IN THE CASE OF:	  

		BOARD DATE:	  18 December 2008

		DOCKET NUMBER:  AR20080013428 


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, correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show award of Distinguished Service Medal (DSM) and only one award of the Legion of Merit (LOM).

2.  The applicant states, in effect, that the processing of her retirement award was delayed and she did not receive it until nearly a year after retirement.  She states that her DD Form 214 should be amended to include her award of the DSM.  She was given a LOM 2nd Award at the time of retirement in lieu of the DSM ultimately awarded.

3.  The applicant provides a copy of her DD Form 214 and a copy of her award certificate, citation, and orders awarding her the DSM in support of her request.

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, and 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 records show she was appointed as a Reserve commissioned officer in the rank of second lieutenant (2LT/O-1) on 19 December 1972.  

3.  The applicant was ordered to active duty on 6 January 1973 and she was promoted to colonel (COL/O-6) effective 1 December 1995.  She served until she was separated for the purpose of retirement on 30 June 1999 and placed on the Retired List effective 1 July 1999.  

4.  The applicant's DD Form 214 shows that she was awarded the Defense Superior Service Medal, the LOM (2nd Award), the Meritorious Service Medal (3rd Award), the Army Commendation Medal, the Joint Meritorious Unit Award, the Army Superior Unit Award, the National Defense Service Medal (2nd Award), the Armed Forces Reserve Medal, the Army Service Ribbon, the Overseas Service Ribbon (3rd Award), the Senior Army Aviator Badge, the Joint Chiefs of Staff Identification Badge, and the Army Staff Identification Badge.  

5.  The applicant’s DD Form 214 does not show the DSM as an authorized award.

6.  A review of the applicant's Official Military Personnel File shows she was awarded the LOM (2nd Award) as an interim award at the time of separation for the purpose of retirement.

7.  The applicant provided a copy of her award certificate, citation, Permanent Orders 265-02, issued by the US Army Personnel Command, Alexandria, Virginia which show she was awarded the DSM, dated 22 September 1999, for exceptionally meritorious service in a duty of great responsibility from 1 July 1989 to 30 June 1999. 

8.  There are no orders in the applicant’s records to show the award of the LOM (2nd Award) nor orders for the removal of the LOM (2nd Award), which would allow the award of the DSM.  Requests for orders were made to the United States Human Resources Command and to the applicant; however, neither was able to provide a copy of the LOM (2nd Award) orders.

9.  Army Regulation 600-8-22 governs the Army Awards Program.  Paragraph
1-20 pertains to interim awards and awards of a lesser decoration and provides that to ensure a deserving act, achievement, or service receives recognition, the appropriate authority may promptly award a suitable lesser military decoration pending final action on a recommendation for a higher award, except for retiring U.S. Army general officers.  When a higher award is approved, the approving authority will revoke the interim award using a separate Permanent Order.  

10.  Paragraph 1-21 of Army Regulation 600-8-22 governs recognition upon retirement.  Specifically, this paragraph states that each individual approaching retirement may be considered for an appropriate decoration based on his or her grade, years of service, degree of responsibility and manner of performance.  For meritorious service awards at retirement, this paragraph also permits inclusion of service longer than that served within the command recommending the award.  The regulation recommends that these periods not exceed 10 years and states that an extended period should only be considered in those cases where the length or nature of the individual’s terminal assignment would not qualify him or her for an appropriate award.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was separated for the purpose of retirement effective 30 June 1999.  She was awarded the LOM (2nd Award) on 24 June 1999 as an interim award pending the final action on a recommendation for a higher award, the DSM.

2.  The evidence of record shows the applicant was later awarded the DSM by Permanent Orders Number 265-02, on 22 September 1999.  This evidence is sufficient to correct her records to show this award.  Therefore, she is entitled to correction of her DD Form 214 to show the DSM.

3.  Therefore, the applicant is entitled to deletion of the LOM (2nd Award) from her DD Form 214.  Her DD Form 214 should also be corrected to show only one award of the LOM and the DSM.

BOARD VOTE:

__x_____  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  deleting the entry, "Legion of Merit (2nd Award)," from item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the individual's DD Form 214; and

	b.  adding the entries "Legion of Merit," and the “Distinguished Service Medal” to item 13 of the individual's DD Form 214.  




      _______ _   __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)                                         AR20080013428



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ABCMR Record of Proceedings (cont)                                         AR20080013428



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