IN THE CASE OF:	  

	BOARD DATE:	  22 May 2008

	DOCKET NUMBER:  AR20080005243 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, an upgrade of his Air Medal (AM) with "V" (Valor) Device to the Distinguished Flying Cross (DFC).  

2.  The applicant states, in effect, that while serving in support of Operation Enduring Freedom as an AH-64D Apache Longbow Pilot, he was awarded the AM with "V" Device for his actions in support of Task Force (TF) Bayonet on 
21 June 2005.  He states that the other pilot in his aircraft was originally recommended for the same award, but it was subsequently upgraded and he was awarded the DFC.  He further states that aircraft crews in the UH-60 also supporting actions that day also were recommended for the same award to which an upgrade was subsequently recommended and they also received higher awards.  He states that when he received the excerpt of the awards tracking file, he discovered the brigade never even tracked the original upgrade recommended by the Task Force commander, which properly resulted in the approval authority missing the original upgrade recommendation.  He is requesting a review due to the Task Force commander's original recommendation, and an opposing crew member receiving an upgrade for the same mission they both flew on.  

3.  The applicant provides the following documents in support of his application:  Recommendation for Award (DA Form 638); AM with "V" Device Certificate; and Award Tracking Document Extract. 


CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he is currently still serving on active duty, in the grade of Chief Warrant Officer Two (CW2), in Europe.  

2.  On 28 June 2005, the applicant's troop commander submitted a DA Form 638 recommending the applicant be awarded the AM with "V" Device for his achievement on 21 June 2005.  

3.  On 15 August 2005, The Task Force Storm Commander, a lieutenant colonel, recommended the award be upgraded to a DFC and commented that the applicant's actions as the gunner were in keeping with a higher award especially when his AH64 was the only attack helicopter on the scene for the majority of the fight.  

4.  On 2 September 2005, the Task Force Griffin commander, a colonel, recommended approval of the recommended award and did comment on the upgrade recommended by the Task Force Storm commander.  

5.  On 21 September 2005, the commander of Joint Task Force-76, a major general, approved the recommended award and did not comment on an upgrade, and Orders 264-012, were published announcing the award of the 
AM with "V" Device to the applicant accordingly.  

6.  The applicant's Official Military Personnel File (OMPF) provides no indication that the applicant ever raised this issue through his chain of command at the time, or that he appealed the award through normal personnel channels.  

7.  Along with the DA Form 638 and the AM with "V" Device Certificate, the applicant provides the narrative of his achievement submitted with the original DA Form 638 in support of his application.  He also provides what he indicates is a brigade awards tracking document that lists three other individuals, which includes his pilot on the mission in question.  The headings for the information entered on this document extract are not included and as a result, it is not entirely clear what the document columns represent.  

8.  Army Regulation 600-8-22 (Military Awards) prescribes the Army's awards policy.  Paragraph 1-16 contains guidance on reconsideration of disapproved or downgraded award recommendations.  It states, in pertinent part, that a request for reconsideration or the appeal of a disapproved or downgraded award recommendation must be placed in official channels within 1 year from the date of the awarding authority's decision.  

9.  Title 10 of the United States Code, section 1130 (10 USC 1130) provides the legal authority for consideration of proposals for decorations not previously submitted in timely fashion.  It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or a unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his AM with "V" Device should be upgraded to a DFC because other individuals on the same mission received an upgrade, and because he believes the task force commander recommendation that his award be upgraded to the DFC was not considered and tracked was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record confirms the DA Form 638 submitted on the applicant, which included the upgrade recommendation by the Task Force Storm commander, was ultimately reviewed and acted upon by the award approval authority.  As a result, it appears the applicant's awards recommendation was properly processed in accordance with the applicable regulation.  

3.  Further, there is no indication that the applicant ever raised the award issue through his chain of command to the award approval authority at the time, or that he ever appealed the award through normal command/personnel channels.  As a result, absent any evidence that the award approval authority did not consider the upgrade recommendation included on the DA Form 638 he approved, it must be presumed he evaluated the award recommendation and all supporting documents, and that he concluded that award of the AM with
"V" Device was the appropriate award to recognize the applicant's achievements of 21 June 2005.  

4.  Given the applicant provides no additional documentation not considered by the award approval authority at the time, and absent any evidence of error or injustice in the processing of the award in question, there is an insufficient evidentiary basis to support an upgrade at this time.  The applicant and all others concerned should know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.  


5.  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. 

6.  While the Board finds the available evidence insufficient for upgrading the applicant’s AM with "V" Device to a DFC, it does note that the applicant has not yet exhausted all remedies available to him under the law in pursuing an upgrade of his award to a DFC.  By law, he may pursue his claim to the DFC by submitting a request, with an award recommendation and supporting evidence, through his Member of Congress under the provisions of 10 USC 1130, an option he may still wish to pursue.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ____x ___  ___x____  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.




       _    ___x____   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080005243



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ABCMR Record of Proceedings (cont)                                         AR20080005243



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