MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 16 October 2003
                  DOCKET NUMBER: AR2003086956

         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. Hubert S. Shaw, Jr.		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Hubert O. Fry		Member
Ms. Mae M. Bullock		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: Upgrade of his retirement award, the Meritorious Service Medal, to an award of the Legion of Merit.

APPLICANT STATES: That he was "deserving" of the Legion of Merit as a retirement award as recommended by his immediate commander. The applicant contends that a lieutenant colonel in his chain of command [hereafter identified as LTC O] was unjust when he recommended that the Legion of Merit proposed as a retirement award be downgraded to the Meritorious Service Medal.

The applicant contends that LTC O downgraded the proposed retirement award of the Legion of Merit because the applicant requested terminal leave and retirement just as his unit was preparing to deploy to Southwest Asia in support of Operations Desert Shield and Desert Storm.

The applicant also believes that his retirement award was unjustly processed by LTC O and all of the rest of the chain of command simply followed LTC O's recommendation. The applicant further states that LTC O made his recommendation with bias and prejudice and, as a result, the applicant requests that his 26 years and 8 months of Active Federal Service now be considered with personality removed from the process and an "unbiased decision" be made based on "performance, merit and level of responsibility."

The applicant then describes some of his most significant assignments: service in a Command Sergeant Major position/pay grade E-9 while a Master Sergeant/pay grade E-8; service as a Master Sergeant/pay grade E-8 in a lieutenant colonel or sergeant major duty position as Chief of the Enlisted Evaluation Reporting System at the Department of the Army level; service at the 21st Theater Army Area Command commanded by a lieutenant general; and service as a Master Sergeant/pay grade E-8 in the duty position of a major responsible for Wartime Host Nation Support Plans. The applicant also points out that he was selected from the secondary zone for promotion to sergeant first class, master sergeant and sergeant major and concurrently held a Reserve commission as a first lieutenant, captain and major as a dual component active duty enlisted soldier. Based on this service, the applicant noted that he had no adverse actions or evaluations in his records and concluded that he served at levels of responsibility deserving of a Legion of Merit as a retirement award.

The applicant then addressed his decision to retire. He stated that "we were not at war and there is life after the Army." He contends that he had done his part by serving in Vietnam and the Dominican Republic. Further, the applicant states that he had a civilian job waiting for him which would not have been available after return from Operation Desert Storm. He contends that his retirement decision should not be held against him. The applicant admits that he cannot prove what prompted LTC O to downgrade the retirement award. The applicant argues that, if the LTC O's recommendation is removed from the award process, then would the outcome have been the same?

The applicant concludes his addendum to his application by stating that his request for upgrading the award of the Meritorious Service Medal to the Legion of Merit is not for personal gain; rather, it is a matter of personal pride. Recently, some of his peers and friends, who had received award of the Legion of Merit at retirement, could not understand why the applicant's proposed award of the Legion of Merit had been downgraded by LTC O and recommended that the applicant request a relook.

In support of his application, the applicant provided a copy of a 20 August 2002 letter to the Director of the Army Board for Correction of Military Records (ABCMR) which resubmits his DD Form 149 (Application for Correction of Military Records); a copy of a a DD Form 149 with the date of 13 January 2002; a two-page addendum to his DD Form 149; a copy of a DA Form 638-1 (Recommendation for Award), dated 23 October 1990; a copy of the award certificate for applicant's retirement award of the Meritorious Service Medal; a copy of the orders assigning the applicant to the Fort Bragg (North Carolina) Transition Point for processing for retirement; an 8 August 2002 letter from a Member of Congress; a copy of an undated letter from the Chief of the Military Awards Branch of the U.S. Total Army Personnel Command (PERSCOM) to a Member of Congress; a copy of a 23 May 2002 letter to the applicant from the Administrative Assistant to a Member of Congress; a copy of a letter from the applicant submitting his request for upgrade of his Meritorious Service Medal to the Legion of Merit under the provisions of Title 10, United States Code, Section 1130 (10 USC 1130), and a copy of the letter from the Director of the ABCMR advising the applicant that he must first submit his request for upgrade under the provision of 10 USC 1130.

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

The applicant entered active duty on 19 March 1964. He served as an administrative specialist, military policeman, career counselor, personnel actions supervisor, personnel sergeant major, first sergeant, and command sergeant major during over 26 years of Army service. The applicant was separated from active duty effective 30 November 1990 in the rank of Command Sergeant Major and placed on the retired list effective 1 December 1990.

The applicant's records contain a DA Form 4187 (Personnel Action), dated 3 September 1990, wherein he requested retirement and terminal leave for 81 days. His request also noted that his unit was filled at 200 percent strength in his grade and military occupational specialty.

The major in command of the 573rd Personnel Service Company approved the applicant's request on 5 September 1990.

On 6 September 1990, the commander of the 18th Personnel and Administration Battalion [previously identified as LTC O] stated that , although the applicant's "timing was something less than propitious, [the applicant's name omitted] decision to retire is appropriate and I recommend early approval. LTC O further noted that the applicant's replacement was already "assigned to the battalion, was deployed to Saudi Arabia and could assume the applicant's duties as Personnel Sergeant Major without difficulty."

The applicant provided a copy of the DA Form 638-1, dated 23 October 1990, wherein the major in command of the 573rd Personnel Service Company recommended award of the Legion of Merit to the applicant as a retirement award. The recommending official wrote that the applicant had rendered 26 years and 8 months of totally professional, dedicated and honorable service, produced immediate improvement in the 573rd Personnel Service Company through training and improved work environment, developed a Personnel Service Company customer feedback surveys to assist in identifying and correcting problem areas, developed a comprehensive field standing operating procedures, assisted in planning the unit's first Army Training and Evaluation Program in 5 years, and organized the Personnel Service Company to process 13,000 soldiers for deployment in support of Operation Desert Shield.

On 2 November 1990, the commander of the 18th Personnel and Administration Battalion recommended downgrade of award of the Legion of Merit proposed by the commander of the 573rd Personnel Service Company. LTC O wrote: "Although service is certainly noteworthy of recognition, MSM [Meritorious Service Medal] is the appropriate level considering SGM [applicant's last name omitted] years of service and contributions to the 573d PSC [Personnel Service Company].

The award recommendation was then forwarded to the colonel in command of the 18th Personnel Group who recommended award of the Meritorious Service Medal.

The award recommendation was then forwarded to the Lieutenant General in command of the XVIII Airborne Corps who was the approval authority for award of the Legion of Merit in this case. On 18 November 1990, the award approval authority indicated that the recommendation for award of the Legion of Merit was downgraded to award of the Meritorious Service Medal, resulting in award of the Meritorious Service Medal (Second Oak Leaf Cluster) to the applicant.

Subsequently, XVIII Airborne Corps Permanent Orders 172-18, dated 26 November 1990, were published awarding the applicant the Meritorious Service Medal (Second Oak Leaf Cluster).

Records show that the applicant requested upgrade of the Meritorious Service Medal (Second Oak Leaf Cluster) as a retirement award to award of the Legion of Merit under the provisions of 10 USC 1130.

On 27 June 2002, the Army Decorations Board unanimously voted to disapprove the applicant's request to upgrade his award of the Meritorious Service Medal (Second Oak Leaf Cluster) as a retirement award to award of the Legion of Merit. The Army Decorations Board noted that the award of the Meritorious Service Medal to the applicant was appropriate.

By letter dated 20 August 2002, the applicant appealed the Army Decorations Board's denial of his request for upgrade of the Meritorious Service Medal (Second Oak Leaf Cluster) as a retirement award to award of the Legion of Merit.

By letter dated 20 February 2003, the Chief of the Military Awards Branch of PERSCOM advised the applicant that his request for reconsideration was denied for lack of substantive new evidence as required by Department of Defense policy.

Army Regulation 600-8-22 (Military Awards) states, in pertinent part, that the Legion of Merit is awarded to individuals who distinguish themselves by exceptionally meritorious conduct in the performance of outstanding services and achievements. The performance must 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 this award. In peacetime, service should be in the nature of a special requirement or an extremely difficult duty performed in an unprecedented and clearly exceptional manner. However, justification may accrue by virtue of exceptionally meritorious service in a succession of important positions. 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.

Army Regulation 600-8-22 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.

Army Regulation 600-8-22 provides in paragraph 3-1c 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.

Section 1130, Title 10, United States Code 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.

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. The Board considered the applicant's request to upgrade award of the Meritorious Service Medal to the Legion of Merit.

2. The Board noted that the applicant’s immediate supervisor, commander of the 573rd Personnel Service Company, recommended the Legion of Merit as a retirement award for the applicant.

3. The Board noted that the next two senior officers in the applicant’s chain of command, the commander of the 18th Personnel and Administration Battalion and the commander of the 18th Personnel Group, recommended to the award approval authority that the Meritorious Service Medal, not the Legion of Merit, was an appropriate retirement award for the applicant's service.

4. The Board noted that the Commanding General of the XVIII Airborne Corps, the award approval authority for the Legion of Merit, approved award of the Meritorious Service Medal as the applicant’s retirement award and orders were promulgated announcing this award.

5. The Board noted that the applicant requested upgrade of award of the Meritorious Service Medal under the provisions of 10 USC 1130 and by unanimous vote the Army Decorations Board denied that request. It was also noted that the applicant appealed the decision of the Army Decorations Board, but reconsideration of his case by the Army Decorations Board was denied based on the applicant's failure to provide new evidence.

6. The Board reviewed the applicant’s records and concluded that his service was worthy of recognition with a retirement award.

7. However, the Board also determined that the Commanding General of XVIII Airborne Corps, the award approval authority in this case, properly reviewed the recommendations of the unit commander and the intermediate commanders. After considering all matters presented in the award recommendation, the Commanding General of XVIII Airborne Corps determined that the Meritorious Service Medal was the appropriate level of recognition for the applicant’s service.

8. The Board considered the applicant’s contention that LTC O was “unjust” in recommending downgrade of award of the Legion of Merit as well as his contention that all other commanders involved in the award process merely followed LTC O's recommendation as a matter of "normal" procedure.

9. However, the Board determined that, other than the applicant’s assertion, he has presented no evidence that the award process in his case was unjust, biased, or otherwise flawed.

10. Furthermore, the Board noted that, regardless of the recommendations by the intermediate commanders to downgrade the proposed award of the Legion of Merit in this case, the award approval authority was solely responsible for determining if recognition was warranted in this case and solely responsible for determining that level of recognition. The award approval authority also had access to the recommending official and the intermediate commanders, thus the ability to resolve any doubt regarding the basis for the recommendations to downgrade the proposed award of the Legion of Merit. Had the award approval authority determined that the unit commander’s recommendation for award of the Legion of Merit was the appropriate level of recognition or that the intermediate commanders’ recommendations were unjust, biased or flawed, then the Commanding General of the XVIII Airborne Corps could have awarded the Legion of Merit; however, he chose not to do so in this case.

11. The Board noted the applicant’s statement that other senior noncommissioned officers had received the Legion of Merit as retirement awards. However, the ABCMR considers each case on its own merit. As a result, award of decorations to other military personnel are not a basis for this Board to grant the relief requested in this case.



12. 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.

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

14. In arriving at its decision, the Board wants the applicant to know that the decision of the Board not to upgrade his retirement award from the Meritorious Service Medal to the Legion of Merit in no way diminishes the quality of his service to our Army and our Nation. The applicant’s service demonstrated the finest traditions of the noncommissioned officer corps and should be a source of pride to the applicant.

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

__MMB__ __HOF__ __AAO___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003086956
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20031016
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	MR CHUN
ISSUES 1.	107.0009.0000
2.
3.
4.
5.
6.