IN THE CASE OF: BOARD DATE: 21 February 2017 DOCKET NUMBER: AR20150015872 BOARD VOTE: ___x_____ ___x___ ____x___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 23 February 2017 DOCKET NUMBER: AR20150015872 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding to his DD Form 214 the Legion of Merit and issuing to him a new Legion of Merit Certificate showing the period for which his retirement award was approved (31 August 2001 to 31 August 2011). _____________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. IN THE CASE OF: BOARD DATE: 23 February 2017 DOCKET NUMBER: AR20150015872 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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show the Legion of Merit. 2. The applicant states his retirement award was upgraded from a Meritorious Service Medal to a Legion of Merit. It was approved after his retirement date. 3. The applicant provides: * DD Form 214 * DA Form 638 (Recommendation for Award) * Permanent Orders (PO) 089-012 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant was appointed as a commissioned officer on 19 May 1991 and entered active duty on 13 July 1991. He served in a variety of assignments and was advanced to lieutenant colonel (LTC). His official records contain two certificates confirming awards of the Meritorious Service Medal: * PO Number 366-2, issued on 31 December 2009, awarding him the Meritorious Service Medal for service from 15 July 2005 to 6 January 2009 * PO Number 157-20, issued on 6 June 2005, awarding him the Meritorious Service Medal for service from 23 July 2003 to 15 July 2005 3. He retired on 31 August 2011 and was placed on the retired list in his retired rank of LTC on 1 September 2011. His DD Form 214 shows he was awarded or authorized the: * Meritorious Service Medal (4th Award) * Army Commendation Medal (3rd Award) * Army Achievement Medal (2nd Award) * National Defense Service Medal (2nd Award) * Global War on Terrorism Service Medal * Korean Defense Service Medal * Army Service Ribbon * Overseas Service Ribbon (3rd Award) * Expert Field Medical Badge 4. He provides a DA Form 638, dated 28 December 2011, recommending him for the Legion of Merit for service from 31 August 2001 to 31 August 2011, as a retirement award. The recommendation was approved by the Commander, Medical Command, Fort Sam Houston, TX, on 28 March 2012. The DA Form 628 shows the award was announced in PO Number 089-012. 5. He provides a certificate showing he was awarded the Legion of Merit for service from 31 July 2002 to 31 July 2012 as announced in PO Number 089-012, dated 29 March 2012. REFERENCE: Army Regulation 600-8-22 (Military Awards) states: a. 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. b. The Meritorious Service Medal is awarded to members of the Armed Forces of the United States or of a friendly foreign nation who distinguish themselves by outstanding meritorious achievement or service. After 16 January 1969 but prior to 11 September 2001, the Meritorious Service Medal was authorized to be awarded only for meritorious service or achievement while serving in a non-combat area. As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required. c. For meritorious service awards, the cited period is limited to the period of service during which the individual served under the recommending command, except in the case of retirement awards. Meritorious service is characterized by distinguished service and performance above that normally expected, over a sustained period. d. To ensure that a deserving act, achievement, or service receives prompt recognition, the appropriate authority may promptly award a suitable lesser military decoration pending final action on a recommendation for a higher award, except for retiring U.S. Army general officers. When a higher award is approved, the approving authority will revoke the interim award using a separate PO in accordance with AR 600-8-105 (Military Orders). The decoration will be returned by the recipient, unless the higher award is approved posthumously. The authority taking final action may award the decoration recommended, award a lesser decoration (or consider the interim award as adequate recognition), or, in the absence of an interim award, disapprove award of any decoration. e. Meritorious service awards will be awarded, upon retirement (to include medical retirements), which may include periods of service longer than that served in the recommending command. An extended period will 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. It is neither necessary nor desirable to consider an extended period of service when the length and character of service of retirees in their terminal assignments would qualify them for an appropriate award. This is not to imply that an extended period of service should be considered for every individual who retires, such periods will be limited to the last 10 years of service. When writing the citation, it is not necessary to indicate the time period again. Only one retirement award may be awarded to any retiring Soldier. Award recommendations submitted for meritorious service based upon retirement will be submitted so that they may be processed and completed prior to the requested presentation date. In determining the presentation date, the recommender must consider the Soldier’s requested retirement date, number of days of any transition leave, and authorized travel and/or transition processing time. DISCUSSION: 1. The applicant's official records contain only two awards of the Meritorious Service Medal, not four, as shown on his DD Form 214, and neither award pertained to his retirement. 2. It is possible he was awarded two additional awards, one of which is the one he claims was upgraded. However, there is no evidence of that in his record. Additionally, if the Legion of Merit was an upgrade of an existing Meritorious Service Medal, there is no evidence that the Meritorious Service Medal was revoked. 3. The DA Form 638 he provides shows the period of service as 31 August 2001 to 31 August 2011. The approving authority approved it. Yet, the resultant certificate and PO list a different period of 31 July 2002 to 31 July 2012, and he had already retired on 31 August 2011. 4. The evidence confirms he was awarded the Legion of Merit. This award is not listed on his DD Form 214. The evidence also supports issuing him a new Legion of Merit Certificate showing the period for which the award was actually approved (31 August 2001 to 31 August 2011). //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015872 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015872 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2