IN THE CASE OF:	

		BOARD DATE:	  25 May 2010

		DOCKET NUMBER:  AR20100011851 


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 that the downgrade of the service award he received for Operation Iraqi Freedom for the period 25 September 2006 through 
8 September 2007 be reconsidered.  

2.  The applicant states the award was submitted as a Bronze Star Medal (BSM) but was downgraded to an Army Commendation Medal (ARCOM).  He states as the original award was submitted after approximately 5 months of a 12 month tour, his later contributions and achievements were not considered.  He states it is his belief the BSM was downgraded as a result of his commander's decision to submit awards to the higher headquarters approximately 6 months prior the completion of a tour of duty.  This action excluded many significant contributions and achievements that should have been considered.  

3.  The applicant provides the following documents in support of his application:

* Memorandum of Explanation
* Command Awards Policy Memorandum
* DA Form 638 (Recommendation for Award)
* Officer Evaluation Report (OER) for 5 February-31 December 2007
* An undated DA Form 67-9-1 (OER Support Form) 
* OER for 5 February 2006-4 February 2007
* DD Form 214 (Certificate of Release or Discharge from Active Duty) dated 20 September 2007
* Mobilization Orders 


CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows on 2 June 2006, while serving as a major in the Arizona Army National Guard (AZARNG), he was ordered to active duty in support of Operation Iraqi Freedom for a period not to exceed 545 days, and on 20 July 2006 he entered active duty.

2.  The record shows the applicant served in Kuwait and Iraq from 25 September 2006 through 9 September 2007.  

3.  On 30 April 2007, the 258th Rear Area Operations Center commander submitted a DA Form 638 recommending the applicant for the BSM for meritorious service during the period 25 September 2006 through 
8 September 2007.  

4.  On 9 May 2007, the brigade commander recommended that the BSM be downgraded to an ARCOM, and on 19 May 2007 he downgraded the award to an ARCOM and approved and announced this award in Permanent Order 
139-005, dated 19 May 2007.  

5.  On 20 September 2007, the applicant was honorably released from active duty and returned to his AZARNG unit after completing 1 year, 2 months, and 
1 day of active military service.  

6.  There is no indication the applicant appealed the downgraded award through his chain of command within 1 year of the action.  

7.  The applicant provides OERs for the periods 5 February 2006 through 
4 February 2007 and 5 February 2007 through 31 December 2007.  These reports show he was rated as the operations officer of rear area operations center and garrison headquarters deployed in support of Operation Iraqi Freedom.  He received outstanding performance, must promote evaluations from his raters and best qualified center of mass evaluations from the senior raters on these reports.  He also provides an unsigned/undated OER support form that outlines his performance objectives and significant contributions in this position.  

8.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy.  Chapter 1, Section V stipulates that the objective of the Department of the Army military awards program is to provide tangible recognition for acts of valor, exceptional service or achievement, special skills or qualifications, and acts of heroism not involving actual combat.  


9.  Paragraph 1-14 of the awards regulation outlines time limitations and states each recommendation must be entered into channels within 2 years of the act, achievement, or service to be honored.  There are no limitations regarding the earliest date an award may be entered into channels.  Paragraph 1-16 provides the guidance on reconsideration/appeal of disapproved or downgraded award recommendations.  It states a reconsideration request or appeal of a disapproved or downgraded award recommendation must be placed into official channels within 1 year of the date of the awarding authority's decision.  One time reconsideration by the award approval authority will be conclusive.  

10.  The awards regulation does provide, pursuant to Title 10 of the U.S. Code, Section 1130 (10 USC 1130), a Member of Congress can request a review of a proposal for the award or presentation of a decoration (or the upgrading of a decoration) that is not authorized to be presented or awarded due to time limitations established by law or policy for timely submission of a recommendation.  

11.  The awards regulation stipulates reconsideration/appeals are submitted only if new, substantive and material information is furnished and the regulatory time limits do not prevent such action.  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.  Chapter 3 of the awards regulation contains guidance on award approval authorities.  It states commanders having authority to approve an award may delegate disapproval (to include downgrade) authority to their immediate subordinate commanders, provided those subordinate commanders have authority to approve the next lower award.  Table 3-6 of the awards regulation provides the award approval authority-wartime criteria and states the authority to approve the ARCOM may be delegated to colonel level commanders.  

13.  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.

14.  Under 10 USC 1130, the award request, with a DA Form 638, 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 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his downgraded award should be upgraded because it was submitted early and he was not appropriately credited with all of his accomplishments has been carefully considered.  However, the evidence is not sufficient to support granting the requested relief.  

2.  The evidence of record confirms the applicant's award recommendation was properly processed and acted upon by proper authority and that his brigade commander was acting within his regulatory discretionary authority when he downgraded the recommended BSM and awarded the ARCOM.  Clearly the applicant's brigade commander believed the ARCOM he awarded appropriately recognized the applicant's meritorious service in support of Operation Iraqi Freedom.  

3.  There is no evidence the official recommending the award or the applicant requested reconsideration/appeal of the downgraded award within the established 1 year appeal period.  Therefore, absent documented acts of valor or documented special achievement outside of his duty performance, which would have been well known to his chain of command, to include the award approval authority, there is no reason to believe his continued performance of his duty, no matter how outstanding, would have impacted the decision of the award approval authority.  

4.  In view of the facts of this case, absent compelling evidence of error or injustice, it would not be appropriate for this Board to substitute its judgment for that of the appropriate award approval authority.  


5.  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 did not submit evidence that would satisfy this requirement.  The applicant has not shown error, injustice, or inequity for the relief he requests.

6.  While there is not sufficient evidence for this Board to grant the requested relief, the applicant retains the option to submit his award upgrade request through a 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)                                         AR20100011851



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ABCMR Record of Proceedings (cont)                                         AR20100011851



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