IN THE CASE OF:	  

		BOARD DATE:	  15 October 2009

		DOCKET NUMBER:  AR20090007477 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show award of the Legion of Merit (LOM).

2.  The applicant states that the LOM was omitted from his DD Form 214. 

3.  The applicant provides in support of his application a self-authored statement; a copy of his DD Form 214; a copy of an LOM Award Certificate, dated 
14 November 1996; a copy of a DA Form 638 (Recommendation for Award), dated 4 October 1996 and the narrative; and a DD Form 215 (Correction to DD Form 214), dated 6 March 2007, which shows his DD Form 214 was corrected to add the Korea Defense Service Medal and the Armed Forces Expeditionary Medal.

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 he enlisted in the Regular Army (RA) on 
6 October 1976.  

3.  On 31 March 1997, the applicant retired honorably from active duty after completing a total of 20 years, 5 months, and 24 days of creditable active service.  The DD Form 214 that he was issued shows he was awarded the Meritorious Service Medal with 2nd oak leaf cluster (OLC), Army Commendation Medal with 5th OLC, Army Achievement Medal, Purple Heart, Army Good Conduct Medal (6th award), National Defense Service Medal (2nd award), Vietnam Service Medal with 4 bronze service stars, Multinational Forces and Observers Medal, Presidential Unit Citation (Navy), and Meritorious Unit Commendation, Noncommissioned Officer Professional Development Ribbon with numeral 4, Army Service Ribbon, Overseas Service Ribbon with numeral 3, two Overseas Service Bars, Armed Forces Service Medal, NATO Medal, Republic of Vietnam Campaign Medal, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and Expert Field Medical Badge and the Expert Field Medical Badge.  His DD Form 214 does not show award of the LOM.

4.  A review of the applicant's official records failed to reveal orders awarding the LOM.  The DA Form 638 that the applicant provided recommending award of the LOM does not appear to have been processed to completion.  The approval authority block is incomplete.  It contains no signatures or dates.  There is also no other evidence available to corroborate the applicant was awarded the LOM.

5.  Army Regulation 600-8-22 (Military Awards) provides 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.
6.  Army Regulation 635-5 (Personnel Separations - Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states that awards and decorations for all periods of service in the priority sequence specified in Army Regulation 600-8-22 will be entered on the DD Form 214.  Each entry will be verified by the Soldier’s records.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DD Form 214 should be corrected to show award of the LOM was carefully considered and found to be insufficient in merit.

2.  The applicant provided a copy of his LOM Award Certificate; however, regulatory guidance requires that each entry on the DD Form 214 be verified by an individual's service record.  Notwithstanding the recommendation the applicant provided for award of the LOM, there is no evidence available to show this recommendation was ever approved.  Army regulations state that for personal decorations, formal recommendation, approval through the chain of command, and announcement of orders are required.  Therefore, the available evidence is insufficient for awarding this medal.  However, if the applicant can provide the orders awarding him the LOM he may resubmit his application requesting reconsideration of his application.

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)                                         AR20090007477



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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