BOARD DATE:	  25 September 2009

		DOCKET NUMBER:  AR20090007161 


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 award of the Bronze Star Medal.

2.  The applicant states that he was put in for award of the Bronze Star Medal, but he never received it. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 31 May 2005; and a copy of the front page of a DA Form 638 (Recommendation for Award), dated 17 August 2004, 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 enlisted in the Pennsylvania Army National Guard (PAARNG) on 12 March 1999.  He subsequently entered active duty for training (ADT) on 21 July 2000, completed basic combat and advanced individual training, and he was awarded military occupational specialty (MOS) 45K (Armament Repairer).  He was honorably released from ADT to the control of his ARNG unit on 12 December 2000. 

3.  The applicant’s records also show he enlisted in the Regular Army (RA) for a period of 3 years on 8 November 2001.  He was assigned to B Company, 299th Combat Support Battalion, Germany, and he attained the rank/grade of specialist (SPC)/E-4.  

4.  The applicant's records also show that he served in Kosovo from 4 May 2002 to 11 November 2002 and Iraq from 11 February 2004 to 11 February 2005.  

5.  He was honorably released from active duty in the rank/grade of SPC/E-4 on 31 May 2005 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) for completion of his Reserve obligation.  He completed
3 years, 6 months, and 23 days during this period of enlistment, of which 3 years, 6 months, and 15 days was foreign service.

6.  Item 24 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 does not show award of the Bronze Star Medal.

7.  The applicant's records do not contain permanent orders showing he was awarded the Bronze Star Medal.

8.  The applicant submitted a copy of the front page of a DA Form 638, dated
17 August 2004, in which his team chief, Staff Sergeant J____, recommended him for award of the Bronze Star Medal for meritorious service during Operation Iraqi Freedom.  He listed four achievements, one of which states:

[The applicant’s] bravery and disregard to his own personal safety directly contributed to the expeditious evacuation of an injured NCO (Noncommissioned Officer) and his driver due to an IED (Improvised Explosive Device) detonating on their HEMMT (Heavy Mobility Expanded Tactical Truck) cargo on 11 April 2004.  When [the applicant] saw the HEMMT was engulfed in flames and that the wounded Soldiers were in need of assistance, he turned his M109A3 (Shop Van) around, pulled up beside the burning vehicle, and quickly helped load the casualties in the back of his truck before rapidly proceeding to FOB (Forward Operating Base) Paliwoda.

9.  There is no indication that this form was signed by the recommending official and/or any members of the chain of command, including the approving authority.  Additionally, there is indication that this form entered military channels. 

10.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service.  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.  

11.  Title 10, U.S. Code, section 1130 provides the legal authority for consideration of proposals for decorations not previously submitted in 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 he should be awarded the Bronze Star Medal.

2.  The applicant’s actions on 17 August 2004 in Iraq are noted.  However, the DA Form 638 he submitted was neither authenticated by the recommending official or the chain of command nor approved by the approval authority.  The governing Army regulation states that for personal decorations, formal recommendation, approval through the chain of command, and announcement of orders are required.  In the absence of orders, there is insufficient evidence to award the applicant the Bronze Star Medal.

3.  While the available evidence is insufficient for awarding the applicant the Bronze Star Medal, this in no way affects the applicant’s right to pursue his claim for the Bronze Star Medal by submitting a request 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)                                         AR20090007161



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ABCMR Record of Proceedings (cont)                                         AR20090007161



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