MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            3 March 1999
	DOCKET NUMBER:   AR1998014374

	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.

	Mr. Loren G. Harrell		Director	
	Mr. Lee Cates 		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Edward Williamson		Member	
	Mr. Gary C. Miller		Member	

	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 his recommendation for award of the Legion of Merit, based on his retirement, be reconsidered by a neutral board, not influenced by the Office, Chief of Army Reserve. 

APPLICANT STATES:  That there was an unwritten policy established by the Chief, Army Reserve, that only those soldiers in the grades of colonel and above or command sergeants major would be considered for the Legion of Merit upon retirement.  He contends this policy was in direct violation of Army Regulation 600-8-22 (Military Awards).  Additionally, he suspects that “if the circumstances are investigated there will be the usual denials out of the Office, Chief, Army Reserve however I challenge the system to put MG ------ under oath and question him with regard to his unwritten policy”.

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

On 29 March 1982, the applicant began his last period of active duty after having served 7 years, 4 months and 8 days prior active service.

There is no evidence in the applicant’s personnel records which shows he was entitled to or awarded the Legion of Merit.

On 28 July 1994, the applicant was recommended for award of the Legion of Merit as a retirement award for the period 29 March 1992 to 1 December 1994.

Permanent Order 43-04, Chief, Army Reserve, dated 29 November 1994, awarded the applicant the Meritorious Service Medal for the period 1 January 1990 to 1 December 1994.  Although the minutes of the awards board are not a matter of record, it is apparent that the recommendation for award of the Legion of Merit was downgraded to the present award.

On 30 November 1994, the applicant was honorably separated and the following day assigned to the retired reserve.

There is nothing in the available records which indicates an “unwritten policy” by the Chief of the Army Reserve regarding award f the Legion of Merit. 

Army Regulation 600-8-22 (Military Awards) states, in pertinent part, that the Legion of Merit 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 an 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.  There are regulatory provisions for lost recommendations, but not for late recommendations, reconsideration, or for the upgrading to a more prestigious award.

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.  There is no evidence showing the applicant was entitled to the award of the Legion of Merit.

2.  The applicant appears to have performed the duties normal to his grade, branch, specialty, assignment and experience in an exceptional manner, which is not an adequate basis for this award. 

3.  In 1994, an Army Reserve awards board concluded that the applicant’s recommendation did not meet the requirements for award of the Legion of Merit and the approval authority concurred in that decision.

4.  There is no evidence in the available records of any “unwritten” policies by the Chief, Army Reserve.

5.  This Board does not have the authority to initiate or conduct investigations, as alluded to by the applicant.

6.  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.

7.  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

RVO____  EW_____  GCM____  DENY APPLICATION

						Loren G. Harrell
						       Director

INDEX

CASE ID	AR1998014374	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990303	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19941201	
DISCHARGE AUTHORITY	AR 635-100	
DISCHARGE REASON	Retirement	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.107	LOM	
2.		
3.		
4.		
5.		
6.