IN THE CASE OF:	  

		BOARD DATE:	       26 August 2009

		DOCKET NUMBER:  AR20090005734 


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 correction of his DD Form 214 (Report of separation from Active Duty) to show award of the Meritorious Service Medal.

2.  The applicant states that his records make no mention of this award.  

3.  The applicant provides a copy of his DD Form 214, dated 18 July 1979, and a copy of a DA form 638 (Recommendation for Award), dated 22 May 1979, in support of his request.

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 records show he initially enlisted in the Regular Army (RA) on 13 February 1964 and was trained in military occupational specialty (MOS) 11B (Infantryman).  He executed several reenlistments in the RA, served in various staff and leadership positions, held MOS 76Y (Supply Sergeant), and attained the rank/grade of staff sergeant (SSG)/E-6.  He was honorably discharged on 18 July 1979 and was credited with 14 years, 7 months, and 12 days of active federal service.

3.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded and Authorized) of his DD Form 214, dated 18 July 1979, shows he was awarded the Good Conduct Medal (3rd Award), the National Defense Service Medal, the Vietnam Service Medal, the Combat Infantryman Badge, the Armed Forces Expeditionary Medal, the Purple Heart, the Republic of Vietnam Campaign Medal with Device (1960), the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Army Commendation Medal (2nd Oak Leaf Cluster), the Air Medal (1st Oak Leaf Cluster), the Bronze Star Medal (1st Oak Leaf Cluster), the Master Parachutist Badge, the Aircraft Crewman Badge, the Korea Master Parachutist Badge, the Presidential Unit Citation, the Meritorious Unit Commendation, and the Korea Defense Service Medal.  Item 13 does not show award of the Meritorious Service Medal.

4.  The applicant's records do not contain permanent orders awarding him the Meritorious Service Medal.

5.  The applicant submitted a copy of a DA Form 638, dated 22 May 1979, that shows his supervisor recommended him for award of the Meritorious Service Medal for exceptionally meritorious service as a Force Development Noncommissioned Officer at the U.S. Army John F. Kennedy Center for Military Assistance from 24 July 1978 to 18 July 1979.  However, there is no indication that this award was processed and/or approved by the approval authority.   

6.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Meritorious Service Medal is awarded to members of the Armed Forces of the United States or of a friendly foreign nation who distinguish themselves by outstanding meritorious achievement or service in a noncombat area.  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.  The regulation also provides that there is no automatic entitlement to an award upon departure either from an assignment or from the service.  
7.  Title 10 of the U. S. Code, section 1130 (10 USC 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 contends that his DD Form 214 should be corrected to show award of the Meritorious Service Medal.

2.  The decision of whether to award an individual a decoration and which decoration to award is a judgment call made by the commander having award approval authority.  It is unclear in this case if the award recommendation was processed by the applicant's chain of command, and if so, it is not known whether the commander having award approval authority approved a lesser or a higher award. 

3.  There is no evidence in the available records and the applicant did not provide sufficient evidence that shows he was awarded this medal.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required for award of the Meritorious Service Medal.  Therefore, there is insufficient evidence to grant the applicant the requested relief.

4.  However, while the available evidence is insufficient for awarding the applicant the Meritorious Service Medal, this in no way affects his right to pursue his claim for this award by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

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.  

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)                                         AR20090005734





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ABCMR Record of Proceedings (cont)                                         AR20090005734



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