IN THE CASE OF:	

		BOARD DATE:	3 September 2009   

		DOCKET NUMBER:  AR20090007845 


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 his Army Commendation Medal be upgraded to a Meritorious Service Medal.

2.  The applicant states the recommendation for his award of the Meritorious Service Medal was approved through the whole chain of command with the highest recommendations and the Orders Data section of the DA Form 638 (Recommendation for Award) shows the award given as the Meritorious Service Medal.  He states the orders issuing authority should have been U.S. Army Division West at Fort Carson instead of Fort Hood.

3.  The applicant provides, in support of his application, a certificate for the award of the Army Commendation Medal in question; the DA Form 638 for this award; a certificate for the award of the Bronze Star Medal; four certificates for the award of the Army Commendation Medal (one for valor); and four DA Forms 2166 (NCO [noncommissioned officer) Evaluation Report).

CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel records show he enlisted in the Regular Army on 29 September 1998.  He had previously served 2 years, 8 months, and 
7 days in the Nebraska Army National Guard.  He reenlisted in the Regular Army on 9 December 2000, 13 September 2004, and 16 January 2007 and he continues to serve on active duty.

2.  On 17 April 2007, the applicant's battery sergeant submitted a DA Form 638 recommending the applicant for the award of the Meritorious Service Medal for the period from 1 September 2003 to 10 May 2007.

3.  The DA Form 638 shows the award recommendation was approved through the chain of command.  However, the approving authority downgraded the award to an Army Commendation Medal.

4.  Part V - Orders Data contains the entry "MSM" (Meritorious Service Medal).  However, the section is not complete in that there is no order number, no signature, and no date.

5.  The applicant's certificate for the award of the Army Commendation Medal for exceptionally meritorious service with Headquarters and Headquarters Battery, 3rd Battalion, 29th Field Artillery, 4th Infantry Division (Mechanized) for the period 1 September 2003 to 10 May 2007 shows Permanent Orders # 212-022, dated 31 July 2007, and is signed by a major general, commanding.

6.  The 3rd Battalion, 29th Field Artillery Regiment is a unit of the 3rd Brigade Combat Team (3rd BCT) of the 4th Infantry Division, United States Army. The battalion is currently garrisoned at Fort Carson, CO.

7.  Army Regulation 600-8-22 (Military Awards) provides the Army policy for military awards.  The rules for processing the award recommendation state that the recommendation will be forwarded through command channels to the award approval authority with each intermediate commander providing his/her recommendation.  Approval authorities may make award decisions without referral to an awards board.

8.  Paragraph 1-16 of Army Regulation 600-8-22 contains guidance on reconsideration of disapproved or downgraded award recommendations.  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.  

9.  Army Regulation 600-8-22 provides in paragraph 3-1c that the decision to award an individual a decoration and the decision as to which award is appropriate are both subjective decisions made by the commander having award approval authority.



10.  Table 3-5 (Delegation of award approval authority - peacetime criteria) of Army Regulation 600-8-22 indicates that the approval authority for award of the Meritorious Service Medal is brigadier general or higher for U.S. Army personnel assigned or attached for duty to their command.

11.  Army Regulation 600-8-22 provides, in pertinent part, that the Meritorious Service Medal is awarded to a 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.  

12.  Army Regulation 600-8-22 provides that the Army Commendation Medal may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguished himself or herself by heroism, meritorious achievement or meritorious service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

13.  Title 10 of the United States Code, section 1130 (10 USC 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's unit was assigned to the 4th Infantry Division.  Therefore, the commanding general of the 4th Infantry Division was the approval authority for awards of the Meritorious Service Medal.

2.  The applicant's award recommendation was correctly forwarded to the Commanding General, 4th Infantry Division.  After considering the recommendation of the chain of command, the division commander downgraded the recommended award of the Meritorious Service Medal to an Army Commendation Medal.



3.  The applicant points out that the Meritorious Service Medal is indicated in 
Part V of the DA Form 638.  However, the fact that there is no order number entered and there is no signature or date indicates that orders were not, nor intended to be, written for the award of the Meritorious Service Medal.  The form clearly shows the 4th Infantry Division commander downgraded the award to an Army Commendation Medal.

4.  Notwithstanding the recommendations of the chain of command, the award approval authority is solely responsible, in accordance with Army regulation, for the determination if recognition is warranted and, if so, the appropriate level of recognition.  

5.  The final decision to approve an award and which award is appropriate are both subjective decisions made by the commander having award approval authority.  Commanders carefully review every individual award recommendation to preserve the prestige and integrity of the Army’s military decorations.

6.  The decision to award the applicant an Army Commendation Medal instead of the Meritorious Service Medal was well within the authority of the award’s approval authority. The fact that the applicant believes that he should have received a higher award does not serve as justification to upgrade his medal.  

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

8.  While the available evidence is insufficient for awarding the applicant a Meritorious Service Medal, this in no way affects the applicant’s right to pursue his claim for the Meritorious Service Medal by submitting a request through his Member of Congress under the provisions of 10 USC 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)                                         AR20090007845





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ABCMR Record of Proceedings (cont)                                         AR20090007845



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