RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 8 January 2004
         DOCKET NUMBER: AR2003084708


         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
Mr. Hubert S. Shaw, Jr.		Analyst

The following members, a quorum, were present:

Ms. Kathleen A. Newman		Chairperson
Mr. John T. Meixell		Member
Ms. Linda M. Barker		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military records.

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


1. The applicant requests that the Army Board for Correction of Military Records (ABCMR) determine which one of three awards he should have received for his service during the period June 1996 through June 1999 while assigned to the 5th Signal Command. The applicant further requests that, if award of the Meritorious Service Medal is determined to be the correct award, then the revocation orders for award of the Meritorious Service Medal be removed from his personnel records.

2. The applicant states that Headquarters, U.S. Army Signal Command (USASC) Permanent Orders 35-3, dated 4 February 2002, [the orders which revoked the applicant's award of the Meritorious Service Medal] were unjust and were published without proper research and investigation into the award dispute. He contends that his original award of the Meritorious Service Medal was downgraded by an individual who "was not empowered and did not have authority to do so."

3. In an 8-page letter of explanation the applicant essentially sets forth the sequence of events regarding actions taken in regard to his end of tour service award and poses questions regarding these actions.

4. The applicant provides copies of orders, award certificates, e-mails and award recommendations in support of his application.

CONSIDERATION OF EVIDENCE:

1. The applicant's records show that, at the time of his application, he was serving on active duty as a staff sergeant/pay grade E-6.

2. The applicant provided a copy of a DA Form 638 (Recommendation for Award), dated 17 February 1999. This document shows that the applicant, at this time, was serving as a sergeant/pay grade E-5 at the 5th Signal Command in Europe and was recommended for award of the Meritorious Service Medal for the period 26 June 1996 to 23 June 1999. The award recommending official was an Army major in the position of Assistant Deputy Chief of Staff for Intelligence of the 5th Signal Command and was the applicant's supervisor; however this officer did not sign the DA Form 638.

3. The DA Form 638 shows the entry for consideration of the recommended award of the Meritorious Service Medal on 17 February 1999 by the colonel serving in the position of Deputy Chief of Staff for Intelligence for the 5th Signal Command. An "X" is placed in the recommend approval block; however, there is no signature in the block identified for that purpose. The signature block contains the entry "//s//."
4. The DA Form 638 shows that the colonel in the position of Headquarters Commandant of the 5th Signal Command [hereafter identified as COL R] considered the recommended award of the Meritorious Service Medal and recommended downgrade of the Meritorious Service Medal to the Army Commendation Medal. He placed his signature in the block designated for that purpose, but did not place a date in the block designated for that purpose.

5. This form does not show any entries in the blocks designated for action by the award approval authority. However, Part V (Orders Data) of this DA Form 638 shows 5th Signal Command Permanent Order Number 105-2, dated 15 April 1999 was published awarding the applicant the Army Commendation Medal (First Oak Leaf Cluster).

6. The applicant provided a copy of an Award Certificate for award of the Army Commendation Medal based on 5th Signal Command Permanent Order Number 105-2. This certificate was authenticated by the colonel in the position of Headquarters Commandant of the 5th Signal Command, the same officer who recommended downgrading the recommended award of the Meritorious Service Medal to award of the Army Commendation Medal.

7. The applicant provided a second copy of the DA Form 638, dated 17 February 1999. The front page of this version of the form is identical to that described above. The second page of this DA Form was prepared with the entry for consideration of the recommended award of the Meritorious Service Medal on 17 February 1999 by the colonel serving in the position of Deputy Chief of Staff for Intelligence for the 5th Signal Command. An "X" is placed in the recommend approval block; however, there is no signature in the block identified for that purpose. The signature block contains the entry "//s//."

8. The second page of this second version of the DA Form 638 was prepared with the entry for consideration of the recommended award of the Meritorious Service Medal on 17 February 1999 by COL R who was serving in the position of Headquarters Commandant. Contrary to the first version of the DA Form 638 submitted by the applicant, this entry shows an "X" in the block recommending approval of the Meritorious Service Medal instead of downgrade to the Army Commendation Medal. Also contrary to the first version of the DA Form 638, the Headquarters Commandant's signature is replaced by the entry entry "//s//."

9. On 22 June 1999, the second version of the DA Form 638 recommending award of the Meritorious Service Medal to the applicant was considered by the major general in command of USASC located at Fort Huachuca, Arizona. He approved award of the Meritorious Service Medal to the applicant on 22 June 1999 and authenticated his decisions with his signature. Subsequently, Headquarters, USASC Permanent Order Number 173-2, dated 22 June 1999 was published awarding the applicant the Meritorious Service Medal.
10. The applicant provided a copy of Headquarters, USASC Permanent Order Number 035-3, dated 4 February 2002, which revoked that portion of USASC Permanent Order Number 173-2 which awarded the applicant the Meritorious Service Medal. The reason for revocation stated on the order is "Duplicated Award."

11. The applicant provided a copy of 5th Signal Command Permanent Order 142-1, dated 22 May 2002, which revoked that portion of 5th Signal Command Permanent Order 105-2 awarding the Army Commendation Medal to the applicant. The reason for revocation stated on the order is "Duplicated Award."

12. The applicant provided a third version of the DA Form 638, dated 17 February 1999. The front page of this form is a duplicate of the two versions previously described. However, the reverse side of the DA Form 638 shows only the intermediate authority as the Chief of Staff of the 5th Signal Command [hereafter identified as COL S] which is different from any other name shown on the previous two versions of the DA Form 638. This form shows that, on 9 May 2002, COL S, the Chief of Staff, considered award of the Meritorious Service Medal to the applicant and recommended downgrade to award of the Army Commendation Medal.

13. This third version of the DA Form 638 shows under the blocks reserved for action by the approval authority that, on 9 May 2002, the brigadier general then in command of the 5th Signal Command considered the recommendation for award of the Meritorious Service Medal to the applicant for his service during the period 26 June 1996 to 23 June 1999. The DA Form 638 shows that the Commanding General of the 5th Signal Command, the award approval authority for the Meritorious Service Medal, disapproved the recommendation for the Meritorious Service Medal and approved award of the Army Commendation Medal to the applicant instead. Accordingly, Headquarters, 5th Signal Command Permanent Order Number 129-1, dated 9 May 2002, was published awarding the applicant the Army Commendation Medal (First Oak Leaf Cluster). An award certificate for the Army Commendation Medal was also prepared and signed by the Commanding General of the 5th Signal Command.

14. The applicant provided a series of e-mails which addressed the issues surrounding award of the Meritorious Service Medal as an end of tour award for his service in the 5th Signal Command from 26 June 1996 to 23 June 1999. These e-mails are recited in part as follows:

         a. E-mail, dated 30 January 2002, from the applicant to an official [hereafter identified as Ms. B] of the Awards Section at the USASC--"I hate to keep bothering you but I was wondering if there has been any resolve on the MSM yet?”

         b. E-mail, dated 4 February 2002 [9:42AM], from Ms. B. of the USASC Awards Section to the applicant--"We finally got an answer back about this award. Please see the response below: '[SGT B's name omitted], based on my conversation with [CW3 H's name omitted] and the e-mail below, this soldier [the applicant] was awarded the ARCOM and not an MSM. As we have discussed, [SGT L's name omitted] must have forwarded the DA Form 638 on the wrong [same last name as the applicant omitted]. Request that ASC revoke the MSM order and the ARCOM stand.' I will be doing the revocation orders for this. I'm sorry about the mixup."

         c. E-mail, dated 4 February 2002 [1:18PM], from the applicant to Ms. B of the Awards Section at the USASC--"After discussing this issue with my Group CSM who is the top AG enlisted soldier at on Fort Bragg, he states that the MSM must stand…"

         d. E-mail, dated 5 February 2002 [10:20AM], from the Chief of the Awards Section at the USASC to the applicant--"The MSM was erroneously approved at this HQ. It was never the intent of the Commander, 5th Sig Cmd [5th Signal Command] for the award to be forwarded; in fact (as we have now been informed) your award was downgraded to an ARCOM. It is a simple fact of the award being forwarded by mistake by the awards clerk in Europe and approved by mistake at this level, because we were unaware of the downgrade that took place. The MSM is therefore considered a duplicate of an award already issued to you and AR 600-8-22 prohibits duplication of awards, paragraph 1-18a. Furthermore, AR 600-8-22, paragraph 1-29 clearly state that an award may be revoked by the awarding authority if facts subsequently determined would have prevented original approval of the award had they been known at the time. This command would not have processed, much less approved, the award had we known the recommendation had been downgraded and had been sent to us erroneously. Since the award was never 'presented' to you there is no requirement for us to obtain statement from you regarding the revocation. Orders revoking the MSM due to duplication were cut yesterday and will be sent for inclusion in your OMPF [Official Military Personnel File]….5th Signal Command has authority to downgrade an MSM and was within their authority to downgrade your recommendation for the MSM (which they did). I regret that we could not provide you with the response that you desired. Mistakes happen, but the intent of the intermediate/approving authority at 5th Sig must be the deciding factor in rare cases such as yours. Furthermore we have received a request for revocation of the MSM from 5th Signal Command confirming their intent to issue an Army Commendation Medal and not an MSM. Should you still insist on pursuing this action you may submit application to the Army Board for Correction of Military Records (ABCMR) using DD Form 149. Please be aware that I did touch base with HQDA to ensure that we are on the right track here and they concur with our action."

         e. E-mail, dated 11 February 2002 [6:11AM], from the Chief of the Awards Section at the USASC to Chief, Field Operations, 18th Soldier Support Group, Fort Bragg, North Carolina--"Who signed the 638 downgrading the award? What was the title of the individual? MSM could only be downgraded by the Cdr, 5th Sig or Acting Cdr. Award clerk sent award forward by mistake and the intent of the 5th Sig Cdr has to be taken into consideration. MSM should never have come here as far as we understand from 5th Sig folks and we don't know how it happen, but if it was downgraded by unauthorized authority the there is problem. If [COL R] signed as the 'Acting Cdr" there is nothing we can do…."

         f. E-mail, dated 11 February 2002 [9:10AM], from the Chief of the Awards Section at the USASC to Chief Field Operations, 18th Soldier Support Group, Fort Bragg, North Carolina--"This award is incomplete. Block 26 [Approval Authority] is incomplete. Part V is incomplete, no signature on orders (unless DA considers/recognizes the stamp as an appropriate signature). If 5th sig has been processing awards this way, it is incorrect. Block 26 must be completed and include info regarding the appropriate authority (CG, 5th Sig). This case is a little complicated because the then 5th Sig Commander is no longer there, the orders approving authority is no longer there (in country but not in the same position) so I'll need to find out from DA how we need to handle this one. 5th Sig could have a big mess on their hands if this is how they are going to do awards. I would think regardless, the MSM will need to be 'properly' processed thru appropriate chain at 5th Sig. It could be downgraded to ARCOM even if it goes that way. We've already revoked the MSM. If it goes thru 5th SIG, it will need to be boarded at this HQ…"

         g. E-mail, dated 11 February 2002 [11:18AM], from the Chief of the Awards Section at the USASC to Chief, Field Operations, 18th Soldier Support Group, Fort Bragg, North Carolina--"This award is not valid. [COL R] has no approval authority. I'm checking with DA."

         h. E-mail, dated 13 February 2002 [5:51AM], from the Chief of the Awards Section at the USASC to Chief, Field Operations, 18th Soldier Support Group, Fort Bragg, North Carolina--"Well I got the answer back from DA. [COL R] as the 'Commandant' does have awards approval authority (Commandants have the same awards approval authority as 'Commanders'). The question now, is he authorized downgrade approval authority based on how we worded the supplement? I am thinking that DA will say he does because of how we wrote it up (rather generic), but I'm waiting for final response on that. Sorry it doesn't look good. If DA says yes on the second part, then the only problem is that he signed in the wrong place. ARCOM would have to stand and MSM has been revoked. Certainly you are correct in stating that the MSM had merit based on the fact that it was approved (even if was approved in error); however, the only one who could do anything about would be the recommender. He would have to submit a request for 'reconsideration' of the award. The soldier can't do anything. Sorry but that is how it works. I'll get back with you again as soon as I hear from DA again."

15. In the processing of this case, an advisory opinion was obtained from the U.S. Total Army Personnel Command, now known as the Human Resources Command-Alexandria (HRC-A). That opinion prepared by the Military Awards Branch set forth the following key points:

         a. The 5th Signal Command Staff Judge Advocate opined that although COL R as the Headquarters Command was not a "commander" as defined in regulation, he believed he had authority to act on awards and did so in in good faith. Therefore, the Staff Judge Advocate concluded that COL R was accepted as a commander and was a de facto commander.

         b. The 5th Signal Command Inspector General advised the applicant that his contention that COL R did not have award approval authority was substantiated. However, it was also noted that legal precedents specified the actions completed by the Chief of Staff as Headquarters Commandant did not need to be corrected. Therefore, the awards received by the applicant during his tenure with the 5th Signal Command and at the end of his tour of duty remain valid.

         c. The Chief of the Military Awards Branch also noted that U.S. Army military decorations are awarded in recognition of heroism, meritorious achievement or meritorious service, that no individual is automatically entitled to an award, and that the decisions to award a decoration and the level of recognition are subjective decisions made solely by the commander with award approval authority. The Chief of the Military Awards Branch therefore determined that, in the applicant's case, the Commanding General of the 5th Signal Command, on 9 May 2002, reconsidered the recommendation to award the Meritorious Service Medal and determined the proper recognition for the applicant's service was the Army Commendation Medal (First Oak Leaf Cluster).

         d. Based on the foregoing, the Chief of the Military Awards Branch recommended that the applicant's request should be denied, that he should receive the Army Commendation Medal (First Oak Leaf Cluster) approved by the Commanding General of the 5th Signal Command on 9 May 2002, and that the applicant's servicing personnel center should correct his official records to show this award.

16. The applicant was provided the opportunity to respond to the advisory opinion and he submitted comments in rebuttal, dated 29 April 2003. The applicant wrote that the advisory opinion did not address all of his issues; however, he would only respond to those issues which he believed were pertinent to his case.
         a. First, the original MSM was downgraded to an ARCOM by COL R and it has been stated that COL R did not have award approval authority. The applicant further noted that the command staff judge advocate determined that COL R was a de facto commander and that the staff judge advocate and the command inspector general officials determined that the applicant was entitled to all awards received during his tenure in the 5th Signal Command. Given this background, the applicant questioned why the original award ARCOM approved by COL R was revoked and the award recommendation resubmitted three years after the fact, specifically through the chain of command in place in 2002.

         b. Secondly, the applicant asserted that the MSM, dated 9 June 1999, was revoked on 4 February 2002 because it was believed to be a duplicate award. Given these facts, the applicant questioned if COL R did not have award approval authority, then how was the original ARCOM valid. Further, the applicant asked that if the ARCOM was not valid, then how could the MSM be a duplicate award. The applicant further asserted that all of these actions occurred three years after the fact and only after the applicant brought them to the attention of USASC and the 5th Signal Command.

         c. Thirdly, the applicant asserted that, after the original ARCOM award recommendation signed by COL R was revoked and the MSM signed by the major general in command of USASC was revoked, the award recommendation was resubmitted for reconsideration by the chain of command in place three years after the fact. He concluded that if COL R had the original award authority then the original ARCOM should have remained in place and there was no need for reconsideration. The applicant continued that, if COL R did not have any award authority then the validity of the ARCOM and how the MSM was a duplicate award is again questionable.

         d. In conclusion, the applicant states that he has exhausted all means for resolving this issue and has raised substantial arguments as to the previous awards processing actions of the 5th Signal Command. He further stated that he wanted to appear before the ABCMR "to further elaborate on this issue and hopefully receive total resolution to this issue.” However, the applicant acknowledges that appearance before the ABCMR is difficult because he is deployed in the Middle East and does not know when he will be returning. Finally, he respectfully requests that all of the information he has submitted be considered.

17. Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Meritorious Service Medal is awarded to members of the Armed Forces of the United States or of a friendly foreign nation who distinguish themselves by outstanding meritorious achievement or service in a noncombat area. As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required. Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years. There are regulatory provisions for lost recommendations but not for late recommendations, reconsideration, nor for upgrading to a more prestigious award. The regulation also provides that there is no automatic entitlement to an award upon departure either from an assignment or from the service.

18. Army Regulation 600-8-22 provides that the Army Commendation Medal may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguished himself or herself by heroism, meritorious achievement or meritorious service. As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

19. Army Regulation 600-8-22 provides in paragraph 3-1c and d that 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. The regulation further states that awards for meritorious service or achievement should reflect both the individual's level of responsibility and his or her manner of performance.

20. Army Regulation 600-8-22 provides in paragraphs 3-4b approval authorities must be in command or serving as head of a principal Headquarters Department of the Army Agency. The regulation also states that award approval authority may not be delegated to subordinate officials such as deputy commanders, executive officers and chiefs of staff, and so forth.

21. Army Regulation 600-8-22 provides in paragraphs 3-4d that commanders having authority to approve an award may delegate disapproval authority to their immediate subordinate commanders, provided those subordinate commanders have award approval authority for the next lower award.

22. Table 3-2 (Delegation of Award Approval Authority-Peacetime Criteria) of Army Regulation 600-8-22 shows that commanders and principal Headquarters Department of the Army Agency officials in the rank of major general and above may award the Meritorious Service Medal in peacetime.

23. Table 3-2 of Army Regulation 600-8-22 shows that commanders and principal Headquarters Department of the Army Agency officials in the rank of colonel/pay grade 0-6 and above may award the Army Commendation Medal.

24. Army Regulation 15-185 governs operations of the ABCMR. Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR. The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel and witnesses may appear whenever justice requires.

DISCUSSION AND CONCLUSIONS :

1. A DA Form 638, dated 17 February 1999, shows that the applicant was recommended for award of the Meritorious Service Medal for his service in the 5th Signal Command in Germany from 26 June 1996 to 23 June 1999. However, this form does not contain the signature of the recommending official or the intermediate authority, the Assistant Deputy Chief of Staff for Intelligence and the Deputy Chief of Staff for Intelligence of the 5th Signal Command respectively.

2. COL R, as the Chief of Staff and Headquarters Commandant of the 5th Signal Command at that time, indicated in an intermediate authority block on the form that the recommended award of the Meritorious Service Medal should be downgraded to award of the Army Commendation Medal. However, COL R did not indicate the date of this action in the space provided on the DA Form 638.

3. The Orders Data section of this first version of the DA Form 638 shows that Headquarters, 5th Signal Command Permanent Order Number 105-2, dated 15 April 1999, was published. This order awarded the applicant the Army Commendation Medal (First Oak Leaf Cluster).

4. Records show that another version of the original DA Form 638, also dated 17 February 1999, was prepared and was forwarded to Headquarters, USASC. Again, neither the Assistant Deputy Chief of Staff for Intelligence nor the Deputy Chief of Staff for Intelligence of the 5th Signal Command signed this document. Further, this form shows that COL R recommended approval of the Meritorious Service Medal, but his signature is not on this form. The major general in command of USASC, on 22 June 1999, authenticated this version of the DA Form 638, thereby, approving award of the Meritorious Service Medal. As a result, Headquarters, USASC Permanent Order 173-2, dated 22 June 1999, was published awarding the applicant the Meritorious Service Medal.

5. Subsequently, Headquarters, USASC Permanent Orders 035-3, dated 4 February 2002, revoked award of the Meritorious Service Medal based on the fact that the Army Commendation Medal (First Oak Leaf Cluster) had already been awarded for that period of service.

6. Subsequently, Headquarters, 5th Signal Command Permanent Order 142-1, dated 22 May 2002, revoked the original award of the Army Commendation Medal (First Oak Leaf Cluster) to the applicant as a duplicate award.




7. Records show that a third version of a DA Form 638, dated 17 February 1999, was prepared recommending award of the Meritorious Service Medal to the applicant for his service in the 5th Signal Command from 26 June 1996 to 23 June 1999. The name of the recommending official is the same as on both previous versions. However, the intermediate official now shows the name of the of the colonel in the position of Chief of Staff of the 5th Signal Command (hereafter identified as COL S) who recommended downgrading the proposed award of the Meritorious Service Medal to award of the Army Commendation Medal. COL S signed the DA Form 638 and entered the date "9 May 02" in the correct block. Then, on 9 May 2002, the brigadier general in command of the 5th Signal Command at the time considered the award recommendation and disapproved award of the Meritorious Service Medal, but approved award of the Army Commendation Medal instead. Subsequently, Headquarters, 5th Signal Command Permanent Order 129-1, dated 9 May 2002, was published awarding the applicant the Army Commendation Medal (First Oak Leaf Cluster).

8. Based on the records in this case, it is clear that the first two versions of the DA Form 638 recommending award of the Meritorious Service Medal to the applicant were flawed and essentially resulted in two awards covering the same period of service.

9. Subsequently, the award of the Meritorious Service Medal by Headquarters, USASC and the award of the Army Commendation Medal (First Oak Leaf Cluster) by Headquarters 5th Signal Command were revoked by the respective award approval authorities. Therefore, these awards and all supporting documentation are null and void and should be expunged from the applicant's OMPF.

10. Records show that, on 9 May 2002, the Commanding General of the 5th Signal Command, award approval authority for award of the Army Commendation Medal, considered the recommendation for award of the Meritorious Service Medal to the applicant. The Commanding General of the 5th Signal Command determined that the Army Commendation Medal was the appropriate level of recognition for the applicant's service during the period 26 June 1996 to 26 June 1999; therefore, she disapproved award of the Meritorious Service Medal and instead approved award of the Army Commendation Medal.

11. Based on the foregoing the applicant's records should be corrected to show award of the Army Commendation Medal (First Oak Leaf Cluster) as authorized by 5th Signal Command Permanent Order 129-1, dated 9 May 2002.

BOARD VOTE:

_ KAN ____ _ LMB ___ _ JTM ___ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION


1. The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that he was awarded the Army Commendation Medal (First Oak Leaf Cluster) for meritorious service during the period 23 June 1996 to 23 June 1999 as authorized by 5th Signal Command Permanent Order 129-1, dated 9 May 2002.

2. The Board also determined that all references to the Army Commendation Medal (First Oak Leaf Cluster) authorized by Headquarters, 5th Signal Command Permanent Order Number 105-2, dated 15 April 1999, and revoked by Headquarters, 5th Signal Command Permanent Order 142-1, dated 22 May 2002 should be expunged from the applicant's OMPF.

3. The Board also determined that all references to the Meritorious Service Medal authorized by Headquarters, USASC Permanent Order 173-2, dated 22 June 1999, and revoked by Headquarters, USASC Permanent Orders 035-3, dated 4 February 2002, should be expunged from the applicant's OMPF.




                  _Kathleen A. Newman___
                  CHAIRPERSON

---

INDEX

CASE ID	AR2003084708
SUFFIX
RECON
DATE BOARDED	20040108
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	107.0000.0000
2.
3.
4.
5.
6.