ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 August 2019 DOCKET NUMBER: AR20180007866 APPLICANT REQUESTS: an upgrade of his Silver Star (SS) to the Medal of Honor (MOH) and a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 638 (Recommendation for Award) * Proposed Citation * Privacy Release Statement, dated 5 August 2016 * Letter of Support with Application (former Commanding Officer) * Silver Star Certificate, dated 25 April 2005 * Silver Star Citation * Comparison Documents for MOH Recipient * Citation for MOH Recipient * Newspaper Article with MOH Recipient * Statements of Support with Recommendations (x8) * Title 10 Guidance * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * DD Form 215 (Correction to DD Form 214 – Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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 he is requesting that three unjust elements that adversely affected presenting justly the heroics he demonstrated in combat on 17 February 1966 as an air crew member in Vietnam, be corrected to enable his 2006 award of the SS be upgraded to a more justly decoration of the MOH. a. Unjust element #1 – he was assigned to Headquarters, 1st Cavalry Division from August 1965 through July 1966. The Division Headquarters decreed air crew combat participants be restricted to awards no higher than the Distinguished Flying Cross (DFC), an award fourth from the highest, the MOH. b. Unjust element #2 – the Division Headquarters had no awards assessment teams to investigate heroics immediately following an occurrence in battle, as did other units that deployed to Vietnam after July 1966. c. Unjust element #3 – Department of Defense (DoD)/Department of the Army (DA) regulations deny review of any heroics over a one-only-upgrade having been made regardless of new, substantive, and material information being provided for review. As a result, his heroics shown greater than Major (MAJ) CSK, a MOH recipient, cannot be reviewed by DOD/DA unless the unjust element is corrected or adjusted. d. He willingly volunteered to complete an emergency evacuation of 50 wounded in action (WIA) that had been waiting for over three hours for rescue and he had no gunships in support. With only one hour of fuel left and the WIA 15 minutes away, they aborted their logistics mission to attend to the WIA. In his initial landing he had to exit his aircraft and remove the lesser WIA and organize the boarding of those severely injured to be flown out first. e. On his first takeoff, his rotor and engine disengaged while his aircraft was about 30 feet in the air. He quickly slammed down his aircraft’s collective control lever to reengage the two so they could continue climbing. He prevented the aircraft from crashing which could have likely killed everyone on board. f. He impressed two medivac aircraft crews that had been orbiting overhead, but were fearful of landing due to intense enemy sniper fire. The crews had no machine guns on their aircraft, as did their two aircraft section, giving them a total of four machine guns. The machine guns were used to help suppress the enemy sniper fire coming down on the huddled infantry in a B-52 bomb crater. g. They returned after having delivered their first load of WIA at a nearby medical facility about 15 minutes away. He was reminded they had 20 minutes of fuel remaining when the fuel warning light came on. They picked up their remaining WIA and his 5 minutes fuel warning light came on. As they approached the medical facility the aircraft ran out of fuel and the aircraft’s engine ceased to function. He successfully landed after placing the aircraft on auto-rotation and again saved everyone on board. h. His SS was awarded in 2006 as an upgrade to his Air Medal with V Device, presented to him on 17 February 1966 by the Commanding General of the 1st Cavalry Division, Lieutenant General (LTG) X___. He is hopeful that the Board will review the new substantive and material information not yet seen or reviewed by DOD/DA and that restrictions that currently limit a one-only-upgrade can be waived. 3. The applicant provides: a. A DA Form 638 signed by his former flight leader, Colonel (COL) X___ (Retired). The achievements listed confirm the account of events as described by the applicant. b. A proposed citation which states, among his accomplishments, that the applicant risked his life above and beyond that of his peers to attend to the evacuation of nearly fifty wounded infantrymen. Without hesitation, he courageously landed his lead ship in a landing zone within a confined area and dangerously close to hostile positions. With minimal fuel he evacuated all WIA, running out of fuel on his last mission, and executing a precise auto-rotation that saved his aircraft from crashing and killing all on board. His heroic actions, in the face of hostile fire, enabled his aircraft to evacuate a total of 11 of the 50 WIA. c. A privacy release statement signed by the applicant granting release of his information to U.S. Congress and to the Department of Defense. d. A letter of support from his former commanding officer, Lieutenant Colonel (LTC) X___, dated 8 June 2018, addressed to the Board accompanied the application. The letter states that upon finding out about the MOH recipient, he and COL (Retired) X___had a telephonic discussion recapping the heroics of the applicant. COL (Retired) X___was an eye witness to the heroics and previously served as the awards and decorations officer. He discussed the details of the heroics, as described by the applicant, and recalled submitting him for an award. He believed that the applicant’s demonstrated heroics exceeded those of the MOH recipient, although he did not dispute the fact that the MOH recipient also deserved the award. LTC (Retired) X___further requested and supported the upgrade of the SS to a more justified award of the MOH. e. A SS Certificate, dated 25 April 2005, awarded to the applicant which stated for gallantry in action on 17 February 1966 in the Republic of Vietnam. f. The citation for the SS awarded to the applicant with a detailed account of the events as described by the applicant and his commanding officer. g. A discussion document that provides a comparison between the applicant and the MOH recipient. The comparison notes the following: * The unit was a newly devised air assault concept which merged Army aviation elements, troop lift and gunship UH1 helicopters, with ground maneuver elements, the infantry * Due to the new concept, the Commanding General stated he did not want to overload DA with lots of awards and accolades could come later. Additionally, precedence had been set and nothing higher than a DFC would be issued which led to the applicant’s award of an Air Medal with V Device * The MOH recipient, MAJ X___, deployed a year and a half after the applicant. The belief was that there were no awards restrictions for the unit because he initially received the Distinguished Service Cross (DSC) for demonstrating heroics of a lesser degree than the applicant * The applicant was initially tasked with a logistics mission. The unit it distress called over the open radio net and the commander pleaded for anyone to come help. He indicated that two medical evacuation aircrafts would not land because of enemy fire and his wounded waited for three hours for evacuation * The applicant’s flight leader immediately responded by informing operations that the two crews, which included the applicant, would be aborting the logistics mission to assist with evacuating the wounded. The applicant landed and lifted twice under enemy fire lifting 11 of the 50 wounded and encouraged the two medical evacuation aircrafts to land as well with their support * MAJ X___led the flight of 6 aircrafts on a mission to evacuate WIA in support of the 101st Airborne Division. He then returned to the site to evacuate 40 remaining troops and their wounded. The third trip consisted of gunships flying along and providing suppressive fire for the extraction * MAJ X___learned after his third trip that eight more troops had not been extracted. He passed the command of the six aircrafts to a subordinate and returned to the site without gunships to extract the final troops in his fourth visit to the site. All eight troops were on board when he returned * The applicant’s heroics exceeded that of MAJ X___because he did not have the support of gunships, he voluntarily aborted a logistics mission to assist, he impressed upon the other two medical evacuation aircrafts to land and extract the wounded, and they provided suppressive fire to assist in the two medivac unit crews to aid in the extraction of 50 wounded h. The citation for MAJ X___’s MOH which states he volunteered to lead a flight of six helicopters to carry reinforcements to the embattled force and to evacuate wounded personnel. He refused to depart until all helicopters were loaded to capacity. He then returned with full knowledge of the enemy fire to bring more reinforcements and his gunner was wounded and the aircraft damaged. Despite the leaking fuel, MAJ X___nursed the aircraft back to base and returned later that day to extract the remaining 40 troops, included four members of his own unit who were stranded when their helicopter was destroyed by enemy fire. Upon learning of eight more troops that were unable to make the landing zone, MAJ X___passed the lead to another helicopter and returned to rescue the remaining troops. His helicopter suffered severe damage, but he maintained control of the aircraft and skillfully guided the heavily damaged aircraft to safety with the remaining eight Soldiers on board. He was lauded for his selfless acts of repeated valor and determination. i. A two column, side by side comparison is offered with details of the situation that led to the events leading to the heroics of the applicant and the MOH recipient. j. A newspaper article, dated 19 July 2016, with an article titled “Obama awards Medal of Honor to Vietnam War Veteran for 1967 action.” k. Eight supporting statements with personal recommendations for the applicant to receive the MOH which also provides similar accounts of the applicant’s heroic efforts by personally witnessing the events or by word of mouth. * X___ noted he was assigned to the same unit and flew as crew on the same 2 helicopter section. He personally witnessed the accounts as described by the applicant and provides the same details * X___ provides several documents including his personal account and recommendation as the applicant’s flight leader. He also noted the foundation of the awards policy detailing aviation crew members would not receive an award higher than the DFC. The policy changed when the Assistant Division Commander departed Vietnam mid-1966 * X___, the former company commander, echoes the sentiments of the flight leader and provides his recommendation for the applicant to receive the MOH * X___ did not have a personal account; however, he heard about it and wanted to add that the applicant left his aircraft and directed the loading of more seriously wounded which required an extra measure of courage. He voluntarily aborted a less critical mission to evacuate the wounded under fire * X___ was not an eyewitness, but also heard about the applicant’s heroism. He also indicated that the applicant flew a damaged helicopter in and out of the landing zone to evacuate the wounded. X___ reiterated the policy which noted the applicant had been prejudged by blanket guidance on awards and should have been recognized for his individual acts of bravery and heroism * X___ was not an eye witness; however, he was a member of the unit and had knowledge of the events. He provides details on the awards policy and attests to the existence of such a prejudicial awards program. The policy was discriminatory toward a class of Soldiers by skill set. He describes his heroic efforts and requests correction of the administrative miscarriage of justice * X___ confirms that awards were processed differently in Vietnam by different units. By 1967 or 1968, most units organized award teams that would interview participants and write recommendations. That did not exist in the 1st Cavalry Division * X___ served as the assistant information officer of the 1st Air Cavalry Division. He stated that it was common knowledge that the awards and decorations policy was extremely austere. Heroism awards above the Bronze Star with V Device were rare and he bitterly regrets his conservatism as a company commander shaped by the deputy commander of the Division Artillery l. Sections of Title 10 are included which outline the authority to award decorations recognizing acts of valor performed in combat during the Vietnam conflict and award of the Medal of Honor. 4. The applicant's complete military records are not available to the Board for review. An exhaustive search was undertaken to locate his service records, which are necessary for the processing of his application but they could not be found. A review of the available records shows: a. Having had prior service, he was appointed as a commissioned officer in the U.S. Army Reserve and entered active duty on 8 March 1958. b. His DD Form 214 shows he had 11 years, 10 months, and 11 days of foreign service. His foreign service included tours to Vietnam, Korea, and Germany. c. He was retired on 30 April 1974. He completed 20 years, 1 month, and 15 days of active service. His DD Form 214 shows he was awarded or authorized: * Vietnam Service Medal (1 silver and 3 bronze service stars) * United Nations Service Medal * Republic of Vietnam Campaign Medal * Korean Service Medal * National Defense Service Medal (1st Oak Leaf Cluster) * Good Conduct Medal * Air Medal with numerals 24 * Distinguished Flying Cross * Bronze Star Medal (1st Oak Leaf Cluster) * Presidential Unit Citation (1st Oak Leaf Cluster) * Republic of Vietnam Gallantry Cross with Palm Unit Citation (3rd Award) * Armed Forces Reserve Medal * Master Army Aviator Badge * Meritorious Unit Commendation (3rd Oak Leaf Cluster) d. On 25 April 2005, he received a DD Form 215 which noted the Air Medal with numeral 24 would be deleted and the Silver Star Medal with numerals 23 would be added. e. On 1 March 2006, he received a second DD Form 215 which deleted the Distinguished Flying Cross (DFC) and added DFC with 1st Oak Leaf Cluster. Additionally the Meritorious Service Medal was added. 5. By regulation, (AR 15-185) an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 6. By regulation, (AR 600-8-22) 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 life above and beyond the call of duty while engaged in an action against an enemy of the United States. BOARD DISCUSSION: The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. After reviewing the application and all supporting documents, the Board found the relief was not warranted. The applicant’s contentions and letters of support were carefully considered. The applicant’s chain of command had incontestable proof of first-hand knowledge information at the time of the event; he was later recommended for and awarded the Air Medal with “V” device. Years later, the award was recommended for an upgrade to the Silver Star, which was approved. Now, the applicant is applying to receive the Medal of Honor. The Board considers each applicant’s case based upon its individual merit. In this case, the applicant’s actions were compared to those of a Medal of Honor recipient to show his actions were also worthy of the Medal of Honor. A challenge for the Board in this case was the former commander’s statement reflecting retrospective thinking, or second thoughts after learning someone else received a Distinguish Service Cross and later Medal of Honor. As a result, the former commander’s statement that he thinks the applicant’s actions were worthy of the Medal of Honor will not, alone, serve as the basis of recommending the higher award. The former commander’s statement may have been measured differently if he was able to support the discovery of new information that would have resulted in an approved Medal of Honor had those actions been known at the time of his recommendation to award the applicant the Air Medal with “V” device. Such a statement would describe what the new information consists of, when and how it was discovered, why it was reportedly unknown at the time of the initial recommendation for award, and the logical impact the information may have had on the initial award recommendation. The Board acknowledges that the applicant’s actions during the event in question were heroic. However, based upon the preponderance of the evidence, the Board agreed there was no error or injustice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION 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. 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, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. AR 600-8-22 (Military Awards) provides for the following 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 life above and beyond the call of duty while engaged in an action against an enemy of the United States. The deed performed must have been one of personal bravery or self-sacrifice so conspicuous as to clearly distinguish the individual above his or her comrades and must have involved risk of life. Incontestable proof of the performance of the service is required. The President of the United States is the approval authority for the Medal of Honor. The Secretary of the Army may approve award of the Distinguished Service Cross in lieu of the Medal of Honor when the Secretary of the Army determines the evidence does not support the higher award. 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. The Secretary of the Army is the approval authority for the Distinguished Service Cross. c. The Distinguished Flying Cross is awarded to any person who, while serving in any capacity with the Army, distinguishes himself or herself by heroism or extraordinary achievement while participating in aerial flight. The performance of the act of heroism must be evidenced by voluntary action above and beyond the call of duty. The extraordinary achievement must have resulted in an accomplishment so exceptional and outstanding as to clearly set the individual apart from his or her comrades or from other persons in similar circumstances. As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required. d. 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. 4. Army Regulation 600-8-22 also states in paragraph 1-14, except for award recommendations submitted in accordance with the provisions of Section 1130, Title 10, United States Code (10 USC 1130), which is outlined below, 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. An award recommendation will be considered to have been submitted into military channels when it has been signed by the initiating officer and endorsed by a higher official in the chain of command. However, pursuant to 10 USC 1130, a Member of Congress can request consideration of a proposal for the award or presentation of decoration (or the upgrading of a decoration), either for an individual or unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy. Based upon such review, the Secretary of the Army will make a determination as to the merit of approving the award or presentation of the decoration and other determinations necessary to comply with congressional reporting requirements under 10 USC 1130. 5. 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. A request for an award (or upgrade of an award) under 10 USC 1130 requires submission of a completed DA Form 638 (Recommendation for Award); a narrative of the actions or period for which recognition is requested; and sworn affidavits, eyewitness statements, certificates and related documents. Commanders, leaders, and fellow Soldiers who had personal (i.e., eyewitness) knowledge of the circumstances and events relative to the request are the best sources of corroborating evidence. Title 10 USC 1130 requires that a request of this nature be referred to the Service Secretary from a Member of Congress. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180007866 8 1