IN THE CASE OF:	  

		BOARD DATE:	  27 July 2010

		DOCKET NUMBER:  AR20100000847 


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 records to show award of the Legion of Merit.

2.  The applicant states he was awarded the Legion of Merit in 1989 by the
450th Chemical Battalion, Houston, TX; however, the award is not in his military personnel records.

3.  The applicant provides no additional documentary evidence 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 had prior honorable active duty enlisted service in the U.S. Air Force from 23 March 1951 through 9 March 1955.

3.  The applicant had honorable enlisted service in the Army National Guard of the United States and Texas Army National Guard from 13 October 1958 through 30 September 1980.  He enlisted in the U.S. Army Reserve (USAR) Ready Reserve on 1 October 1980.

4.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in:

   a.  item 9 (Awards, Decorations and Campaigns) the Army Service Ribbon, Noncommissioned Officer Professional Development Ribbon with Numeral 3, United Nations Service Medal, Army Reserve Components Achievement Medal (4th Award), Armed Forces Reserve Medal (3rd Award), Korean Service Medal with 2 bronze service stars, National Defense Service Medal, Air Force Good Conduct Medal, Army Achievement Medal (2nd Award), Army Commendation Medal, Parachutist Badge, Senior Parachutist Badge, Master Parachutist Badge, Army Reserve Components Overseas Training Ribbon, Expert Marksmanship Qualification Badge with (M-1 and M-16) Rifle Bars, and Sharpshooter Marksmanship Qualification Badge with (.45 caliber) Pistol Bar; and

   b.  item 35 (Record of Assignments) that he was assigned to Headquarters and Headquarters Detachment, 450th Chemical Battalion, Houston, TX, on
5 November 1984 with the principal duty of Command Sergeant Major (USAR Ready Reserve).

5.  Fifth U.S. Army and Fort Sam Houston, Fort Sam Houston, TX, Orders
220-16, dated 15 November 1989, reassigned the applicant from Headquarters and Headquarters Detachment, 450th Chemical Battalion, Houston, TX, to the USAR Control Group (Reinforcement) effective 16 October 1989.

6.  USAR Personnel Center, St. Louis, MO, Orders D-03-423573, dated 
17 March 1994, honorably discharged the applicant from the USAR effective 
31 January 1992.

7.  Office of the Chief, Army Reserve, Washington, DC, Permanent Orders Number 244-02, dated 18 December 1995, awarded the applicant the Meritorious Service Medal for outstanding meritorious service from 1 February 1982 to 31 January 1992.



8.  There is no evidence in the applicant's military personnel records that shows he was recommended for or awarded the Legion of Merit.

9.  Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations.

   a.  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.

	b.  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.  Upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award of or upgrading of a decoration.  Based upon such review, the Secretary shall determine the merits of approving the award.

	c.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to:  U.S. Army Human Resources Command, Soldier Programs and Services Division, 200 Stovall Street, Room 3S67, Alexandria, VA  22332-0405.  The unit must be clearly identified, along with the period of assignment and the recommended award.  A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638.  Requests should be supported by sworn affidavits, eyewitness statements, certificates, and related documents.  Supporting evidence is best provided by commanders, leaders, and fellow Soldiers who had personal knowledge of the facts relative to the request.  The burden and costs for researching and assembling supporting documentation rest with the applicant.






DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show award of the Legion of Merit because it was awarded to him in 1989 by the 450th Chemical Battalion, Houston, TX.

2.  Permanent orders awarded the applicant the Meritorious Service Medal for outstanding meritorious service from 1 February 1982 to 31 January 1992, which included the entire period of his assignment to the 450th Chemical Battalion.

3.  There is no evidence in the applicant's military personnel records that shows he was recommended for or awarded the Legion of Merit.  

4.  The sincerity of the comments offered by the applicant is not in question. However, the Military Awards regulation is clear that an announcement of personal decorations require announcement in orders.  The evidence of record fails to satisfy this requirement.  Therefore, there is insufficient evidence to support the applicant's claim to the Legion of Merit.

5.  While the available evidence is insufficient for awarding the applicant the Legion of Merit, this in no way affects the applicant's right to pursue his claim for the award 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:

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.



      _______ _   _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)                                         AR20100000847



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ABCMR Record of Proceedings (cont)                                         AR20100000847



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