ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 May 2019 DOCKET NUMBER: AR20170017878 APPLICANT REQUESTS: her Meritorious Service Medal (MSM) for meritorious service from 14 September 2013 to 2 August 2014 be upgraded to a Bronze Star Medal (BSM). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Deployment Orders * DA Form 67-10-2 (Officer Evaluation Report) (OER) * Passenger Status * Memorandum * Letter of Support * MSM Certificate * Letter to U.S. Army Human Resources Command (HRC) * DA Form 638 (Recommendation for Award) * BSM Narrative Summary * BSM Citation * Army Regulation 600-8-22 (Military Awards) Extract * Letter to Awards and Decorations Branch * Awards and Decorations Branch Response Letter * Sworn Statements * Department of Defense Instruction (DODI) 1348.33 (DoD Military Decorations and Awards Program) cover page and page 13 FACTS: 1. The applicant states: a. Although the DA Form 638, dated 1 May 2014 reflects a recommendation for a BSM, the Deputy Commander for U.S. Forces Afghanistan improperly downgraded the MSM on 8 May 2014. a. b. On 25 May 2015, her supervisor, Lieutenant Colonel (LTC) X___, requested reconsideration of the downgrade of the BSM. LTC X___ noted that her scope of responsibility far exceeded other Trial Defense Service (TDS) attorneys in the Central Command (CENTCOM) area of responsibility (AOR), and that her exemplary achievements as Senior Defense Counsel of the Bagram, Camp Phoenix and Kandahar Field Offices warranted approval of the BSM. c. The Staff Judge Advocate and legal advisor to Major General (MG) X___ recommended approval of this reconsideration request to award her a BSM, as reflected in memorandum, dated 25 May 2014. MG JC noted on memorandum, "recommend approval." However, MG X___'s handwritten letter affirmed that she made significant contributions to the mission and their Soldiers, Sailors, Airmen and Marines in a combat environment. The general officer decided the MSM was the most appropriate medal and further noted that the MSM was not something "less worthy" than the BSM yet he downgraded her award to the MSM as reflected by the DA Form 638. d. The decision to downgrade her BSM is both an error and an injustice. First, this action violated DODI 1348.33. Table 1 of DODI 1348.33 states the MSM is an equivalent award to the BSM. The distinguishing factor between the BSM and MSM is that the BSM reflects meritorious service or achievement under combat conditions. As DODI 1348.33 details, "If the achievement or service was performed under combat conditions, the BSM is the appropriate award." e. MG JC acknowledged that she engaged in meritorious service under combat conditions. Both "combat zone" tax exemptions in effect at the time and sworn statements regarding conditions in Bagram leave no question that she served in a combat zone and under combat condition. f. Second, the action to downgrade her BSM to a MSM is an injustice. As Senior Defense Counsel, she was instrumental in the drafting of numerous award recommendations for the TDS attorneys and paralegals that she supervised. The scope of responsibility for the Soldiers she supervised was similar to but less than her responsibility. This is demonstrated in the award narratives for other TDS attorneys, Captain (CPT) X___ and CPT X___. Only her award was downgraded, even though her workload, travel, and consequential risk, and scope of responsibility was greater than the other two TDS attorneys. g. It is not equitable that she was treated differently than other TDS Soldiers and she should be awarded the BSM . 2. After prior enlisted service, the applicant was appointed as a Reserve commissioned officer on 11 September 2002. 1. 3. On 11 November 2005, she was appointed as a commissioned officer in the Regular Army. 4. Orders published on 31 July 2013 deployed her in a temporary change of station status in support of Operation Enduring Freedom in Afghanistan on or about 6 September 2013. 5. She provided documents of two other Soldiers who were awarded the BSM for their meritorious service as Trial Defense Counsels while deployed to TDS Bagram Airfield Field Office in Afghanistan. 6. On 1 May 2014, the applicant's commander in Afghanistan, LTC X___, submitted a DA Form 638, recommending her for award of the BSM for meritorious service from 14 September 2013 to 2 August 2014. The Deputy Commander, MG X___ downgraded the BSM to MSM (2OLC). The narrative to accompany the award of the BSM stated: "Major [applicant], United States Army, distinguished herself by exceptionally meritorious service to the United States as a Senior Defense Counsel (SDC) for the U.S. Army TDS Bagram Airfield and Camp Phoenix Field Offices, United States Forces Afghanistan from 14 September 2013 to 2 August 2014 during Operation ENDURING FREEDOM. MAJ [applicant] performed masterfully as the SDC in Afghanistan and for 21 days as acting Regional Defense Counsel, ensuring the robust provision of full spectrum criminal defense services to Soldiers in the largest geographic region in the U.S. Army TDS, the CENTCOM AOR, with a peak population of 68,000 forward- deployed Soldiers. She expertly led, managed, mentored, and trained six geographically separated personnel to provide defense services to Soldiers located throughout Afghanistan, and Soldiers stationed in 20 separate countries in the CENTCOM AOR." "Because of her leadership, these attorneys completed an astounding 1,247 legal actions for more than 650 Soldiers, by far the most in the IDS-CENTCOM AOR, and more than 19 preferred courts-martial. She expertly managed her counsels' case loads, taking a large number of cases herself as reflected by her completion of more than 485 legal actions for 100's of clients and 6 court's martial, while simultaneously fulfilling managerial and administrative duties required of an SDC in a complex and constantly changing region. A fearless and selfless leader, MAJ [applicant] never hesitated to travel via rotary and fixed wing to FOB Shank, FOB Airborne, KAIA, Camp Phoenix, Kandahar and numerous other remote FOBs throughout Afghanistan to support Soldiers and the TDS mission in administrative and judicial hearings, interviews, investigations, and to support her defense team." "Amassing more than 400-plus hours of travel and 28 separate movements, she chose to put her safety at risk rather than require more than 65 clients and witnesses to put themselves in harm's way by coming to her location. These actions allowed Units to save precious time and resources and focus on their respective operations. For her clients, she secured an untold number of favorable results to include career-saving, outright dismissals of at least 17 Article 15s, and the alternate disposition of 50 percent of her cases." "Despite incredibly demanding responsibilities and commitments, MAJ [applicant] eagerly took on extra duties and developed initiatives and systems to improve defense services and the quality of life of her personnel. Her extraordinary leadership was reflected in her robust training program where she led or organized more than 40 training session covering a wide range of subjects to foster military justice expertise, combat readiness, and personal resiliency." "MAJ [applicant]'s leadership, mentorship, professionalism and incredible skills as an advocate greatly enhanced the integrity of the military justice system in a challenging deployed environment and protected the rights of individual Soldiers. Her achievements as an SDC were vital in ensuring the busiest field offices in the region always exceeded the standard in client representation. An officer with unquestionable integrity, she further maintained the highest ethical standards in the pursuit of justice and ensured all others did the same. MAJ [applicant]'s actions are in keeping with the finest traditions of military service and reflect distinct credit upon herself, the United States Forces Afghanistan, and the United States Army." 7. On 3 May 2014, she was awarded the MSM for meritorious service from 14 September 2013 to 2 August 2014. Her MSM certificate cited: "For exceptionally meritorious service as Senior Defense Counsel for the U.S. Army TDS while deployed in Support of Operation Enduring Freedom. Her outstanding performance, expertise, and dedication to duty greatly contributed to the success of the unit's mission. Major [applicant]'s distinctive accomplishments reflect great credit upon herself, United States Forces-Afghanistan, and the United States Army." 8. She provided a memorandum, dated 25 May 2014 from LTC X___, Regional Defense Counsel (sections of the memorandum are illegible). The official requested the applicant's downgrade of BSM be reconsidered. The official stated: a. The applicant's performance as a deployed Senior Defense Counsel (SDC) was the sole reason the TDS-CENTCOM AOR excelled in providing timely and professional representation to thousands of deployed Soldiers and permitted dozens of commanders to address in a timely and efficient manner acts of indiscipline to maintain good order and discipline in their respective commands. b. The applicant far outperformed the other two high-achieving deployed SDCs in all facets of leadership, mentorship, compassion, and advocacy for those experiencing extreme emotional distress. a. c. The applicant's scope of responsibility was far greater than the other two SDC's in the TDS-CENTCOM OR and she was easily his #1 officer given the unique challenges in her dynamic and area of responsibility. d. The applicant managed three geographically separate field offices in Afghanistan with the most personnel to supervise and the largest number of Soldiers to provide services. He relied heavily on the applicant to ensure that defense services were always available to Soldiers despite constant absences of TDS personnel and paralegals because of their required travel within theater to represent Soldiers and investigate cases. Because of the applicant's remarkable ability to ensure there were viable office coverage during her deployment, she did not leave an office unmanned or a Soldier or commander with defense services. e. The applicant's leadership and ability to continue to provide constant access to much needed defense services in a deployed environment which benefited thousands of Soldiers and an number of deployed commanders. f. The applicant went far beyond her expected duties as an SDC by representing and deploy caring for numerous Soldiers during potential adverse actions. She also provided incredible assistance to Soldiers experiencing suicidal thoughts because of stressors related to being deployed. g. The applicant fully supported the SHARP program during this era where Military Justice system and commanders are being heavily scrutinized because of sexual assault. She ensure none of the victims were punished for their alleged misconduct and successfully had at least two victims received rehabilitative transfers. h. The applicant is an "amazing officer" and this level of award [BSM] is commensurate with the applicant's scope of responsibility and sustained level of excellence she exhibited during her deployment. i. Properly recognizing the applicant's phenomenal performance with a BSM is entirely appropriate for the leadership she demonstrated in a challenging deployed environment and the care she and her personnel provided for Soldiers in need. 9. She provided two sworn statements from fellow Soldiers who described an encounter with indirect fire that occurred on 8 July 2014 in Afghanistan. One of the Soldiers stated he witnessed the presence of the applicant during registration. 10. She provided a letter, dated 1 June 2014, from MG JC in response to LTC X__'s request for reconsideration of the downgraded BSM. The general officer stated: a. The United States Forces-Afghanistan (USFOR-A) endeavored to apply reasonable but consistent guidelines to differentiate meritorious service in a combat environment from meritorious service with daily actions and responsibilities directly a. associated with combat risk and exposure/contact with their Afghanistan National Security Forces (ANSF) partners. b. His decision remained that the MSM was the most appropriate recognition for the applicant. c. Many may look at the MSM as something less worthy -- "it is not." He has tried to remind leaders that the MSM is associated with highly successful command responsibilities at larger areas of squadron and battalion level for periods twice as long in duration. d. The applicant, without question, made significant contributions to the mission, and their Soldiers, Sailors, Airmen, and Marines. 11. She provided an extended annual OER that covers the period 31 May 2013 through 7 June 2014. She performed duties as Senior Defense Counsel for the Bagram Airfield and one other field office, and she supported the entire CENTCOM AOR. a. Her rater assessed her as "Excels" with positive comments: "Incredible performance by MAJ [applicant]. [Applicant] is a mentor and model officer in every respect and excelled in all aspects in the leadership of her six personnel: developing a cohesive team in an extremely challenging deployed environment. An incredibly effective and caring leader. [Applicant]'s tireless efforts were critical in her counsel completing 1,939 legal actions and 12 preferred courts-martial. Absolutely unflappable. {Applicant]'s gifts are in developing and empowering subordinates in a caring environment , tirelessly for Soldiers, and positively influencing commanders at all levels to the benefit of her clients. Her writing and verbal skills are superb, unmatched interpersonal skills." b. Her senior rater assessed her as "Most Qualified" with positive comments: "MAJ [applicant] is the best SDC in the CENTCOM AOR and clearly ranks in the top 10% of officers of her grade. She consistently demonstrates the judgment, wisdom, and character of our very best, most successful field grade leaders. She has excelled as a leader in a deployed environment and inspired her team to a sustained level of professional excellence. Already performing at the level of a LTC, promote now and select for SSC at the first opportunity." c. She was recommended for 3 future assignments as a Deputy Staff Judge Advocate (Division), Chief, Administrative Law (Corps), and Branch Chief, OTJAG-ALD. 12. On an unknown date, she submitted a request to HRC for an upgrade of her MSM to a BSM. She stated: 1. a. Although the DA Form 638, dated 1 May 2014 reflects a recommendation for a BSM, the Deputy Commander-Support for U.S. Forces in Afghanistan improperly "downgraded" the award to a MSM. b. Her supervisor, LTC X____, requested reconsideration of the downgrade of the BSM. LTC X____ noted that her scope of responsibility far exceeded other TDS attorneys in the CENTCOM AOR and that her exemplary achievements as Senior Defense Counsel of the Bagram, Camp Phoenix, and Kandahar Field Offices warranted approval of the BSM. The Staff Judge Advocate and legal advisor to MG JC recommended approval of this reconsideration request to award a BSM. c. Contrary to MG X___'s legal advice, he affirmed that she made "significant contributions to the mission and their Soldiers Sailors Airman and Marines" in a combat environment and he decided the MSM was the "most appropriate" medal. MG X___ further noted that the MSM was not something "less worthy" than the BSM, yet he inexplicably "downgraded" her award recommendation to MSM. d. The decision to "downgrade" her BSM to a MSM was both an error and an injustice. First, this action violates DODI 1348.33 because it details that the MSM is an equivalent award to the BSM. The DODI 1348.33 noted that the distinguishing factor between the BSM and MSM is that the BSM reflects meritorious service or achievement under combat conditions. As DODI 1348.33 details, if the achievement or service was performed under combat conditions, the BSM is the appropriate award." e. MG X___ acknowledged she engaged in meritorious service under combat conditions. Accordingly, the controlling authority made it clear that not only is it not possible to "downgrade" to a MSM as it is an equivalent award to a BSM. Also, award of the BSM is compelled by her undisputed meritorious service under combat conditions. f. Second, the decision to 'downgrade" her BSM to a MSM is an injustice. She was instrumental in the draft of numerous award recommendations for the TDS attorneys and paralegals that she supervised. Her scope of responsibility for the Soldiers that she supervised was similar to, but less than hers, as shown on award narratives for other attorneys. Only her award was "downgraded" even though her workload, travel and consequential risk as reflected by her 28 separate movements and greater scope of responsibility. g. It is not equitable that she be treated differently than other TDS Soldiers and she should be awarded the BSM. 13. In a 13 June 2017 letter, HRC acknowledged receipt of her request for reconsideration for award of the BSM sent to HRC. 1. 14. In a 14 August 2017 letter, HRC responded to the applicant's request by stating: a. Based on the review of the provided documentation, their office was unable to act on her request. b. In accordance with Army Regulation 600-8-22 (Military Awards), paragraph 1-16, subparagraph (a) states that one time reconsideration by the award approval authority is conclusive. In this regard, MG JNC formally disapproved the request for reconsideration on 7 June 2014. Therefore, this office is not authorized to take any action. c. If she felt that MG X___'s decision was unfair or unjust, she had the right to appeal to the ABCMR. 15. Army Regulation 600-8-22 provides that the BSM is awarded in time of war for heroism and for meritorious achievement or service, not involving participation in aerial flight, in connection with military operations against an armed enemy, or while engaged in military operations involving conflict with an opposing armed force in which the United States is not a belligerent party. 16. Army Regulation 600-8-22 provides that after 16 January 1969 but prior to 11 September 2001, the MSM is authorized to be awarded only for meritorious service or achievement while serving in a noncombat area. Effective 11 September 2001 to a date to be determined, the DCS, G–1 granted an exception to policy to award the MSM in a combat theater for noncombat meritorious achievement and service for the Global War on Terrorism era. This exception does not authorize the MSM to be used as an upgrade or downgrade to or from a recommended BSM. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the documentary evidence presented by the applicant and found within the military service record, the Board found insufficient evidence to show an error or injustice that warranted changing the applicant’s record. The Board concluded that based upon the evidence, and the level of award given a Soldier being the decision of a commander, the Board concluded there was not enough evidence for the Board to change or overturn the commander’s decision to award the Meritorious Service Medal. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 5/23/2019 X CHAIRPERSON Signed by: 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. REFERENCES: 1. Army Regulation 600-8-22 states the BSM is awarded in time of war for heroism and for meritorious achievement or service, not involving participation in aerial flight, in connection with military operations against an armed enemy, or while engaged in military operations involving conflict with an opposing armed force in which the United States is not a belligerent party. As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required. 2. Army Regulation 600-8-22 states the MSM is awarded to any Servicemember of the Armed Forces of the United States or to any member of the armed forces of a friendly foreign nation who has distinguished himself or herself by outstanding meritorious achievement or service. After 16 January 1969 but prior to 11 September 2001, the MSM is authorized to be awarded only for meritorious service or achievement while serving in a noncombat area. Effective 11 September 2001 to a date to be determined, the DCS, G–1 granted an exception to policy to award the MSM in a combat theater for noncombat meritorious achievement and service for the Global War on Terrorism era. This exception does not authorize the MSM to be used as an upgrade or downgrade to or from a recommended BSM.