IN THE CASE OF: BOARD DATE: 5 January 2022 DOCKET NUMBER: AR20210011503 APPLICANT REQUESTS: reconsideration of his previous request to this Board for reversal of the decision by the Army Decorations Board that downgraded his award of the Distinguished Service Medal. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Counsel Brief * Previous Application with attachments * 4 statements FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20160011963, on 7 November 2018. 2. Counsel states: a. On 11 January 2019, the Army Board for Correction of Military Records (ABCMR) considered [Applicant's] original application to be awarded the Distinguished Service Medal (DSM). The Board voted to deny the requested relief because it found that his "records are void of orders and any evidence showing the DSM was approved by proper authority prior to 6 January 2015." b. AR 15-185 (ABCMR) authorizes the ABCMR to reconsider its decisions when the applicant submits new evidence and/or new arguments that were not originally considered by the Board. This request for reconsideration has new evidence and new arguments. c. At the outset, counsel specifically adopts and incorporates the applicant's original DD 149 and all supporting documents and evidence in this request for reconsideration. In addition to the original filing, counsel requests that the Board consider the new evidence and new arguments set forth below. The applicant's primary contention is that he was awarded and approved for the DSM by the appropriate approval authority, which was erroneously and improperly downgraded. As noted above, this Board denied the request because it determined that his "records are void of orders and any evidence showing the DSM was approved by proper authority prior to 6 January 2015." This conclusion is not supported by the evidence enclosed with the original filing. The evidence submitted in the original filing included an email chain including members of the U.S. Army Human Resources Command (HRC), which indicate that the award had been approved. c. Notwithstanding his opinion that the applicant's original application for relief contained sufficient evidence to warrant relief and that the Board erred in denying that request, counsel recognizes that requests for reconsideration must provide new evidence and/or new arguments before they will be considered by the Board. This request for reconsideration contains both new evidence and new arguments in addition to the evidence submitted with the original tiling. d. The applicant has provided a declaration which he details the timeline of events related to his receipt of the DSM. He also details that he received an email from HRC representing that the DSM had been approved and that his iPERMS/official military record was improperly accessed. His statement also draws the board's attention to Army Regulation 600-8-22 (Military Awards), which provides that the approval authority for the DSM was the Chief of Staff of the Army (CSA) and that the CSA's approval is accomplished through action by the Military Awards Board (MAB). In this case, the applicant attests that his DSM was approved by the MAB on 30 October 2014. He has also enlisted the assistance of various Members of Congress. e. The applicant has also included three signed statements by retired Colonel M; retired Sergeant Major H, and Chief Warrant Officer Five (CW5) S. All three of these individuals were present at the applicant's retirement ceremony and each attests that they personally observed him receive the DSM. COL M attests that she saw the award approval from the Department of the Army and was told that after it was awarded it was taken back due to some behind the scenes tampering with the applicant's records. SGM H attests that he "secured the approved DSM" for the applicant and delivered the approved DSM medal set "with award certificate and orders." CW5 S was contacted by the Awards Section of the National Guard Bureau's Personnel Policy Division and was told that the applicant's DSM was approved and would be hand delivered by one of its employees. f. These statements refute the Board's assertion that the applicant's record lacked evidence that the DSM was approved by proper authority prior to 6 January 2015. These statements operate as direct and affirmative evidence that his DSM was, in fact, properly approved and issued. The new evidence contained in this request provides this Board with sufficient evidence to reconsider its initial findings and grant him the requested relief. g. Finally, the Board should grant him the requested relief as a matter of equity. As the evidence enclosed indicates, he and his chain of command relied upon representations made by HRC and others that the award had in fact been approved when they conducted the retirement ceremony at which he received the DSM. In addition to the evidence which suggests that this award was erroneously and improperly downgraded, it is also simply unfair to strip him of an award that was already approved by the proper authority and that was awarded to him at his retirement ceremony. h. For all of the above-listed reasons, justice, fairness, and equity require that the ABCMR reconsider his request for relief and, in light of the new evidence and new arguments, the Board should grant his renewed request for relief. 3. Review of the applicant's service records shows: a. He had prior enlisted service in the Army National Guard (ARNG) and Regular Army. He was appointed as a Reserve warrant officer one on 14 October 1982. b. He served in a variety of stateside or overseas assignments, including active duty mobilizations, holding military occupational specialty 420A (Human Resources Technician, and in October 2000, he was promoted to the rank of CW5. c. On 7June 2005, the applicant received a General Officer Memorandum of Reprimand (GOMOR) based on substantiated findings of misconduct from an approved investigation, that included attempting to place another warrant officer on orders directing a permanent change of station after being assigned to HRC for only 4 months, and making an inordinate number of telephone calls to another officer (her) using his Government-issued cell phone. The GOMOR shows that although she was a section leader within the applicant's division, the number of calls the he made to her exceeded by eight times the number of calls he made to his two other section leaders during the same period. The IO determined this suggested excessive personal use of a Government-issued cell phone in violation of Army regulations. d. After considering his rebuttal and the chain of command's recommendations, on 21 June 2005, the imposing general officer directed filing the GOMOR in the applicant's official records. e. On 23 November 2005, he received a GOMOR for misconduct. On 5 October 2005, he was driving while intoxicated in Leesville, LA, while deployed in support of Task Force Katrina. His intoxication caused him to run a red light. Tests later showed his blood alcohol content to be .167, over two times the legal limit. He was unfit to conduct his duties the following day. When asked by his Chief of Staff about the events of the night before, he provided a false statement, stating the local police did not arrest him, when in fact he had been arrested, transported to jail, and pled guilty to the offense of drunk driving. Additionally, he lied to two superior officers about the circumstances surrounding his conviction of the offenses by stating the State of Louisiana said they were mistaken and that they were sorry for the inconvenience. e. After considering his rebuttal and the chain of command's recommendations, on 21 June 2005, the imposing general officer directed filing the GOMOR in the applicant's official records. f. On 19 March 2009, the ABCMR directed the transfer of the GOMOR, dated 23 November 2005, and all associated documents from the performance folder to the restricted folder of his official record. g. He entered active duty on 1 July 2011 and he was honorably on 21 December 2014 due to permanent disability. His DD Form 214 (certificate of Release or Discharge from Active Duty) does not list the DSM as an authorized award. 4. On 6 January 2015, the applicant was recommended for retirement award of the DSM for service from 22 December 2004 to 21 December 2014. The DA Form 638 shows: * The Chief of Staff, ARNG, recommended downgrading the award to a Legion of Merit * The Acting Director, ARNG, recommended approval of the DSM * The Deputy Division Chief, Personnel Policy Division, recommended approval of the DSM * The Arizona ARNG G-1 recommended approval of the DSM 5. On 6 January 2015, the Chief, Awards and Decorations Branch, HRC, downgraded the DSM to an award of the Meritorious Service Medal (MSM) at the direction of the Army Vice Chief of Staff. 6. HRC published Permanent Order 006-21, on 6 January 2015, awarding him the MSM with one silver oak leaf cluster for the period 22 December 2004 to 21 December 2014. The certificate reads: For exceptionally meritorious service over a 39 years of service in positions of increasing responsibility, culminating as the Chief Warrant Officer Policy Branch, Personnel Policy Division, Army National Guard G-1. His innovations in creating Community Based Health Care Initiative, and Medical Readiness Processing programs empowered the Army to achieve unprecedented levels of personnel and medical readiness by providing excellent personnel services and ensuring wounded Citizen-Soldier warriors received excellent medical care. [Name] exemplary professional competence, initiative, leadership and dedication to duty reflect great credit upon himself, the Army National Guard and the United States Army. 7. He previously provided email exchange between 30 October 2014 to 17 June 2015 to show the tracking of his award of the DSM for his retirement ceremony and downgrading of his DSM to an MSM. 8. He previously provided correspondence from the NGB Office of Legislative Liaison to the late Senator McCain, dated 23 August 2015, in which states: a. The ARNG Human Resources Directorate advised the applicant was recommended for award of a DSM; however, the final "approved" status by the sole and final approval authority, the Vice Chief of Staff of the Army, had not been obtained prior to his formal retirement ceremony on 22 December 2014. b. According to the ARNG Human Resources Directorate, it was inappropriate for the applicant to have publicly received a DSM at a formal retirement ceremony given that the DSM was still being processed and was never approved. The applicant's assumption that his DSM was approved directly contributed to the error of presenting the DSM at his retirement ceremony. At the time of his ceremony in December 2014, the Vice Chief of Staff of the Army had not yet officially approved nor downgraded the recommended DSM. c. The DSM recommendation process begins for the intended recipient at the local awards section. Once the local awards section has screened the Soldier's personnel and military service records for unfavorable information, a package is prepared for the chain of command and or leadership's review and consideration. At the ARNG, the senior authorized officer reviews the intended recipient's service record, then either concurs or recommends a downgrade to a lesser award. The package is then forwarded to HRC, which screens all DSM recommendations and conducts a formal review board by senior officers with the intent of making a recommendation to the Vice Chief of Staff of the Army. Even if HRC board concurs with the recommendation, the DSM is still not officially approved. d. On behalf of the Army Chief of Staff, the Department of Army General Officer Management Office (DA GOMO) is the final screening authority for all DSM recommendations. GOMO is responsible for verifying any adverse information or actions associated with the intended recipient's service which could otherwise diminish the veneration of the DSM. Once GOMO review is completed, a package is prepared for the Army Vice Chief of Staff to approve or downgrade the award. A DSM is not awarded until the Vice Chief of Staff approves or downgrades the award. The Vice Chief of Staff then directs HRC to officiate an approved award. e. Per AR 600-8-22, paragraph 1-23, recommendations for all meritorious service awards upon retirement may include extended periods of service beyond the service time the Soldier has spent with the current recommending command. They should also consider the Soldier's degree of responsibility and the manner of the Soldier's performance and conduct for appropriate decorations to keep with the preservation of each award's veneration. This measured approach for awards review is also consistent and aligned with the services' continued focus on screening processes which Congress is currently reinforcing Defense Department-wide for the intention of maintaining public trust and consistent accountability. As a general rule, recommendations are limited to the last 10 years of service history. f. Unfortunately, due to a process failure and the rarity of DSM recommendations, the ARNG Human Resources Directorate did not complete personnel and military service records reviews (flag check) at its own level when award of the DSM was originally recommended for the applicant on 7 October 2014. As a result, the Acting ARNG Director recommended approval of the DSM and forwarded it to HRC for a formal board review. g. The HRC formal board also recommended approval of the DSM recommendation for the intended recipient on 20 November 2014. However, despite the applicant's assertions, the HRC "approval" did not mean he received final approval for the DSM. HRC approved the DSM recommendation and then forwarded to the DA GOMO. h. GOMO's required screening inquiry revealed relevant unfavorable matters regarding the applicant's service history in the last 10 years. The applicant received multiple flags for height and weight failures, which meant he was not in good standing due to noncompliance with standards. The Army uses a flagging system to help it guard against execution of specified favorable personnel actions (i.e., awards) for Soldiers not in good standing. The flags can cover any number of unfavorable matters. The applicant's available records showed three of his weight failures were annotated in his official military records and documented via three referred annual evaluations in 2009, 2010, and 2012. i. On 11 December 2012, the applicant's physician affirmed his medical condition and provided him with an exemption memorandum from compliance with Army height and weight standards. The memorandum allowed him a 6-month extension to recover. After the physician's initial 6-month exemption period, the applicant did not meet standards and was flagged again on 10 April 2013 (weight failure) and again on 15 November 2013 (fitness failure). According to ARNG Human Resources Directorate's Master Fitness Trainer records and statements, the applicant did not resume reporting for his required weigh-ins after November 2013, which were required regardless of exemptions from fitness training/tests. The applicant was still recorded as flagged throughout 2014. The applicant's 2012 physician letter was not an exemption from his responsibility to adhere to accountability standards of reporting for periodic weigh-ins despite impending retirement. j. GOMO's inquiry also reflected the applicant's official records were missing submissions for the previous 2 years of performance evaluations (2013 and 2014). The missing evaluations, his physician letter, and previous weight failures (documented in his personnel records file) are what prompted the need to verify his compliance with weigh-in requirements for 2013 and 2014. Finally, the DA GOMO's inquiry with the ARNG Directorate's Personnel Records Branch revealed a GOMOR for misconduct in the applicant's records (with filing instructions, dated 22 December 2005. k. Upon recognition of the unfavorable information from DA GOMO's inquiry, the Acting ARNG Director transmitted official correspondence through the DA GOMO for the Army Vice Chief of Staff's consideration on 17 December 2014. This correspondence requested the Vice Chief of Staff waive the flag for a retirement award and approve a downgrade of the DSM to a MSM. The Acting Director's correspondence also noted the ARNG Human Resources Directorate had failed a review of the applicant's personnel records at that level and stated the ARNG Human Resources Directorate had corrected this problem. l. Based on DA GOMO's screening inquiry and the Acting Director's letter to the Army Vice Chief of Staff, several subsequent checks of the applicant's official records were conducted after 17 December 2014 to ensure veracity and applicability. While the applicant calls into question these checks, they were within the authority and responsibility of the Chief, NGB. m. On 6 January 2015 at the Vice Chief of Staff's direction and authority, HRC completed processing of the applicant's retirement award by downgrading the recommended DSM to an approved MSM. The Acting Director's recommendation and the Vice Chief of Staff's subsequent approval of the downgrade of the DSM to an MSM was not done to purposely discredit the applicant's service record or his appearance, nor to eliminate complete recognition of his life's service to the Nation. The Acting Director used appropriate judgment to intervene and recommend a downgrade. There was no malicious intent to malign the applicant's career or character. Rather, it was the leadership's judgment that he still receive a lifetime service award, albeit a different one, to mark his retirement from a long, successful Army career. 9. He also previously provided correspondence from the NGB Office of Legislative Liaison to the late Senator McCain, dated 17 February 2016, which stated, in part: a. Awards are not an entitlement. An individual should have no expectation of a specific award at any time in his or her career. Award recommendations are at the discretion of the recommender, the various levels of intermediate endorsing officials, and the approval authority. At each level, the intermediate endorsing official may recommend approval, disapproval, upgrade, or downgrade. The Purple Heart is the only award or decoration an individual is entitled to upon meeting specific criteria. b. The applicant provided and email exchange between the ARNG and HRC action officers. These email document action officer-level coordination and identify there was preparation and mindfulness to process the award within the requested award presentation timeline. However, he provided no evidence to support the DA Form 638 was ever approved by the approval authority. The narrative he provided and used for presentation was presumably from the award submission and not from the approved award. c. While action officer-level coordination may be ongoing, there is no step in AR 600-8-22, Table 3-2, in which an action officer confirms or announces approval of an award to another action officer. This type of coordination is an important implied action officer-level task, but it is not justification in this particular case to reconsider a previously downgraded award recommendation and is in no way equivalent to the award approval's authority in Table 3-2, step 24. 10. The applicant also previously provided his statement (enclosed for the Board's review) before the Committee on Government Reform, U.S. House of Representatives Hearing, "Wounded Army Guard and Reserve Forces: Increasing the Capacity to Care," dated 17 February 2005. 11. On 7 November 2018, the Board thoroughly examined the evidence and denied him the requested relief. The Board determined that the evidence of record shows the applicant was recommended for award of the DSM on 7 October 2014. On 8 December 2014 and prior to approval of award of the DSM, his retirement ceremony was held and the DSM was presented to him. On 6 January 2015, the Chief, Awards and Decorations Branch, HRC, downgraded the applicant's DSM to an MSM upon the direction of the Army Vice Chief of Staff. The applicant's records are void of orders and any evidence showing the DSM was approved by proper authority prior to 6 January 2015. 12. The applicant and/or his counsel now provide three statements from retired officers and/or noncommissioned officers. a. Statement from retired COL M who was the Director of Army personnel for the ARNG. She states as she was preparing to host the applicant's retirement ceremony, she heard from SGM H that the award has been withdrawn. She continued with the ceremony because the she saw the award approval from the Department of the Army. She was told the award had been awarded and taken back due to some behind the scenes tampering with the applicant's records. b. Statement from H who states he was asked to attend the retirement ceremony at Fort Jackson and was also asked to help coordinate with the ARNG readiness Center Awards Section to hand carry the applicant's approved DSM to the ceremony. Prior to departing the Readiness Center, he secured the approved DSM Medal set with the award certificate and orders. He was in attendance when the applicant was presented the award. c. Statement from CW5 S who states he coordinated the retirement ceremony with help from others. A week before the event, he was contacted by the NGB Personnel Policy Division stating that the award of the DSM had been approved and would be delivered by SGM H who would also be travelling to the ceremony. SGM H did arrive and delivered the DSM medal set, award certificate, and orders. The ceremony was conducted and the DSM was presented to the applicant. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition and available military records the Board determined the applicant’s award of the Distinguished Service Medal (DSM) had not been vetted through all the proper channels prior to his award ceremony, whereas he was presented the DSM. The Board agreed the applicant was presented the DSM erroneously prior to final approval from the Vice Chief of Staff's direction and authority, which was ultimately downgraded to a Meritorious Service Medal (MSM). The Board noted the applicant provided and email exchange between the ARNG and HRC action officers. These emails only document action officer-level coordination and identify there was preparation and mindfulness to process the award within the requested award presentation timeline. However, he provided no evidence to support the DA Form 638 was ever approved by the approval authority. The Board determined the applicant nor his counsel demonstrated an error or injustice occurred during the processing of his retirement award. Based on this, the Board determined that a reversal on the previous board decision is not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XXX XXX XX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board found 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 to amend the decision of the ABCMR set forth in Docket Number 7 November 2018. 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 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. The regulation in effect at the time, dated 11 December 2006, stated: a. The Distinguished Service Medal (DSM) is awarded to any person who, while serving in any capacity with the U.S. Army, has distinguished himself or herself by exceptionally meritorious service to the Government in a duty of great responsibility. The performance must be such as to merit recognition for service which is clearly exceptional. Exceptional performance of normal duty will not alone justify an award of this decoration. For service not related to actual war, the term "duty of great responsibility" applies to a narrower range of positions than in time of war and requires evidence of conspicuously significant achievement. However, justification of the award may accrue by virtue of exceptionally meritorious service in a succession of high positions of great importance. b. Paragraph 1-22 stated 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. c. Paragraph 3-20o stated premature disclosure of information to the public, or to the individual being recommended for an award is a potential source of embarrassment to recommending officials and should be strongly discouraged. Prior disclosure of approved awards should also be discouraged since it would diminish the impact of ceremonies when the award is ultimately presented. d. Step 24 of Table 3-2, which lists steps for preparing and processing awards using the DA Form 638, states the final award approval authority will complete block 26 (Approval Authority). If the award is approved, downgraded to a lesser award, or upgraded, forward the DA Form 638 to the orders issuing authority for completion of Part V Orders Data. Also, ensure that paragraph 3-19v is reflected (if applicable). e. A request for reconsideration or the appeal of a disapproved or downgraded award, or a request for an upgrade of a previously approved recommendation, must be placed in official channels within 1 year from the date of the awarding authority's decision. A one-time reconsideration by the award approval authority will be conclusive. However, pursuant to Title 10, U.S. Code, section 1130, a Member of Congress may request a review of a proposal for the award or presentation of a decoration (or the upgrading of a decoration) that is not authorized to be presented or awarded due to time limitations established by law or policy for timely submission of a recommendation. f. Recommendations are submitted for reconsideration or appeal only if new, substantive, and material information is furnished and the time limits specified in paragraph 1-14 do not prevent such action. Requests for reconsideration or appeal must be forwarded through the same official channels as the original recommendation. The additional justification for reconsideration or appeal must be in letter format, not to exceed two single-spaced typewritten pages. A copy of the original recommendation, with all endorsements, and the citation must be attached. If the original recommendation is not available, a reconstructed recommendation should be submitted. g. The reconsideration or appeal is approved and when a lesser decoration has already been approved, action is taken by the awarding authority or HRC (AHRC-PDP- A) to revoke the lesser awarded decoration. h. Once HRC or the award approval authority has made a decision on the award reconsideration or appeal, other options for reconsideration or appeal include the ABCMR and the Inspector General. A DD Form 149 is required for review by the ABCMR. i. Awards that are approved and presented for meritorious service will not be considered for an upgrade to a valorous award. j. Paragraph 1-31 states once an award has been presented, it may be revoked by the awarding authority if facts subsequently determined would have prevented original approval of the award had they been known at the time of presentation. An order revoked based on the reconsideration, appeal, or upgrade of a previously approved award, will refer to paragraph 1-16 as the authority for revocation. Presentation of a decoration is the physical act of pinning or clipping the medal on a Soldier's chest or handing the Soldier the medal, certificate, or orders. Failure to be reassigned or separated as originally scheduled does not constitute grounds for revocation of an award which has been presented. The decision to revoke an award may not be delegated by the awarding authority. In making the decision, the awarding authority may consider a statement of concurrence or non-concurrence (with comments) from the individual concerned within 10 working days upon receipt of the notification of revocation. When the original awarding authority has departed the command, the revocation request will be referred to the Commander, HRC, for appropriate action. k. The authority to wear an award may be suspended by the award approval authority or higher authority. An award will be suspended when an investigation has been initiated by proper authority to determine the validity of the award. The authority directing the suspension will notify, in writing, the individual concerned and the Commander, HRC, by the most expeditious means possible when suspension is initiated, and when it is terminated, and the reason(s) for termination. 2. Army Regulation 600-8-104 prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR. a. The Deputy Chief of Staff, G-1, establishes personnel policies, rules, and procedures relating to the AMHRR and its Management Program to support the statutory and Department of Defense (DOD)-directed goals, objectives, and requirements. b. The Commanding General, HRC, will establish standards and mandatory operating procedures for the AMHRR Management Program. c. Effective 4 April 2010, the Chief, Army Personnel Records Division, is designated as the Army's personnel records custodian with authority pertaining to all Active and Reserve Soldiers, retired Soldiers, and Army veterans whose records are stored in iPERMS and at the National Archives and Records Administration. d. The Director, ARNG, will participate, in conjunction with the Deputy Chief of Staff, G-1, in the development of policy to support the statutory and DOD-directed goals, objectives, and requirements of the AMHRR and its Management Program. The Director, ARNG, will recommend ARNG policy changes to the Deputy Chief of Staff, G- 1, regarding the AMHRR and provide oversight to ensure compliance with the provisions of this regulation and associated DOD Directives. e. The Commanders of Army commands, Army Service component commands, and the State Adjutants General will monitor and assist in the administration of the AMHRR and its Management Program to ensure compliance with policies and mandated tasks established by this regulation.? f. Access to iPERMS and the AMHRR are authorized for persons performing routine records maintenance, processing personnel actions, performance of personnel management functions, or with a demonstrated official need to know. 3. 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 ABCMR considers individual applications that are properly brought before it. The ABCMR will decide cases on the evidence of record. It is not an investigative body. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210011503 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1