IN THE CASE OF:
BOARD DATE: 30 SEPTEMBER 2008
DOCKET NUMBER: AR20080010574
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 DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show award of the Army Commendation Medal (ARCOM).
2. The applicant states, in effect, that he was on active duty at Fort Hood, Texas, with the Army Judge Advocate General's Corps and he received an ARCOM as an end of tour award when he left active duty. The ARCOM was lost and the Army does not have a record of the award and it was not filed in his Official Military Personnel File (OMPF). In November 2006, he rejoined the U.S. Army Reserve (USAR) and he wants the ARCOM to be part of his official record.
3. The applicant provides a memorandum from the Senior Defense Counsel for Fort Hood when the applicant was stationed at Fort Hood; a copy of his appointment orders; a copy of his discharge orders; a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty);and a copy of his active duty orders.
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 applicant served in the Regular Army from 30 December 1992 through
19 November 1996. The record shows that while on active duty, he served as a legal assistance attorney, Trial Counsel, and Trial Defense Counsel. A review of his Officer Evaluation Reports (OERs) show that his raters considered him an outstanding attorney, and rated him as outstanding for his performance in each of his jobs. His DD Form 214 does not show he was awarded the ARCOM.
3. A review of the applicant's OMPF filed on the Integrated Personnel Electronic Records Management System (iPERMS) does not contain any orders awarding the applicant the ARCOM. There is no other evidence in the record showing he was recommended for or awarded the ARCOM.
4. The applicant provided a copy of a memorandum from the Senior Defense Counsel at Fort Hood during the time the applicant served there. He indicated that he submitted a request for award of the ARCOM for the applicant and the applicant was presented with the ARCOM prior to his departure from active duty. He was unable to locate a copy of the ARCOM documentation on behalf of the applicant.
5. Army Regulation 600-8-22 (Military Awards) provides that the ARCOM may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguished himself or herself by heroism, meritorious achievement or meritorious service. As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that he was awarded the ARCOM, but it was not annotated on his DD Form 214, and it apparently was lost over the intervening years. The record shows that while on active duty, he served as a legal assistance attorney, Trial Counsel, and Trial Defense Counsel. His OERs corroborate his outstanding performance of duty in each job.
2. Notwithstanding the applicant's honorable performance and the memorandum from the Senior Defense Counsel, award of the ARCOM requires formal recommendation, approval through the chain of command, and announcement in orders. Although the applicant and the Senior Defense Counsel contend that he was already awarded the ARCOM, there is no corroborating evidence to support these contentions. Regrettably, in the absence of the required corroborating evidence, there is an insufficient basis upon which to grant the applicant's request at this time.
3. 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 did not submit any evidence that would satisfy this requirement at this time.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__XXX __ __XXX__ __XXX__ 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) AR20080010574
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ABCMR Record of Proceedings (cont) AR20080010574
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