MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 04 FEBRUARY 2003
         DOCKET NUMBER: AR2002077429

         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. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Melvin H. Meyer		Chairperson
Mr. Curtis L. Greenway		Member
Mr. Ronald J. Weaver		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: In effect, the applicant requests that the Bronze Star Medal (BSM) awarded to him on 19 January 2001 be dated retroactively to March of 1991, that the Board determine if the absence of the BSM slowed his promotions to pay grades E-7, E-8, and E-9; and if so, compensation for the difference in pay between what he received and what he should have been paid.
APPLICANT STATES: That he was wounded on 27 February 1991 while with the 501^st Military Intelligence Battalion during Operation Desert Storm. While recovering from his wounds, his battalion commander verbally promised that he would receive the BSM. He was taken to Germany in mid March 1991 to recover from his wounds. Later, he inquired into the status of his award and was informed that all wounded soldiers received a BSM; however, he was also informed that his unit had no more BSMs allocated. He should have received the award in 1991 instead of 10 years later. Because he did not receive the award in 1991, his record has not accurately reflected the extent of his leadership, service, and commitment to the Army. His record has been incomplete. Had the BSM been part of his record, he would have been promoted more quickly and received additional compensation.

The applicant submits 15 enclosures with his application which are described in the evidence of record.

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

The applicant enlisted in the Army on 24 August 1976. He was discharged on his ETS (separation date) on 22 August 1980. He reenlisted in the Army for three years on 4 April 1985 and has remained on continuous active duty, attaining the rank of sergeant major. He has served in various locations throughout the world to include Southwest Asia during Operation Desert Storm in 1991, where he was wounded in action. He has received numerous awards, to include the Purple Heart, five awards of the Meritorious Service medal, three awards of the Army Commendation medal, three awards of the Army Achievement Medal, and five awards of the Army Good Conduct Medal.

The enclosures submitted by the applicant include:

•         A 20 September 2000 letter from the Deputy Adjutant General of III Corps and Fort Hood informing a Member of Congress the process necessary for the applicant to receive the BSM.

•         A 13 October 2000 statement from an officer who states that the applicant was his platoon sergeant during an engagement with the Iraqi Republican Guards in 1991, that the applicant was wounded, and that the battalion commander promised that he would receive the BSM for his performance during combat operations. That officer stated that he was resubmitting the award for the applicant.

•         An undated endorsement from the 4^th Infantry Division commanding general forwarding the recommendation to III Corps.

•         An unsigned recommendation for the award of the BSM for the applicant for the period 10 December 1990 to 15 March 1991. A narrative in support of that recommendation.

•         A 5 October 2000 statement from the applicant concerning the events in 1991, to include the promise that he would receive the BSM, and his service thereafter.

•         A 25 August 2000 letter from the applicant to a Member of Congress concerning the circumstances of his case.

•         A copy of the applicant’s 17 February 1991 enlistment document.

•         A copy of the 31 January 2001 Total Army Personnel Command (PERSCOM) order awarding him the BSM for meritorious service on 27 February 1991, and the amendment thereto which changed his rank from First Sergeant to Staff Sergeant.

•         A copy of an order awarding the Valorous Unit Award to the applicant’s unit for its actions from 24 February to 28 February 1991.

•         Copies of orders promoting the applicant to Sergeant Major, Master Sergeant, and Sergeant First Class. A copy of a 21 June 1986 order reassigning the applicant to the1st Armored Division.

•         A copy of the order and the certificate showing that the applicant was awarded the Purple Heart; a copy of the certificate showing award of the BSM.

In the processing of this case an advisory opinion was obtained from the PERSCOM Military Awards Branch. That command indicated that the recommendation for the award of the BSM was processed under the provisions of Army Regulation 600-8-22, paragraph 1-15 (lost recommendation). The Army Decorations Board determined that the applicant’s performance of duty during Operation Desert Storm met the criteria for award of the BSM and published orders effecting the award. That command stated, however, that there are no administrative provisions for backdating the effective date of an approved award, or the order announcing the award. That command recommended that the applicant’s request be denied.

In his rebuttal to the advisory opinion, the applicant opined that an award such as the BSM carries some significance, and can be a determining factor by a promotion board whether or not a soldier is promoted. He states that the advisory opinion is saying that the BSM has no meaning or significance in his military records, and he takes exception to that opinion. He also states that because administrative provisions do not provide for backdating his award, then his case should set a precedent, correcting an injustice.

Army Regulation 600-8-22, paragraph 1-15 provides procedures for award of a military decoration when a statement setting forth a distinguished act, achievement, or service was lost, or through inadvertence the recommendation was not acted upon.

Army Regulation 600-8-19 provides for the promotion of enlisted soldiers. It provides for centralized promotions of soldiers to the ranks of Sergeant First Class, Master Sergeant, and Sergeant Major; provides the eligibility criteria for promotion to those ranks, to include date of rank and basic active service date requirements and any other criteria prescribed by PERSCOM – and states that soldiers [considered for promotion] who are not selected for promotion will not be provided specific reasons for non-selection.

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

1. The order effecting the award of the BSM was published subsequent to the approval of the recommendation for that award to the applicant. Backdating the order to 1991 would in effect mean that the order would antedate the approval of the recommendation. A promise of an award [allegedly made in 1991] does not amount to a recommendation, which must be approved by competent authority. That recommendation did not come in 1991, but in the year 2000, at which time the PERSCOM Awards Board determined that his actions in 1991 were deserving of the BSM, based upon a current recommendation by his former platoon leader. The order effecting the award was published upon the approval of the recommendation. It is correct as published.

2. The applicant supposes that the entry of a BSM would have entitled him to earlier promotions, and requests that this Board make those determinations. Were the Board to antedate the award order, the Board cannot speculate nor would it be inclined to do so, regarding an earlier promotion than that accorded - to the rank of Sergeant First Class, Master Sergeant, or Sergeant Major. The applicant is asking the Board to consider his record, mandated eligibility criteria, and instructions published by PERSCOM concerning zones of consideration for each promotion board that met for each of the above mentioned ranks, and to determine whether he should have been earlier promoted based on an award of a BSM, implying that at one time or another he was not selected for promotion, either from a secondary or primary zone of consideration. Promotion boards recommend soldiers for promotion. This Board is not going to inject itself into the promotion board process unless there is evidence of error or of an injustice.

3. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

4. 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 that requirement.

5. 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

__MHM __CLG__ __RJW__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002077429
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030204
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	107.00
2.
3.
4.
5.
6.