IN THE CASE OF:	  

		BOARD DATE:	      25 September 2008

		DOCKET NUMBER:  AR20080013878 


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, that his Army Commendation Medal (ARCOM) be upgraded to a Bronze Star Medal (BSM).

2.  The applicant states, in effect, that he was not considered for an award of the BSM due to being medically evacuated from Iraq to Fort Hood, Texas.  He claims that in his absence, an awards board recommended he be awarded the ARCOM for his service from 20 February 2004 to 19 February 2005, assuming that he would not return.  He states that this ARCOM should be rescinded and he should instead be awarded the BSM.  He adds that upon his return to Iraq, he attempted to write several BSM awards for several of his deserving troops; however, he was told that it was too late given the awards board had already met.  The applicant finally states that his distinguished meritorious achievement and service for which he received imminent danger pay and the Combat Action Badge (CAB) warrants his being awarded the BSM.

3.  The applicant provides an Officer Evaluation Report (OER), CAB award orders; a DA Form 638 (Recommendation for Award) with self-authored narrative, and his separation document (DD Form 214) in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military record shows that on 3 January 2004, while serving as a chief warrant officer three (CW3) in the United States Army Reserve (USAR), he was ordered to active duty in support of Operation Iraqi Freedom (OIF).  

2.   The applicant's Official Military Personnel File (OMPF) is void of any orders or other documents that indicate he was ever recommended for or awarded the BSM by proper authority while serving on active duty.  

3.  On 23 March 2005, the applicant was honorably released from active duty (REFRAD), after completing 1 year, 2 months, and 21 days of active military service.  Item 13 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons awarded or Authorized) of the DD Form 214 he was issued at this time shows he earned the following awards:  ARCOM; National Defense Service Medal (NDSM); Global War on Terrorism Expeditionary Medal (GWOTEM); Global on War Service Medal (GWOTSM); Armed Forces Reserve Medal (AFRM) with “M” (Mobilization) Device; Army Service Ribbon (ASR); and Overseas Service Ribbon (4th Award).  

4.  The applicant provides a DA Form 638, dated 10 October 2004, which shows his commander recommended him for the ARCOM, for his meritorious service in support of OIF from 20 February 2004 to 19 February 2005.  The DA Form 638 shows that on 3 November 2004, the award approval authority, the brigade commander, approved award of the ARCOM to the applicant, and that this award was announced in Headquarters, 504th Military Intelligence Brigade Orders Number 297-33.  He also provides his own narrative recommendation for the award of the BSM, in which he details his service warranting this award.

5.  The applicant also provides Headquarters, 104th Division (Institutional Training), Orders Number 06-154-0004, dated 3 June 2006, which awarded him the CAB.  

6.  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.  


7.  Chapter 3 of the awards regulation contains guidance on individual decorations.  Paragraph 3-1 states, in pertinent part, that the decision to award an individual a decoration, and the decision as to which award is appropriate are both subjective decisions made by the commander having award approval authority.  Paragraph 3-13 outlines the criteria for the award of the BSM.  It states, in effect, that the BSM may be authorized to those members who while serving in any capacity in or with the Army of the United States, distinguished themselves by heroic or meritorious achievement or service, not involving participation in aerial flight, in connection with military operations against an armed enemy; or while engaged in military operations involving conflict with an opposing armed force in which the United States is not a belligerent party.

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.  The applicant's claim of entitlement to the BSM has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  By regulation, the decision to award an individual a decoration and the decision as to which award is appropriate are both subjective decisions made by the commander having award approval authority.  The DA Form 638 submitted by the applicant confirms his commander recommended him for and he was awarded the ARCOM for his service performed in support of OIF by the appropriate award approval authority.  

3.  The evidence of record confirms the applicant was awarded the ARCOM, as recommended by his commander, and that this was the award the chain of command felt was appropriate to recognize the applicant's meritorious service in support of OIF.  Notwithstanding the applicant's narrative, absent any evidence of error or injustice in the processing of the applicant's award, it would not be appropriate for this Board to substitute its judgment for that of the award approval authority in this case.  

4.  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. 

5.  The applicant and all others concerned should 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.  

6.  Although there is insufficient evidence for the Board to upgrade the applicant's ARCOM to a BSM, it is noted that the applicant has not yet exhausted all remedies available to him under the law in pursuing this matter.  By law, he may pursue his claim to the BSM by submitting a request, with an award recommendation and supporting evidence, through his Member of Congress under the provisions of 10 USC 1130, an option he may still wish to pursue.  

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)                                         AR20080013878



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ABCMR Record of Proceedings (cont)                                         AR20080013878



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