry in action against an armed enemy for the period 13 July 1965, by issuing Permanent Orders 024-01, dated 24 January 1997. 32. On 26 October 1998, a U.S. Total Army Personnel Command memorandum requested an update of the applicant's records to show his award of the Distinguished Service Cross. 33. Headquarters, U.S. Total Army Personnel Command, Order 299-01, dated 26 October 1998, revoked Headquarters, U.S. Military Assistance Command, Republic of Vietnam, General Order Number 1879, dated 1 September 1965, pertaining to applicant's award of the Silver Star for gallantry in action against enemy forces on 20 November 1963. 34. U.S. Total Army Personnel Command Permanent Order 299-01 (Corrected Copy), dated 26 October 1998, awarded him the Distinguished Service Cross for gallantry in action on 24 November 1963. The reason stated: For gallantry in action. [Applicant] distinguished himself by gallantry in action during the early morning on 24 November 1963, when an estimated reinforced battalion of Viet Cong attacked a Special Forces camp at Hiep Hoa, Republic of Vietnam. Taking the camp by complete surprise, the insurgents began their attack with withering automatic weapons and small arms fire followed within a few seconds by an intense mortar barrage. The heavy volume of high and flat trajectory fire pinned down the entire Vietnamese strike force within the compound. ·At the beginning of the attack, [Applicant] ran from his sleeping area to a mortar position. Having successfully maneuvered through a hail of bullets and mortar fragments, [Applicant] calmly manned the mortar and began to concentrate his fire on the Viet Cong who were attempting to breach the wall of the compound. Disregarding his own personal safety and realizing that he was the only man not pinned down by the Viet Cong, [Applicant] valiantly engaged the enemy until he was ordered by his commanding officer to withdraw from the camp. Reluctantly, he gave up his position and moved into the darkness. In the confusion of battle, [Applicant] and his commanding officer became separated. [Applicant] was captured by the Viet Cong only when he no longer had any means to resist. 35. On 23 November 1998, the applicant was issued a DD form 215 (Correction to DD Form 214) which amended his DD Form 214 for the period ending 30 June 1975 to show his award of the Distinguished Service Cross. 36. On 19 August 1999, the applicant was issued a DD Form 215 which voided his previous DD Form 215, dated 23 November 1998, and amended his DD Form 214 for the period ending 29 June 1975 to show his award of the Distinguished Service Cross, Silver Star with 1st Oak Leaf Cluster, and POW Medal. 37. Counsel provided copies of: a. A letter from the Chief, Awards and Decorations Branch, HRC, dated 12 May 2014, in response to a Congressional inquiry and advising: (1) The recent Medal of Honor study mandated by Congress addressed individuals that received the Distinguished Service Cross at the time of their actions. Recipients of the Silver Star were not included in this study. (2) The applicant's Silver Star had already received consideration for a higher decoration. The Senior Army Decorations Board determined in 1998 that the degree of action and service rendered by him on November 24, 1963, met the extraordinary heroism required for award of the Distinguished Service Cross. The Secretary of the Army affirmed that the Distinguished Service Cross was the appropriate award for his actions in lieu of the Silver Star. Per Department of Army policy, one-time reconsideration by the award approval authority shall be conclusive. b. A self-authored letter from W. T____ C____, undated, to the Secretary of Defense, in which he stated: (1) CPT J____ R. C____'s 1978 letter clearly stated that the applicant should have been considered for award of the Medal of Honor if it was determined that he returned to the Special Forces Camp to help other Americans escape. (2) The applicant returned to the camp under an intense flat trajectory fire assault to help his team members escape. He single-handedly eliminated an enemy machine gun crew of five men and threw a grenade to clear a path through enemy soldiers before he was captured. The Silver Star was awarded on 1 September 1965, three months before his comrades were released from the POW camp. His actions after he returned to the camp were not considered by the original awards board which granted him the Silver Star. (3) When SGT C____ M____ and SGT G____ E. S____ were released (from POW status), their debriefings were not available to corroborate CPT J____ R. C____'s 1978 letter recommending the Medal of Honor. (4) CPT J____ R. C____ was severely wounded as a result of the same engagement in which the applicant and three others were captured. He suffered a severe psychological disability after he filed his recommendation for the award for the applicant. He was not in a state of mind to pursue the award recommendation during his period of hospitalization until 1966, when he was medically retired. He had not recovered from his psychological problems, but as his condition improved, he had spent more time pursuing the applicant's Medal of Honor upgrade. (5) On 20 June 1991, the Chief, Military Awards Branch, U.S. Army Total Personnel Command, advised that the Military Assistance Command, Republic of Vietnam Awards Branch, could have approved an award of the Distinguished Service Cross or the Medal of Honor if it had had enough evidence to award it. From the language on the Silver Star Citation, there is clearly a lack of description of the applicant's return to the camp and his subsequent actions in eliminating the enemy machine gun crew before he was taken prisoner. c. A letter from the Chief, Awards and Decorations Branch, HRC, dated 12 September 2019, in response to a Congressional inquiry, in which he stated: (1) This office was unable to forward a request for reconsideration to the Army Decorations Board at the time and had to comply with Army Regulation 600-8-22 (Military Awards) concerning the proper completion and formatting of retroactive award nominations. (2) A request for reconsideration of a previously approved, disapproved, or downgraded award was contingent upon the presentation of new, substantive, and material information directly pertaining to the Soldier's actions. Such information must be outlined in a letter of justification, which could not exceed two single-spaced, typewritten pages, and also incorporated into a new narrative and citation for the Medal of Honor. In order to properly assess the merits of the case, a review of the original nomination for award, original proposed citation, award narrative, and eyewitness statements had to be reviewed. (3) The applicant had to ensure the new information reflected a substantive change in the scope and magnitude of his actions during the incident. The submission of new minor details, as well as information known to his wartime chain of command, would not justify award reconsideration. Also, award nominations were considered on an individual basis. Decorations awarded to other individuals who participated in the same event could not be used as supporting evidence. c. Congressional correspondence, dated 25 November 2019, wherein two members of the U.S. Senate requested the Secretary of the Army review of the applicant's application for the Medal of Honor. d. A letter from The Adjutant General, HRC, dated 5 December 2019, in response to the 25 November 2019 Congressional inquiry from two members of the U.S. Senate, wherein he stated: (1) He was unable to forward the reconsideration request for an upgrade of the applicant's Distinguished Service Cross or Silver Star to the Medal of Honor to the Army Decorations Board. (2) Without both a qualified living recommender and one living intermediate authority, the retroactive recommendation could not be processed in accordance with Department of Defense Manual 1348.33, Volume 1 (Manual of Military Decorations and Awards: Medal of Honor), Army Regulation 600-8-22, and Title 10, U.S. Code, section 1130. (3) To be considered "submitted into military channels" requires signature by both a qualified initiating official and endorsement by the first higher official in the chain of command (who is not the recommender). In addition, the board must review new and substantive evidence not previously considered, to justify reconsideration." BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that partial relief is warranted. 2. The Board agreed that the available records indicate that not all available information was considered when the applicant's Silver Star was upgraded to the Distinguished Service Cross. In particular, CPT J____ R. C____ has noted that the applicant's return to the camp while under heavy enemy fire to rescue his fellow Soldiers and take out the enemy manning the machine gun was not a consideration when his Silver Star citation was written. He further notes that had he known of the applicant's return to the camp at the time, he would have submitted a recommendation for the Medal of Honor. The Board determined the available records support a recommendation to forward the applicant's records to the Office of the Secretary of the Army for review to determine if the evidence supports an upgrade to the Medal of Honor. 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: 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 referring his record to the Office of the Secretary of the Army for review to determine if the evidence supports an upgrade of his award of the Distinguished Service Cross to the Medal of Honor. 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 any relief in excess of that described above. 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. 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 error or injustice. This provision of law also allows the 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. 2. Army Regulation 600-8-22 prescribes Department of the Army policy, criteria, and administrative instructions concerning individual and unit military awards. a. 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. The regulation provides that 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 the risk of life. Incontestable proof of the performance of the service will be exacted and each recommendation for this decoration will be considered on the standard of extraordinary merit. b. The Distinguished Service Cross 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. As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required. d. Title 10, U.S. Code, section 1130, Title 10, U.S. Code, section 1130, provides the legal authority for consideration of proposals for decorations not previously submitted in a timely fashion. Upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award of or upgrading of a decoration. Based upon such review, the Secretary shall determine the merits of approving the award. (1) All requests that are not processed within time limitations and/or theater are considered retroactive, and must be processed through the chain of command which was in effect at the time of the service or achievement to be recognized. All commanders in the former chain of command, to include the awards approval authority for the request, must endorse the recommendation for approval, downgrade, or disapproval as appropriate in the intermediate authority blocks on the award form. Every attempt will be made by the recommender to obtain the original chain of command’s endorsement for all award recommendations. In the event an individual is not available, the recommender must provide documentation, such as a memorandum of record, emails, or letters verifying they have taken all reasonable steps to locate the individual. (2) Award recommendations submitted under the provisions outlined in this appendix are governed by this regulation in the same fashion as any timely submission. In particular, the requirements in paragraph 3–5 must be met for consideration under Title 10, U.S. Code, section 1130. e. Paragraph 3-5 (Who May Recommend) states: (1) The Army does not allow self-recognition (including spouses or other family members); therefore, a Soldier may not recommend himself or herself for award of a decoration. (2) The recommending official must have first-hand personal knowledge of the event, or have been senior in grade at the time of the action(s) or service, to the individual being recommended for an award. Additionally, the recommending official must have knowledge of all the action(s) or service cited. That is, the recommending official must have either observed the actions or been provided information by an individual who observed the actions. (3) Recommending officials who did not personally witness the action must have been associated, by virtue of their position in the command, with the incident and/or the individual being recommended for the award. If the recommending official is not the commanding officer, the commander, if available, must endorse the recommendation. If it is no longer possible to route the recommendation through the commander (for example, the commander is deceased), a signed statement to the effect must be included. In this case, another officer who has knowledge of the action(s), and who was senior in the chain of command of the individual being recommended during the period for which recognition is desired, may endorse the recommendation. (4) Recommendations for the award of Army decorations to members of another Service branch will be submitted by Army personnel only. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200001277 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1