MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            5 May 1999
	DOCKET NUMBER:   AR1998014534

	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. Hubert S. Shaw, Jr. 		Analyst	

  The following members, a quorum, were present:

	Mr. James M. Alward		Chairperson	
	Mr. John Saputo		Member	
	Mr. Roger W. Able		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 retirement award, the Meritorious Service Medal, be upgraded to the Legion of Merit.

APPLICANT STATES:  That the Meritorious Service Medal approved as his retirement award should be upgraded to the Legion of Merit based on the recommendation for upgrade submitted by the Eighth Army Judge Advocate plus his length of service.  The applicant also contends that award approval authority asked for comparable statistics of other master sergeants serving in Korea to decide if the applicant should receive the Legion of Merit.  The applicant also contends that the award approval authority disregarded the regulation which stated that award of the Legion of Merit can be made based on length of service. In support of his application, he submitted a one page letter of explanation, a copy of a 7 July 1997 memorandum requesting the Eighth Army Commander reconsider his decision to downgrade the applicant’s retirement award, a copy of the award recommendation for the Legion of Merit as a retirement award for the applicant, a copy of the applicant’s retirement orders, the applicant’s NCO Evaluation Report covering the period July 96 to July 97, and a copy of the applicant’s DD Form 214 (Certificate of Release or Discharge from Active duty).  All of these documents were provided to the Board.

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

The applicant entered active duty in November 1974 and completed training as a legal specialist.  He completed over 23 years of active Federal service and was separated from active duty on 30 November 1997 and retired.  

The applicant’s DD Form 214 does not show the Legion of Merit as an authorized award.

The applicant submitted a copy of the DA Form 638 (Recommendation for Award), dated 1 April 1997, for the Legion of Merit as a retirement award. This award recommendation included a lengthy narrative justification covering 10 years of the applicant’s service.  The applicant’s immediate supervisor, a lieutenant colonel recommended award of the Legion of Merit.  An intermediate authority, also a lieutenant colonel,  recommended approval of the Legion of Merit and made supporting comment. The Staff Judge Advocate of Eighth Army forwarded the DA Form 638 with a memorandum, dated 9 May 1997, strongly supporting award of the Legion of Merit and citing the applicant’s key accomplishments.

On or about 21 June 1997, the Commanding General of Eighth Army, a lieutenant general, considered the recommendation for award of the Legion of Merit and approved the Meritorious Service Medal instead of the recommended award.  By memorandum, dated 7 July 1997, the Eighth Army Staff Judge Advocate requested that the Eighth Army Commander reconsider approval of a lesser award than that recommended.  This memorandum shows in the upper left hand corner the annotation by the Commanding General “14 July COL (name omitted) What are LOM [Legion of Merit] stats [statistics] for senior NCO [noncommissioned officers]”.  There is no record of further action by the Eighth Army Commander in this matter; however, the applicant received the Meritorious Service Medal as a retirement award based on Headquarters, Eighth United States Army Permanent Order 156-1, dated 5 June 1997.  

In his letter of explanation the applicant contends that denial of the Legion of Merit was an injustice in view of his 23 years of continuous active duty.  He also believes that his decision to retire while in Korea influenced the award decision from the stand point that he served in Korea for only one year; however, he also states that his supervisors compensated for this short tour of duty by preparing a narrative which covered 10 years of the applicant’s service.  The applicant also contends that the awards regulation “clearly states that award of the Legion of Merit may be based on length of service” and the Eighth Army Commander did not act on the request for reconsideration.

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 and clearly exceptional manner.  However, justification may accrue by virtue of exceptionally meritorious service in a succession of important positions. 

Paragraph 1-21 of Army Regulation 600-8-22 (Military Awards) governs recognition upon retirement.  Specifically, this paragraph states that each individual approaching retirement may be considered for an appropriate decoration based on his or her grade, years of service, degree of responsibility, and manner of performance.  For meritorious service awards at retirement, this paragraph also permits inclusion of service longer than that served within the command recommending the award.  The regulation recommends that these periods not exceed 10 years and states that an extended period should only be considered in those cases where the length or nature of the individual’s terminal assignment would not qualify him or her for an appropriate award.

Paragraph 3-1c of Army Regulation 600-8-22 (Military Awards) states that the decision to award an individual a decoration and the decision as to which award is appropriate are both subjective 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.  The Board notes the applicant’s long and faithful service in the Army spanning over 23 years.  

2.  The recommendation for award of the Legion of Merit appears to have been properly prepared and processed through the chain of command to the proper award approval authority for the Legion of Merit.  The Commanding General of Eighth Army, the award approval authority for the Legion of Merit in Eighth Army, approved award of the Meritorious Service Medal instead of the Legion of Merit recommended by applicant’s chain of command.

3.  There is no evidence, and the applicant has provided no evidence, to support his contention that his one year tour in Korea contributed to the decision to downgrade his retirement award.  The Board notes that the recommending official for this award prepared the recommendation covering the 10 years of the applicant’s service as provided for in regulation and that the award approval authority had this information available to him at the time of he considered this award.

4.  The applicant’s assertion that regulation “clearly states that award of the Legion of Merit may be based on length of service” is only partially correct. Paragraph 3-10 (page 19) of Army Regulation 600-8-22 (Military Awards), in effect at the time in question, states the criteria for award of the Legion of Merit, and this cite makes no reference to years of service as a basis for award.  Paragraph 1-21 of the award regulation covers recognition upon retirement and states that such awards will be “based on his or her grade, years of service, degree of responsibility, and manner of performance”.  This cite does not establish “years of service” as a mutually exclusive criterion for award; rather all stated factors are criteria to be considered during the award approval process.

5.  Contrary to the applicant’s contention that the Eighth Army Commander took no action on the Eighth Army Staff Judge Advocate’s request for reconsideration, the Commanding General’s note on the request for reconsideration indicates he did inquire into the matter of senior NCO’s receiving the Legion of Merit.

6.  Although there is no formal record available to the Board of the Eighth Army Commander’s decision on the request for reconsideration, the Board notes that the applicant received the Meritorious Service Medal as a retirement award which was approved by the Eighth Army Commander. 

7.  The Board notes that the decision to award an individual a decoration and the decision as to which award is appropriate are both subjective decisions made by the commander having award approval authority.  In this case, the Board has determined that the Eighth Army Commander had a valid request for award and the proper information in support of that recommendation available to him at the time of his decision on the applicant’s retirement award.  The Board has also determined that the award approval authority considered and rejected the Eighth Army Staff Judge Advocate’s request for reconsideration in view of the award of the Meritorious Service Medal which was presented to the applicant.  

8.  There is no evidence that the award process was flawed or otherwise in error or that an injustice occurred when the award approval authority made the decision to approve the Meritorious Service Medal as the applicant’s retirement award instead of the Legion of Merit recommended by the chain of command.

9.  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.

10.  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

JMA____  JS______  RWA____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1998014534	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990505	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19971130	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	RETIREMENT	
BOARD DECISION	DENY	
REVIEW AUTHORITY	MR HARRELL	
ISSUES         1.	107.00	
2.		
3.		
4.		
5.		
6.