BOARD DATE: 20 June 2018 DOCKET NUMBER: AR20160014845 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ _____x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 20 June 2018 DOCKET NUMBER: AR20160014845 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 20 June 2018 DOCKET NUMBER: AR20160014845 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 redaction of a sentence from his DA Form 638 (Recommendation for Award) dated 19 September 2004, and then award of the Army Commendation Medal. 2. The applicant states he has exhausted all means available to him and now files another application. He states his battalion commander made a statement on his DA Form 638 that is not true. She stated, "Achievements as stated were not an accurate representation of the Soldier's service during this period." She disapproved his [detachment commander's] recommendation for the Army Commendation Medal. He opines this award should have been approved. He asserts everything stated in the achievement blocks is true and asks the Board to correct this grave injustice. If granted, it will be his first Army Commendation Medal. 3. The reason it is an injustice is the battalion commander clearly favored black Soldiers' awards over white Soldiers' awards. He opines she approved many black Soldiers awards for lessor achievements than what he accomplished. He worked hard during the deployment and was not recognized for his achievements. The battalion commander spent most of her time away from the main camp and was not aware of his duties and responsibilities. This injustice has bothered him for many years. 3. The applicant provides – * DA Form 638 * six witness statements * DD Form 285 (Appointment of Military Postal Clerk, Unit Mail Clerk or Mail Orderly) * Army Driver Improvement Program card 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. As a member of the United States Army Reserve (USAR), the applicant was ordered to active duty on 2 January 2003 in support of Operation Enduring Freedom. He served in Kuwait, an imminent danger zone, from 22 January 2003 to 6 January 2004. He was assigned to the 324th [Personnel] Replacement Battalion. 3. On 8 February 2004 he was released from active duty. At the time he received a DD Form 214 (Certificate of Release or Discharge from Active Duty) showing the highest award he received was the Army Achievement Medal. 4. On 19 September 2004 the applicant's detachment commander prepared his DA Form 638. The period of the award was from 2 January 2003 to 2 January 2004, his deployment period. The award recommender noted four achievements. a. He was the detachment sergeant "responsible for organization and implementation of camp perimeter guard shifts, making sure guard[s] were equipped and posted as needed, and Soldier accountability… He oversaw 40 personnel and two subordinate units." He also served as the unit bus driver and mail clerk. b. He was the fest tent operations noncommissioned officer in charge (NCOIC). His duties included overseeing teams that processed [incoming] Soldiers in the reception area in Kuwait. He was responsible for equipment, briefings, housing, food and water provisions, safety and welfare for all incoming personnel [to the reception battalion]. He processed 1,000 to 1,200 Soldiers daily. c. He also was NCOIC during the redeployment of Soldiers at Camp Champion. [During the period] he housed 800 to 1,000 Soldiers per day. He usually worked 12 hour shifts. d. He was an integral part of the mission in the capacity of visual aids and signage. He designed and painted the Camp Wolf entrance sign for a brigadier general. He also worked with the camp contractor for construction and erection of the sign. When hung, the large sign promoted a sense of pride within the camp. He also built unit signs. 5. The battalion commander disapproved the award recommendation stating, "Achievements as stated were not an accurate representation of this Soldier's service during this period." 6. On 27 March 2009 the applicant submitted his first application to the ABCMR wherein he requested the Army Commendation Medal. On 12 November 2009 by letter the applicant was informed he had to pursue administrative relief through the U.S. Army Human Resources Command, Awards and Decorations Branch under the provisions of Title 10, U.S. Code, section 1130. Additional instructions included informing the applicant his award request should be supported by sworn affidavits, eyewitness statements, certificates and related documents. Corroborating evidence to support his application was best provided by his commanders, leaders and fellow Soldiers who had a personal knowledge of the events and circumstances that led to the award recommendation. His first application was administratively closed without Board review. 7. The applicant submitted a second application through his member of Congress to the ABCMR. On 2 May 2011 the staff sent him a second letter informing him he had failed to exhaust an administrative remedy available to him at the U.S. Army Human Resources Command. He was again advised to submit his award request to the Awards and Decorations Branch at the U.S. Army Human Resources Command. His second ABCMR application was administratively closed without Board review. 8. In the processing of this case a staff member of the ABCMR contacted the U.S. Army Human Resources Command requesting any correspondence concerning the applicant's request for the Army Commendation Medal. The Chief of the Awards and Decorations Branch sent a letter to the applicant's member of Congress stating the applicant's request for the Army Commendation Medal could not be processed because the applicant's documentation did not meet the regulatory requirements set forth in Army Regulation 600-8-22 (Military Awards). 9. On 15 August 2016 the applicant through his member of Congress submitted his third application to the ABCMR. There is no evidence an award determination was made by the Awards and Decorations Branch of the U.S. Army Human Resources Command. 10. As evidence to support his application, he provided six notarized statements, his mail orderly card and bus driver training card. a. On 5 December 2007, Sergeant Billy W. stated he deployed with the applicant in support of Operation Iraqi Freedom from December 2002 to January 2004. The applicant is an outstanding NCO and demonstrated his abilities during the deployment time-frame. He is a vital member of the unit and helped to make the unit's deployment a success. He concluding by stating, "I think he deserves to be awarded for his performance." b. On 20 December 2007, First Sergeant James E.G. stated he deployed with the applicant who served as the detachment sergeant during Operations Enduring Freedom and Iraqi Freedom. His leadership was inspiring. He states, "Like a real NCO [the applicant] led by example on a daily basis. As the NCOIC for the Fest Tent Operations, he provided guidance and assistance to lower enlisted soldier [sic]." He continues by stating, "…there were days when motivation and morale was low, [the applicant] maintained a positive attitude and outlook. His enthusiasm and professionalism were infectious." The First Sergeant concludes his statement stating the applicant deserved recognition for his hard work and achievements. c. On 24 January 2008, Staff Sergeant (SSG) Ronnie L.E. stated he deployed with the applicant who was tasked with numerous duties throughout the time of deployment where he performed and accomplished each task as commanded. He constructed a sign to welcome Soldiers to the camp. He concludes, "[The applicant] deserves the highest recognition for his accomplishments." d. On 28 January 2008, SSG Teresa A.E. stated she served with the applicant during the deployment where he served as a platoon sergeant, NCOIC of the fest tent operations, and responsible for ensuring personnel performed guard duty. He used his civilian experience to erect a sign for Camp Wolf. e. On 5 February 2008, Tara A.G. verified the achievements noted in the award recommendation were an accurate reflection of the duties performed by the applicant. Tara states she was the administrative sergeant for operations. She also states the applicant designed Camp Wolf's logo and signage. f. On 6 February 2008, SSG Patricia W. stated she too can verify the achievements as stated on the award recommendation were an accurate representation of the duties the applicant performed. REFERENCES: 1. Title 10, U.S. Code, section 1130 provides the legal authority for consideration of proposals for decorations not previously submitted in a timely fashion. Upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award of or upgrading of a decoration. Based upon such review, the Secretary shall determine the merits of approving the award. 2. Title 10, U.S. Code, section 1552 states, in pertinent part, the Secretary of a military department may correct any military record of the Secretary’s department when the Secretary considers it necessary to correct an error or remove an injustice. Except when procured by fraud, a correction under this section is final and conclusive on all officers of the United States. 3. Army Regulation 600-8-22 (Military Awards) prescribes Department of the Army (DA) policy, criteria, and administrative instructions concerning individual and unit military awards. The goal of the total Army Awards Program is to foster mission accomplishment by recognizing excellence of both military and civilian members of the force and motivating them to higher levels of performance and service. a. The Commanding General, U.S. Army Human Resources Command shall conduct and supervise all military awards functions prescribed in this regulation. Serve as the Army’s central processing center for military awards, with delegated decision authority for awarding the Purple Heart, Army Good Conduct Medal, Army Commendation Medal, Army Achievement Medal, and combat and specialty badges. b. U.S. Army military decorations are awarded in recognition of heroism, meritorious achievement, or meritorious service. c. 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 or designated official having award approval authority. Recommendations for awards must be based on specific achievements. d. Awards for meritorious achievement or service will not be based upon the grade of the intended recipient. Rather, the award should reflect both the individual' level of responsibility and his or her manner of performance. The degree to which an individual’s achievement or service enhanced the readiness or effectiveness of his or her organization will be the leading factor. e. No individual is automatically entitled to an award upon departure from an assignment [deployment]. f. Commanders having authority to approve an award may delegate disapproval authority (to include downgrade) to their immediate subordinate commanders, provided those subordinate commanders have authority to approve the next lower award. Commanders may disapprove (to include downgrade) the next higher award normally associated with their rank, provided such authority has been delegated to them. [Normally, a battalion commander in the rank of lieutenant colonel has the authority to award the Army Achievement Medal and downgrade or disapprove the Army Commendation Medal.] g. Where appropriate, intermediate endorsing officials or commanders may recommend disapproval or comment on the propriety of lesser or higher awards if they do not favor the requested decoration. Normally, the award approval authority for the Army Commendation Medal is a brigade or regimental commander in the rank of colonel who can delegate award disapproval or downgrade authority to a subordinate battalion commander in the rank of lieutenant colonel. h. 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. As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required. 4. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. This is the applicant's third application to this Board. Two previous applications were administratively closed due to his failure to administratively exhaust administrative remedies at a lower level. By regulation the Chief, Awards and Decorations Branch of the U.S. Army Human Resources Command has the authority to approve the Army Commendation Medal. This is considered seeking relief at a lower level of authority prior to applying to this Board. 2. By memorandum, the applicant was informed by the Chief, Awards and Decorations Branch he had not complied with instructions by failing to provide evidence. His request was administratively closed without action which led him to reapply to this Board. 3. The applicant's evidence consisted of six notarized statements from subordinates and one supervisor attesting to his duties and responsibilities during their deployment in support of Operation Enduring Freedom. Only one statement was from a leader, his first sergeant who would have had knowledge of how he performed his duties and the ability to quantify the applicant's specified achievements. 4. The applicant's battalion commander reviewed the award recommendation and disapproved it. It is administratively presumed the brigade commander delegated award disapproval authority to the battalion commander for the Army Commendation Medal. A commander's decision to downgrade or disapprove an award by nature is a subjective decision. To define her decision, the battalion commander noted on the award recommendation that the applicant's achievements noted on the recommendation were not an accurate representation of his service (performance). The award recommendation states his achievements included designing and erecting signage for a camp, NCOIC duties and detachment sergeant duties for a reception battalion. Duties are not necessarily achievements. 5. The applicant asserts he was discriminated against by his battalion commander stating more Soldiers of one ethnic group were favorably granted awards by her based on their race than other Soldiers. He provides no evidence to support his contentions an injustice occurred in the processing of his award recommendation. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160014845 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160014845 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2