IN THE CASE OF:
BOARD DATE: 10 FEBRUARY 2009
DOCKET NUMBER: AR20080008991
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 correction of his Certificate of Release or Discharge from Active Duty (DD Form 214) to show that he was awarded the Bronze Star Medal.
2. The applicant states that the Bronze Star Medal has not been added to the awards listed on his DD Form 214.
3. The applicant provides in support of his application a copy of his DD Form 214 and a copy of a Recommendation for Award (DA Form 638) of the Bronze Star Medal.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The available records show that the applicant had prior enlisted service from 27 October 1976 through 10 May 1979 and prior commissioned service from 11 May 1979 through 28 August 1994 in the New York Army National Guard (NYARNG).
3. On 25 October 1994, the applicant reentered the NYARNG for 3 years, in the pay grade of E-5. He remained a member of the NYARNG through reenlistments. He was ordered to active duty in support of Operation Iraqi Freedom effective 1 October 2003.
4. On 17 August 2004, the company commander recommended that the applicant be awarded the Bronze Star Medal. The DA Form 638 shows that the immediate and intermediate authorities recommended approval of the Bronze Star Medal. However, there is no approval authority signature on the DA Form 638 and there is no indication that orders was ever published awarding him the Bronze Star Medal.
5. The applicant was released from active duty (REFRAD) on 4 February 2005. The DD Form 214 that he was furnished at the time of his REFRAD shows that he was awarded the Army Commendation Medal (Fourth Award), Army Achievement Medal, Army Reserve Components Achievement Medal (Seventh Award), National Defense Service Medal (Second Award), Global War on Terrorism Expeditionary Medal, Global War on Terrorism Service Medal, Armed Forces Reserve Medal with "M" Device, Armed Forces Reserve Medal (Second Award), Army Service Ribbon, Silver Excellence in Competition Badge (Pistol Shot), Combat Infantryman Badge, and the Expert Infantryman Badge.
6. The applicant's records show that he was honorably discharged from the NYARNG on 1 February 2006 and he was transferred to the Retired Reserve. The Report of Separation and Record of Service (NGB Form 22) shows that he was awarded the Army Service Ribbon, National Defense Service Medal (Second Award), Army Achievement Medal, Expert Infantryman Badge, Army Commendation Medal (Fourth Award), "AID CIVIL AUTH MDL" (Fourth Award), New York Service Humanitarian Service Medal, Armed Forces Reserve Medal with "M" Device, "WSGH" (Second Award), Global War on Terrorism Expeditionary Medal, Combat Infantryman Badge, Army Good Conduct Medal, Valorous Unit Award, Army Excellence in Competition Badge, and the Army Reserve Component Achievement Medal (Eighth Award).
7. Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service. 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his DD Form 214 should be corrected to show that he was awarded the Bronze Star Medal.
2. The DA Form 638 that the applicant submitted in support of his application is noted. However, there is no evidence in the available record, nor has the applicant submitted any evidence, to show that his recommendation for award of the Bronze Star Medal was approved by the appropriate authority.
3. The submitted DA Form 638 does not show an approval authority signature nor does it show that orders were ever published awarding him the Bronze Star Medal. In the absence of evidence to the contrary, it must be presumed that omission of the Bronze Star Medal from the applicant's DD Form 214 was proper.
4. In order to justify correction of a military record the applicant must show 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.
5. In view of the foregoing, there is no basis for granting the applicant's request.
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.
_________XXX_____________
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) AR20080008991
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