IN THE CASE OF:	  

		BOARD DATE:        4 August 2009

		DOCKET NUMBER:  AR20090002964 


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 his downgraded award recommendation for the Bronze Star Medal (BSM) be upgraded to a BSM.

2.  The applicant states that his platoon sergeant, platoon leader, company commander, and battalion commander all approved the recommendation that he be awarded the BSM.  However, the brigade commander downgraded the award to an Army Commendation Medal (ARCOM) without explanation.  

3.  The applicant provides a DA Form 638 (Recommendation for Award) and DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his application.

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 record shows that while serving as a member of the Missouri Army National Guard (MOARNG) he was ordered to active duty in support of Operation Enduring Freedom and Operation Iraq Freedom and entered active duty on 24 February 2003.

3.  The record shows the applicant served in Iraq from 24 February 2003 through 9 January 2004.

4.  On 20 October 2003, the applicant's platoon sergeant recommended the applicant be awarded the BSM for meritorious service during the period 25 April 2003 through 9 January 2004.  He listed one achievement in support of his recommendation and stated that as a squad leader the applicant distinguished himself as a leader by ensuring the well-being of each squad member as well as mentoring them with his knowledge and expertise.  He further stated that the applicant spent countless hours ensuring the readiness and deployability of his squad and, despite the lack of resources, he created inventive training aids ensuring realistic and thorough training.  He further indicated that the applicant's attention to detail and selfless service was directly attributed to each mission success.  The applicant's company and battalion commanders recommended approval of the BSM recommendation; however, they provided no supporting comments.

5.  On 7 November 2003, the separate brigade commander, a major general, downgraded the award to an ARCOM which was authorized and announced in Headquarters, Combined Joint Task Force, Baghdad, Iraq, Orders 346-094, dated 12 December 2003.  There is no indication that the applicant ever requested reconsideration of the downgraded award through normal channels.

6.  On 15 February 2004, the applicant was released from active duty and returned to his MOARNG unit.  The DD Form 214 he was issued shows he completed 11 months and 22 days of active service during the period and that he served in Iraq from 24 February 2003 through 9 January 2004.

7.  Army Regulation 600-8-22 (Military Awards) provides the Army's awards policy.  Paragraph 1-16 provides guidance on reconsideration/appeal of disapproved or downgraded awards.  It states, in pertinent part, that a request for reconsideration or the appeal of a disapproved or downgraded award recommendation must be placed in official channels within 1 year from the date of the awarding authority's decision.

8.  Paragraph 1-16 of the awards regulation further states that one-time reconsideration by the award approval authority will be conclusive.  Recommendations are submitted for reconsideration or appeal only if new, substantive, and material information is furnished.   Requests for reconsideration or appeal must be forwarded through the same official channels as the original recommendation.  The additional justification for reconsideration or appeal must be in letter format not to exceed two single-spaced typewritten pages.  A copy of the original recommendation with all endorsements and the citation must be attached.  If the original recommendation is not available, a new/reconstructed recommendation should be submitted. 

9.  Paragraph 3-14 of the awards regulation contains guidance on award of the BSM.  It states, in pertinent part, that it may be awarded for meritorious achievement or meritorious service to recognize single acts of merit or meritorious service.  The lesser degree than that required for the award of the Legion of Merit must nevertheless have been meritorious and accomplished with distinction.  Table 3-6 outlines award approval authority and indicates that the authority to award the BSM, Air Medal and ARCOM may be delegated to major general or brigadier general commanders of separate units and authority to approve the ARCOM may be further delegated to colonel-level commanders.  Commanders may disapprove (to include downgrade) the next higher award normally associated with their grade.

10.  Title 10 of the U.S. Code, section 1130 provides the legal authority for consideration of proposals for decorations not previously submitted in a 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 contention that his downgraded award should be restored to the BSM originally recommended was carefully considered.  However, there is insufficient evidence to support this claim.

2.  By regulation, colonel-level commanders may approve awards of the ARCOM and may disapprove or downgrade awards of the BSM and reconsideration, and request for reconsideration or the appeal of a disapproved or downgraded award recommendation must be placed in official channels within 1 year from the date of the awarding authority's decision and must contain new substantive and material information.  The award approval authority decision on reconsiderations will be conclusive.

3.  The evidence of record confirms the applicant was properly recommended for the BSM by his platoon sergeant and that approval recommendations for this award were given by both his company and battalion commanders.  However, his brigade commander, acting within his authority as the ARCOM approval authority, elected to downgrade the recommended BSM to an ARCOM and approved and announced this award in official orders.

4.  There is no evidence of record that indicates the applicant or anyone in his chain of command elected to resubmit his BSM award recommendation for reconsideration/appeal within 1 year of the date of the awarding authority's decision.  Further, the applicant has failed to provide any new, substantive, and/or material evidence with his application to support his request for reconsideration of the BSM recommendation.  Therefore, absent any compelling evidence that the decision of the award approval authority was improper or inequitable, or that there was any error or injustice related to the processing of the original BSM recommendation, it would not be appropriate for the Board to substitute its judgment for that of the awards approval authority who acted within his regulatory discretionary authority.  As a result, there is an insufficient evidentiary basis to support granting the requested relief.

5.  While there is insufficient documentation and evidence for the Board to upgrade the applicant's approved ARCOM to a BSM, this in no way affects the applicant’s right to pursue his claim for award of the BSM by submitting a request with an award recommendation and supporting evidence through his Member of Congress under the provisions of Title 10, U.S. Code, section 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.



      _______ _   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)                                         AR20090002964



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ABCMR Record of Proceedings (cont)                                         AR20090002964



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