IN THE CASE OF:
BOARD DATE: 7 April 2009
DOCKET NUMBER: AR20080018769
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 the Legion of Merit be added to his DD Form 214 (Report of Separation from Active Duty).
2. The applicant states, in effect, that due to an oversight this award was not added to his DD Form 214. He also states that he was assigned to Ballistic Missile Defense Systems Command at the time of retirement, but his paperwork was handled by Redstone Arsenal, Alabama. He further states, in effect, that he just recently noticed the award was not shown on DD Form 214.
3. In support of his application, the applicant provides copies of an award certificate for the Legion of Merit and 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 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 record show he was appointed in the U.S. Army Reserve (USAR), as a second lieutenant, on 12 June 1959. On 24 August 1959 he entered active duty and continued to serve until he was released from active duty on 31 August 1979 and transferred to the USAR Control Group (Retired Reserve), in the rank of lieutenant colonel.
3. Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 does not show award of the Legion of Merit.
4. Item 9 (Awards, Decorations, and Campaigns) of the applicant's DA Form
2-1 (Personnel Qualification Record Part II) does not show the Legion of Merit among his authorized awards.
5. There is no evidence in the applicants personnel records which shows that the applicant was recommended for or awarded the Legion of Merit.
6. The applicant submitted a copy of an award certificate, dated 31 August 1979, awarding him the Legion of Merit. The award certificate indicates the Legion of Merit was awarded for exceptionally meritorious conduct in the performance of outstanding service while serving in positions of great responsibility during the period June 1975 to August 1979. The applicant did not submit a copy of orders to support its addition to his DD Form 214.
7. 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant provided a copy of an award certificate awarding him the Legion of Merit for the period June 1975 to August 1979; however, he provided no orders showing he was awarded the Legion of Merit. The applicant indicated in his request to the Board that he just recently noticed that the award was not shown on his DD Form 214.
2. No evidence was found in the applicant's service personnel record to show he was awarded the Legion of Merit; therefore, there is insufficient evidence available to support addition of this award to his DD Form 214.
3. 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.
4. In view of the foregoing, there is no basis for granting the applicant's request.
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.
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