IN THE CASE OF:	  

		BOARD DATE:	  12 January 2010

		DOCKET NUMBER:  AR20090012378 


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, upgrade of his Army Commendation Medal (ARCOM) with "V" (Valor) Device to its original recommendation for the Bronze Star Medal (BSM) with "V" Device.

2.  The applicant states, in effect, that he and his partner were recommended for the BSM with "V" Device for the same action and that his award was downgraded to an ARCOM with "V" Device, while his partner's was approved as recommended.  He believes his award was downgraded based solely on the fact that he was a lower enlisted Soldier.  He claims to have been informed the downgrade was appealed successfully, but he has never received any paperwork and it has now been four years.

3.  The applicant provides a self-authored statement, dated 17 July 2009; a DA Form 638 (Recommendation for Award) for the BSM, dated 4 April 2005, and citation; a commander's statement, dated 8 April 2005; two DA Forms 2823 (Sworn Statements); an ARCOM with Valor certificate, dated 15 August 2005; and his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that as of the date of his application to the Board, the applicant was still a member of the Massachusetts Army National Guard (MAARNG).  

2.  On 8 November 2004, while serving as a member of the MAARNG, the applicant was ordered to active duty in support of Operation Iraqi Freedom (OIF).

3.  The record shows the applicant served in Iraq from 2 January 2005 through 12 December 2005.

4.  On 4 April 2005, the applicant's team leader submitted a DA Form 638 with citation, recommending the applicant for award of the BSM with "V" Device for valorous achievement on 2 April 2005.  The citation indicated the applicant's heroic actions and disregard for his own safety during an enemy attack on Abu Ghraib, Iraq on 2 April 2005, directly resulted in thwarting enemy efforts to enter the base and protected United States service members from harm.  The applicant's battalion commander recommended approval of the BSM with valor.

5.  On 8 April 2005, the applicant's battalion commander provided a chronology of events for actions that took place on 2 April 2005.  He indicated that an insurgent attack on the forward operations base at Abu Ghraib was repelled and he documented the applicant's actions, which included his volunteering to assist in distributing ammunition.  He also stated that while under heavy and constant mortar, rocket, and small arms fire, a master sergeant (MSG), another sergeant (SGT) and the applicant focused on resupplying ammunition to multiple tower fighting positions and protecting Soldiers and civilians within the base.

6.  The battalion commander further indicated that having received a request from the Entry Control Point (ECP) for immediate assistance for an inoperative M240 Machinegun, the MSG and applicant began to troubleshoot the crew served weapon located in the tower fighting position.  The applicant was required to climb outside the armor and sandbagged fighting positions, forced to dive in the tower, and then return to access and remedy the malfunctioning weapon.  The applicant repaired the M240 machinegun, brought it back into the fight, and he and the MSG remained in the tower and provided fire from their individual weapons to destroy the enemy force.  The battalion commander indicated that the three aforementioned Soldiers completed three ammunition and water supply runs during intense enemy engagements and provided medical assistance to wounded Marines.  He finally stated that five noncommissioned officers (NCOs), including the applicant, acted with great valor and courage, placing their mission and safety of the base ahead of their own personal safety which significantly contributed to the successful defeat of the enemy.

7.  The DA Form 638 shows the Task Force Commander, a major general, downgraded the recommended award to an ARCOM with "V” Device and that this is the award that was authorized and announced for the applicant in 
Headquarters, Task Force 134, APO, AE, Permanent Order 227-004, dated 15 August 2005.  There is no indication that the applicant or anyone in his chain of command ever requested reconsideration of the downgraded award through normal channels.

8.  On 11 January 2006, the applicant was released from active duty and he was returned to his MAARNG unit.  The DD Form 214 he was issued shows he completed 1 year, 2 months, and 1 day of active service during this period and that he served in Iraq from 2 January 2005 through 12 December 2005.

9.  The applicant provides a self-authored statement and two sworn statements written by the MSG and another Soldier in the rank/grade of sergeant first class (SFC)/E-7.  Each of these statements further detail the events of 2 April 2005, as outlined in the battalion commander's statement and support the applicant’s request for the BSM.

10.  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.

11.  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.

12.  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, in pertinent part, that the authority to award the BSM 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.

13.  Title 10 of the 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.

14.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to the Secretary of the Army at the following agency:  U.S. Army Human Resources Command, Personnel Service Support Division, 200 Stovall Street, Room 3S67, Alexandria, VA  22332-0405.  The applicant's unit must be clearly identified, along with the period of assignment and the award being recommended.  A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638.  Requests for consideration of awards should be supported by sworn affidavits, eyewitness statements, certificates, and related documents.  
Corroborating evidence is best provided by commanders, leaders and fellow Soldiers who had personal knowledge of the circumstances and events relative to the request.  The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rest with the requestor.

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.  Further, 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 with "V" Device by his team leader and that his battalion commander recommended approval of the award.  However, it further shows that the Task Force Commander, the award approval authority acting within his discretionary authority, downgraded the award of the BSM with "V" Device to an ARCOM with "V" Device.

4.  There is no evidence of record that indicates the applicant or anyone in his chain of command appealed the downgrade or requested reconsideration of the downgraded award with 1 year of the date 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 that was not available at the time the awarding authority rendered his original decision.

5.  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 this Board to substitute its judgment for that of the award approval authority who acted within his regulatory discretionary authority in downgrading the BSM recommendation on the applicant.  As a result, there is an insufficient evidentiary basis to support granting the requested relief.

6.  While the available evidence is insufficient for awarding the applicant the Bronze Star Medal with "V" Device or upgrading the Army Commendation Medal with "V" Device, this in no way affects the applicant’s right to pursue his claim for the Bronze Star Medal with "V" Device 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)                                         AR20090012378



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090012378



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1