IN THE CASE OF:	  

		BOARD DATE: 	       25 June 2009

		DOCKET NUMBER:  AR20090002756 


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:

The applicant defers to counsel.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel request, in effect, reconsideration of the original request for upgrading the applicant's award of the Army Commendation Medal (ARCOM) to the Bronze Star Medal (BSM).

2.  Counsel states, in effect, that the applicant has obtained a letter from her former battalion commander that supports not only the original request, but provides a rebuttal to the downgrading of her award.  The applicant's former battalion commander stated, in effect, that the officer (a colonel) who downgraded the applicant's award did not have the authority to do so and that officer exhibited a clear bias toward his own organic unit and against those troops who were not part of that unit.  The former battalion commander also stated that the applicant was the victim of gender bias in the downgrading of her award.  

3.  Counsel further states that based on this new information, the applicant respectfully requests that the Board overturn its prior decision and award her the BSM she so obviously earned.

4.  In support of the request for reconsideration, counsel provides copies of a Memorandum for Record (MFR) from the applicant's former battalion 
commander, the applicant's Non-Commissioned Officer Report for the period ending October 2004, a DA Form 638 (Recommendation for Award), a Narrative Summary for award of the BSM to the applicant, an advisory opinion from the Military Award Branch to the Army Review Board Agency, electronic mail (email) correspondence from the applicant's former battalion commander to the applicant, a letter from the applicant's former battalion commander, the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty), and a letter from the Military Awards Branch to the applicant.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070013069, on 20 May 2008.

2.  The applicant’s military records show she enlisted in the United States Army Reserve (USAR), in pay grade E-1, on 16 March 1984.  

3.  The applicant's NCO Evaluation Report ending October 1984, shows she was serving as the a Civil Military Operations Center (CMOC) NCOIC (Non-Commissioned Officer In Charge) while stationed in Afghanistan and was, in effect, rated among the best for overall potential for promotion and/or service in positions of greater responsibility.  This report was previously seen by the Board.

4.  The applicant was ordered to active duty in support of Operation Enduring Freedom (OEF) and entered on active duty on 30 November 2003.  

5.  A DA Form 638, dated 1 June 2004, shows the applicant was recommended by the Commander (a lieutenant colonel), Qalat Provincial Reconstructive Team (PRT), 401st Civil Affairs Battalion, Afghanistan, for award of the BSM, for the period from 8 January 2004 to 7 October 2004.  The front page of this DA Form 638 was previously seen by the Board.

6.  The Narrative Summary for award of the BSM stated that in addition to the accomplishments, the applicant served with great distinction in support of Operation Enduring Freedom for the period covering 8 January to 7 October 2004.  The applicant dedicated her energies to the successful completion of more than 100 civil affairs missions to which she was assigned.  The aforementioned missions resulted in the implementation of reconstruction projects totaling over $750,000 US dollars.  The applicant was instrumental in starting the first mid-wife training program of its kind in the country.  The applicant displayed the tenacity, perseverance, and fortitude necessary to operate with great effectiveness in a combat theater of operations.  Her work ethic, attention to detail, and positive attitude ensured the successful operation of the CMOC.  The applicant had brought great credit upon herself, the Qalat PRT, Task Force Victory, CJCTF-180, and Operation Enduring Freedom.  This summary was previously seen by the Board.

7.  On 22 September 2004, the Acting Commander (a colonel), Task Force Victory, downgraded the BSM to award of the ARCOM. 

8.  The applicant was honorably released from active duty on 17 November 2004 and transferred to a Reserve unit.  

9.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized), of the applicant's DD Form 214, lists the following awards:  the Army Commendation Medal; the Army Reserve Components Achievement Medal; the National Defense Service Medal (2nd Award); the Global War on Terrorism Expeditionary Medal; the Global War on Terrorism Service Medal; the Southwest Asia Service Medal, with two bronze service stars; the Armed Forces Reserve Medal and Mobilization; the Non-Commissioned Officer Professional Development Ribbon; the Army Service Ribbon; the Army Reserve Components Overseas Training Ribbon; the Kuwait Liberation Medal (SA); and the Kuwait Liberation Medal (K).  The Bronze Star Medal is not listed.

10.  The applicant was released from the USAR on 22 April 2005 and transferred to the Retired Reserve.

11.  In a memorandum, dated 4 August 2005, the Chief, Military Awards Branch, Army Human Resources Command (AHRC), Alexandria, Virginia, advised the Army Review Board Agency, of the return of the applicant's application requesting award of the BSM, without administrative action being taken.  The AHRC official stated that in support of her application the applicant provided copies of the original DA form 638, dated 21 June 2004, and her NCO Evaluation Report for the period ending October 2004.  The applicant also provided a letter of appeal, dated 10 February 2005, in which she claimed she had exhausted all resources and her former PRT Commander had informed her that he resubmitted her nomination and had done all that he could do.  However, the applicant did not provide any documentation to support that claim.

12.  The ARHC official also stated that effective 7 October 2001, Delegation of Wartime Approval Authority-OEF was delegated to the Coalition Forces Land Component Command (CFLCC) for award of the BSM and lesser decorations.  Authority to approve award of the BSM was further delegated to Major General 
commanders or Brigadier General commanders serving in a Major General command position.  Authority to approved award of the ARCOM was delegated to Colonel level commanders.  However, the Wartime Awards Policy established by CFLCC, Brigadier General and Colonel level commanders authorized to award the ARCOM to include "V" devices were not authorized to downgrade or disapprove the BSM.  All recommendations for award of the BSM were required to be forwarded to the award approval authority.

13.  The AHRC official further stated that the DA Form 638 recommending the applicant for award of the BSM was initiated by the Commander, PRT, on 21 June 2004.  The DA Form 638 was forwarded to the Commander, Task Force Victory (ARCOM award authority) on 22 June 2004.  Instead of forwarding the DA Form 638 to the Commander, Combined Joint Task Force-76 (CJTF-76) (BSM award authority), the Acting Commander, Task Force Victory (TFV), downgraded the BSM and awarded the ARCOM on 30 September 2004.  In this case, the Acting Commander, TFV, should only have completed Block 23 (Intermediate Authority) and forwarded the DA Form 638 to the Commander, CJTF-76.  Request for reconsideration/upgrade of an award, submitted within two years of the effective date of the award, must be forwarded to the appropriate award approval authority as reflected on the original award recommendation.  In this case the Wartime Award approval authority for the BSM for service in support of OEF was the Commander, CJTF-76.

14.  The AHRC official recommended that the ABCMR return the application and inform the applicant that a documented recommendation requesting upgrade of the ARCOM to the BSM needed to be submitted to the Commander, CJTF-76.  If the applicant's former command had resubmitted a request for reconsideration for award of the BSM, as she had claimed, and that request was disapproved by the Commander, CJTF-76, then she was entitled to submit an appeal request to the Military Awards Branch and provide all documentation involving the award of the BSM and a copy of the approved award of the ARCOM with her appeal request.

15.  In email correspondence, dated 23 August 2004, the applicant's former commander advised the applicant of dates, location, and incidents for the Combat Action Badge award.  

16.  In a letter, dated 4 December 2005, the applicant's former commander stated that he was the commander of the Qalat PRT in Zabul, Afghanistan, from January to October 2004.  The applicant was the first sergeant for their site that had 115 US Soldiers along with 300 local nationals assigned to the PRT.  He attempted on several occasions to determine why her BSM nomination was not 
approved.  He recommended the applicant for the BSM for service and the recommendation was forwarded in June 2005.  The BSM was downgraded by the TFV Acting Commander with no explanation, contrary to regulation.  He attempted to resolve the award issue and was told the commander was out of theater (he had redeployed two months before his Soldiers) and there was nothing he could do and that AHRC could review it for an upgrade.

17.  The former commander also stated that numerous attempts to the CJFT-76 while in country and upon post deployment failed to get any reply because emails were not being answered.  Finally, he was advised that only AHRC had the authority to upgrade the ARCOM to the BSM.  All supporting documents were originally transmitted/given to TFV in June (at Bagram Air Base, Afghanistan) were lost in TFV's filing void.  Approval authority with the former CJTF-76 has expired.  The former commander included a copy of the DA Form 638 and BSM narrative with his letter.  He further stated that the applicant deserved the BSM he had nominated her for.  She did an outstanding job in one of the most dangerous location in the country.  She was the first and only female first sergeant serving at PRT in Afghanistan.  The acting commander's unauthorized downgrade at TFV Headquarters and improper processing of the award should not penalize the applicant.

18.  In a letter, date 25 July 2006, the Acting Chief, Military Awards Branch, AHRC, in response to the applicant's 25 June 2006 letter, advised that they had determined that the recommendation to award her the BSM was not processed in accordance with the regulation applicable to Combined Forces Command-Afghanistan (CFC-A) at the time the award recommendation was submitted.  Accordingly, they had submitted the recommendation to award the applicant the BSM to the Army Decorations Board.  The letter further advised the applicant that she would be advised of the board's final decision as soon as it was determined.

19.  In a letter, dated 24 October 2006, the Military Awards Branch advised the applicant that the Army Decorations Board had determined that the degree of action and service rendered did not meet the criteria for the proposed award and affirmed that the previously awarded ARCOM was the appropriate award for her actions.  

20.  In a MFR, dated 22 July 2008, the applicant's former commander, in effect, reiterated his summary of the applicant used in the Narrative Summary for the BSM.  He also stated, in effect, that the acting commander (now retired) had no authority to disapprove the applicant's award, because he was not and never was the commander.  He served as the Deputy Brigade Commander for his duration. He awarded the BSM to personnel from his organic unit and also those that worked at Bagram Airfield who never left the wire in the year of deployment.  Even Soldiers that were sergeant and staff sergeant received that recognition.  The only reason the applicant's award was stopped at the acting commander's level was to allow more ability to award the BSM to his organic unit Soldiers.

21.  The applicant's former commander further stated that he personally believed the applicant was discriminated against with the downgrade of the BSM.  This was based upon the number of BSMs that were given by TFV (364th Civil Affairs Brigade) to their organic Soldiers.  The inordinate number of BSMs given to men verses women was a concern.  The applicant's former commander further stated that the fact the major general never saw the applicant's award smacks of serious favoritism by the acting commander in his quota of awards of the BSM.

22.  Neither the applicant nor her former commander provided any documentary evidence, statistical data, etc., to support the allegations of any unit preferences or gender discriminatory bias against the applicant pertaining to award of the BSM during her service in OEF.

23.  Army Regulation 600-8-22 (Military Awards), Executive Order 11046, 24 August 1962, as amended by Executive Order 13286, 28 February 2003, specifies that the Bronze Star Medal is awarded to any person who, while serving in any capacity in or with the Army of the United States after 6 December 1941, distinguished himself or herself by heroic or meritorious achievement or service, not involving participation in aerial flight, in connection with military operations against an armed enemy; or while engaged in military operations involving conflict with an opposing armed force in which the United States.  Title 10, United States Code, section 1133, limits award of the Bronze Star Medal to service members receiving imminent danger pay.   Awards may be made for acts of heroism, performed under circumstances described above, which are of lesser degree than required for the award of the Silver Star.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant was recommended for award of the BSM by the Commander, PRT, on 21 June 2004.  The recommendation was forwarded to the Commander, TVF (ARCOM award authority) on 22 June 2004.  That commander downgraded the BSM and awarded the ARCOM instead of forwarding the DA Form 638 to the Commander, (CJTF-76) (BSM award authority) for approval.  The applicant was awarded the ARCOM prior to her release from active duty on 17 November 2004.  In August 2005, the Military Awards Branch advised the applicant that her request for an upgrade of the ARCOM to the BSM was returned because she had not provided evidence to support her claim.  

2.  In August 2005, the Military Awards Branch also advised the Board that any request recommending an upgrade of the ARCOM needed to be submitted to the Commander, CJTF-76 and if that request was disapproved, the applicant was entitled to submit an appeal request to the Military Awards Branch.  There is no evidence a request recommending upgrade of the ARCOM was ever submitted to the Commander, CJTF-76.  However, on 25 July 2006, the Military Awards Branch, advised the applicant that the recommendation to award her the Bronze Star Medal had been submitted to the Army Decorations Board.  On 24 October 2006, the Military Awards Branch advised the applicant that the Army Decoration Board had determined that the degree of action and service rendered did not meet the criteria for award of the BSM and affirmed that the previously awarded ARCOM was the appropriate award for her actions.

3.  On 20 May 2008, the ABCMR determined that no compelling evidence had been found which warranted upgrading the applicant's award of the ARCOM to the BSM.

4.  In the applicant's request for reconsideration, she submits statements from her former commander regarding the preference of awarding the BSM only to Soldiers within the acting commander's own unit and based on gender as the reasons she was not awarded the BSM.  After considering the supporting documentation it was determined that these statements were not substantiated.  Therefore, any contentions that the applicant's denial of the BSM was a result of unfair practices of the acting commander are without merit.  Again, neither the applicant nor counsel have provided clear and convincing evidence to support an upgrade of the applicant's ARCOM to the BSM.  

5.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

6.  In view of the foregoing, there is no basis for granting the applicant’s requests.

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 to amend the decision of the ABCMR set forth in Docket Number AR20070013069, dated 20 May 2008.




      _______ _   _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)                                         AR20090002756



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ABCMR Record of Proceedings (cont)                                         AR20090002756



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