RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  25March 2004
	DOCKET NUMBER:  AR2003091776

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Thomas E. O’Shaughnessy		Member	
	Mr. Lester Echols		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that his records be corrected to show that he was promoted to master sergeant (MSG/E-8) and awarded the Legion of Merit (LOM) as a retirement award.

2.  The applicant states that he should have been promoted to MSG while his medical conditions were reviewed.  He also states that he completed the requirements for the rank of MSG and performed in a job consistent with his rank for 3 years.  His job prior to separation was that of a MSG, Operations Noncommissioned Officer in Charge (NCOIC), which he held for 2 years prior to his removal from duty.  He goes on to state that he was awarded the Meritorious Service Medal as a retirement award and that he should have received the Army's new Volunteer Service Medal (correctly known as the Military Outstanding Volunteer Service Medal), which he never saw.  

3.  He further states that the retirement award for a MSG with 20 plus years would be the LOM which he did not receive and could not change due to his placement on the Temporary Disability Retired List (TDRL).  The applicant elaborates on several other issues pertaining to the Departments of Veterans Affairs that are outside the jurisdiction of this Board which will not be discussed further. 

4.  The applicant provides copies of his: DA Form 638 (Recommendation for Award); DD Form 214 (Certificate of Release or Discharge from Active Duty); and separation orders.

CONSIDERATION OF EVIDENCE: 

1.  The applicant’s military records are unavailable for review.  However, his DD Form 214 shows he enlisted on 26 June 1984, with prior active duty service of 2 years, 11 months, and 21 days.  He continued to serve through a series of continuous reenlistments.  He was promoted to sergeant first class (SFC/E-7) effective 1 May 1996.  

2.  Information provided by the Army Human Resources Command (AHRC),  Enlisted Promotions, revealed that the applicant was considered, but not selected by the calendar year (CY) 1998, 1999, 2000, and 2001 MSG Selection Boards due to miscellaneous reasons.

3.  He was placed on the TDRL effective 5 July 2001, in the rank of SFC.

4.  The applicant provided a copy of his DA Form 638 that shows that he was recommended for and awarded the Meritorious Service Medal, as a retirement award, by Headquarters, United States Army Records and Evaluation Center (USAREC), Fort Knox, Kentucky Permanent Order Number 126-12, dated 5 May 2000. 

5.  Item 13 (Awards and Decorations) shows he was awarded the Meritorious Service Medal.  There is no evidence in the available personnel records which shows that the applicant was recommended for or awarded the LOM or the Military Outstanding Volunteer Service Medal. 

6.  Army Regulation 600-8-22 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.
As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

7.  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.

8.  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 authority.

9.  Army Regulation 600-8-22 provided that the Military Outstanding Volunteer Service Medal may be awarded to members of the Armed Forces of the United States and their Reserve Components, who subsequent to 31 December 1992, perform outstanding volunteer community service of a sustained, direct and consequential nature.  To qualify for the award a service member's volunteer service must meet the following requirements:  (1) be to the civilian community, to include the military family community; (2) be significant in nature and produce tangible results; (3) reflect favorably on the Military Service and the Department of Defense; and (4) be of a sustained and direct nature. 

10.  Section 1130, Title 10, United States Code provides that the Service concerned will review a proposal for the award of, or upgrading of, a decoration that would not otherwise be authorized to be awarded based upon time limitations previously established by law.  Requests for consideration of awards should be supported by sworn affidavits, eyewitness statements, certificates and related documents.  Corroborating evidence is best provided by commanders, leaders and fellow comrades who had personal knowledge of the circumstances and events relative to the request.  A request for award not previously submitted in a timely fashion will only be considered under this provision if the request has been referred to the Service Secretary from a Member of Congress.  The applicant will be notified by separate correspondence of the procedure for applying for award of the LOM under Section 1130 and, as a result, it will not be discussed further in this Record of Proceedings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was properly considered for promotion to MSG by the CY98, CY99, CY00, and CY01 MSG Selection Boards but was not selected.  There is no evidence of record, and the applicant has provided no compelling evidence, that a material error existed in his promotion file.  Therefore, there is no basis for reconsideration for promotion to MSG.

2.  There is no evidence, and the applicant has provided no evidence to show he was recommended for or awarded the Military Outstanding Volunteer Service Medal.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__ls____  __ts_____  ___le___  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.

		___Luther L. Santiful____
		        CHAIRPERSON

INDEX

CASE ID	AR2003091776	
SUFFIX		
RECON		
DATE BOARDED	20040325	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	20010705	
DISCHARGE AUTHORITY	AR 635-40/TDRL	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	310/46	
2.		
3.		
4.		
5.		
6.