IN THE CASE OF:	

		BOARD DATE:	  24 September 2008

		DOCKET NUMBER:  AR20080011177 


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 records to show award of the Legion of Merit and the issuance or replacement of all his military service medals, decorations, and awards. 

2.  The applicant states that he was awarded the Legion of Merit on 2 May 1994. However, his military record was not updated to show this award. 

3.  The applicant provides a copy of a certificate, dated 2 May 1994, showing he was awarded the Legion of Merit.

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.  With respect to the issuance of the applicant’s military service medals, decorations, and awards, the applicant is advised that the Army Board for Correction of Military Records (ABCMR) corrects records; it does not issue medals.  The applicant is advised that requests for the issuance or replacement of military service medals, decorations, and awards should be directed to the National Personnel Records Center, 9700 Page Avenue, St. Louis, MO 63132-5100, with appropriate evidence.  Therefore, this issue will not be further discussed in this Proceedings.

3.  The applicant’s records show he initially enlisted in the Regular Army on 22 April 1949.  He was initially trained in military occupational specialty (MOS) 3795 (Tank Crewman).  He subsequently executed a series of extensions and/or reenlistments in the Regular Army and was placed on the Retired List in his retired rank of sergeant major on 1 May 1969.

4.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 30 April 1969, shows he was awarded the National Defense Service Medal (1st Oak Leaf Cluster), the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, the Army Commendation Medal (1st Oak Leaf Cluster), and the Good Conduct Medal (6th Award).  Item 24 does not show award of the Legion of Merit.

5.  The applicant submitted a copy of a certificate, dated 2 May 1994, that shows he was awarded the Legion of Merit for outstanding meritorious service during the period 21 April 1949 to 1 may 1969.  

6.  The applicant’s records do not contain permanent orders that show he was awarded the Legion of Merit.

7.    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. Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years.  There are regulatory provisions for lost recommendations but not for late recommendations, reconsideration, nor for upgrading to a more prestigious award.

8.  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.  There is no evidence in the available records of the award of the Legion of Merit other than the certificate submitted by the applicant.  Army regulation states that for personal decorations, formal recommendation, approval through the chain of command, and announcement of orders are required.  In the absence of orders, there is insufficient evidence to award the applicant the Legion of Merit.

2.  While the available evidence is insufficient for awarding the applicant the Legion of Merit, this in no way affects the applicant’s right to pursue his claim for the Legion of Merit by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

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)                                         AR20080011177



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ABCMR Record of Proceedings (cont)                                         AR20080011177



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