IN THE CASE OF:	  

		BOARD DATE:	    1 December 2011

		DOCKET NUMBER:  AR20110021137 


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 DD Form 214 (Report of Separation from Active Duty) to show a second award of the Legion of Merit.

2.  The applicant states, in effect, he was awarded the Legion of Merit (1st Oak Leaf Cluster) upon retirement in 1976.

3.  The applicant provides:

* Letter from a General Officer
* Medical document
* Photograph of medal being presented

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 was appointed as a Reserve commissioned officer and entered active duty on 24 September 1956.  He served in a variety of stateside and/or overseas assignments, and he attained the rank of colonel (COL).

3.  General Orders Number 49, issued by Headquarters, Brooke Army Medical Center, Fort Sam Houston, TX, on 27 July 1967 awarded him the Army Commendation Medal for meritorious service from 22 July 1966 to 22 June 1967.

4.  He served in Vietnam with the 61st Medical Battalion; 17th Field Hospital; and 3rd Field Hospital, 68th Medical Group, 44th Medical Brigade, from 23 June 1967 to 25 July 1968, during 4 campaigns.  

5.  General Orders Number 2718, issued by Headquarters, U.S. Army Vietnam, on 6 June 1968, awarded him the Legion of Merit for meritorious service from June 1967 to June 1968.

6.  Upon completion of his Vietnam tour, it appears he was reassigned to Brooke Army Medical Center, Fort Sam Houston, TX.

7.  General Orders Number 131, issued by Headquarters, Brooke Army Medical Center, Fort Sam Houston, TX, on 11 September 1973 awarded him the Meritorious Service Medal for meritorious achievement from 14 February 1973 to 30 August 1973. 

8.  On 22 March 1974, by letter, an official at the Military Awards Branch, U.S. Army Military Personnel Center (now known as the U.S. Army Human Resources Command (HRC)),  notified his commander at Brooke Army Medical Center that the applicant's recommendation for award of the Legion of Merit (1st Oak Leaf Cluster) was carefully evaluated but was not favorably considered.  The Army Decorations Board concluded that the Meritorious Service Medal would be an appropriate award.

9.  He retired on 30 September 1976 and he was placed on the retired list in his retired grade of COL on 1 October 1976.  Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the:

* National Defense Service Medal
* Vietnam Service Medal
* Vietnam Campaign Medal
* Bronze Star Medal
* Legion of Merit
* Meritorious Service Medal
* Republic of Vietnam Gallantry Cross with Palm Unit Citation

10.  His service record does not contain a recommendation or official orders to show he was recommended for or awarded the Legion of Merit (1st Oak Leaf Cluster).  He submitted:

	a.  A letter, dated 20 October 2011, from Major General (Retired) FWB who certifies that on 30 September 1976, when he was the Commander, Brooke Army Medical Center, he presented the Legion of Merit (1st Oak Leaf Cluster) to the applicant.

	b.  A photograph of then Brigadier General FWB presenting the Legion of Merit (1st Oak Leaf Cluster) to the applicant for meritorious service from August 1968 to September 1976.

	c.  A Medical document describing his current medical condition.

11.  Army Regulation 600-8-22 (Military Awards) states 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.  An oak leaf cluster is awarded to denote the second and succeeding awards of certain decorations, among which is the Legion of Merit.

12.  Appendix B of Army Regulation 600-8-22 shows that during his service in Vietnam participation credit was awarded for the below campaigns. This same regulation states that a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign:

* Vietnam Counteroffensive, Phase III, 1 June 1967 to 29 January 1968
* Tet Counteroffensive, 30 January 1968 to 1 April 1968
* Vietnam Counteroffensive, Phase IV, 2 April 1968 to 30 June 1968
* Vietnam Counteroffensive, Phase V, 1 July 1968 to 1 November 1968


DISCUSSION AND CONCLUSIONS:

1.  The applicant's records contain conflicting information:

	a.  On the one hand, his service records contain a letter, dated March 1974, from the Army Decorations Board at HRC denying him the Legion of Merit (1st Oak Leaf Cluster) and concluding that the Meritorious Service Medal was the appropriate award.  

	b.  On the other hand, he submits a personal letter from the General Officer who certifies this award as well as a photograph of the same General Officer presenting him the Legion of Merit (1st Oak Leaf Cluster) in September 1976.  

	c.  It appears the 1974 downgraded Legion of Merit was not related to the requested 1976 Legion of Merit.  Given the applicant's position as a doctor, COL, at Brooke Army Medical Center and given his prior award of the Legion of Merit, it is reasonable to presume his chain of command resubmitted a recommendation for a second award of the Legion of Merit upon his retirement in 1976 and that, despite the absence of official orders, this award was approved.  

	d.  In view of the foregoing, the preponderance of evidence supports a correction to his DD Form 214 to show a second award of the Legion of Merit.

2.  General orders awarded him the Army Commendation Medal which is not shown on his DD Form 214; therefore, he is entitled to correction of his DD Form 214 to show this award.

3.  The evidence of record shows the applicant was awarded the Vietnam Service Medal.  Additionally, he participated in four campaigns while serving in the Republic of Vietnam; therefore, he is entitled to four bronze service stars to be affixed to his already-awarded Vietnam Service Medal.

BOARD VOTE:

___X____  ___X___  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* deleting from item 26 of his DD Form 214 the Legion of Merit (shown as LM) and the Vietnam Service Medal (shown as VSM)
* adding to item 26 of his DD Form 214 the:

* Legion of Merit (1st Oak Leaf Cluster)
* Army Commendation Medal
* Vietnam Service Medal with four bronze service stars

* Issuing to him the Legion of Merit (1st Oak Leaf Cluster)



      __________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)                                         AR20110021137



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ABCMR Record of Proceedings (cont)                                         AR20110021137



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