IN THE CASE OF:	  

		BOARD DATE:	  12 May 2009

		DOCKET NUMBER:  AR20080017175 


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 the awards of the Legion of Merit, the Bronze Star Medal with "V" Device and First Oak Leaf Cluster, and the Defense Meritorious Service Medal with First Oak Leaf Cluster be added to his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 30 June 2004.

2.  The applicant states the above awards were still pending at the time of his retirement or the certificates were not present.

3.  The applicant provides, in support of his application, copies of certificates for the awards of the Legion of Merit, the Bronze Star Medal with "V" Device, and the Defense Meritorious Service Medal with First Oak Leaf Cluster; orders for the award of the Defense Meritorious Service Medal with First Oak Leaf Cluster; and a copy of his DD Form 214.

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.  The applicant's military personnel records show he enlisted in the Regular Army on 10 February 1983.  He served continuously until his release from active duty on 30 June 2004 and transfer to the Retired List.

3.  A certificate for the award of the Bronze Star Medal contained in the applicants' official military personnel file indicates that Permanent Order 201-018, dated 20 July 2003, awarded the applicant the Bronze Star Medal.

4.  Item 13 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 shows that the applicant had been awarded, among other awards, the Bronze Star Medal and the Defense Meritorious Service Medal.

5.  Copies of all of the certificates and orders submitted by the applicant are also available in the applicant's official military personnel file (OMPF) in the interactive Personnel Electronic Records Management System (iPERMS).

6.  The certificate for the award of the Legion of Merit to the applicant indicates that Permanent Orders 280-100, dated 6 October 2004, awarded the applicant the Legion of Merit for exceptionally meritorious service from 10 February 1994 to 30 June 2004.

7.  The certificate for the award of the Bronze Star Medal with "V" Device indicates that Permanent Order 088-007, dated 28 March 2004, awarded the applicant the Bronze Star Medal with "V" Device.

8.  Headquarters, Joint Special Operations Command, Fort Bragg, NC, Permanent Orders 098-010, dated 7 April 2004, awarded the applicant the Defense Meritorious Service Medal with First Oak Leaf Cluster for meritorious service from 14 December 1998 to 30 June 2004.

9.  On 30 June 2004, the applicant was released from active duty and transferred to the Retired List the following day.  He had completed 21 years, 4 months, and 21 days of active service.


10.  Army Regulation 600-8-22 (Military Awards), paragraph 1-19 (Duplication of awards) states awards authorities may not recommend a duplicate award for the same act or service from another service component.  A Soldier who is retiring may only be recommended for a Service or Defense retirement award, but not both.

11.  Army Regulation 600-8-22 (Military Awards) states, in pertinent part, that an oak leaf cluster is awarded to denote the second and succeeding awards of certain decorations, among which is the Bronze Star Medal.

12.  Army Regulation 670-1 (Wear and Appearance of Army Uniforms and Insignia), paragraph 29-6a lists U.S. military decorations authorized for wear on Army uniforms in order of precedence.  The Legion of Merit is listed as number 9 and the Defense Meritorious Service Medal is listed as number 17.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's OMPF showing his duty assignments and the dates of assignment were not available for review.  Based on the ending dates of the awards, the Legion of Merit and the Defense Meritorious Service Medal with First Oak Leaf Cluster awarded to the applicant appear to be retirement awards.

2.  Army Regulation 600-8-22 provides that a retiring Soldier may only be recommended for a Service or Defense retirement award, but not both.  Therefore, it would not be appropriate to include what appears to be two retirement awards on the applicant's DD Form 214.  

3.  According to Army Regulation 670-1, the Legion of Merit is listed as a higher precedence award than the Defense Meritorious Service Medal.  Therefore, it is determined to be appropriate to add the Legion of Merit to the applicant's 
DD Form 214 and to deny the addition of the Defense Meritorious Service Medal with First Oak Leaf Cluster.

4.  The applicant's records show he had previously been awarded a Bronze Star Medal.  There is sufficient evidence to show the applicant was awarded the Bronze Star Medal with "V" device.  Therefore, it would be appropriate to amend his DD Form 214 to show he was awarded the Bronze Star Medal with "V" and First Oak Leaf Cluster.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  __X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding to item 13 of the applicant's DD Form 214 the Legion of Merit and the Bronze Star Medal with "V" Device and First Oak Leaf Cluster.  

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to adding the Defense Meritorious Service Medal with First Oak Leaf Cluster to his 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)                                         AR20080017175



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ABCMR Record of Proceedings (cont)                                         AR20080017175



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