IN THE CASE OF: BOARD DATE: 19 August 2021 DOCKET NUMBER: AR20210007099 APPLICANT REQUESTS: the widow of a deceased former service member (FSM) requests correction of her late husband's military records as follows: * Upgrade his Silver Star Medal to a Medal of Honor * List his prisoner of war status APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal Statement * Certificate of Marriage * Certificate of Death * Department of Veterans Affairs (VA) Card * VA Medical Certificate and Rating * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * Honorable Discharge Certificate * Central Intelligence Agency (CIA) Report, dated 6 April 1987 * Declassified Military Assistance Command - Studies and Observations Group, Review for Award, 24 December 1968 * War Department, Special Mission Award, 10 February 1969 * DOD Military Service Information, 24 October 2012 * Silver Star Citation 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 her late husband served in Vietnam. He was Special Forces and part of a team that extracted Prisoners of War (POWs). As you will see by the paperwork she submitted, he is entitled to POW status not just through the hospital, but also the administrative side. Her husband was very paranoid about the CIA and the government so he kept most of this paperwork hidden away. This April he passed away and in the process of going through his belongings she found some of this paperwork which will show his status should be updated. He and Captain (CPT) K__ were awarded the Silver Star, but were being considered for the Medal of Honor. 3. As for the Medal of Honor, the applicant's request to this Board is premature: a. Army Regulation 15-185 (ABCMR), the regulation under which this Board operates, states in paragraph 2-5, Section II that the Board will not consider any application if it determines that the member has not exhausted all administrative remedies available to him/her. b. Army Regulation 600-8-22 (Military Awards) prescribes Department of the Army policy, criteria, and administrative instructions concerning individual and unit military awards. Paragraph 1-16 of this regulation states, 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, U.S. Code, section 1130 (10 USC 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. c. Title 10 USC 1130 allows the Service Secretary concerned to review a proposal for the award of, or upgrading of, a decoration that is otherwise precluded from consideration by limitations established by law or policy. In order to request an award under Title 10 USC 1130, an applicant must submit a DA Form 638 (Recommendation for Award). The DA Form 638 should clearly identify his/her unit, the period of assignment, and the award being recommended. A narrative of the actions or period for which he/she is requesting recognition must accompany the DA Form 638. In addition, the award request should be supported by sworn affidavits, eyewitness statements, certificates and related documents. Corroborating evidence is best provided by commanders, leaders, and fellow Soldiers who had personal (i.e., eyewitness) knowledge of the circumstances and events relative to the request. d. Title 10 USC 1130 also requires that a request of this nature be referred to the Service Secretary from a Member of Congress. Therefore, an applicant must submit his/her request through a Member of Congress who will send it to the U.S. Army Human Resources Command, ATTN: AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY 40122. The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rest with the requestor. As such, the Medal of Honor will not be further considered in this Record of Proceedings. 4. Review of the FSM's service records shows: a. The FSM was inducted into the Army of the United States and entered active duty on 22 September 1967. He held military occupational specialties 76A (Unit Supply Specialist) and 71B (Clerk Typist). b. He served in Vietnam from 28 September 1968 to 2 January 1969. He was assigned to Company B, 6th Support Battalion, 11th Infantry Brigade. c. He sustained fragment wounds to his chest, abdomen, and right left arm on 16 December 1968 and was evacuated through the 106th General Hospital to the U.S. Army Hospital at Fort Carson, CO. d. Following recovery, he was assigned to the 5th Military Intelligence (MI) Detachment and then the 241st MI Detachment at Fort Carson. e. He was honorably released from active duty 19 September 1969. His DD Form 214 as amended by a DD Form 215 (Correction to DD Form 214) shows he completed 1 year, 11 months, and 28 days of active service. He was awarded or authorized: * National Defense Service Medal * Combat Infantryman Badge * Vietnam Service Medal * Vietnam Campaign Medal * Purple Heart * Presidential Unit Citation * Meritorious Unit Citation * Good Conduct Medal 5. The applicant provides: a. CIA Report, dated 6 April 1987, that states at the request of United States Senator D__ of [State], CIA officials have been authorized to conduct an inquiry into [FSM's] military history through his Army records. Although there are several apparent errors and "blank spaces'' in these records, they clearly show that he had served his country well. He was informed that the CIA has submitted a request to the War Department to consider him for the Medal of Honor. According to their records on December 24, 1968, he and five other members of a United States Army Special Forces POW Extraction Team landed in a remote area of Southeast Asia and recovered six live American prisoners. The records show that he and CPT K__ remained on the ground in order that the helicopters could make a quick exit under heavy hostile fire. The FSM and CPT K__ attempted to divert the enemy's attention to the ground and consequently were captured while moving towards an alternate landing zone. CPT K__ is still listed as missing in action. The FSM was removed to a Viet-Cong camp where he was placed in a bamboo cage in chest-high water. He managed to chew his way out of the cage within a 17-day period but not prior to enduring extreme torture (all fingers on both hands were broken), malnutrition, and other disabilities, and make his way through a triple canopy jungle to friendlies. CIA officials felt his past award of a "Silver Star" for heroism and gallant escape does not do him or the United States justice. They expected this inquiry to take approximately six to eight months. He would be as soon as possible, and may possibly be asked to come to Washington to clear up any questions the government may have pertaining to this matter. b. Military Assistance Command, Studies and Observation Group, After Action Report, dated 5 January 1969, Subject: Request interview of SFUSA After Action Report Division Level, dated 24 December 1968, U.S. Army Vietnam, 5th Special Forces Group, 241st MI Detachment, Vietnam. * Mission: Extraction of American POWs * Team: Camp A-108 MINH LONG * Manpower, Six Group Members on the ground, twelve LLBD, two ARVN as support * Vehicles: Three UH-1 + Crewmembers, total nine flight personnel. * Location: Western Region of Southeast Asia (Laos) near Saravane & Minh Long River * Time/Date: 0800 to 0830 24 December 1968 * Operation: Detachment report indicates mission accomplished, six POWs (Americans) Recovered, no others located. Statistical toll 4 SF WIA (wounded in action), 2 LLBD WIA, 2 SF MIA (missing in action), no actual count of enemy stats - report of historian claims approximately 25 enemy down - unknown KIA or WIA * Awards: Request all involved team & forward support be considered for Vietnam Gallantry Cross with bronze w/valor * Special Requests: [The FSM] and CPT K__ (both MIA) for CMH (Congressional Medal of Honor) forwarded to G-2, USA War Dept., Washington, D.C. USA on 5 January 1969 c. War Department, Special Mission Award, addressed to 5th Special Forces Group, 241st MI Detachment, dated 10 February 1969 that reads the War Department has honored the request of the Vietnam Cross of Gallantry to be awarded to the men of Team A-108, 5th USA SF. Those persons will also receive the Bronze Star w/valor attachment. In regards to the two MIAs (CPT K__ and the FSM) they will also receive the Silver Star Award for their actions on this mission. Due to the surreptitious goal of this mission, and its location, the War Department denied the Medal of Honor at this time. Although the two MIAs have gone beyond the "call of duty" the War Department does not wish to raise any questions of possible violations of the Geneva Convention Accords in respect to this type of mission at this time. d. VA rating decision, dated 14 November 1987, that states "he is a former POW and is entitled to all benefits, awards, and gratitude of a disabled/former POW." e. DOD Military Service Information Sheet, dated 24 October 2012, that essentially states the FSM was captured by the Viet-Cong and held captive for 17 days but reportedly escaped and returned to friendly forces. f. Silver Star Citation for conspicuous gallantry and intrepidity at the risk of his own life in action against a hostel enemy force, on 24 December 1968, as a squad leader of a six-man POW Extraction Team. The team was successful in extracting six live Americans. He became separated from his command in the dense jungle and eventually captured by enemy forces. He was able to escape after 17 days of extreme torture by the enemy. 6. By regulation (AR 635-5), in effect then for a Soldier with POW documentation, enter in the remarks block of the DD Form 214 "Prisoner of War, Unit of Assignment/Country, and dates of Capture/Release." 7. By regulation (AR 600-8-22), the POW Medal is authorized for any person who, while serving in any capacity with the U.S. Armed Forces, was taken prisoner and held captive after 5 April 1917. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found partial relief is warranted. 2. The Board noted the applicant has not exhausted an available administrative remedy with regard to upgrading the FSM's Silver Star. The Board determined it will not take action on this portion of her request without evidence that she has submitted a request under the provisions of 10 USC 1130 and been denied. 3. The Board found the evidence confirms the FSM was a POW. The Board determined the FSM's record should be corrected to show he is authorized the POW Medal and to reflect this medal and the period he spent as a POW. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :XX :XX :XX 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 amending his DD Form 214 by adding to: * Item 24 – Prisoner of War Medal * Item 30 – Prisoner of War, 241st Military Intelligence, 5th Special Forces, Vietnam, 24 December 1968 – 10 January 1969 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 the Silver Star. 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, 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 ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It establishes standardized policy for the preparation of the DD Form 214. It states that for a Soldier with POW documentation, enter "Prisoner of War, Unit of Assignment/County, and dates of capture/release." 3. Army Regulation 600-8-22 (Military Awards) states the POW Medal is authorized for any person who, while serving in any capacity with the U.S. Armed Forces, was taken prisoner and held captive after 5 April 1917. The POW Medal is to be issued only to those U.S. military personnel and other personnel granted creditable U.S. military service, who were taken prisoner and held captive— * While engaged in an action against an enemy of the United States * While engaged in military operations involving conflict with an opposing foreign force * While serving with friendly forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party a. Veterans, retirees, and their primary next of kin. All requests for award of the POW Medal for past armed conflicts will be initiated by former POWs, or their primary next of kin, using a personal letter. The following documents, as applicable, will be submitted with POW Medal applications to assist in validating the award: Army separation documents; casualty reports; messages, letters, or telegrams sent home; unit journals; diaries; sworn DA Form 7791 (Eyewitness Statement Valor/Heroism) or affidavits; photos, identification card, or other documents taken or obtained while in captivity; news clippings and other evidence in support of the request. Applications or personal letters will be forwarded to National Personnel Records Center (NPRC), 1 Archives Drive, St. Louis, MO 63138–1002. b. Soldiers who retired or were discharged after 1 October 2002 and the next of kin of Soldiers who died after 1 October 2002 will send their requests to Commander, U.S. Army Human Resources Command (AHRC–PDP–A), 1600 Spearhead Division Avenue, Fort Knox, KY 40122–5408. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210007099 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1