IN THE CASE OF:
BOARD DATE: 16 December 2008
DOCKET NUMBER: AR20080015547
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 that he be awarded the Army Commendation Medal (ARCOM).
2. The applicant states that the letters of commendation in his military records show that he should have been awarded the ARCOM.
3. The applicant provides two letters of commendation addressed to the applicant's commander concerning the performance and work of the Soldiers in the commander's unit, and a letter of commendation addressed to the applicant in which the applicant's commander commends "each and everyone in this company for their extra effort in doing all assigned tasks in an outstanding manner."
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 applicants 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 applicants 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 that he enlisted in the Regular Army on 27 March 1967, was awarded the military occupational specialty of general vehicle repairman, and served in Vietnam from 26 September 1967 to 18 September 1968.
3. The applicant was honorably released from active duty at the expiration of his term of service on 26 March 1970 in pay grade E-5.
4. The applicant's separation document, DD Form 214, does not list the ARCOM as an authorized award; the applicant's Enlisted Qualification Record, DA Form 20, does not list the ARCOM as an authorized award; and the applicant's records do not contain orders (or recommendation) for the ARCOM.
5. Army Regulation 600-8-22 (Military Awards) provides that the ARCOM may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguished himself by heroism, meritorious achievement or meritorious service. As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.
6. 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. Neither the applicant's DD Form 214 nor his DA Form 20 show the ARCOM and the applicant's records do not contain orders (or recommendation) for the ARCOM.
2. The Board reviews a case with a presumption of regularity; that what the Army did was proper and just. The burden to prove otherwise rests with the applicant.
3. Since the applicant has not overcome this burden of proof, there is no basis for granting his request.
4. The letters of commendation submitted by the applicant have been carefully considered. However, none of these letters specifically cite something that the applicant himself did to set himself apart from his peers. As such, these letters are insufficient to overcome the burden of proof required to award him the ARCOM.
5. While the available evidence is insufficient for awarding the applicant an ARCOM, this in no way affects the applicants right to pursue his/her claim for the ARCOM by submitting a request through his/her 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:
1. 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.
2. The Board wants the applicant and all others concerned to 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.
_______ _ 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) AR20080015547
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