IN THE CASE OF:	  

		BOARD DATE:	        25 NOVEMBER 2008

		DOCKET NUMBER:  AR20080015059 


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 award of the Legion of Merit. 

2.  The applicant states that he completed 36 years of military service and read an article in the Army Times, dated 1 January 2007, that indicates he was eligible for award of the Legion of Merit upon retirement.

3.  The applicant provides the following additional documentary evidence in support of his request:

	a.  Extract of the Army Times, dated 1 January 2007.

	b.  DD Forms 214 (Report of Separations from the Armed Forces of the United States), dated 29 May 1951 and 29 November 1953.

	c.  Self-authored letter, dated 26 August 2008.

	d.  Biographical Summary, dated 1 September 1995.

	e.  Certificate for distinguished and exceptional service, dated 1 August 2008.

	f.  Certificate for patriotic achievement, dated 18 May 2002.




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 prior service as a U.S. Navy (USN) Aviation cadet and prior enlisted service in the Regular Army, the applicant’s records show he was appointed as an infantry second lieutenant in the Officers Reserve Corps and entered active duty on 1 August 1952.  He was honorably separated and transferred to the U.S. Army Reserve (USAR) Control Group on 29 November 1953. 

3.  The applicant’s records further show he remained in the USAR as a chaplain and served in various staff and leadership position.  He was promoted to lieutenant colonel on 27 April 1974 and to colonel on 26 April 1979.

4.  On 20 September 1977, Headquarters, Fifth U.S. Army, Fort Meade, Maryland, issued the applicant a notification of eligibility for retired pay at age 60 (20-year letter).  This letter notified the applicant that he had completed the required years of service and would be eligible for retired pay upon application at age 60. 

5.  On 18 March 1988, U.S. Army Reserve Personnel Center, St. Louis, Missouri, published Orders Number C-03-800518, reassigning the applicant to the USAR Control Group (Retired).  He was subsequently placed on the retired list in his retired grade of colonel effective 24 December 1988.

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

7.  In his self-authored letter, dated 26 August 2008, the applicant states that he read an article in the Army Times that he may be eligible for award of the Legion of Merit.  He served 36 years and retired in 1988 at Fort Leavenworth, Kansas.  Since retirement, he continued serving as a chaplain and counselor and has been recognized for his achievements.
8.  The applicant submitted an extract of the Army Times, dated 1 January 2007, in which the author states that the Legion of Merit is often awarded upon retirement to long-serving senior officers and very senior noncommissioned officers.  

9.    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.

10.  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 distinguished service in the USN, Regular Army, and the USAR is not in question.  However, there is no evidence in the available records and the applicant did not provide any substantiating evidence that shows he was recommended for and/or awarded the Legion of Merit.  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.



      ________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)                                         AR20080015059



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ABCMR Record of Proceedings (cont)                                         AR20080015059



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