BOARD DATE: 20 December 2016 DOCKET NUMBER: AR20150015154 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ____X____ ____X____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 20 December 2016 DOCKET NUMBER: AR20150015154 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _____________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. BOARD DATE: 20 December 2016 DOCKET NUMBER: AR20150015154 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 request for upgrade of his award of the Distinguished Flying Cross (DFC) to the Medal of Honor (MH) or, in the alternative, upgrade of the DFC to the Distinguished Service Cross (DSC). 2. The applicant states, in effect, he defers to his advocate. 3. The applicant provides no additional documentary evidence in support of his request. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Applicant's advocate, his brother and the case historian, requests upgrade of the applicant's award of the DFC to the MH or, in the alternative, upgrade of the DFC to the DSC. 2. The applicant's advocate states the applicant was awarded the DFC for his actions in a combat encounter in the Republic of Vietnam (RVN) on 14 May 1967. However, the applicant did not receive recognition for two additional valorous combat actions during that day. He also states that (then) Captain (CPT) JRG, S-3, has acknowledged the chain of command failed to thoroughly investigate events that day. a. At a formal award presentation in 2008, General (GEN) FCW, U.S. Army (Retired), who was the Commanding General (CG), 25th Infantry Division, and Acting CG, II Field Force, at the time, recalled the action. On 10 November 2008, in a letter to the Honorable SP, Member of Congress, he recommended upgrade of the DFC to an award of the Silver Star (SS). However, the congressman lost his reelection bid that same month and there was no further correspondence on the matter. b. During the filming of "Helicopter Wars: Vietnam Firefight," witnesses from the 5th Special Forces disclosed more facts about the battle and additional eyewitness statements were gathered. In 2009, GEN FCW was presented a DA Form 638 (Recommendation for Award) with a narrative and citation for the MH instead of the SS. However, GEN FCW did not sign the DA Form 638. (He passed away in February 2010 at the age of 90.) c. A letter from CPT JRG noting the flight detachment's failure to properly investigate the case, along with additional witness statements, were gathered in 2010, one from a key eyewitness, Warrant Officer (WO) TB, dated 22 July 2010. These were provided to the Chief, Awards and Decorations Branch, U.S. Army Human Resources Command (HRC). d. The intent of the advocate's submission is to rectify the omissions of all of those who were not interviewed or who were remiss in their evaluations following the applicant's actions on 14 May 1967. He states there were two unreported MH moments in the applicant's actions and they are defined in Achievements Numbers 3 and 4 on the DA Form 638 previously submitted to the Awards and Decorations Branch, HRC. e. He refers to an Army Board for Correction of Military Records (ABCMR) case in which CPT EF's award of the DFC was upgraded to the MH. He cites the MH award criteria. He adds that the applicant's actions meet all of the conditions set forth for award of the MH. He notes that when the applicant "stepped outside the aircraft and directly into the line of enemy fire, he became not just an aviator but a significant combatant in the firefight." f. He states the Army Decorations Board review considered 80 disjointed pages and took 10 months to review the award recommendation. He refined the award recommendation and presented it to the ABCMR in two tabbed binders containing 250 pages. That review also took 10 months. g. He states the ABCMR's conclusion is deficient because the chain of command and award approval authority (at the time) did not have the benefit of the applicant's two additional achievements outside the aircraft. h. The advocate provides information from a letter from (then) CPT JRG, dated 27 July 2010, in which CPT JRG apologizes to the applicant for "chewing him out" on 14 May 1967 without knowing the details of that day. i. He adds, at the time, II Field Force did not know the size of the enemy force. The size of the enemy force (battalion-size) became known through affidavits prepared in 2007 and 2009. Additionally, 87 lives were saved during the airlifts conducted by the applicant and WO TB. He also states the statements previously provided describe the ground conditions, casualties, and actions from the viewpoint of the pilots and crewmembers of the two helicopters. (The advocate provides extracts of comments from the previously provided affidavits.) j. He offers that WO TB noted, "I witnessed CPT [Applicant], in total disregard for his own well-being and safety, exit the aircraft on the third and fifth landings with his personal weapons to assist in rallying the troops left on the ground. He was totally exposed to small arms fire on both of these courageous initiatives. They were outside of his normal duties of a pilot, but showed bravery beyond the call of duty." (WO TB was awarded the DFC for heroism on 14 May 1967.) 3. Counsel provides copies of: * the applicant's – * DFC orders and citation * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * DD Form 215 (Correction to DD Form 214) * two DA Forms 638 * three letters 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 AR20140006210 on 15 January 2015. 2. On 2 June 1963, the applicant was appointed as a commissioned officer in the U.S. Army Reserve (USAR) in the rank of second lieutenant. He was ordered to active duty on 2 February 1964 and designated as an Army Aviator on 11 October 1966. 3. He served in Vietnam from 18 November 1966 through 10 November 1967. He was assigned to Headquarters and Headquarters Company, II Field Force Vietnam, and performed duties as a helicopter pilot. 4. Headquarters, II Field Force Vietnam, General Orders Number 1011, dated 24 June 1967, awarded him the DFC for heroism while participating in aerial flight above and beyond the call of duty in the RVN on 14 May 1967. (The citation for award of the DFC is quoted in its entirety in the original Record of Proceedings for this case.) 5. His DD Form 214, as corrected by a DD Form 215, shows he was honorably released from active duty in the rank of CPT on 12 October 1969 and transferred to the USAR Control Group (Reinforcement). He completed 5 years, 8 months, and 11 days of net active service. It also shows he was awarded the DFC. 6. On 18 April 2011, the Chief, Awards and Decorations Branch, HRC, advised a Member of Congress that, on 13 January 2011, the Army Decorations Board considered a recommendation to upgrade the applicant's award of the DFC to the MH. The Army Decorations Board determined that the degree of action and service rendered did not meet the strict criteria for the proposed award, 7. In support of the request for reconsideration the applicant and his advocate provide the following documents. a. A letter from GEN FCW to the Honorable SP, Member of Congress, dated 10 November 2008. It shows, in pertinent part, I recall learning through reports about the combat action described in the narrative of the recommendation. However, at the time, I did not believe that these specific actions warranted the upgrading of the award. The proposed recommendation concerns the award of the MH, which requires among many criteria, the irrefutable evidence of eye witness accounts of the action for which an individual is being recommended for the highest military award for valor. Based upon my review of the narrative description described in this recommendation for award, I cannot justify the award of the MH for [the applicant]. As written, I would support an award of the Silver Star for [the applicant]." b. A letter from GEN FCW to Major General GBJ, Chief of Legislative Liaison, Washington, DC, dated 10 July 2009. It shows, in pertinent part, It has come to my attention that on 14 May 1967, in the area of Cau Song Be, RVN, the aircrews of two UH-1D helicopters assigned to II Field Force Vietnam Flight Detachment, displayed uncommon valor and dedication in their attempt to rescue a large number of RVN (CIDG) [Civilian Irregular Defense Group] and American Soldiers. Review of reports indicates that if it were not for the extraordinary heroic actions of the flight crew who made repeated extractions, the friendly forces would have suffered severe casualties. Further, the reports indicate that the heroic actions displayed by WOs TB, JS, and KW; CPT [Applicant], and Lieutenant AC appear to warrant higher awards than those previously presented. Accordingly, I suggest the recommendations for awards for these officers be reviewed to determine whether reconsideration for higher awards are warranted. c. Two DA Forms 638 (undated) pertaining to the applicant recommending him for award of the MH for actions on 14 May 1967, with a proposed presentation date of 14 April 2009. (1) Part II (Recommender Data) of the forms show the recommender as: * GEN FCW, U.S. Army (Retired) – did not sign the form * Lieutenant Colonel, WJ, Deputy Director, Procurement Technical Assistance Program, George Mason University – signed the form (2) Part III (Justification and Citation Data), in pertinent part, shows for: * Achievement Number 3: "On the 3rd approach, CPT [Applicant] unflinchingly leaped out of his seat, exposing himself to continuous ground fire from enemy combatants and helped soldiers board. In the ensuring minutes, a number of troops already on board were wounded or killed. CPT [Applicant] then flew the 4th extraction, knowing full well that the perimeter had shrunk to a diameter of about 50 feet and that the enemy was increasing its resolve to stop the extraction and bring down his helicopter." * Achievement Number 4: "On the 6th extraction flight there was no perimeter and no protection. CPT [Applicant] again left the cockpit with total disregard for his own safety and continued to assist evacuees onto the aircraft. CPT [Applicant] knew that he had to take all of the remaining 18 soldiers so he instructed six to stand on the skids. CPT [Applicant] grabbed two of the Vietnamese soldiers hanging on to his door and hung on to them until landing at the camp." d. A letter from JRG, Commander, American Legion Post 51, Lebanon, OR, to the Chief, Awards and Decorations Branch, HRC, dated 23 September 2010. Mr. JRG is a former CPT and was the Operations Officer, Flight Detachment, II Field Force, during the period of service under review. (1) He stated that he flew a mission (on 14 May 1967) and when he returned to the Operations section later in the day, he overheard the applicant talking with other pilots about the rescue mission they had just completed. He also states that he misunderstood the situation and believed that the applicant and WO TB had unnecessarily risked their lives on a mission they were not designed to do. Consequently, he failed to conference with either pilot as he should have. (2) About 43 years later, he learned from (former) WO TB that he had misjudged the actions of both WO TB and the applicant. He states, in pertinent part, "He [WO TB] did not passively let a captain pull rank. [WO TB] made a decision to attempt a rescue even though his tour of duty in Vietnam was nearly over. He didn't need to do this. No one would have criticized him if he had declined. He did it after consulting his crew and they voluntarily went in repeatedly while under fire." (3) He concludes by stating, "Unfortunately, [his actions] contributed to both officers receiving less recognition than they might otherwise have gotten." He adds, "I do not know what level of award or honors are appropriate." REFERENCES: 1. Title 10, U.S. Code, section 3754, states the President may delegate his authority to award the MH, DSC, and Distinguished Service Medal to a commanding general of a separate Army or higher unit in the field. 2. Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations. a. Chapter 1 (Introduction) provides in: (1) section II (Responsibilities), paragraph 1-5, that the CG, U.S. Army HRC, will conduct and supervise all military awards functions prescribed in this regulation; and (2) section V (Policy, Precedence, and Information), paragraph 1-14 (Time imitations), that each recommendation for an award of a military decoration must be entered administratively into military channels within 2 years of the act, achievement, or service to be honored. No military decoration, except the Purple Heart, will be awarded more than 3 years after the act or period of service to be honored. b. Chapter 3 (U.S. Army Individual Decorations), paragraph 3-1 (Intent), shows U.S. Army military decorations are awarded in recognition of heroism, meritorious achievement, or meritorious service. It also shows the decision to award an individual a decoration and the decision as to which award is appropriate are both subjective decisions made by the commander having award approval authority (emphasis added). c. The MH 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; while engaged in military operations involving conflict with an opposing foreign force; or while serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party. 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 risk of life. Incontestable proof of the performance of the service will be exacted and each recommendation for the award of this decoration will be considered on the standard of extraordinary merit. d. The DSC 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 MH. 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. 3. Title 10, United States Code, section 1130, provides that the Service concerned will review a proposal for the award of, or upgrading of, a decoration that would not otherwise be authorized to be awarded based upon time limitations previously established by law. Requests for consideration of awards should be supported by sworn affidavits, eyewitness statements, certificates and related documents. Corroborating evidence is best provided by commanders, leaders and fellow comrades who had personal knowledge of the circumstances and events relative to the request. A request for award not previously submitted in a timely fashion will only be considered under this provision if the request has been referred to the Service Secretary from a Member of Congress. The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rests with the requester. DISCUSSION: 1. The request for reconsideration of upgrade of the applicant's award of the DFC to the MH, or in the alternative, upgrade of the DFC to the DSC, was carefully considered. 2. The evidence of record shows (then) CPT JRG, Operations Officer, was on a separate mission on 14 May 1967. Thus, he did not witness the applicant's (or WO TB's) actions and he could not offer an eyewitness statement. The fact that (then) CPT JRG failed to ask the applicant and WO TB about the details of their mission is noted. However, the narrative in the general orders shows the applicant and WO TB made four trips to airlift soldiers, while the accompanying citation shows they made five trips to airlift soldiers. It is reasonable to conclude that the individuals who were eyewitnesses to the actions of the applicant provided the most accurate and best information available in their statements in support of the award recommendation (for the DFC) at that time. 3. The Army Decorations Board, HRC, considered the request for upgrade of the DFC to the MH on 13 January 2011. It is noted that all of the evidence provided in support of this request for reconsideration is dated prior to that date. a. In January 2015, the ABCMR considered the "refined" award recommendation submitted by the advocate, along with all available records, and determined the DFC was the appropriate award. b. The applicant's advocate acknowledges the documentation was previously considered. He has not demonstrated that this evidence was not adequately considered by either the Awards and Decorations Branch or the ABCMR. 4. Considering all of the evidence of record, including arguments now presented by the advocate and the foregoing discussion, it appears that there is an insufficient evidentiary basis to support considering a higher decoration than the DFC that the applicant received shortly after his heroic actions on 14 May 1967. The award approval authority at the time, who had the benefit of being able to seek additional evidence and witness statements while the events in question were fresh in the minds of those who had directly observed them, made the subjective decision to award the applicant the DFC. 5. A thorough analysis of the evidence of record from 1967 to this present application shows no evidence of impropriety, error, or injustice in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015154 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015154 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2