IN THE CASE OF: BOARD DATE: 22 March 2016 DOCKET NUMBER: AR20150005148 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 reconsideration of his earlier request for award of the Silver Star for combat action on 30/31 January 2005, and in the event the award is denied, he requests consideration for a lesser award. 2. The applicant states: a. This award was submitted and recommended for approval by the entire wartime chain of command up to the Army Central Command (ARCENT) Commander who was the approving authority at the time of the incident. The recommendation was lost and resubmitted to the U.S. Army Human Resources Command (HRC) with all combat command signatures and was denied by HRC in May 2012. He believes this award was justly recommended by his wartime chain of command on the ground during the time of the action. The chain of command, from the company commander to the ARCENT Commander (Lieutenant General (LTG) Whit---- ) who was the wartime approval authority, recommended approval of award of the Silver Star. The injustice was in the processing at HRC after the award recommendation was lost. Valid requests and recommendations from the wartime commander were not honored. In spite of extensive evidence, this award was denied due to perceptions at HRC that contradicted the judgment and integrity of the wartime command team. b. He then applied to this Board for award of the Silver Star. In Army Board for Correction of Military Records (ABCMR) Docket Number AR20130009295, dated 26 February 2014, the denial by the Board had stated he was with a platoon sized element on the night in question. Records and the original application clearly show only six Soldiers, including him, were present during this fight with only two modified high mobility multipurpose wheeled vehicles (HMMWVs) and light weapons. He was not considered for a lesser award in the event that the Board denied the Silver Star and eligibility for a lesser award was not considered for this action. To award no level of award for his actions would be an injustice to him as a Soldier based on the original nomination by his wartime chain of command and by the letter, dated 27 February 2014 from the Board. The Record of Proceedings stated "the Board acknowledges and applauds the applicant's service during that firefight under hazardous conditions; he is truly an American Hero." He feels to make no award, even a lesser award for service at a level equal to or less than the original wartime commander's recommendation is truly an injustice given the magnitude of this action and the level of command up to the ARCENT Commander's endorsement of his original Silver Star recommendation. c. He requests his record and actions on 30-31 January 2005 be reviewed again for the Silver Star based on the fact the original denial letter did not clearly show there were only six Soldiers and not a platoon as stated in the letter dated 27 February 2014. In addition, he wishes to be considered for a lesser award and that an award be made on the recommendation of this Board based on the information they have if the Silver Star is denied. He also requests a review of the original application and that any level of award for this particular action or combined actions this Board determines appropriate be made. He trusts this Board to judge him fairly for the proper form of recognition based on the information contained in the original award submission. He asks that if an award of any level be considered or made that his DD Form 214 (Certificate of Release or Discharge from Active Duty) be properly corrected and a DD 215 (Correction to DD Form 214) be issued. d. He feels that administrative problems, including the fact he was a member of a provisional unit and had been under multiple chains of command, created this injustice and he did not receive some form of recognition for his actions on 30-31 January 2005. He also notes he had not known before that the only reason he had not been considered for a lesser award was because he had not personally requested the Board to do so. He wishes to state that he did not know that a downgrade consideration or lesser award consideration had to be specifically requested by the potential awardee. As a Soldier, he could not find the regulations that would allow him to do this; however the Board's letter dated 27 February 2014 states he must request that consideration be made and therefore the entire intent of this request for review is to ask that this Board consider a lesser award if the Silver Star is denied again based on his information above. He is only seeking consideration and a remedy to the injustice of not awarding any award based on the actions in the original recommendation that clearly show that he should be considered for some sort of appropriate military award. 3. The applicant provides the same DA Form 638 (Recommendation for Award) with endorsements, he previously submitted with his original request. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20130009295, dated 26 February 2014. 2. The applicant previously applied to this Board for award of the Silver Star after having been twice denied by the Army Decorations Board at HRC. a. The Board denied his application for award of the Silver Star on 26 February 2014. He does not provide new evidence pertaining to the Silver Star. However, the previous Record of Proceedings stated that because he did not specifically request consideration for a lesser award, a lesser award was not considered. He now requests consideration of a lesser award. b. Due to the uniqueness of this case, the issue of the Silver Star as well as the lesser award will be considered. 3. Having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer of the Tennessee Army National Guard (TNARNG) and executed an oath of office on 17 April 2002. 4. He completed the Air Defense Officer Basic Course and he was promoted to first lieutenant (1LT) on 17 April 2004. At some point, he transferred to the Ohio Army National Guard (OHARNG). 5. He was ordered to active duty on 2 January 2004 and subsequently served in Kuwait/Iraq in support of Operation Iraqi Freedom (OIF) from 3 February 2004 through 27 February 2005. He was assigned to the 1487th Transportation Company. He was released from active duty to the control of the OHARNG on 28 March 2005. His DD Form 214 shows he was awarded or authorized the: * Bronze Star Medal with "V" Device (2nd Award) * Bronze Star Medal * Purple Heart (3rd Award) * Meritorious Service Medal * Army Commendation Medal (3rd Award) * Army Achievement Medal (3rd Award) * Army Good Conduct Medal * National Defense Service Medal (2nd Award) * Armed Forces Expeditionary Medal * Southwest Asia Service Medal with two bronze service stars * Global War on Terrorism Expeditionary Medal * Global War on Terrorism Service Medal * Humanitarian Service Medal (2nd Award) * Armed Forces Reserve Medal with "M" Device * NCO Professional Development Ribbon with Numeral 2 * Army Service Ribbon * Overseas Service Ribbon * Kuwait Liberation Medal (Saudi Arabia) * Kuwait Liberation Medal (Kuwait) * Army Recruiter Badge * Combat Infantryman Badge * Drill Sergeant Identification Badge * Driver and Mechanic Badge * Gold German Marksmanship Badge 6. He entered active duty on 5 April 2005 and he was honorably released from active duty on 22 August 2005. He was issued a DD Form 214 that captured his 4 months and 18 days of active service. In September 2005, he completed the Transportation Officer Advanced Course and his branch was changed to Transportation Corps. He was also promoted to captain on 7 August 2006. 7. On 1 March 2007, HRC issued him a DD Form 215, amending his DD Form 214 for the period ending 28 March 2005 by adding add award of the Combat Action Badge. 8. In March 2007, the applicant's OHARNG chain of command reconstructed a DA Form 638 (Recommendation for Award) recommending the applicant for award of the Silver Star for heroism on 30-31 January 2005. The OHARNG stated that the original DA Form 638 was completed in 2005 while the applicant was still deployed to Iraq; however, it was never acted upon so it was considered lost. Once the unit redeployed, attempts were made by the applicant, the unit, the commanders, as well as the Ohio State Adjutant General, to ensure that several Soldiers, including the applicant, were recognized for their efforts. The reverse page of the DA Form 638 shows the Silver Star was: * recommended by the 731st Troop Command S-1 * endorsed by the 731st Troop Command battalion commander * endorsed by the 371st Sustainment Brigade Commander * endorsed by the Assistant Adjutant General, OHARNG 9. During its deployment in 2004, the 1487th Transportation Company reported to the 812th Transportation Battalion, which was a subordinate unit of the 143rd Transportation Command (Forward) under the 375th Transportation Group (Composite), which reported to the 377th Transportation Command (Provisional). 10. On 20 July 2009, the U.S. Army Physical Disability Agency (USAPDA) published orders releasing him from duty effective 23 August 2009 and placing him on the Temporary Disability Retired List (TDRL) effective 24 August 2009. Effective 1 March 2013, he was permanently retired for disability. 11. It appears this action was not processed because it did not have the correct chain of command signatures. As a result, an updated back page of the DA Form 638, signed in August 2010, shows an award was: * endorsed by the OHARNG Adjutant General * endorsed by the Commander, 377th Transportation Command (Commander now retired but stated he was assigned as Commanding General (CG), 377th TSC from August 2004 to July 2005) * endorsed by LTG Whit---- (stated he was the CG, Third Army, from October 2004 to December 2007) 12. On 7 May 2012, by letter addressed to the applicant's Member of Congress, the Chief, Awards and Decorations Branch, HRC, stated the recommendation for award of the Silver Star had been forwarded to the Army Decorations Board for review. The Army Decorations Board determined that the degree of action and service rendered did not meet the gallantry required for the proposed award. Based on the recommendation of the Army Decorations Board, the CG, HRC, acting on behalf of the Secretary of the Army (SA), disapproved award of the Silver Star. Per Department of Defense (DOD) and Army policy, one-time reconsideration by the approval authority was to be conclusive. 13. On 6 June 2012, the applicant petitioned this Board for award of the Silver Star. He stated that the award was submitted and endorsed by the entire wartime chain of command up to the approving authority. However, the award was lost, reconstructed with the appropriate wartime commanders' signatures, and submitted to HRC but was denied. He provides/provided: a. His reconsideration request to HRC for award of the Silver Star which included a summary prepared by Colonel (Retired) DTM who stated on 1 March 2011, HRC Awards and Decorations Branch disapproved a number of awards including the Silver Star for the applicant, the Silver Star for First Sergeant JC, and four awards of the Bronze Star Medal with "V" Device for Soldiers whom the applicant had recommended for those awards. The awards were submitted for the heroic and extraordinary acts of bravery shown by these men on 30 January 2005 when they responded to a very organized ambush against coalition forces. b. A reconstructed DA Form 638 recommending the applicant for award of the Silver Star for heroism for the period 30 to 31 January 2005 contains the chain of command approvals, dated between May and June 2007, and LTG Whit---'s approval, dated 17 August 2010, together with a citation that reads: For acts of gallantry and extreme courage under fire at great risk to his life while engaging hostile forces on the night of 30 January 2005. [Applicant], while leading a security patrol, found a U.S. convoy under enemy attack and led his patrol into the firefight to deter the enemy and allow the convoy to continue on its mission. [Applicant's] patrol captured nine insurgents and subsequently came under several more attacks before the arrival of British reinforcements, at which time an assault on a nearby factory was ordered that resulted in the capture of 25 more insurgents and numerous weapons. [Applicant's] unselfish acts of heroism, superb leadership, and personal courage bring great credit upon him, the 1487th Transportation Company, the Transportation Corps, and the U.S. Army. c. A narrative for award of the Silver Star for the applicant that reads: On 30-31 January 2005, [Applicant] was the commander of the 106th Route Security Element (RSE) that was TACOM [tactical command] to the 1/178 FA [1st Battalion, 178th Field Artillery Regiment] to conduct security patrols of the area in and around Safwan, Iraq. While leading a patrol, [Applicant] positioned his two HMMWVs on bridge 6A, used as an over watch position on Alternate Supply Route (ASR) Heart overlooking Main Supply Route (MSR) Tampa. At 2115 hours, a convoy under the command of 1LT KK of the 1158th Transportation Company came under a well organized ambush that included small arms fire, rocket-propelled grenades (RPG), and mortar fire. [Applicant], seeing the convoy under attack, ordered his two HMMWV's into the kill zone to assist and repel the attack. The convoy had stopped and was fighting back but appeared to be stalled. Upon entering the kill zone, [Applicant] exited his HMMWV and started to fire flares to expose the enemy and allow the convoy to move out of the kill zone. Within minutes, the fire had ceased and the convoy left the area. [Applicant] then ordered his vehicles back to the original over watch position to report the incident but due to communication issues, he was forced to call the 106th Tactical Operations Center (TOC) using his cell phone. Once the incident was reported, two vehicles approached the base of the bridge and flashed lights at [Applicant] and his crew. The vehicles then exited Route Tampa and drove toward the two U.S. Army HMMWVs. Both unidentified vehicles stopped approximately 100 meters from [Applicant's] crew and opened fire on them. Without hesitation, [Applicant's] patrol returned fire and drove the hostile forces back. [Applicant] then ordered his two vehicles to overwhelm the enemy forces and in the process, they captured nine insurgents and confiscated seven weapons. Two of the insurgents were wounded and one was killed in the initial firefight. [Applicant] contacted the TOC again and requested assistance from the British forces stationed ten miles from the location of the attack. [Applicant] tightened up his forces and established a small perimeter with his two vehicles and six Soldiers, all while detaining nine enemy insurgents and treating the two wounded insurgents. [Applicant] inspired his men to hold their ground and secure his section of the MSR that was heavily traveled. Within a few minutes of reporting his position, [Applicant] was approached by other vehicles that looked exactly like the two which had previously attacked them. At one point the vehicles stopped and a man yelled out to them stating that he wanted to take the prisoners and weapons. [Applicant] yelled back stating he was not giving up anything and he would have to fire on them if they came any closer. The unidentified vehicles left the area and drove toward a factory. Within minutes the U.S. perimeter came under heavy attack from the direction of the factory and the west side of the road. [Applicant] immediately returned fire and moved to the most forward position and fired on multiple insurgents, hitting many of the attackers. [Applicant] then had to go out in the open to call in his report from his cell phone while the attacks continued and ammunition started running low. [Applicant] had his Soldiers consolidate ammo and maintain positions. It was at this point that [Applicant] fixed his bayonet on his rifle and told his Soldiers they had to hold the ground because help was on the way. The firefight continued but [Applicant's] small force beat the enemy back until reinforcements under the command of Sergeant First Class (SFC) C arrived. Without orders, the five Soldiers under SFC C turned their two M998s into the fire and stopped insurgents trying to maneuver around [Applicant] and his team. While dismounted and under fire, [Applicant] coordinated with SFC C. Lieutenant P of the 2nd British PWRR [Princess of Wales's Royal Regiment] showed up with a platoon of Soldiers shortly after this engagement and together they established a larger perimeter. The British took control of the prisoners, and in spite of the additional forces, the insurgents continued to attack. [Applicant] was exposed and with rounds impacting in and around his position, he returned fire and moved along the entire perimeter to reposition Soldiers and reconsolidate ammo and water between U.S. and British forces. This battle went on until additional support arrived and the order was given to assault the factory with the assistance of six Warrior Vehicles, two helicopters, and an additional platoon of British Soldiers. The British, seeing the tenacity of [Applicant] and his Soldiers requested they provide support by fire for the assault. The assault started at 0140 hours and at 0202 hours, the assault was over with 25 additional prisoners from the compound and a large number of weapons. The enemy killed in action was reported by British helicopters in the area as "multiple bodies." d. DA Form 638 and resulting certificate for award of the Bronze Star Medal with "V" Device for SGT SML for heroic achievement on 30 January 2005 in ground combat against the enemy on 30 January 2005 shows the Soldier was recommended for this award by the applicant who was his platoon leader. e. DA Form 638 for award of the Bronze Star Medal with "V" Device for SGT DH for heroic achievement on 18 October 2004 shows the Soldier was recommended for this award by the applicant who was his platoon leader. f. A Historian Investigation by Mr. RK stated the RSE ran two patrols on 30 January 2005. The applicant ran the night mission which he preferred because it was when the most trouble occurred and he knew if there was trouble the RSE needed an officer to coordinate with the British who owned the sector. 14. On 9 July 2012, by second letter addressed to the applicant's Member of Congress, the Chief, Awards and Decorations Branch, HRC, stated the recommendation for award of the Silver Star was forwarded to the Army Decorations Board for review. The Army Decorations Board determined that the degree of action and service rendered did not meet the gallantry required for the proposed award. Based on the recommendation of the Army Decorations Board, the CG, HRC, acting on behalf of the SA, reaffirmed disapproval of the Silver Star. Per DOD and Army policy, one-time reconsideration by the approval authority was conclusive. With regard to the applicant's concerns that other circumstances may have influenced the approval authority's decision, the letter stated each recommendation is reviewed based on its own merits. 15. On 3 January 2013, in support of the applicant's ABCMR petition, the Acting Chief, Personnel Policy Division, National Guard Bureau (NGB), submitted a memorandum wherein he reiterated the applicant's request. He stated the original submission for that award was lost in country. The OHARNG concurred with the recommendation. The NGB official also stated: a. The recreated DA Form 638 which the applicant included in his request recommending him for award of the Silver Star should be submitted for approval to HRC based on the merits of his actions while serving his country in combat. It suggested that he should receive full administrative relief in this matter and be presented the Silver Star or appropriate level award for the action described in the DA Form 638 provided with his request. It should be noted that previous awards of the Bronze Star Medal for valor for the applicant were for different engagements he encountered while deployed. He requested a review/approval of the submission for award of the Silver Star for combat action while serving in Iraq in 2005 based on the new documents/video he supplied to support his claim. b. The original DA Form 638 was completed in 2005 while the applicant was still deployed to Iraq; however, it was never acted upon so it was considered lost. Once the unit redeployed, attempts were made by the applicant, the unit, the commanders, as well as the Ohio State Adjutant General, to ensure that several Soldiers, including the applicant, were recognized for their gallant efforts during the incident in question. As a result of these efforts, two Soldiers who served under the applicant during the incident in question have been awarded the Bronze Star Medal with "V" Device. That provided proof that the incident in question was not a friendly fire situation as was suggested in the case of the applicant's Silver Star request. c. One of the primary reasons HRC denied the first request for award of the Silver Star was that the DA Form 638 did not have the signature of the wartime commander in theater at the time of the incident. The appropriate signature was received in the original document that was lost. In the new evidence provided as part of the case file, LTG (Retired) Whit--- signed the DA Form 638 and recommended approval even though he has since retired from the Army. d. Considering the request for the award was now over 7 years old, it suggested that some leniency be given regarding the proper administrative award protocols. It suggested that had the award not been lost in country and the paperwork submitted in a timely manner, the applicant would have had a much greater chance of receiving the award than he does today. It was difficult to recreate awards once a unit had redeployed. The level of difficulty increases when various commands and branches of military are involved in the process. e. Considering the award submissions were lost in country, the effort to rebuild the facts around the case was daunting. One significant challenge arose from the fact that signatures from wartime commanders had to be obtained. Additionally, the fact that two Soldiers involved in that incident were awarded the Bronze Star Medal for valor warrants serious consideration for the applicant since he was providing direction during the same incident. To deny the applicant recognition based on "administrative issues" would not be in keeping with the best interests of the Army and the Soldiers who served in combat operations in Iraq and around the world. f. The HRC Awards and Decorations Branch previously denied the award and stated that the Army Decorations Board determined that the degree of action and service rendered did not meet the gallantry required for the proposed award. Based on the recommendation, the service rendered did meet the strict criteria for the proposed award. The CG, HRC, acting on behalf of the SA, disapproved award of the Silver Star. Per DOD and Army policy, one-time reconsideration by the approval authority will be conclusive. g. The documentation in the case was overwhelming, well written, and it should be reviewed by an impartial representative to ensure the validity of the recommendation for the Silver Star. Included in that filing are all of the witness statements from various Soldiers who participated in the incident as well as the written work provided by the military historian who documented the incident after interviewing all involved. While the action that resulted in the request occurred in 2005, it should not have a negative bearing on the case considering it very well would have been approved, or at least downgraded to a Bronze Star Medal for valor, and the applicant and his Soldiers would have received their awards in a timely manner. 16. On 26 February 2014, the Board determined that the applicant's actions did not rise to the level of the recommended award and that the evidence presented did not demonstrate the existence of a probable error or injustice. The Board: * acknowledged and applauded the applicant's service during that firefight under hazardous conditions and stated he is truly an American hero * indicated that since the applicant did not request consideration of a lesser award in the event the Board denied the Silver Star, eligibility for a lesser award was not considered 17. It appears the applicant was also recommended for a second award of the Silver Star for heroism on a different date. As such, on 2 October 2014, HRC published Permanent Orders (PO) 275-06 awarding him the Silver Star for actions on 11 April 2004. 18. On 9 October 2014, HRC issued him a second DD Form 215 amending his DD Form 214 for the period ending 28 March 2005 to add the Silver Star. 19. On 17 November 2015, the Awards and Decorations Branch provided the Board with a "Summary of the Army Decorations Board Decision" in 2010 and in 2012, concerning a proposed award of the Silver Star to the applicant for actions on 30 and 31 January 2005. The summary stated: a. Due to the specific inquiries surrounding the circumstances pertaining to the Army Decorations Board's disapproval of the Silver Star for the applicant this office found fit to provide a summary of the board's decisions in 2010 and the second board in 2012. The board member notes on the following pages are transcribed as closely as possible to the written notes with no substantive changes to spelling or content. b. On 2 December 2010, the Army Decorations Board met to consider the award of the Silver Star to the applicant. The board consisted of three members in the rank of colonel. The board made a unanimous vote of disapproval. The "Board Summary Comment" shows "No enemy forces Green on Blue action reports conflicting. Perceived as embellishment reports available to substantiate." * Board Member 1: "no enemy forces, green on blue action, conflicting reports, embellished?" * Board Member 2: "Was a BSM not given for the same time period? The 'captured' easily surrendered; there was no fire fight reported when the LT captured 8. Additionally information provided showed that this was a 'green on blue' incident; there was no enemy; recommend-disapproved" * Board Member 2: "Green on Blue; No AIF or enemy present; Does not meet requirements for Silver Star" c. On 19 April 2012, the Army Decorations Board met to reconsider the award of the Silver Star to the applicant. The Army Decorations Board consisted of three members in the rank of colonel. The Army Decorations Board made a unanimous vote of disapproval. The board members notes are transcribed as closely as possible to the written notes with no substantive changes. * Board Member 1: "There are inconsistencies in eye witness statements and statements from key personnel both U.S. and British that are not present that would greatly help clarify the validity of the action; if this is as much info available, then the degree of necessity of action do not meet the criteria for the proposed award" * Board Member 2: "Cannot approve the award based on the information provided; it's not clear that this was not a blue on green engagement. Some of the witness statements are inconsistent; based just on the merits of the narrative, I felt compelled to approve the award; however, once I began looking at the other documents, I began to question the validity of the narrative" * Board Member 3: "The information provided is incomplete to make any award determination; it is not clear if any award ought to be on the table; the unit was mission-confused, and may have been operating outside of the parameters of their parent unit; the information provided did not include key information that would clarify the prisoners' status, which would define whether this was nighttime confusion or a combat engagement with belligerents" 20. The applicant was provided with a copy of this summary, as it is considered ex-parte communication. He responded on 8 December 2015. With his response, he asked that an Army historian, Mr. R-- Ki---, be allowed to offer his professional review to be considered. He also provided previously-submitted documents consisting of his 2011 request under the Freedom of Information Act, a 2012 statement from one Soldier, two previously-awarded valor awards to two Soldiers, a statement describing the nature of guerrilla warfare in regard to green on blue incidents, and the previous recommendation by the OHARNG TAG. In his rebuttal, the applicant stated: a. It is clear that two Soldiers have received valor awards for this action and one was processed by HRC in 2008. He suspects his file was not complete or information was added that was not part of his packet. Clearly the wartime commander approved his award of the Silver Star and he hopes this can be finally resolved. The Army Decorations Board continues to deny his award of the Silver Star. b. Regarding the statements pertaining to no enemy forces, green on blue action, and conflicting/embellished reports, the individuals who attacked the 1544th Transportation Company convoy were enemy forces. The action of taking 8 to 9 prisoners was a reaction to the ambush and in order to gain the advantage. Although it was dark, there is no way the U.S. trucks could be a case of a mistaken identity. This was an attack by the enemy and he followed the rules of engagement after the enemy initiated the engagement. Insurgents consistently wear friendly uniforms or carry friendly identifications when using ambush tactics. In this case, they were wearing civilian attire. The Army recognized this engagement as an enemy encounter and two Soldiers were awarded valor awards for it. c. Regarding the statement that the degree of necessity of action does not meet the criteria for the proposed award, this was a serious action and two of his subordinates received valor awards for the action. The British Soldiers who responded acknowledged that this was enemy action. The fact that the insurgents wore civilian clothes and had friendly identification cards does not exonerate them from the actions they took against U.S. Soldiers. The enemy tried to kill him and his Soldiers and the reports of green on blue are not accurate. d. As for the inconsistencies in eyewitness statements and key personnel, he finds that troubling since many years have passed and he has collected all the evidence and information he could get in order to present the facts to the Army Decorations Board. Some statements may have been added from another event not having to do with this action, but there were statements that laid out the facts in a detailed fashion and answered many questions. His packet was even more detailed than that of the two Soldiers who received the valor awards. e. He feels the support of his wartime chain of command together with the statements he provided and the fact that two Soldiers were awarded valor awards for this mission should be sufficient for the Army Decorations Board to award him the Silver Star. He does not feel the Army Decorations Board had the complete details. He earned something for this action and it would be an injustice if he did not receive anything. 21. Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. a. The Silver Star is awarded to any person who, while serving in any capacity with the U.S. Army, is cited for gallantry in action against an enemy of the U.S. 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 U.S. 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 Army, 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 U.S. is not a belligerent party. c. The Army Commendation Medal may be awarded to any member of the Armed Forces of the U.S. who, while serving in any capacity with the Army after 6 December 1941, distinguishes himself or herself by heroism, meritorious achievement, or meritorious service. As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required. d. The "V" device is worn with the Bronze Star Medal and Army Commendation Medal to denote receipt of these awards for participation in acts of heroism involving conflict with an armed enemy. e. If the SA, or his designee, determines that a statement setting forth the distinguished act, achievement, or service, and a recommendation for official recognition was made and supported by sufficient evidence within 2 years after the distinguished service, and that no award was made because the statement was lost, or through inadvertence the recommendation was not acted upon, he or she may, within 2 years after the date of the determination (when the recommendation was discovered as lost), award any appropriate military decoration, numeral, or oak leaf cluster in lieu thereof, to the person concerned (Title 10, U.S. Code, section 3744). In each case, the recommender for an award must provide the following to Commander, HRC, Awards and Decorations Branch (AHRC-PDP-A), Fort Knox, KY: conclusive evidence of the formal submission of the recommendation into military channels; conclusive evidence of the loss of the recommendation or the failure to act on the recommendation through inadvertence; and a copy of the original recommendation, or its substantive equivalent, at a minimum, accompanied by statements, certificates, or affidavits corroborating the events, actions, or achievements. The recommender must provide the Commander, HRC, with adequate information for Secretarial evaluation of the deed or service to determine if an award is to be made. The person signing a reconstructed award recommendation must be identified clearly in terms of his or her official relationship to the intended recipient at the time of the act or during the period of service to be recognized. DISCUSSION AND CONCLUSIONS: 1. The available evidence shows the applicant and a group of his Soldiers were involved in a firefight in Iraq on 30 January 2005. It appears the group was ambushed by a force of locals/insurgents. The Soldiers, under the applicant's leadership, reacted to the attack and several hours later were joined by a reaction force/British soldiers. With reinforcements, the U.S. and allied forces were able to kill some of the attackers and possibly capture several others and/or their weapons/equipment. 2. It is unclear if the applicant was recommended for an award for this encounter. However, following redeployment, the OHARNG indicated that an award recommendation was in fact submitted but was lost. The OHARNG chain of command reconstructed the award recommendation, initially with improper signatures, but later with signatures by the wartime chain of command. 3. The Army Decorations Board, consisting of senior Army officers, reviewed the award recommendation and determined that the degree of action and service rendered did not meet the gallantry required for the proposed award but also inconsistencies regarding this event. The Army Decorations Board concluded that: * this encounter may have been a green on blue encounter * the applicant reacted to the situation as he should have * the "local insurgents" actually surrendered and were not captured * there were several inconsistencies in the witness statements 4. Based on the recommendation of the Army Decorations Board, the CG, HRC, acting on behalf of the SA, reaffirmed disapproval of the Silver Star. The Army Decorations Board also addressed the applicant's concerns that other circumstances may have influenced the approval authority's decision by stating that each recommendation is reviewed based on its own merits. 5. The applicant previously petitioned this Board for the same award and received a strong endorsement from the NGB. After a comprehensive review of all the evidence provided by the applicant, to include the recommendations and support of his chain of command including that of LTG Whit---, the ARCENT Commander, the Board also determined the degree of the action performed by the applicant did not rise to the level required for award of the Silver Star. As a result, the Board denied his request. 6. He does not provide any new evidence that would lead this Board to change its previous decision that the degree of action and service rendered did not rise to the level required for the Silver Star. As such, there is no evidentiary basis for changing the previous decision. 7. As for the lesser award, again the Army Decorations Board considered the applicant's actions and also determined the applicant simply performed his duties as a Soldier reacting to a potential attack by what appeared to have been friendly forces that he perceived to be enemy forces. It is true that insurgents habitually infiltrate U.S. and friendly forces to collect intelligence, disrupt operations, or cause casualties; however the evidence does not support that conclusion here. The applicant has not provided sufficient independent evidence to show the decisions reached by the Army Decorations Board and approved by the CG, HRC, were in error or unjust. 8. After a comprehensive review of the available evidence, it is clear that the applicant performed his required duties in a combat environment within the rules of engagement as he should have. There is no verifiable evidence of a distinguishing act or acts of heroism that would warrant an award. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ____X___ ____X___ ____X___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board members determined that there was sufficient evidence to partially amend the decision set forth in Docket Number AR20130009295, dated 26 February 2014. 2. The evidence supports that the applicant distinguished himself by heroic achievement in connection with military operations against an armed enemy, and although those actions do not meet the threshold for award of a Silver Star, they do otherwise meet the criteria for award of a Bronze Star Medal with “V” Device. 3. The board recommends that permanent orders and appropriate award elements be issued for award of the Bronze Star Medal (3rd Award) with “V” Device and that his DD Form 214 be corrected to reflect the medal. 4. The Board further determined that 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 above. _______ _ _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) AR20150005148 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005148 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1