Docket No: 431-20
Ref: Signature Date                                                                                                     

  
Dear  :  
 
This is in reference to your application for correction of your naval record pursuant to Section 1552 of Title 10, United States Code.  After careful and conscientious consideration of relevant portions of your naval record and your application, the Board for Correction of Naval Records (Board) found the evidence submitted insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied.     
 
Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your application on its merits.  A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 30 November 2020.  The names and votes of the members of the panel will be furnished upon request.  Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board.  Documentary material considered by the Board consisted of your application, together with all material submitted in support thereof, relevant portions of your naval record, and applicable statutes, regulations, and policies and the Advisory Opinion dated 28 September 2020. 
 
The Board determined that your personal appearance, with or without counsel, would not materially add to their understanding of the issues involved.  Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. 
 
You were commissioned in the Marine Corps and served honorably until your retirement in 1986.  In your application to the Board, you request an upgrade to the Silver Star Medal (SSM) that you were previously awarded for your actions in Vietnam on 20 April 1968.  While serving as the Executive Officer, Company , you came under intense enemy artillery fire from North Vietnamese.  As a result of the attack, helicopter extraction had to be aborted, and you were instrumental in organizing a withdrawal by foot, commencing an attack on the village of Dai Do the following morning and ensuring your Company held its objective.  During the engagement, you personally remain exposed in your fighting position through intense enemy counter-attack.  Also, due to wounds received by your commander, you assisted in establishing the forward  defensive position.  On 7 April 1978, you were recommended for the Bronze Star Medal (BSM); CMC forwarded the recommendation to SECNAV who approved the SSM for conspicuous gallantry and intrepidity in action in connection with operations against North Vietnamese forces while serving as XO, Company “G,” .  In 2019, Headquarters Marine Corps denied a request to upgrade the SSM, finding that the request failed to present new and relevant evidence to support and upgrade and noting that the request was not initiated by a more senior officer, was not endorsed by a member of your chain of command at the time, and was not accompanied by statements from eyewitnesses.  You provided a personal statement dated 22 June 2020, in which you provide background information about the missteps that were made in your record and the nearly decade-long impact to your fitness reports, award, and promotion opportunity.  You also indicated that when you contacted Colonel (ret)  for assistance with initiating an upgrade request to your SSM, his personal circumstances were such that he was unreceptive.  Additionally, your personal statement provides a list of new and relevant information significant to the Battle of Dai Do, and notes that had this information been available at the initial award submission, the award of a higher medal such as a Navy Cross may have been considered.  
You assert that the new, substantive and materially relevant evidence justifies reconsideration of the 1979 SSM.  
 
As part of the review process, Headquarters Marines Corps, Military Awards Branch reviewed your request, and issued an Advisory Opinion dated 28 September 2020.  The Advisory Opinion concluded that the current petition contains nothing of substance that was not previously considered by Headquarters Marine Corps, and therefore does not justify reconsideration for an upgrade.  The Advisory Opinion determined that there was insufficient evidence presented to overcome the presumption that the 1979 decision by SECNAV to award the SSM was informed by all of the factual evidence deemed by the chain of command to be material to the level of the award.  The Advisory Opinion recommended that the Board deny the request.  The Advisory Opinion was provided to you, and you submitted a rebuttal dated 19 October 2020.  In the rebuttal, you note in part that you made seven points of fact, not five assertions in your request.  You also take issue with the insinuation that you initiated the request yourself; you contend that you were advised to do so in the correction process.  You also note that the size of the enemy was underestimated, and indicate that Colonel (ret)  initially supported the upgrade to the award and then made false accusations and indicated that the glory should have been his.  You appeal to the Board’s duty and indicate that as a matter of justice, regardless of regulatory nuances, the Battle of Dai Do was such that an upgrade to your award is appropriate. 
 
The Board, in its review of your entire record and application, carefully weighed all factors, including your impressive contributions and heroics in Vietnam beginning 30 April 1968.  The Board acknowledged the challenging circumstances you faced when requesting support for the upgrade to your SSM from Colonel (ret) Vargas.  The Board considered your factual statements regarding the size of the enemy faced at the Battle of Dai Do, but concurred with the analysis of the Advisory Opinion, which found that the objective factual level of a threat is not always a key factor in evaluating personal heroism.  The Board also noted the information you presented regarding shrapnel wounds, compensation for failure on the left flank, the tactical withdraw that save other service members’ lives, and your tenacity in remaining in place to provide cover for the tactical withdraw.  Even in consideration of the information you provided in both your petition and your rebuttal to the Advisory Opinion, the Board concurred substantially with the findings of the Advisory Opinion.  The Board determined that you did not provide sufficient evidence to overcome the presumption that the 1979 decision by SECNAV was informed by all of the factual evidence deemed material to the level of the award by the chain of command to be material.  The Board also concluded that you did not provide new and material evidence to support an upgrade to your already tremendously high honor of the award of the SSM. 
 
You are entitled to have the Board reconsider its decision upon submission of new matters, which will require you to complete and submit a new DD Form 149.  New matters are those not previously presented to or considered by the Board.  In this regard, it is important to keep in mind that a presumption of regularity attaches to all official records.  Consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice.   
 
 Sincerely,