IN THE CASE OF:	  

		BOARD DATE:	  24 March 2015

		DOCKET NUMBER:  AR20140010446 


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 military records by showing he was awarded the Legion of Merit (LOM) for achievement.

2.  The applicant states his argument in an 8-page document summarized below:

	a.  In 2012, a DA Form 638 (Recommendation for Award) was submitted to U.S. Army Human Resources Command (HRC) by his former chain of command.  The recommendation recommended an LOM for achievement during his terminal assignment just prior to retirement from active duty.  It was in compliance with Army Regulation 600-8-22.  The recommendation was completely different from the one sent years earlier that recommended him for award of the LOM in conjunction with his retirement.  It was also different from the recommendation previously sent requesting an upgrade of his Meritorious Service Medal (MSM).  Personnel at the Awards Branch, HRC advised him about what and how to submit the recommendation.  Based on this guidance, he submitted the recommendation to his U.S. Senator under the provisions of Title 10, U.S. Code, paragraph [section] 1130.  His Senator subsequently received a letter dated 19 April 2013 from the Chief, Congressional and Special Actions, Army Review Boards Agency (ARBA).  After receiving this letter, the personnel at HRC ceased all communication and refused to answer any of his inquiries.

	b.  The applicant was shocked that ARBA would send such a letter to a U.S. Senator.  The letter stated that he was denied the LOM during two separate deliberations because the Army had lost his records.  However, the letter did not mention that the two deliberations were about two completely different issues.  The letter failed to say that the Army's failure to properly maintain records was the reason for the denials of his request due to insufficient evidence.  This spun the Army's answer to the Senator in a negative and derogatory way.  The applicant points out that paragraph 8d of DA Memo 600-8-22 states recommendations for the LOM for retiring Soldiers do not require a board.  Therefore, he concludes that denial of a board action based on insufficient records does not seem to comport with the Army's regulations and policies.  He further points out that paragraph 7a of this DA Memo states the Headquarters, DA Awards Board may not be the approving authority for an LOM for retirement.  He also points out that paragraph 17 of Army Board for Correction of Military Records (ABCMR) Docket Number AR20060002499, dated 28 September 2006, that the Board could not complete a fair review of the applicant's case without supporting documentation.  He concludes that the HRC awards analyst used insufficient records as an excuse for not sending the recommendation to an awards board that was not even required.

	c.  The ARBA letter says that the LOM is awarded to individuals who have distinguished themselves by exceptionally meritorious conduct in the performance of their duties.  Normally, leaders recommend and award the LOM to Soldiers who have accepted the challenges of command at battalion or higher level.  The applicant contends that this statement is misleading and disingenuous because the awards regulation does not contain any such requirement.

	d.  The ARBA letter states that the applicant's MSM was not upgraded because his performance of assigned staff duties was insufficient.  He argues that this implies that his performance of duty was substandard for award of the LOM.  However, he contends that an evaluation report was submitted with the DA Form 638 showing his chain of command had given him the highest rating possible.  He points out that an entire chain of command of field grade officers and a general officer who knew of his performance had recommended the LOM and yet the author of the ARBA letter concluded his performance had lacked the standard necessary to justify award of the LOM to a retiring lieutenant colonel.

	e.  The applicant further states that the recommendation for the LOM based on achievement was not processed by HRC in accordance with the Secretary of the Army Board Charter.  The Army Decorations Board (ADB) is to consider recommendations for awards of the Silver Star and below for Soldiers in the rank of colonel and below.  There is no evidence showing that the ADB considered the subject recommendation or made any rulings.

	f.  The applicant contends that the ARBA purposely, knowingly, and deliberately interfered with the LOM recommendation submitted to HRC to recognize his achievements during his terminal assignment on active duty.
3.  The applicant provides copies of:

* DA Memo 600-8-22 (Award of the LOM and Lesser Awards for Service, Achievement, or Retirement During Peacetime) dated 9 July 2001 (pages 1-5)
* Awards for Senior Leaders - February 2003 (pages 1-3)
* Army Regulation 600-8-22 (Military Awards) (page 5)
* Memorandum, Secretary of the Army, Composition and Operations of Army Decorations and Unit Awards Boards, dated 25 May 2010 (6 pages)
* DA Form 638 dated 2 December 2010 with enclosures (8 pages)
* Letter from the ARBA to the applicant's U.S. Senator, dated 19 April 2013
* Letter from the Chief, ADB, HRC to the applicant, dated 13 September 2013

CONSIDERATION OF EVIDENCE:

1.  On 6 August 1985, the applicant was retired in the rank of lieutenant colonel, pay grade O-5, U.S. Army Reserve (USAR), due to medical disability.

2.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant served on active duty from 29 August 1983 to 5 August 1985.  His awards are listed as:

* Small Arms Expert Marksman Ribbon
* National Defense Service Medal
* Vietnam Service Medal
* Combat Infantryman Badge
* Air Medal with Oak Leaf Cluster
* Republic of Vietnam Campaign Medal
* Republic of Vietnam Gallantry Cross with Silver Star
* Parachute Badge
* Army Commendation Medal with Oak Leaf Cluster and "V" Device
* Bronze Star Medal with Oak Leaf Cluster and "V" Device
* Armed Forces Reserve Medal
* Good Conduct Medal
* Army Reserve Components Achievement Medal
* Republic of Vietnam Armed Forces Honor Medal First Class
* Pathfinder Badge
* Army Service Ribbon
* Army Achievement Medal
* Republic of Vietnam Staff Service Medal First Class

3.  In a letter to the USAR Personnel Center, dated 16 January 1989, the USAR Army Medical Department Personnel Counselor stated that the applicant had not received the MSM for his devoted service when he was medically retired in 1985.

4.  Permanent Orders Number 215-22, Office of the Chief, Army Reserve, dated 17 May 1989, announced the applicant's award of the MSM for outstanding meritorious service during the period 6 August 1975 to 5 August 1985.

5.  DA Form 4980-12 (Certificate for the Meritorious Service Medal), dated 
17 May 1989, states, in effect, the applicant received the MSM for outstanding meritorious service over a long and distinguished military career as a citizen Soldier of the USAR.  His service was characterized by selfless dedication and great personal commitment from 6 August 1975 to 5 August 1985.  His dedicated service was marked with significant contributions and greatly improved the effectiveness of the U.S. Army.

6.  The applicant provides a copy of a DA Form 638 (front page only) with enclosures, initiated on 2 December 2010 recommending him for award of the LOM for achievement during the period 5 August 1975 to 5 August 1985.  It was favorably endorsed by his former chain of command.  The narrative of achievements states he:

* Served as an operations officer from August 1983 through August 1985
* Had a broad experiential base, advanced education and multiple qualifications that were of invaluable service to the command
* Worked tirelessly with unit members to help improve their professional skills, performance of duty, and to improve the awards and personnel records systems
* Initiated regular staff meetings
* Identified the presence of asbestos in the constructs of the physical plant and arranged for and supervised its removal
* Quickly applied his knowledge to solving individual deficiencies and correcting policies and procedures organic to the unit
* Completed the General Staff Officer Course, Branch Officer Advanced Course and the Command and General Staff college in less than 2 years in spite of painful combat-related disabilities



7.  Army Regulation 600-8-22 (Military Awards):

	a.  Only one decoration will be awarded to an individual for the same act, achievement, or period of meritorious service.

	b.  Meritorious achievement is defined as an act which is well above the expected performance of duty.  The act should be an exceptional accomplishment with a definite beginning and ending date.  The length of time is not primary consideration; however, speed of accomplishment of an important task can be a factor in determining the value of an act.

	c.  Meritorious service is distinguished by a succession of outstanding acts of achievement over a sustained period of time.  Individual performance must exceed that expected by virtue of grade and experience, based on accomplishments during an entire tour of duty.

	d.  The LOM 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.  

8.  Title 10 of the U.S. Code, section 1130 (10 USC 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.

9.  The request, with a DA Form 638, must be submitted through a Member of Congress to:  Commander, HRC, ATTN:  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 contends that his military records should be corrected by showing he was awarded the LOM for achievement.

2.  The applicant states that a DA Form 638 was submitted to HRC by his U.S. Senator in 2012 for award of the LOM for achievement based on advice from the Awards Branch at HRC.  He did not provide the Board a copy of this recommendation for review.  Neither did he provide any official documentation showing what action was taken on this recommendation.

3.  The available evidence shows that about 4 years after his retirement, he was awarded the MSM for outstanding meritorious service from 6 August 1975 to 
5 August 1985.  Unfortunately, a record of his specific acts and contributions are not available for review.

4.  The applicant provides a partial copy of a DA Form 638 with enclosures, initiated on 2 December 2010 recommending him for award of the LOM for achievement during the period 5 August 1975 to 5 August 1985.  It was favorably endorsed by his former chain of command.  Unfortunately, this document fails to clearly specify what act he may have performed in an exceptional manner that exceeded a performance of duties expected based on his grade, branch, specialty, or assignment and experience at the time.  HRC advised him at the time what specific acts were needed.

5.  The applicant provided insufficient evidence to show he was awarded the LOM; however, this does not prevent him from requesting the LOM through 10 USC 1130 provides.

6.  In view of the above, there is insufficient documentary evidence to support the applicant's request.









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)                                         AR20140010446





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ABCMR Record of Proceedings (cont)                                         AR20140010446



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