RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        3 November 2005
      DOCKET NUMBER:  AR20050002926


      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. Yvonne Foskey                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Thomas D. Howard              |     |Chairperson          |
|     |Mr. John Infante                  |     |Member               |
|     |Ms. Carmen Duncan                 |     |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, in effect, award of the Army Commendation Medal
(ARCOM).

2.  The applicant states, in effect, that he was issued the ARCOM for
combat service in the Gulf War, and he would like this award added to his
separation document (DD Form 214).

3.  The applicant provides a Department of Veterans Affairs (VA)
Appointment of Veterans Service Organization as Claimant’s Representative
(VA Form 21-22-1) and a DD Form 214 in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 29 November 1996.  The application submitted in this case
is dated 14 February 2005.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant’s record shows that he enlisted in the Regular Army and
entered active duty on 29 November 1988.  He was initially trained in, was
awarded and served in military occupational specialty (MOS) 45T (Bradley
Fighting Vehicle Turret Mechanic).

4.  The applicant’s Military Personnel Records Jacket (MPRJ) contains no
orders, or other documents showing he was ever recommended for, or awarded
the ARCOM by proper authority.

5.  On 29 November 1996, the applicant was honorably separated, by reason
of expiration of term of service, after completing a total of 8 years and 1
day of active military service.

6.  The DD Form 214 issued to the applicant upon his separation shows he
earned the following awards during his active duty tenure:  Army
Achievement Medal; Army Good Conduct Medal; National Defense Service Medal;
Southwest Asia Service Medal with 3 Bronze Service Stars (BSS);
Noncommissioned Officer's Professional Development Ribbon; Army Service
Ribbon; Overseas Service Ribbon (2nd Award); Kuwait Liberation Medal-
Kuwait; Kuwait Liberation Medal-Saudi Arabia; and Marksman Qualification
Badge with Rifle Bar.  The applicant authenticated this document with his
signature on the date of his separation.

7.  Army Regulation 600-8-22 (Military Awards) prescribes the Army’s awards
policy.  Paragraph 3-16 contains guidance on the Army Commendation Medal
(ARCOM).  It states in pertinent the ARCOM is awarded to any member of the
Armed Forces of the United States who, while serving in any capacity the
Army after 6 December 1941, distinguishes himself or herself by heroism,
meritorious achievement or meritorious service.

8.  Paragraph 3-18 of the awards regulation contains guidance on award
recommendations.  It states, in pertinent part, that individual awards,
which includes the ARCOM, require recommendations initiated on a DA Form
638 (Recommendation for Award), and will be approved by the proper
authority.  Table 3-3 identifies award approval authorities, and
establishes that award of the ARCOM may be delegated to commanding generals
of separate units who are serving in the rank of major general (MG), or
brigadier generals (BG) serving in MG positions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that he was awarded the ARCOM was carefully
considered.  However, by regulation, the ARCOM must be recommended on a DA
Form 638 and approved by the proper authority (MG or BG in MG position).
The applicant’s record is void of any orders, or other documents indicating
that he was ever recommended for, or awarded the ARCOM by proper authority.


2.  Further, the DD Form 214 issued to the applicant upon his separation
does not include the ARCOM in the list of awards entered.  The applicant
authenticated this separation document with his signature when it was
issued.  In effect, his signature was his verification that the information
contained on the
DD Form 214, to include the list of awards was correct at the time the
separation document was prepared and issued.  Therefore, the regulatory
burden of proof necessary to support award of the ARCOM has not been
satisfied in this case.
3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 29 November 1996.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on
28 November 1999.  He failed to file within the 3-year statute of
limitations and has not provided a compelling explanation or evidence to
show that it would be in the interest of justice to excuse failure to
timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__TDH__  ___JI____  ___CD __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  _____Thomas D. Howard_____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050002926                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005-11-03                              |
|TYPE OF DISCHARGE       |HD)                                     |
|DATE OF DISCHARGE       |1996/11/29                              |
|DISCHARGE AUTHORITY     |AR635-200 . . . . .                     |
|DISCHARGE REASON        |Chapter 4                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |107..0020.0000                          |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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