ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 August 2019 DOCKET NUMBER: AR20180011568 APPLICANT REQUESTS: * Correction of the Distinguished Flying Cross (DFC) Citation * Upgrade of his DFC to a Medal of Honor (MOH) * Personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Photograph of Applicant * Statement of Support * Privacy Release Statement * U.S. Army Awards and Decorations Branch Privacy Release Statement * Case Support Table of Contents * Self-Typed Excerpt of 2015 Army Regulation (AR) 600-8-22 (Military Awards) * Sworn Eyewitness Statement (X) * DA Form 638 (Recommendation for Award) Achievement Recommendations * Testimony on Awards by (LTG X__) * Request for Correction * DFC Citation * Proposed MOH Citation * Exhibits Table of Contents * Statement of Support (X) * DA Form 638 for MOH Recommendation * DFC Orders for X__ * DFC Orders * Statement of Support (X) * Note from X FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20150015154 on 20 December 2016. 2. The applicant’s designated representative states, the DFC contains an incomplete citation, which is unjust and does not include the heroic actions of the applicant. Eye witness accounts were omitted, which would have been enough for the award to be upgraded to a MOH. He claims the applicant exited the aircraft and commenced to fighting on foot to engage the enemy. 3. The applicant provides: a. Photograph of Applicant, which depicts a photographic representation of the applicant during the Vietnam era. b. Statement of Support, dated 19 December 2018, which states the applicant’s application has been amended from its previous submission. It contains exhibits to support an upgrade to a MOH. The author states it is a request for an injustice, caused by an incomplete citation for the DFC. The statement claims there were omissions of eye witnesses, and was not complete. The statement also claims the size of the enemy force was omitted, and a correction to the injustice is provided by CPT X__. The author of the statement claims all personnel engaged in the Battle of Cau Song Be Rescue Mission demonstrated heroism, but was exceeded by the exceptional and extraordinarily selfless heroic acts of the applicant. c. Privacy Release Statement, dated 14 November 2018, which authorizes X___ to collect and review the applicants records an documentation. d. U.S. Army Awards and Decorations Branch Privacy Release Statement, dated 14 November 2018, which authorizes X___ to receive personal information regarding the applicant. e. Case Support Table of Contents, undated, which list supporting documentation for the applicant. f. Self-Typed Excerpt of 2015 Army Regulation (AR) 600-8-22 (Military Awards). g. Sworn Eyewitness Statement (X), dated 22 July 2010, which depicts the author’s accounts of courage, aggressiveness, determination, leadership and personal bravery and selfless, heroic actions performed under extreme combat conditions at the Cau Song Be, Vietnam, Battle and Rescue Missions on 14 May 1967 . h. DA Form 638 (Recommendation for Award) Achievement Recommendations. i. Testimony on Awards by (LTG X__), dated 6 December 2006. j. Request for Correction, which states the reason the author feels the applicant’s DFC should be upgraded. k. DFC Citation, which elaborates the reason the applicant received the award. l. Proposed MOH Citation, which states the reason the author feels the applicant should receive a MOH. m. Exhibits Table of Contents, which provides a list of supporting documentation. n. Statement of Support (X), dated 22 July 2010, which provides the authors version of events of 14 May 1967. o. DA Form 638 for MOH Recommendation, which provides proposed achievements for the MOH upgrade. p. DFC Orders for X, dated 14 June 1967, which justifies the awardee’s reason for receiving the award. q. DFC Orders, dated 24 June 1967, which justifies the awardee’s reason for receiving the award. r. Statement of Support (X), dated 15 October 2007, which provides the author’s version of events of 14 May 1967. s. Note from X, dated 22 December 2018, which states this is the third attempt for consideration of an upgrade. 4. A review of the applicant’s service records shows the following: a. On 2 June 1963, the applicant was appointed as a commissioned officer in the U.S. Reserves of the Army (USAR) in the rank of Second Lieutenant. He was designated as an Armor officer. b. He was ordered to active duty on 2 February 1964 under letter orders A-01-56, and designated as an Army Aviator on 11 October 1966. c. 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. d. 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 Republic of Vietnam (RVN) on 14 May 1967. e. On 14 February 1969, he submitted a request for release from active duty (REFRAD) with an effective date of 12 October 1969. His chain of command recommended approval. On 10 March 1969, his request was approved by the Adjutant General of the Army (TAG). f. His DD Form 214, as corrected by a DD Form 215, shows he was released from active duty in the rank of CPT on 12 October 1969 under the provisions of AR 635-100, with an honorable characterization of service. He was transferred to the USAR Control Group (Reinforcement). He completed 5 years, 8 months, and 11 days of active service. It also shows he was awarded the DFC. g. 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 MOH. The Army Decorations Board determined that the degree of action and service rendered did not meet the strict criteria for the proposed award. h. The available record does not contain any information that would justify a change or upgrade of the DFC to a MOH. The citation of the DFC is complete and based on the extraordinary acts of courage by the applicant at the time. 5. The applicant previously applied to the ABCMR for an upgrade to a MOH, and on 20 December 2016, the Board determined 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. 6. The applicant desires to appear before the Board if warranted. 7. By regulation, (AR 600-8-22), currently in effect, the MOH is awarded by the President of the United States 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 or her 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. 8. 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. 9. By regulation, (AR 600-8-22), currently in effect, the DFC is awarded to any person who, while serving in any capacity with the Army of the United States, distinguished himself or herself by valor, heroism, or extraordinary achievement while participating in aerial flight. a. 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 as exceptional and outstanding as to clearly set the individual apart from his or her comrades or from other persons in similar circumstances. b. Awards will be made only to recognize single acts of heroism or extraordinary achievement and will not be made in recognition of sustained operational activities against an armed enemy. 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 designative representative’s contentions and the letters of support were carefully considered. The Board acknowledges that the former service member’s actions during the event in question were heroic. However, based upon the preponderance of evidence, the Board determined the citation accurately depicts the events of that day as expressed by his command who had firsthand knowledge of testimony (incontestable proof), which led to them to recommend him for the DFC. The Board considers changing citations and certificates based upon administrative errors. The Board found it a challenge in this case to provide the requested relief to add achievement actions allegedly omitted by the initial approving authority, and decided not to amend the citation. In addition, the Board determined the evidence does not support amending the previous Board’s decision to deny an upgrade of the award. 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 to amend the decision of the ABCMR set forth in Docket Number AR20150015154 on 20 December 2016. 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. 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. 3. 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. 4. 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. 5. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180011568 6 1