BOARD DATE:	  16 August 2012

		DOCKET NUMBER:  AR20120004062


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, revocation of the orders revoking her award of the Bronze Star Medal (BSM).

2.  The applicant states:

	a.  She was not notified of the revocation action until 2 years after the fact.

	b.  She was deemed worthy of and received the BSM for her outstanding performance during her actual period of service in Iraq.

	c.  She left Iraq on emergency leave 3 months ahead of schedule in order to take care of her husband who required surgery.

	d.  She had to fight to get emergency leave approval because her active duty unit was not compassionate toward her husband's needs and she had to make a decision when no one else would assist her.

3.  The applicant provides:

* self-authored statement
* DA Form 67-9 (Officer Evaluation Report)
* deployment orders
* DA Form 4187 (Personnel Action)
* revocation orders
* BSM Certificate
* memorandum, Headquarters (HQ), 100th Division (Institutional Training), dated 23 March 2007

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show she was serving in the U.S. Army Reserve Active Guard Reserve Program in the rank/pay grade of major (MAJ/
O-4) at the time of her application.

2.  A DA Form 638 (Recommendation for Award) initiated on 1 December 2003 shows the applicant was recommended for award of the BSM for meritorious achievement during the period 21 May to 31 December 2003.  The recommendation was approved on 20 January 2004 and awarded by HQ, 377th Theater Sustainment Command (TSC), Arifjan, Kuwait, Permanent Order (PO) Number 020-63.

3.  On 24 January 2005, the Commanding General, Headquarters, 81st Regional Readiness Command (RRC), Birmingham, Alabama, issued the applicant a general officer memorandum of reprimand (GOMOR).  It states the applicant:

	a.  returned home from Iraq on emergency leave on 22 October 2003 and failed to return to duty until 3 May 2004 and

	b.  continued to accept family separation and hostile fire pay while not authorized.

4.  On 4 February 2005, the applicant submitted a rebuttal to the GOMOR wherein she stated:

	a.  Upon her arrival home, she learned her spouse was not just sick but required gastrointestinal surgery of which she immediately notified her command of his prognosis.

	b.  She maintained contact with her unit while on emergency leave, requested an extension, and provided the doctor's statement showing she needed to be with her husband to care for him.

	c.  While her husband was in the critical care unit, her request for an extension was denied, which forced her to choose whether to abandon her Soldiers in Iraq or abandon her husband and two children ages 6 and 9.

	d.  She informed her unit in Iraq that she was going to seek Congressional support in January 2004 and they stopped responding to her email.

	e.  She sought assistance from the 81st RRC, the mobilization unit, and was told she did not belong to them at that time.  She was advised to file a Congressional inquiry, request a compassionate reassignment, or send another Red Cross message.

	f.  Her spouse was her "family care plan" and as a result she had no other choice but to care for him and their two children and await her punishment for being absent without leave.

	g.  She out-processed through Kuwait, swiped her card notifying the Defense Finance and Accounting Service of her departure from theater, and assumed the extra pay stopped.

	h.  She later learned of the extra pay, informed 81st RRC personnel, the pay was immediately stopped, and she repaid all undeserved pay.  She in no way attempted to defraud the government.

	i.  In light of the circumstances, her conduct, though not entirely excusable, is not nearly as dishonorable as initially imagined.

5.  On 8 February 2008, the GOMOR was directed for filing in the applicant's restricted section of her official military personnel file.

6.  On 8 February 2008, the Commanding General, 81st RRC, submitted a request to the U.S. Army Human Resources Command (USAHRC) seeking revocation of the applicant's BSM awarded for service in Iraq.

7.  USAHRC Military Awards Branch (MAB) published PO 041-12, dated 10 February 2005, revoking the applicant's BSM as announced in HQ, 377th TSC, PO 020-63.

8.  The applicant appealed the revocation of her BSM to USAHRC MAB on 27 March 2007 indicating she was never notified that her BSM was revoked or given an opportunity to concur or non-concur as provided for in the governing regulation.  She received the BSM for her service in Iraq and it is not fair to have it taken away when she had been deemed worthy of its receipt.

9.  A USAHRC MAB official responded to the applicant's appeal on 9 October 2008.  He stated the applicant failed to provide any evidence to show the BSM was physically presented to her by the appropriate authority and advised her to present proof of the same.


10.  On 26 January 2009, the applicant responded to USAHRC MAB.  She stated:

* she first received the BSM while she was in Iraq before her departure on emergency leave
* the BSM was mailed to her by her platoon sergeant
* the DA Form 638 and the medal itself is the only proof of her receipt of the BSM

11.  The applicant's military record does not include a subsequent response from USAHRC MAB.

12.  The applicant's military record does not include and she did not provide the specific dates or period for which she was granted emergency leave.

13.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.

	a.  Paragraph 1-30 provides for the revocation of personal decorations and suspension of authority to wear the same.  It states that once an award has been presented it may be revoked by the awarding authority if facts subsequently determined would have prevented the original approval of the award had they been known at the time.

	b.  Presentation of a decoration is the physical act of pinning or clipping the medal on a Soldier's chest or handing the Soldier the medal, certificate, or orders.

	c.  The decision to revoke an award may not be delegated by the awarding authority.  In making the decision, the awarding authority will consider a statement of concurrence or non-concurrence (with comments) from the individual concerned.  Upon revocation, the affected individual will be informed that he or she may appeal the revocation action through command channels to the Commander, USAHRC, AHRC-PDO-PA, for final review.  When desirable, the awarding authority may refer the revocation request directly to the Commander, USAHRC, AHRC-PDO-PA, for appropriate action.

	d.  Paragraph 3-14 contains guidance on award of the BSM and states it is awarded for heroic acts or meritorious achievement or service of a lesser degree than required for the Silver Star.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the BSM she earned and received for her service in Iraq should not have been revoked.

2.  By regulation, once an award has been presented, it may be revoked by the awarding authority if facts subsequently determined would have prevented original approval of the award had they been known at the time.  Presentation of a decoration is the physical act of pinning or clipping the medal on a Soldier's chest or handing the Soldier the medal, certificate, or orders.  The awarding authority will consider a statement of concurrence or non-concurrence (with comments) from the individual concerned.

3.  In this case, there is no evidence of record to corroborate the applicant's claim that she was ever presented the BSM.  In her response to USAHRC MAB, the applicant states she initially received the BSM prior to her 22 October 2003 departure for emergency leave.  The DA Form 638 shows she was recommended for the BSM on 3 December 2003 and it was approved and announced in official orders on 20 January 2004.  Therefore, it is unclear how she could have received this award before these dates.  She also claims she received the BSM a second time in the mail.  However, the evidence of record fails to contain and she failed to provide any evidence to support this claim.

4.  In addition, the applicant received a GOMOR for her actions that occurred during the period for which the BSM was recommended and approved.  These actions could have prevented the approval of this award had her actions been known prior to the approval of this award.  Under normal circumstances, the award authority would have been required to obtain the applicant's concurrence or non-concurrence prior to revoking the BSM.  However, absent any evidence to confirm the BSM was ever presented to the applicant, prior notice of any revocation action is not a regulatory requirement.  In addition, this Board has now considered her nonconccurrence statement.

5.  Based on the foregoing, the applicant's request should be denied.
   
   
   
   
   
   
   
   
   
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 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)                                         AR20120004062



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ABCMR Record of Proceedings (cont)                                         AR20120004062



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