IN THE CASE OF:	  

		BOARD DATE:	  14 July 2015

		DOCKET NUMBER:  AR20140014835 


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;

   a.  removal of his downgraded Meritorious Service Medal (MSM) from his official military personnel file (OMPF); and
   
   b.  award of the Legion of Merit (LOM).

2.  The applicant states:

   a.  the narrative portion of the DA Form 638 (Recommendation for Award) initially recommending him for the LOM is incorrect;
   
   b.  upon submitting his paperwork for retirement, his detachment commander asked for a copy of all of his officer evaluation reports in order to prepare his retirement award, to which he complied;
   
   c.  after he read the award recommendation he informed his commander of the errors it contained, at which time, his commander told him it was already forwarded to the awards board but he would try to stop it from being forwarded to Central Command (CENTCOM);
   
   d.  personnel from the J1 office provided that the LOM recommendation was already at CENTCOM and that no one would call the G1 to retract the recommendation before it reached the commanding general;
   
   e.  he, nor a representative from the Retirement Services Office at Fort Riley, Kansas added the MSM to his DD Form 214 (Certificate of Release of Discharge from Active Duty);
   
   f.  a corrected DA Form 638 containing the appropriate narrative was submitted with the intent to replace the incorrect award, however it was denied and he did not learn the results thereof until after his 1 December 2013 retirement; and
   
   g.  if possible, he would like his corrected retirement recommendation reconsidered by ABCMR and added to his OMPF.

3.  The applicant provides copies of:

* DA Form 638 (Recommendation for Award) initiated on 18 December 2012 with Narrative Page
* MSM Certificate, dated 12 March 2013
* Memorandum for Record (MFR)
* Corrected Narrative Page
* 6 pages of electronic mail (email) documents dated between 13 September – 2 December 2013
* Third Army, United States Army Central, Memorandum
* Officer Record Brief

CONSIDERATION OF EVIDENCE:

1.  The applicant initially enlisted in the Regular Army on 5 February 1991.  He held military occupational specialties 12B (Combat Engineer) and 74C (Record Telecommunications Center Operator).

2.  On 14 June 1999, he was honorably discharged in the rank of staff sergeant (E-6).  The DD Form 214 issued him at that time shows he completed 8 years, 4 months, and 10 days of creditable active duty service.

3.  On 9 January 2002, the applicant enlisted in the RA in the rank of sergeant (E-5).  His OMPF does not contain a discharge order or any other discharge document evidencing the end of this period of service.  However, it appears he served until he was honorably discharged on 8 May 2002.

4.  On 9 May 2002, the applicant was commissioned a Reserve officer in the rank of second lieutenant.  He swore his oath of office and entered active duty in area of concentration 21A (Engineer Branch) on 9 May 2002.

5.  His OMPF includes an MSM certificate showing it was awarded to the applicant for exceptionally meritorious service to his nation for over 20 years of service culminating as the engineer advisor to the Royal Saudi Land Forces Engineer Corps for the period 1 September 2003 to 31 August 2013.  It also shows this MSM was announced in United States Army Central, Camp Arifjan, Kuwait, Permanent Order Number 071-08, dated 12 March 2013.

6.  On 30 November 2013, the applicant was retired from active duty, having completed 20 years, 4 months, and 28 days of creditable active duty service.  His OMPF contains no references to the LOM.

7.  The applicant provides a DA Form 638 initiated on 18 December 2012, recommending him for award of the LOM.  It shows the final two intermediate authorities recommended the LOM be downgraded to the MSM and the final approval authority approved this downgrade on 11 April 2013.

8.  Permanent Orders 169-01, dated 17 June 2008, awarded the applicant the MSM for exceptionally meritorious service during the period from 19 November 2006 to 19 November 2008 while serving in Kuwait.

9.  The applicant provided an MFR dated 11 July 2013, wherein he requested removal of his MSM (retirement award) from his Interactive Personnel Electronic Records Management System (iPERMS) record due to multiple mistakes contained on the narrative page of the DA Form 638.  He pointed out the following ten quoted statements he believed to be incorrect followed by what he indicated were the ten correct statements:

* "permanent convoy commander of provincial reconstruction team..." – I was the officer in charge of two Personnel Security Detachments that supported Engineer Brigade, 1st Infantry Division, not a provincial reconstruction team.
* "lieutenant W____ deployed with the 173rd Airborne Brigade Combat Team Special Troops Battalion" – I deployed in the rank of captain with the 18th Engineer Brigade as supported by my officer evaluation reports and ORBs.
* "responsible for the explosive hazards and minefield database for CJTF..." – I was responsible for pulling data from the database and informing the JOC of dangerous UXOs in the immediate area of troops on the battlefield.
* "reconstruction of the Jordanian Hospital" – this was the reconstruction of the Jordanian Special Forces camp that provided security to the Jordanian Hospital.
* "…selected as a lieutenant and ahead of his peers" – I was a captain, not a lieutenant.
* "...to command C Company, 83rd Engineer Battalion…" – the correct unit was A Company, Brigade Special Troops Battalion (BSTB), 173rd ABCT.
* "…command was in Headquarters and Headquarters Company (HHC), 1st Infantry Division Special Troops Battalion." – his company command was for HHC, BSTB, 3rd Brigade (Bde), 1st Armor Division.
* "…commanding the rear detachment for the Special Troops Battalion during the Bde's 15-month deployment to Iraq" – I commanded the rear detachment for the BSTB and HHC, 2nd Bde, 1st Infantry Division for a 12-month deployment.
* "for preparing Reserve units for deployment" – This statement is only partially correct and should read prepared Reserve and Guard units for deployment.
* "cases to the Engineer Institute for improvements to their…" – should say Engineer Corps Headquarters.

10.  The applicant provides eight pages of email communication between himself, members of his command, and the Army Human Resources Command (HRC).  These communications show:

* he attempted to have the DA Form 638 in question removed from his OMPF
* he sought reconsideration of his recommendation for the LOM
* his request for reconsideration was denied

11.  The applicant provides Third Army, United States Army Central, Memorandum, dated 24 October 2013.  It shows the former Commanding General (the initial approval authority of the applicant's downgraded LOM to the MSM) disapproved the applicant's request for reconsideration and indicated the scope of his responsibilities were commensurate with award of an MSM for retirement.

12.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the Army Military Human Resource Record (AMHRR), which includes the OMPF.
   a.  Paragraph 3-6 provides the authority for filing or removing documents in the OMPF folders and it states that once properly filed, the document will not be removed from the record unless directed by one of the appropriate authorities or upon the end of the retention period for nonpermanent documents contained in table 4-1 folder structure.
   b.  Paragraph 5-13 states all completed DA Forms 638 (Recommendation for Award) containing a permanent order number and approved certificates will be uploaded to iPERMS.

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

	a.  A request for reconsideration or the appeal of a disapproved or downgraded award recommendation must be placed in official channels within 1 year from the date of the awarding authority’s decision.  One time reconsideration by the award approval authority will be conclusive.  However, pursuant to Title 10, U.S. Code, section 1130 (10 USC 1130), a member of Congress can request a review of a proposal for the award or presentation of a decoration (or the upgrading of a decoration) that is not authorized to be presented or awarded due to time limitations established by law or policy for timely submission of a recommendation.

	b.  Recommendations are submitted for reconsideration or appeal only if new, substantive and material information is furnished and the time limits specified in paragraph 1-14 above do not prevent such action.  Requests for reconsideration or appeal must be forwarded through the same official channels as the original recommendation.  The additional justification for reconsideration or appeal must be in letter format, not to exceed two single-spaced typewritten pages.  A copy of the original recommendation, with all endorsements, and the citation must be attached.  If the original recommendation is not available, a new/reconstructed recommendation should be submitted.

	c.  Other options for reconsideration or appeal include the Army Board for Correction of Military Records (ABCMR) and the Inspector General.  A DD Form 149 (Application for Correction of Military Record) is required for review by the ABCMR.

	d.  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.

	e.  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.

	f.  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.  

14.  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.

15.  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 his military records should be corrected by removing his downgraded MSM award and showing he was awarded the LOM.  There is insufficient evidence to support this claim.

2.  The evidence of record confirms the initial recommendation for award of the applicant's LOM was downgraded to the MSM by the appropriate approval authority.  It also confirms a second submission or reconsideration request for his award of the LOM containing the corrected narrative page was also denied.  In fact, when considering the applicant's request for reconsideration, the approval authority specifically stated that the scope of the applicant's responsibilities was commensurate with award of an MSM for retirement.  Further, the applicant provides the same corrected narrative page submitted with his reconsideration request to this Board.  Unfortunately this document failed to clearly specify what act he may have performed in an exceptional manner that exceeded the performance of duties expected based on his grade, branch, specialty, or assignment and experience at the time.

3.  Even though the applicant provided insufficient evidence to confirm his eligibility for award of the LOM, this does not prevent him from requesting this award through the provisions of 10 USC 1130.

4.  Regarding the applicant's request to remove the downgraded MSM from his OMPF, the purpose of maintaining the OMPF is to protect the interests of both the U.S. Army and the Soldier.  In this regard, the OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods and any corrections to other parts of the OMPF.  Once properly filed in the OMPF, the document will not be removed from the record unless directed by an appropriate authority or upon the end of the retention period.  In this case, the MSM order in question was properly filed in iPERMS in accordance with existing regulatory policies.  

5.  Based on the available evidence, there is no basis for granting the applicant's requested relief.

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)                                         AR20140014835



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ABCMR Record of Proceedings (cont)                                         AR20140014835



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