IN THE CASE OF:	  

	BOARD DATE:	  11 December 2008

	DOCKET NUMBER:  AR20080014417 


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 military records to show that he was awarded a Bronze Star Medal vice an Army Commendation Medal for his service in support of Operation Iraqi Freedom.

2.  The applicant states, in effect, that the Recommendation for Award (DA Form 638) did not include comments from his Noncommissioned Officer Evaluation Report (NCOER).  He also contends that his former brigade commander stated that award of the Bronze Star was justified.

3.  The applicant provides copies of his Certificate of Release or Discharge from Active Duty (DD Form 214); DA Form 638; three NCOER’s from before and during his deployment to Iraq; and email communications from his former brigade commander, a command sergeant major, and the North Carolina Army National Guard (NCARNG) Inspector General in support of his application. 

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.  On 26 October 1988, the applicant enlisted in the North Carolina Army National Guard.  At the time he was a field artilleryman.  He progressed through the ranks and was promoted to master sergeant (MSG)/pay grade E-8, on 1 April 2001.
 
3.  On 1 March 2003, the applicant was ordered to active duty in support of Operation Iraqi Freedom.  He served in the Iraqi Theater of Operations from 
29 February 2004 to 9 January 2005.

4.  On 1 September 2004, the applicant’s battery commander initiated a recommendation for award of the Army Commendation Medal for meritorious service from 29 February 2004 to 9 February 2005.  At that time, he was serving as the battery first sergeant.  The commander stated in his recommendation that the applicant had contributed significantly to the effectiveness of the battery’s ability to accomplished each mission; that he had taken a personal interest in the Soldiers' welfare, living conditions, and quality of life; and that he had embodied the Army values by working tirelessly to fulfill his duties, going above and beyond while taking care of Soldiers. 

5.  On 17 September 2004, the applicant’s battalion commander recommended approval of the award recommendation.  He stated that the applicant’s performance as first sergeant of a diverse and multi-talented battery was outstanding.  He identified the applicant as a Soldier’s Soldier who looked out for the welfare of his Soldiers, taking good care of them in combat.

6.  On 26 October 2004, the Division Artillery Commander approved the recommendation.  Part V, Orders Data, of the DA Form 638, shows that Permanent Orders Number 262-15, dated 29 October 2004, was issued awarding the applicant the Army Commendation Medal with first oak leaf cluster.

7.   The applicant’s NCOER for the period from October 2003 to March 2004 shows in Part IV, Leadership, that he was awarded a coin by the Army Chief of Staff for his candor and enthusiasm while at Fort Bragg, North Carolina, 
preparing for deployment.  It further shows that he executed the unit’s safe movement from Kuwait to Northern Iraq through the Sunni Triangle region with zero casualties, safety incidents, or vehicle impairments.  

8.   The applicant’s NCOER for the period from March 2004 to December 2004 shows in Part IV, Leadership, that he had been selected to be a guest speaker at the first noncommissioned officer induction ceremony in the Iraqi Theater of Operations; and that he had excelled in his liaison role with the active duty unit they were attached, to ensuring a productive mutually respectful relationship.  Part IV, Training, showed that he had managed all unit training ensuring all quarterly training requirements were met to standard.  Part IV, Responsibility and Accountability, showed that he had supervised the renovation of the battery’s tactical operations center (TOC), and had successfully negotiated down the final cost, saving the Army $8,600.00.

9.  On 28 February 2005, the applicant was released from active duty.  He had completed 1 year and 5 months of creditable active duty during this period of service.  

10. Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 lists among his awards two Army Commendation Medals.  It does not show award of a Bronze Star Medal.

11.  On 16 June 2005, in an e-mail to the applicant, his former brigade commander stated, in effect, that he had tried very hard to insure all first sergeants and company commanders received the Bronze Star Medal, but that such award depended on the quality of the recommendation.  The standard for award of the Bronze Star Medal was set very high and only 10 percent of the force would receive a Bronze Star Medal.  There were two committees at brigade level that screened recommendations and then the brigade command sergeant major and commander read every recommendation.  They salvaged or sent back for rewrite as many recommendations as they could but eventually ran out of time.  The commander states that he had no question in his mind that the applicant had earned and deserved the Bronze Star Medal for his service.

12.  On 31 March 2006, the applicant was discharged from the North Carolina Army National Guard and transferred to the United States Army Reserve (USAR) Control Group (Retired Reserve).  He had completed a total of 21 years of creditable service for retired pay.

13.  On 4 May 2006, in an e-mail from the brigade combat team command sergeant major, the applicant was informed that, regardless of the former commander’s comments, not all first sergeants and company commanders received the Bronze Star Medal.  The command sergeant major further stated that his review of the DA Form 638 found no evidence that supported award of the Bronze Star Medal.  He also stated that the battalion commander could have recommended an upgrade but did not do so.  

14.  On 21 July 2008, in an e-mail from the Inspector General’s Office, North Carolina Army National Guard, the applicant was informed that the Inspector General is unable to process awards.  The applicant was provided, as an option, to submit a request to the Army Board for Correction of Military Records.

15.  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.  

16.  Army Regulation 600-8-22 (Military Awards) also states it is the responsibility of any individual having personal knowledge of an act, achievement, or service believed to warrant the award of a decoration to submit a formal recommendation into military command channels for consideration within 2 years of the act, achievement, or service to be honored.  The Army does not condone self-recognition; therefore, a Soldier may not recommend himself/herself for award of a decoration.

17.  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 available evidence clearly shows that the applicant was recommended for award of the Army Commendation Medal.  The recommendation was subsequently approved as such.

2.  The applicant’s assertion that he should have received a Bronze Star Medal because his brigade commander said his service justified its award is not substantiated by the available evidence.  The brigade commander stated that only 10 percent of the force would receive award of the Bronze Star Medal.  The command sergeant major stated that not all first sergeants and company commanders received the Bronze Star medal and that he saw no evidence in the applicant’s recommendation that warranted award of the Bronze Star Medal.  

3.  The applicant’s argument that the award recommendation did not contain certain statements from his NCOER’s is true.  However, even if the statements had been included, that does not mean that the battery commander would have changed his recommendation to a Bronze Star Medal, or that the write up would have persuaded the battalion commander to recommend an up grade. 

4.  In view of the above, the applicant’s request for award of the Bronze Star Medal should be denied.   

5.  While the available evidence is insufficient for awarding the applicant a Bronze Star Medal, this in no way affects the applicant’s right to pursue his claim for the award 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)                                         AR20070016793



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ABCMR Record of Proceedings (cont)                                         AR20080014417



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