MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 28 March 2002
         DOCKET NUMBER: AR2001064659

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Lester Echols		Member
Mr. Thomas Lanyi		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: That he be awarded the Joint Service Commendation Medal (JSCM).

APPLICANT STATES: In effect, that he was recommended for the award of the JSCM for the period of 9 February to 5 September 1998, for his achievements while assigned to Sarajevo, Bosnia-Herzegovina, and it was unjustly denied by the approving authority. He further states that the denial of the award was based upon a fallacious, slanderous, malicious and anonymous memo that indicated that he had been involved in some type of impropriety and was relied upon by the approving authority in his denial of the award. He goes on to state that he was not involved in any type of impropriety and should receive the award that he duly earned. He also states that an investigation was conducted by the Inspector General (IG), in which the IG concluded that because he had received a Meritorious Service Medal (MSM) upon his return to the United States, which referenced some of his achievements during the period in question, he was not entitled to receive another award for the same period. He contends that this is incorrect because the applicable regulation provides that the award of a decoration in recognition of a single act or meritorious achievement does not preclude an award for the termination of an assignment. He also states that his outstanding performance is well documented in his officer evaluation reports (OER) as well as the supporting statements he is providing to the Board with his application and he believes that he has been subjected to disparate treatment based on his race. In support of his application he submits an extensive packet of information which includes, in addition to his OERs and supporting statements from seven individuals, a copy of the IG investigation and correspondence between that office and the applicant, electronic mail (e-mail) traffic, the award recommendation in question, a copy of his MSM, and a copy of the Department of Defense (DoD) Manual for Awards and Decorations (DoD 1348.33-M).

EVIDENCE OF RECORD: The applicant's military records show:

While serving as a United States Army Reserve (USAR) Judge Advocate General (JAG) major, he was deployed to Sarajevo, Bosnia-Herzegonia, during the period of 9 February to 5 September 1998, where he served as the Information Campaign Task Force Liaison Officer to the Joint Operations Center.

On 4 September 1998, the deputy commander (a lieutenant colonel) submitted a recommendation for award of the JSCM to the applicant. The recommendation was disapproved by the approval authority (a major general) on 18 October 1998.

On 2 November 1998, his battalion commander submitted a recommendation for award of the MSM to the applicant for meritorious service during the period of 1 November 1995 to 12 December 1998. Three of the four achievements cited in the recommendation described his performance during his Bosnia deployment. The recommendation was approved and he was awarded the MSM on 17 November 1998.

On 28 February 2000, the applicant sent a letter to the Department of the Army Inspector General (DAIG) alleging misconduct by the approving authority (the major general who denied his award of the JSCM), in that he had improperly discriminated against a subordinate (the applicant) and had provided disparate treatment to a subordinate. An IG investigation was conducted which concluded that the JSCM was disapproved and the approval authority was not required to provide the applicant a reason for the disapproval. It also concluded that the applicant had subsequently been awarded the MSM, which included his achievements in Bosnia and that he could not receive an award of the JSCM for the same period. The IG further concluded that there was no evidence of discrimination or disparate treatment and determined that his allegations were unfounded. The DAIG notified the applicant in writing of its findings on 11 October 2000.

The supporting statements from the seven third party individuals consist of an affidavit from a lieutenant colonel (LTC) which indicates that her award was downgraded and that the applicant was deserving of recognition, an affidavit from a staff sergeant (SSG) indicating that he knew of no reason why the applicant should not have received an award, an affidavit from a specialist four (SP4) that is identical to the statement from the SSG, a letter from a LTC indicating that he knew of no reasons why the applicant did not receive an award, another affidavit from a LTC which indicates that the original recommendation had been lost and had to be resubmitted and that a recommendation for the JSCM and the Defense Meritorious Service Medal (DMSM) were both submitted at the same time for the same thing, which may account for why they were disapproved. He also indicates that several joint awards were downgraded and that in his opinion the applicant was deserving of the award. There is also an affidavit from a major indicating that he was not aware of any reason why the applicant should have been denied an award, and an affidavit from a sergeant first class that is almost identical to the other enlisted personnel’s letters.

DoD 1348.33-M, provided by the applicant, provides, in pertinent part, that defense decorations may not be awarded to any service member for an act, achievement or period of service for which a service decoration has been awarded. Each recommendation for a defense decoration is evaluated on the merits of the justification submitted. The justification must be specific, factual and provide concrete examples of exactly what the person did, how well they did it and what the impact or benefits were and how they significantly exceeded expected performance of duty.

A copy of an e-mail provided by the applicant that is addressed to numerous individuals in the applicant’s unit of assignment in Bosnia, by a captain on 27 June 1998, indicates that the commander directed that the standards for awards be reiterated to the staff. It provides, in pertinent part, that distinguishable, exceptional, and meritorious performance and achievement are the basic criteria for all awards (joint and service). Awards, like performance evaluations, must be quantifiable. Do not bother wasting the commander’s time in submitting awards which do not meet this criteria. Vanilla and fluff are ingredients that should be used for ice cream and marshmallows. Self-importance, rank or the level of awards received by past rotations have no positive impact on awards. Being here is no criteria for an award.

Army Regulation 600-8-22 provides Department of the Army policy concerning individual decorations. It provides, in pertinent part, that only one decoration will be awarded to an individual for the same act, achievement, or period of meritorious service. The award of a decoration in recognition of a single act of heroism or meritorious achievement does not preclude an award for meritorious service at the termination of an assignment. However, recommendations for award of a decoration for meritorious service will not refer to acts of heroism or meritorious achievements, which have been previously recognized by award of a decoration. The authority taking final action may award the decoration recommended, award a lesser decoration or disapprove award of any decoration. No justification is required for any of the decisions made by the approval/disapproval authority.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

2. The applicant was recommended for an award and the available evidence shows that the proper authority denied the recommendation. While the applicant may not agree with the decision of the officer who disapproved the recommendation, the fact remains that it was within his authority to do so and to do so without providing justification.

3. The Board also agrees with the conclusions made by the DAIG regarding his eligibility to receive a JSCM after he had been awarded the MSM for the same acts and service. The applicable regulation provides that an individual cannot receive two awards for the same act or period of service. The MSM awarded covers the period he served in Bosnia and the majority of the achievements cited were for his service in Bosnia. Accordingly, he is not entitled to another award for that period.
4. The Board has noted the applicant’s contention that the denial of his award constituted racial discrimination and disparate treatment. However, the Board finds no evidence to support those contentions.

5. It is apparent to the Board that the commander had very definitive views about awards and what constituted justification for awards. He disseminated those views to his staff and it appears that he enforced the standards as well. Such enforcement does not constitute discrimination or disparate treatment and was well within the scope of his authority. Accordingly, it appears that the commander in the theater at the time did not believe that the applicant’s performance was above what was expected of him and therefore did not warrant the recommended award.

6. The applicant was subsequently awarded a MSM for his service and performance during the time in question and the Board sees no basis to overturn the decision of the commander in the field at the time that his recommendation was denied.

7. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

___fe ___ ____le___ __tl_____ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001064659
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/03/28
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 65	107.0019/JSCM
2.
3.
4.
5.
6.