BOARD DATE:	27 February 2014

		DOCKET NUMBER:  AR20130011811 


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 (Certificate of Release or Discharge from Active Duty) to show he was awarded the Legion of Merit (LM).  

2.  The applicant states item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 does not show he was awarded the LM.  He doesn't have a copy of the award order, so he cannot substantiate whether or not the award was approved.  

3.  The applicant provides a copy of a DA Form 638 (Recommendation for Award) and an unsigned DA Form 4980-11 (LM Certificate).

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.  On 13 May 1976, after prior enlisted service in the U.S. Army Reserve, the applicant was commissioned as a Reserve commissioned officer of the Army.  He entered active duty on 30 October 1976.  He served in a variety of assignments of increased responsibility within the medical field, and on 6 April 1993, he was promoted to the rank of lieutenant colonel (LTC).

3.  On 26 February 1996, he was recommended for award of the LM as a retirement award.  

4.  On 8 March and 17 June 1996, intermediate commanders recommended approval of the recommendation for award of the LM.

5.  On 9 August 1996, Lieutenant General (LTG) Lxxxxx, the Commanding General of U.S. Army Medical Command (MEDCOM), and a MEDCOM Officer Awards Board reviewed the award recommendation.  They determined that while the duties described in the award recommendation were performed in a commendable manner, LTC [Applicant's] performance of duty did not fully meet the stringent criteria for the proposed award.  They [LTG Lxxxxx and the MEDCOM Officer Awards Board] considered the Meritorious Service Medal (MSM) to be the appropriate level of recognition.

6.  Permanent Orders 221-9, issued by MEDCOM on 8 August 1996, awarded him the MSM for meritorious service in various positions of great responsibility during the period 1 November 1986 through 30 September 1996.  The             DA Form 4980-12 (MSM Certificate) is dated 3 September 1996 and bears LTG Lxxxxx's signature.

7.  On 30 September 1996, the applicant was honorably retired from the Army at the conclusion of 21 years, 7 months, and 21 days of faithful service to the Nation.  Item 13 of his DD Form 214 shows he was awarded the MSM (3rd Award); however, it does not show he was awarded the LM.

8.  His record is void of any documentation that shows he was awarded the LM.

9.  He provides an incomplete DA Form 638 and an unsigned LM certificate.  

10.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards.
The LM 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.

11.  Title 10, U.S. Code, section 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.

12.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to:  Commander, U.S. Army Human Resources Command (AHRC-PDP-A), 1600 Spearhead Division Avenue, Fort Knox, KY  40122.  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's request for correction of his DD Form 214 to show he was awarded the LM was carefully considered.

2.  The evidence of record shows he was recommended for award of the LM; however, the approval authority and a reviewing MEDCOM Officer Awards Board did not agree with the recommendation.  They considered the MSM to be an appropriate retirement award.  

3.  The evidence of record further shows the Commanding General of U.S. Army MEDCOM approved his award of the MSM as a retirement award.  As the approval authority, it was his prerogative to determine the appropriate level of retirement award based on his or her professional experience, interpretation of the regulation, and analysis of the applicant's career achievements.  Permanent orders were issued and the applicant's DD Form 214 reflects this award.  There is no evidence of error or injustice; therefore, there is no basis to grant the requested relief.
4.  While the available evidence is insufficient for correcting his DD Form 214 to show he was awarded the LM, this in no way affects his right to pursue his claim for the LM 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:

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)                                         AR20120005117



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ABCMR Record of Proceedings (cont)                                         AR20130011811



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