RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           19 AUGUST 2004
      DOCKET NUMBER:   AR2003098208


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

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Curtis Greenway               |     |Member               |
|     |Mr. William Powers                |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his retirement award, which was downgraded
to a Meritorious Service Medal (MSM), be upgraded to a Legion of Merit as
originally recommended by members of his immediate chain of command.

2.  The applicant states that he was serving a one year tour of duty at the
end of his of 23 year active duty career when he applied for retirement.
He states that after his Legion of Merit award recommendation was
downgraded to a Meritorious Service Medal he contacted officials at PERSCOM
(United States Total Army Personnel Command) who informed him to seek
assistance via his congressional representative.  He states instead of
upgrading the award as recommended by his congressional representative, he
was told to apply to this Board.

3.  The applicant states that he believes he was “wronged and harmed” by
the “distasteful decision” to downgrade his award recommendation and that
he has “thus far been both ignored and mislead.”  He states that he
“soldiered from the grade of Private E-1 to Master Sergeant E-8” and was
“greatly hurt at the end by this.”

4.  The applicant provides a copy of the original award recommendation, a
recommendation to upgrade the award, a letter from the PERSCOM Awards
Branch “implying that a recommendation from a member of Congress could
influence or override their initial decision to leave the award unchanged,”
the recommendation from his congressional representative, and the
subsequent letter from the PERSCOM Awards Branch stating that he needed to
apply to this Board.  Also included with his application was an undated,
unsigned “narrative justification for award” which outlined achievements by
the applicant during the 10-year period being recognized by his retirement
award.

CONSIDERATION OF EVIDENCE:

1.  The applicant entered active duty on 12 November 1974 and served
continuously until his retirement for length of service on 30 November
1997.  His separation document indicates that he served as a legal
specialist for more than 22 years of his 23-year military career.  He was
promoted to pay grade E-8 in July 1995.




2.  During the applicant’s military career he was awarded four awards of
the Meritorious Service Medal, including the one received at the time of
his retirement, five awards of the Army Commendation Medal, two Army
Achievement Medals, several Army Good Conduct Medals, and a variety of
service awards, including the National Defense Service Medal and Overseas
Service Ribbon.

3.  On 1 April 1997 the applicant’s immediate supervisor recommended that
the applicant be awarded the Legion of Merit for the period 30 November
1987 through 30 November 1997 as a “key enlisted manager in positions of
increasing responsibility culminating in his assignment as Chief Legal
Noncommissioned Officer for the Eighth U.S. Army Yongsan Law Center, South
Korea.”

4.  The recommendation was supported by the applicant’s commander (34th
Support Group), but downgraded to a Meritorious Service Medal by the
commander, Eighth United States Army, a lieutenant general and the award
approval authority.

5.  On 7 July 1997 the staff judge advocate of Headquarters, Eighth United
States Army, requested reconsideration of the award recommendation and
noted that it was his “sincere belief that his [the applicant’s] 10 years
of service noted for this award and his lifelong service deserve an award
higher than an MSM.”

6.  In a 12 June 2001 letter to the applicant from the PERSCOM Awards
Branch, the applicant was informed that “the final decision to approve an
award and which award is appropriate are decisions made by the commander
having award approval authority.”  The letter also informed the applicant,
that Title 10, United States Code, Section 1130, allowed referral of an
award recommendation, including upgrading of previously approved awards, by
a member of congress.  The letter provided the applicant instruction for
pursuing submission via his congressional representative and that “once
received, a determination will be made as to the merit of approving the
award or decoration.”

7.  In a 28 October 2003 letter to the applicant’s congressional
representative (The Honorable Jim Ryun, Member of Congress, Kansas), the
Chief, Army Awards Branch, informed the applicant’s congressional
representative that a
14 January 2002 recommendation to upgrade the applicant’s Meritorious
Service Medal to the Legion of Merit was initiated by a United States
Senator from the




State of Kansas and that on 8 March 2002 the Army Decorations Board
“determined that the degree of action and service rendered did not meet the
strict criteria for the proposed award.”  Because the correspondence
contained a Department of Defense Form 149 (Application for Correction of
Military Records) the documents were forwarded to this Board for
adjudication.

8.  During the 10-year period referenced in the applicant’s retirement
award recommendation, he served as the senior legal NCO (Noncommissioned
officer) for legal officers in Heidelberg, Germany, at West Point, Fort
Irwin, Fort Leavenworth, and in Korea.  His performance evaluation reports
consistently showed only successful ratings, as opposed to an excellent
rating, in the physical fitness and military bearing categories.  On
several occasions during that 10-year period he also received successful
ratings in the area of competence, and training, and in one instance
received a successful rating in leadership and in responsibility and
accountability.  His only fully excellent rating occurred during his final
assignment in Korea.

9.  His duties and responsibilities, as recorded on those performance
evaluation reports indicate that primarily he was responsible for the
training and supervision of enlisted personnel within the legal office,
that he provided administrative support to attorneys, and either managed or
assisted in the management of the daily operations of the legal office he
was assigned to.

10.  His records do not indicate that he served at the highest levels of
the military organization, i.e. major commands, Department of the Army, or
Department of Defense levels, that he served in the training environment,
or that he served as a unit first sergeant, other than as “First Sergeant
for Legal Service Activity-Korea” which, based on his performance
evaluation report for the period, appears to have been an additional, but
not his primary responsibility.

11.  Army Regulation 600-8-22 states that no individual is entitled to an
award and the decision as to which award is appropriate are both subjective
decisions made by the commander having award approval authority.  It notes
that the Legion of Merit may be awarded to individuals who distinguished
himself or herself by exceptionally meritorious conduct in the performance
of outstanding services and achievements.  It specifically states that the
performance must have been such as to merit recognition of key individuals
for service rendered in a clearly exceptional manner.  Performance of
duties normal to the grade, branch, specialty, or assignment, and
experience of an individual is not an adequate basis for the award.


DISCUSSION AND CONCLUSIONS:

1.  While the applicant may have been recommended for award of the Legion
of Merit, the appropriate awards approval authority, a lieutenant general,
elected to downgrade the award to a Meritorious Service Medal, a decision
which was well within his authority.

2.  The applicant’s belief, although supported by two members of his chain
command, that he should have received a Legion of Merit is not a basis for
awarding the applicant the decoration, nor does it serve as justification
to upgrade his Meritorious Service Medal.

3.  While clearly the applicant contributed to the success and
accomplishments of the organizations with which he was associated during
his military career, his duty assignments and the service he rendered in
those assignments appear to be the normal duties associated with his grade,
branch, and specialty.

4.  The applicant’s performance evaluation report note that while he may
have been performing in an excellent manner in various rating areas, he was
also, more often than not, performing only successfully in others.  There
is nothing so exceptional in the duty assignments of the applicant which
would warrant an award of the Legion of Merit, nor is the mere fact that he
served his country honorably for more than 23 years justification for the
award.

5.  The applicant’s award recommendation was submitted through appropriate
command channels and processed to conclusion by the appropriate awards
approval authority with no evidence of error or injustice.

6.  The applicant was also afforded an opportunity to have his award
recommendation submitted under Title 10, United States Code, Section 1130.
The action was also processed to conclusion with no evidence of error or
injustice.  His contention that officials from the Army’s Awards Branch
“implied” his request would be approved if submitted via his congressional
representative is without foundation.  The Awards Branch merely provided
him with information regarding another avenue to have his recommendation
reconsidered.

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



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___FE __  ___CG __  ___WP __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.





            _____ Fred Eichorn_______
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2003098208                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040819                                |
|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.                      |                                        |


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