IN THE CASE OF: BOARD DATE: 12 September 2013 DOCKET NUMBER: AR20130000559 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 his award of the Army Commendation Medal be upgraded to an Army Commendation Medal with "V" Device. 2. The applicant states: a. He believes he is the victim of an injustice. He can show beyond the shadow of a doubt the substandard processing of the award he was recommended for and can prove that it was processed sloppily, carelessly, and not according to regulations. This has caused him not to be recognized properly for his service and sacrifice to the nation. b. His grievance concerns the Army Commendation Medal he received for combat action during Operation Iraqi Freedom (OIF). The recommendation for the medal included the combat distinguishing “V” Device. When he received the Army Commendation Medal 1 year and 4 months later, making a request for reconsideration through standard military channels impossible, the approved award did not include the “V” Device. c. In addition to being downgraded with no explanation as to why, which was inappropriate according to Army Regulation 600-8-22 (Military Awards) chapter 3, section III, the approved citation was also watered down to one sentence, also against official procedures and guidelines in Army Regulation 600-8-22, chapter 3, section IV, paragraph (d). d. He understands that these issues are not in and of themselves enough to call into question the processing of the award. However, the sum of the issues, together with the indisputable fact the approved award was not properly reviewed, as evidenced by the permanent orders (PO) being signed and issued 18 days prior to the approval authority’s review and signature, is what is compelling him to request a formal review through the Army Board for Correction of Military Records (ABCMR). e. The approval authority’s review and signature on the DA Form 638 (Recommendation for Award) was 29 December 2004. The PO certificate was signed by another colonel (COL) within the Task Force (TF) but not in his chain of command on 11 December 2004, 18 days prior. This chronology was a major procedural error as shown in Army Regulation 600-22-8. This indicated to him that the award was processed in a substandard manner and not processed with the level of professionalism expected from Army commanders when processing awards of any type, and especially when determining the weight of a valor award. Army Regulations and the rules contained in them are not just suggestions or proposals and cannot be overlooked. The fact that steps in place were obviously circumvented was a clear indication that the disregard of those rules led to the unsatisfactory citation he received. f. He began this process over 3 years ago by placing an inquiry through his former Representative in Congress. He received a response from the U.S. Army Human Resources Command (HRC) on how to submit an appeal. For them to consider an appeal, he had to submit new evidence not initially submitted. As the nature of his claim was regarding the processing of the award, his efforts were at a standstill. HRC operates under the assumption the award was properly reviewed and he must submit new evidence from the night of the action in order for them to proceed. It is his unwavering belief that an error or injustice occurred during the processing of his award recommendation; therefore, his Army Commendation Medal should be rescinded and he should be issued an Army Commendation Medal with “V” Device with a new citation that includes an accurate depiction of his actions. 3. The applicant provides: * his DD Form 214 (Certificate of Release or Discharge from Active Duty) * two DD Forms 215 (Correction to DD Form 214) * an award certificate, dated 11 December 2004 * a DA Form 638, dated 29 December 2004 * a DA Form 3349 (Physical Profile), dated 1 February 2005 * a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 9 February 2005 * four orders, dated between 29 September 2003 and 2 June 2004 * three memoranda, dated 26 January 2005, 14 April 2005, and 3 June 2005 * eight letters, dated between 28 December 2009 and 11 July 2013 * four statements of support * sixteen pages from Army Regulation 600-8-22 CONSIDERATION OF EVIDENCE: 1. The applicant's records show enlisted in the New York Army National Guard (NYARNG) on 24 April 1999 and he held military occupational specialty 11B (Infantryman). He was promoted to the rank/grade of sergeant (SGT)/E-5 on 30 September 2003. He entered active duty on 1 October 2003 as a member of his NYARNG unit in support of OIF. 2. He served in Kuwait/Iraq from 26 February to 31 December 2004 while assigned to TF, 2nd Battalion, 108th Infantry, 2nd Brigade Combat Team (BCT), 1st Infantry Division. 3. On 22 September 2004, the applicant's company commander (CO) submitted a DA Form 638 to the battalion commander recommending the applicant for award of the Army Commendation Medal with “V” Device for his actions on 18 September 2004. In Part II (Justification and Citation Data) of the DA Form 638 the CO listed the following achievements: a. "Recognizing the gravity of the situation (the applicant), while under fire, maneuvered across the canal road to rescue the patrol leader who had fallen into a canal where the water was approximately seven feet deep. Although exposed to enemy fire (the applicant) remained with the patrol leader maintaining communications with higher [command] throughout the ordeal." b. "Upon rejoining the ambush team (the applicant) called in successive illumination missions enabling the platoon to sweep the vineyards and mudflats north of the ambush site." c. "Acting as the ambush team RTO [radio telephone operator] engaged the enemy and coordinated for the QRF [Quick Reaction Force] to respond. Acting on his own initiative, he vectored in the gun trucks to support the follow-on sweep." d. "[The applicant’s] attention to detail and stringent enforcement of PCIs [pre-combat inspections] insured [sic] availability of all equipment. He personally assumed control of zeroing all PAQ-4's and PAQ-2 lasers prior to the mission which proved to be vital to mission success." 4. In the proposed citation the CO stated: For valor and extraordinary achievement during ground combat operations against enemy forces in Salah Ad Din Province [Iraq] on 18 September 2004. Recognizing the gravity of the situation [the applicant], while under fire maneuvered across the canal road to rescue the patrol leader who had fallen into a canal. Although exposed to enemy fire [the applicant] remained with the patrol leader maintaining communications with higher [command] throughout the ordeal. Upon rejoining the ambush team [the applicant] called in successive illumination missions enabling the platoon to sweep the vineyards and mudflats north of the ambush site. Acting as the team RTO engaged the enemy and coordinated for the QRF to respond. Acting on his own initiative, he vectored in the gun trucks to support the follow on sweep. [The applicant] upholds the finest traditions of military service and reflects great credit upon himself, Dagger Brigade Combat Team, and the United States Army. 5. On 1 October 2004, the intermediate authority and battalion commander. Lieutenant Colonel (LTC) MRW, recommended approval of the award. 6. This form also shows that on 29 December 2004, the approving authority and Commander, 2nd BCT, 1st Infantry Division, COL RAD, signed the form and downgraded the award to an Army Commendation Medal. 7. Part V (Orders Data) of the DA Form 638, shows the orders approving authority and brigade adjutant entered the orders number as PO Number 346-06 and the approved award as an Army Commendation Medal. However, he did not sign or date the form. 8. The applicant provides and his records contain the Army Commendation Medal Certificate. This certificate shows it was signed by the Commander, Headquarters (HQ), 2nd Brigade, 1st Infantry Division, COL JBB, on 11 December 2004 and was authorized by PO 346-06, dated 11 December 2004, for actions on 18 September 2004. The citation reads as follows: For meritorious achievement during ground combat operations against enemy forces in the Salah Ad Din Province, Iraq. While under enemy fire, [Applicant] maneuvered across a canal road to rescue the patrol leader who had fallen into the canal. His dedication to duty reflects great credit upon himself, the 2nd Dagger Brigade Combat Team, and the United States Army. 9. He was honorably released from active duty on 27 April 2005 by reason of completion of required active service. He completed 1 year, 6 months, and 27 days of creditable active service during this period of service. 10. On 23 April 2006, he was honorably discharged from the NYARNG. 11. In a letter dated 28 December 2009, the Chief, Military Awards Branch, HRC, responded to the applicant's Representative in Congress concerning his (the applicant's) desire to have his Army Commendation Medal upgraded to an Army Commendation Medal with "V" Device. The Chief stated: a. Awards are not automatic, nor can preconditions for an award be established. However, any individual having personal knowledge of, and the belief that a Soldier's actions warrant the award of a decoration, may submit a formal recommendations into military channels for consideration…The final decision to approve an award and which award is appropriate are both subjective decisions made by the commander having award approval authority. b. The Secretary of the Army has delegated approval authority for individual awards and decorations to Army field commanders in the combat theater of Iraq. Any recommendation for a decoration to recognize (the applicant) for his service and accomplishments during OIF would have been staffed through his military chain of command to the proper authority for determination as to the merit of the proposed award. In this regard, we noted (the applicant) was recommended for award of the Army Commendation Medal with "V Device by CPT VGH and the recommended award was ultimately downgraded by the Brigade Commander, COL RAD, to an Army Commendation Medal. c. A request for reconsideration for possible upgrade of a previously downgraded award can be submitted for reconsideration only if new, substantive and material information is furnished (emphasis added)….We also require new endorsements from the original chain of command. In addition to the documentation forwarded in support of your request, the Army Decorations Board still requires a statement of additional justification (emphasis added). 12. In a letter to the applicant, dated 28 June 2012, the Assistant Chief, Military Awards Branch, HRC, stated, "as stated in our previous correspondence of 20 April 2012, in order to forward your request for reconsideration to the Army Decorations Board we require that you submit new, substantive and material information, including a written statement of justification. Should you feel this response is unfair or unjust, you have the right to appeal to the ABCMR." 13. The applicant provides the following statements of support from: a. Congresswoman NH, undated, wherein she stated, in part, she noted the award was not presented to the applicant until 16 months (after the certificate date), making it impossible for him to request reconsideration through Army channels within the first year of issue. The approved citation was extremely watered down and it is her unwavering belief that intentional exposure to enemy fire in order to rescue the fallen patrol leader cannot be ignored. Based on the supporting documents she had seen, she believed an Army Commendation Medal with "V" Device is the minimum award for the applicant's actions. The award recommendation was processed in a substandard manner. His actions were not an achievement, they were bold-faced valor. b. Mr. JJL, dated 29 April 2012, wherein he stated, in part, he was a Vietnam Veteran and a member of many veterans' organizations. It was evident the required steps for preparing and processing awards in the applicant's case were incorrect and ignored Army protocol. He was requesting the applicant be awarded the Bronze Star Medal with "V" Device or at least an upgrade to the Army Commendation Medal with V" Device. c. Mr. PM, dated 1 October 2012, wherein he stated, in part, he was the New York State Commander of the Combat Infantryman's Association and an official/member of many other veterans organizations. It was evident the required steps for preparing and processing awards were not taken appropriately, in order, or at all in the applicant's case and he was requesting the award recommendation be reviewed for approval. d. Staff Sergeant (Retired) JCH, dated 19 July 2013, wherein he stated, in part, he was with the applicant on the night of 18 September 2004. He believed an error or injustice took place as the approved award reflected an incomplete recognition of the applicant. After the platoon leader fell into the canal, the after action report does not emphasize the important role the applicant played during the engagement. The proposed citation stated he was still exposed to enemy fire. Had the applicant not stayed and marked the platoon leader's position with his own body in the open with no cover or concealment while vectoring the gun trucks in, the platoon leader surely would have drowned. He was exposed to enemy fire, yet he stood his ground and thereby rescued the fallen platoon leader. It was because of the applicant's heroics on the battlefield that he believed the applicant deserved the "V Device. 14. Army Regulation 600-8-22 states the Army Commendation Medal may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguishes himself or herself by heroism, meritorious achievement, or meritorious service. The bronze "V" Device indicates acts of heroism involving conflict with an armed enemy and authorizes the device in conjunction with awards of the Army Commendation Medal, the Air Medal, and the Bronze Star Medal. 15. Army Regulation 600-8-22, table 3-2 (Steps for preparing and processing awards using the DA Form 638) states, in part: a. The recommender will, for awards of the Meritorious Service Medal, Army Commendation Medal, and the Army Achievement Medal, use bullet statements to list the individual's meritorious achievements or service. This block allows up to four separate achievements to be listed. A maximum of four lines may be completed (emphasis added). b. The recommender will complete the proposed citation. Citation for awards of the Meritorious Service Medal, Army Commendation Medal, and the Army Achievement Medal are limited to six lines and will be restricted to the space allowed on the DA Form 638 (emphasis added). Certificate citations for the Legion of Merit, Bronze Star Medal, Air Medal with "V" Device and Army Commendation Medal with "V" Device are limited to a maximum of nine lines. c. The final award approval authority will complete block 26 (Approving Authority). If the award is approved, downgraded to a lesser award, or upgraded forward the DA Form 638 to orders issuing authority for completion of Part V. d. The administrative clerk will, if award is approved or downgraded, prepare Part V, to include issuing HQ block, PO number, date, and approved award. Prepare award certificate. e. The adjutant or administrative clerk will obtain the approval authority's (commander's) signature on the certificate. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his Army Commendation Medal should be upgraded to an Army Commendation Medal with "V" Device because it was not processed properly. 2. His contention that the processing of his award contains errors is noted; however, these are administrative errors that do not invalidate the award. The evidence of record does not show and the applicant has not provided any evidence that shows the appropriate approving authority did not downgrade the recommendation for an Army Commendation Medal with "V" Device to an Army Commendation Medal. Rather, there is a discrepancy in the date/signature of the approving authority on the DA Form 638 and that of the award certificate. It is reasonable to presume the administrative clerk processing the DA Form 638 neglected to get the form signed and/or dated when the PO were initially published. Although the date/signatures do not match, a COL/O-6 was the appropriate approving authority for award of the Army Commendation Medal with "V" Device during OIF and he was authorized to downgrade the award. 3. The applicant’s record shows he was clearly cited for meritorious achievement during ground combat operations against enemy forces in Iraq and that while under enemy fire he rescued the patrol leader who had fallen into the canal. He is to be commended for this admirable act. However, although his immediate commander recommended him for award of the Army Commendation Medal with "V" Device, a decision was made to award him the Army Commendation Medal. 4. Although he stated he felt the award citation was inappropriately watered down from the proposed citation, the governing regulation states citations for the Army Commendation Medal are limited to six lines and will be restricted to the space allowed on the DA Form 638. The proposed citation was clearly outside these parameters and needed to be adjusted accordingly. Since the approved cited award was not for valor, the 4-line citation on the certificate is within the limits authorized in the governing regulation. 5. The decision of whether to award an individual a decoration and which decoration to award is a judgment call made by the commander having award approval authority. The approving authority at the time of the act, or shortly thereafter, determined his actions warranted award of Army Commendation Medal. The applicant has not provided conclusive evidence that shows his award was improperly downgraded or that warrants an upgrade of this award. Therefore, there is insufficient evidence upon which to grant the requested relief in this case. 6. As previously advised, the applicant still has the option to resubmit his request to HRC with the appropriate new, substantive, and material information, including a written statement of justification endorsement by the chain of command, and referral to a Member of Congress. 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) AR20130000559 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130000559 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1