RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 September 2006
      DOCKET NUMBER:  AR20060001076


      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. John J. Wendland, Jr.         |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Paul M. Smith                 |     |Member               |
|     |Ms. Alice Muellerweiss            |     |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, correction of his records to show
three awards of the Legion of Merit.  He also requests a corrected Legion
of Merit Certificate and Citation to show award of the Legion of Merit (2nd
Oak Leaf Cluster).

2.  The applicant states, in effect, that he received two sets of documents
that awarded him the Legion of Merit (1st Oak Leaf Cluster).  The first set
of documents awarded him the Legion of Merit (1st Oak Leaf Cluster) for his
service from April 1972 to February 1973.  The second set of documents also
awarded him the Legion of Merit (1st Oak Leaf Cluster); however, the award
was for a different period of service from April 1963 to March 1973.  The
applicant adds, in effect, that the second set of award documents should be
corrected to read "Legion of Merit (2nd Oak Leaf Cluster)."

3.  The applicant provides a self-authored statement, dated 10 January
2006; Headquarters, U.S. Military Assistance Command, Vietnam, General
Orders Number 689, dated 15 February 1973; DA Form 4980-11 (Legion of Merit
Certificate), dated 15 February 1973; Headquarters, U.S. Army Military
Personnel Center, Alexandria, Virginia, letter, dated 23 October 1973,
subject:  Letter Order - Award of the Legion of Merit (First Oak Leaf
Cluster);
DA Form 4980-11 (Legion of Merit Certificate), dated 25 September 1973; and
Legion of Merit Citation (First Oak Leaf Cluster) for the period April 1963
to March 1973.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 31 March 1973, the date of his retirement from the Army.  The
application submitted in this case is dated 10 January 2006.

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 military service record shows that he enlisted in the
Army and entered active duty on 23 November 1942, achieved the grade of
rank of corporal, and completed Officer Candidate School in 1944.  On 28
December 1944, the applicant was appointed a second lieutenant in the
infantry branch of the Army of the United States.  He subsequently branch
transferred into military Intelligence and continued to serve on active
duty, attaining the grade of rank of colonel (O-6).  The applicant was
honorably retired from active duty on 31 March 1973 after completing a
total of 30 years, 4 months, and 8 days active service.

4.  The applicant's military service record contains a copy of
Headquarters, Department of the Army, Office of the Adjutant General,
Washington, DC letter, dated 10 September 1971, subject:  Presentation of
Award; a copy of Headquarters, Department of the Army, Letter Order - Award
of the Legion of Merit, dated 10 September 1971; and a Legion of Merit
Citation.  These documents show, in pertinent part, that The Adjutant
General of the Army approved award of the Legion of Merit to the applicant
for exceptionally meritorious conduct in the performance of outstanding
service for the period
July 1969 to June 1971.

5.  The applicant's military service record contains a copy of
Headquarters,
U.S. Military Assistance Command, Vietnam, General Orders Number 689, dated
15 February 1973.  This document shows, in pertinent part, that the
applicant was awarded the Legion of Merit (1st Oak Leaf Cluster) for
exceptionally meritorious conduct in the performance of outstanding service
for the period
April 1972 to February 1973.

6.  The applicant's military service record contains a copy of
Headquarters,
U.S. Army Military Personnel Center, Alexandria, Virginia, letter, dated
23 October 1973, subject:  Letter Order - Award of the Legion of Merit
(First Oak Leaf Cluster).  This document shows, in pertinent part, that the
applicant was awarded the Legion of Merit (1st Oak Leaf Cluster) for
exceptionally meritorious conduct in the performance of outstanding service
for the period April 1963 to March 1973.

7.  The applicant's DA Form 66 (Officer Qualification Record), Item 21
(Awards and Decorations) shows, in pertinent part, that he was awarded the
Legion of Merit.  The authority for this award was Headquarters, Department
of the Army, Letter Order, dated 10 September 1971.  Item 21 of this
document also shows that the applicant was awarded the Legion of Merit (1st
Oak Leaf Cluster).  The authority for the second award of the Legion of
Merit was Headquarters, U.S. Military Assistance Command, Vietnam, General
Orders Number 689, dated
15 February 1973.
8.  The applicant's DA Form 66 also shows in Item 35 (Record of
Assignments), in pertinent part, that the applicant departed Vietnam on 13
February 1973,
en route to the continental United States for his terminal assignment, and
was assigned to Headquarters, U.S. Army Training Center, Fort Ord,
California, where he served until he retired from the Army on 31 March
1973.

9.  The applicant's DD Form 214, issued at the time of his retirement,
shows in Item 24 (Decorations, Medals, Badges, Commendations, Citations and
Campaign Ribbons Awarded or Authorized) that he was awarded two awards of
the Legion of Merit (i.e., Legion of Merit with 1st Oak Leaf Cluster).

10.  The applicant provides a copy of Headquarters, U.S. Military
Assistance Command, Vietnam, General Orders Number 689, dated 15 February
1973, and a DA Form 4980-11 (Legion of Merit Certificate), dated 15
February 1973.  These documents show, in pertinent part, that the applicant
was awarded the Legion of Merit (1st Oak Leaf Cluster) for exceptionally
meritorious conduct in the performance of outstanding service for the
period April 1972 to February 1973.

11.  The applicant also provides a copy of Headquarters, U.S. Army Military
Personnel Center, Alexandria, Virginia, letter, dated 23 October 1973,
subject:  Letter Order - Award of the Legion of Merit (First Oak Leaf
Cluster); DA Form 4980-11 (Legion of Merit Certificate), dated 25 September
1973; and Legion of Merit Citation (First Oak Leaf Cluster) for the period
April 1963 to March 1973.  These documents show, in pertinent part, that
the applicant was awarded the Legion of Merit (1st Oak Leaf Cluster) for
exceptionally meritorious conduct in the performance of outstanding service
for the period April 1963 to March 1973.

12.  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.

13.  Army Regulation 600-8-22, paragraph 6-3, states, in pertinent part,
that an oak leaf cluster is awarded to denote the second and each
succeeding award of certain decorations, among which is the Legion of
Merit.

14.  Paragraph 1-21 of Army Regulation 600-8-22 governs recognition upon
retirement.  Specifically, this paragraph states that each individual
approaching retirement may be considered for an appropriate decoration
based on his or her grade, years of service, degree of responsibility, and
manner of performance.  For meritorious service awards at retirement, this
paragraph also permits inclusion of service longer than that served within
the command recommending the award.  The regulation recommends that these
periods not exceed 10 years and states that an extended period should only
be considered in those cases where the length or nature of the individual’s
terminal assignment would not qualify him or her for an appropriate award.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his records should be corrected
to show three awards of the Legion of Merit (i.e., Legion of Merit (2nd Oak
Leaf Cluster)) because he was awarded the Legion of Merit for three
separate periods of service.  He also contends, in effect, that he should
be issued a corrected Legion of Merit award order, certificate, and
citation to show award of the Legion of Merit (2nd Oak Leaf Cluster) for
the period April 1963 to March 1973.

2.  The evidence of record shows that the applicant was awarded the Legion
of Merit for exceptionally meritorious performance of duty for the period
July 1969 to June 1971.  The evidence of record also shows that the
applicant was awarded a second award of the Legion of Merit (i.e., Legion
of Merit (1st Oak Leaf Cluster)) for exceptionally meritorious conduct in
the performance of outstanding service for the period April 1972 to
February 1973.

3.  The evidence of record further shows that, on the occasion of the
applicant's retirement from the Army, the applicant was awarded a third
award of the Legion of Merit for exceptionally meritorious conduct in the
performance of outstanding service for the period April 1963 to March 1973.
 However, the Legion of Merit orders, certificate, and citation issued at
that time indicated "Legion of Merit
(1st Oak Leaf Cluster) rather than Legion of Merit (2nd Oak Leaf Cluster).
Therefore, the applicant is entitled to correction of his records to show
award of the Legion of Merit (2nd Oak Leaf Cluster).


4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 March 1973; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
30 March 1976.  The applicant did not file within the 3-year statute of
limitations; however, based on the available evidence, it would be in the
interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

__LDS___  __PMS__  ___AM__  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief and to excuse failure to timely file.  As a
result, the Board recommends that all Department of the Army records of the
individual concerned be corrected by:

      a.  issuing the applicant corrected orders, DA Form 4980-11 (Legion
of Merit Certificate), and Legion of Merit Citation awarding him the Legion
of Merit (2nd Oak Leaf Cluster) for exceptionally meritorious conduct in
the performance of outstanding service for the period April 1963 to March
1973;

      b.  correcting his DD Form 214 to delete:  "Legion of Merit w/1 OLC";
and

      c.  correcting his DD Form 214 to add:  Legion of Merit (2nd Oak Leaf
Cluster).




                                    Linda D. Simmons____
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060001076                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060928                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19730331                                |
|DISCHARGE AUTHORITY     |AR 635-100, Paragraph 4-15              |
|DISCHARGE REASON        |Vol Ret RA Comm. Officer w/ 30 or More  |
|                        |Years                                   |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |107.0009.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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