IN THE CASE OF:	  

		BOARD DATE:	  16 April 2013

		DOCKET NUMBER:  AR20130004298 


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 award of the Bronze Star Medal (BSM).  

2.  The applicant states the award approval authority acted arbitrarily and capriciously by using improper and illegal criteria to downgrade her commander's recommendation for award of the BSM to the Meritorious Service Medal (MSM).  She states the award approval authority required her service to demonstrate combat distinction, which is defined as engaging an armed enemy, as a prerequisite for the BSM.  By requiring this, the award approval authority ignored established regulatory guidance and the executive order authorizing award of the BSM.

3.  The applicant provides a self-authored statement and the enclosures identified in the list of enclosures provided with her statement in support of her request.  

CONSIDERATION OF EVIDENCE:

1.  The record shows the applicant was appointed first lieutenant (1LT) Reserve officer in the Judge Advocate General Corps on 10 May 2004, and entered active duty in that status on 3 October 2004.  The applicant is currently serving on active duty in the rank of major.  

2.  The applicant's interactive Personnel Electronic Records Management System record maintained by the U.S. Army Human Resources Command (AHRC) contains no documents related to the processing of the applicant's award.  

3.  The applicant provides a DA Form 638 (Recommendation for Award) that shows the Chief of Staff, Task Force (TF) 30th Medical Command (MEDCOM), the applicant's supervisor, a colonel, recommended the applicant for a BSM for meritorious service during the period 1 May 2009 through 16 April 2010.  The recommending officer listed no specific achievements in Part III (Justification and Citation Data) portion of the DA Form 638 and instead referred to an attached narrative to support the award.  The narrative cited the applicant's outstanding performance of her duties as the Command Judge Advocate for TF 30th MEDCOM and cited her administrative accomplishments in support of the award.  

4.  The DA Form 638 shows the recommended BSM was ultimately downgraded to the MSM by the United States Forces-Afghanistan (USFOR-A, Deputy Commander, Support, who was the award approval authority.  It also shows the applicant was awarded the MSM in USFOR-A Permanent Order Number
032-080, dated 22 February 2010.  In item 25 (Intermediate Authority) the Chief of Staff, USFOR-A checked the downgrade to block and inserted MSM.  In block 25i, the Chief of Staff added the comment "Narrative Supports MSM.  Recommend MSM."  

5.  Headquarters, U.S. Army Human Resources Command (AHRC) Policy Message 021436Z, dated December 1967, Subject:  Policy Clarification on Awarding the Legion of Merit and BSM in the Theater of Combat Operations contains guidance on award of the BSM vice the MSM.  It states, in pertinent part, that if the award approval authority desires to award the MSM as an alternate award to a BSM recommendation, then he/she should first ensure the achievements are for noncombat meritorious achievement or service.  If this prerequisite is met, the following actions should be taken:

	a.  Block 26d of the DA Form 638 should be checked disapproved; and 

	b.  Block 26i of the DA Form 638 should contain the comment "Noncombat meritorious achievements or service; the MSM is approved" to clarify the decision.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to be awarded the BSM in lieu of the MSM she earned for the period 1 May 2009 through 16 April 2010, as originally recommended, has been carefully considered.  However, there is insufficient evidence to support this claim.  
2.  The applicant's request is based on the argument that the award approval authority's action to downgrade her award to an MSM was improper and illegal; however, it appears it was within the discretionary authority of the award approval authority to award the applicant the MSM in lieu of the BSM based on the current regulatory policy governing these awards.  Current Army awards policy allows for award of the MSM to personnel in combat theaters for non-combat related achievement or service.  

3.  The evidence shows the original BSM recommendation was primarily for the applicant's performance of non-combat related duties as the Command Judge Advocate and that the award approval authority, acting within his discretionary authority, approved award of the MSM.  

4.  Although the DA Form 638 was improperly completed (not properly checking the disapproval block in item 26d and not adding a comment in item 26i as required by the governing policy message), these were nonfatal administrative errors.  The DA Form 638 contained no achievements relating to combat service that supported award of the BSM, and the narrative summary submitted to justify the award was related to non-combat meritorious service.  As a result, it appears the MSM was the appropriate award to recognize the applicant's meritorious service in Afghanistan as indicated in the recommendation and comments of the Intermediate Authority.  

5.  In view of the foregoing, it would not be appropriate for this Board to substitute its judgment for the award approval authority who was acting within his regulatory discretionary authority in determining the MSM was the appropriate award to recognize the applicant's meritorious service in Afghanistan.  

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)                                         AR20130004298



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ABCMR Record of Proceedings (cont)                                         AR20130004298



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