MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            6 January 1999     
	DOCKET NUMBER:   AC98-11932
				   AR1998014535

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.  The following members, a quorum, were present:

	Mr.	Thomas D. Howard, Jr.		Chairperson	
	Mr.	Luther L. Santiful		Member	
	Mr.	Curtis W. Barbee		Member	

	Also present, without vote, were:

	Mr.	Loren G. Harrell		Director	
	Ms.	Deyon D. Battle		Analyst	

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That he be awarded the Legion of Merit (LOM). 

APPLICANT STATES:  That he was recommended for the LOM by his brigade commander and the recommendation was disapproved by the commanding general (CG).  He further states that the CG had no authority to disapprove or downgrade the recommendation of the award, and that the CG only had the authority to recommend disapproval or downgrade of the LOM.  In support of his appeal, he submits a copy of a Recommendation for Award (DA Form 638) which shows that he was recommended for the LOM and the recommendation was disapproved for award of the LOM and downgraded to a Meritorious Service Medal (MSM).

EVIDENCE OF RECORD:  The applicant's military records show:

On 2 October 1967, he enlisted in the USAR for 6 years in the pay grade of E-1. He was honorably discharged on 31 May 1969 to accept an appointment as a Second Lieutenant in the USAR.  He served on active duty, to include service in Vietnam, from 8 October 1969 to 31 July 1971. 

His decorations include the Army Service Ribbon, the Army Lapel Button, the National Defense Service Medal w/ Bronze Service Star, three Army Reserve Component Achievement Medals, the Army Reserve Component Overseas Training Ribbon, the Overseas Service Ribbon, the Army Achievement Medal, the Army Commendation Medal, the Vietnam Service Medal, the Vietnam Campaign Medal, the Vietnam Cross of Gallantry w/Palm, two Meritorious Service Medals, the Vietnam Civil Actions Unit Citation, the Armed Forces Reserve Medal, the Southwest Asia Service Medal w/2 Bronze Service Stars, the Kuwait Liberation Medal, 2 Overseas Service Bars, and the Parachutist Badge.

A review of the records reveals that on 27 June 1997, the applicant was recommended for award of the LOM by his brigade commander for exceptional meritorious service and achievement during the period between 31 July 1969 through 30 June 1997.  The records further reveal that his CG recommended disapproval of the award of the LOM and directed that it be downgraded to the MSM.  The CG is also listed as the approval authority on the Recommendation for Award.

On 30 June 1997, the applicant was transferred to the USAR Control Group (Retired) based on the maximum allowable service. 

Army Regulation 600-8-22 provides, in pertinent part, that commanders of major Army commands and heads of DA Staff agencies in the grade of major general have the authority to approve awards of the LOM to retiring and deceased persons, other than general officers, assigned to their command or agencies.  It further states that the primary requirement for award of a decoration is that a formal recommendation be prepared and introduced into official military channels within 2 years of the act, achievement, or service to be recognized.  The sole exception to the 2-year time limit occurs when there is conclusive evidence that a formal recommendation was submitted but was lost, or through inadvertence was never acted on by proper authority.

That regulation also provides that the decision to award an individual a decoration and the decision as to which award is appropriate are both subject decisions made by the commander having award approval authority.  

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The applicant’s contentions have been noted by the Board.  However, the applicant has failed to show through the evidence submitted or the evidence of record, that the commander in question did not have the authority to disapprove or downgrade the recommendation for his award of the LOM.
 
3.  Inasmuch as the burden of proving that an error or injustice exists rests with the applicant, there is no basis to grant his request.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

____tdh____  __lls___  __cwb______  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-11932/AR1998014535	
SUFFIX		
RECON	 	
DATE BOARDED	1999/01/06	
TYPE OF DISCHARGE	 	
DATE OF DISCHARGE	 	
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  107.00		
2.		
3.		
4.		
5.		
6.