IN THE CASE OF:	  

		BOARD DATE:	  

		DOCKET NUMBER:  AR20080008816 


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 that his retirement award, which was downgraded to a Meritorious Service Medal, be upgraded to a Legion of Merit as originally recommended by members of his immediate chain of command.

2.  The applicant states, in effect, the downgrade of the recommendation for the Legion of Merit was unjust.  He further states the award recommendation should have been processed through Joint Service channels to Atlantic Command (LANTCOM).  He further states 80th Division failed to consider or cite past service in Army organizations that could meet the service requirement for award of the Legion of Merit.

3.  The applicant provides three tabulated enclosures to his DD 149 (Application for Correction of Military Record) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military personnel record shows he served in the Army National Guard (ARNG) during the period from 1 June 1947 to 1 February 1949 in an enlisted status.  He also served in the ARNG and the U.S. Army Reserve (USAR) in an enlisted status during the period from 20 February 1950 to 24 May 1953.  On 24 May 1953, he was commissioned as a second lieutenant in the ARNG.  On 17 February 1964, he was discharged from the ARNG and transferred to the USAR where he continued to serve until his retirement.  He was promoted to colonel/pay grade O-6 on 13 April 1973.

3.  The applicant submitted a copy of a recommendation for award (DA Form 638), dated 21 December 1981, (Tab 2B), which was submitted by his unit commander, 300th Support Group (Area), Fort Lee, Virginia, recommending the applicant for a retirement award of the Legion of Merit - Interim award of the Meritorious Service Medal.  A narrative statement was submitted with the award recommendation.  

4.  On 28 December 1981, the Commander, 80th Division (Training), Richmond, Virginia recommended approval of the award of the Legion of Merit and awarded the applicant the Meritorious Service Medal as an Interim award pending action on the recommendation for the award of the Legion of Merit.

5.  On 14 January 1982, the applicant was transferred to the Retired Reserve.

6.  On 23 March 1982, Commander, First U.S. Army, Fort Meade, Maryland carefully reviewed the recommendation for award of the Legion of Merit to the applicant and did not favorably consider the recommendation.  

7.  On 29 March 1982, the applicant's orders for award of the Interim Meritorious Service Medal were amended to read Meritorious Service Medal.

8.  On 16 December 1986, the applicant was placed on the Retired List in the grade of colonel.

9.  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.  

10.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the recommendation for his retirement award was not processed through the proper channels and that his Meritorious Service Medal should be upgraded to a Legion of Merit as was originally recommended.

2.  In the absence of evidence to the contrary, it is presumed the commanders of the 300th Support Group and the 80th Division submitted the applicant's recommendation for the award of the Legion of Merit to the appropriate award authority exercising administrative control over the unit.

3.  The appropriate award authority, acting within his discretionary authority and after careful review of the recommendation, did not favorably consider the recommendation for award of the Legion of Merit and believed the award of the Meritorious Service Medal was the appropriate award to recognize the applicant's service.  Therefore, it appears the applicant's award recommendation was properly processed in accordance with the applicable regulation.

4.  The applicant had an opportunity to submit a request for reconsideration of or appeal the disapproval or downgrading of his award recommendation within 
1 year of the awarding authority's decision.  The applicant's contention, 26 years later, that he should have received the Legion of Merit does not serve as justification to upgrade his Meritorious Service Medal.  

5.  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. 

6.  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. 


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.  The Board wants the applicant and all others concerned to 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.



      __________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)                                         AR20080008816



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ABCMR Record of Proceedings (cont)                                         AR20080008816



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