IN THE CASE OF: BOARD DATE: 14 June 2023 DOCKET NUMBER: AR20220008711 APPLICANT REQUESTS: the Board finalize his recommendation for award of the Bronze Star Medal (BSM), for the period 21 March to 15 December 2014, and a personal appearance hearing before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 638 (Recommendation for Award) * Narrative for the BSM * Citation for the BSM * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DA Form 1574-2 (Report of Proceedings by Board of Officers) * Army Board for Correction of Military Records (ABCMR) Record of Proceedings AR20180003005, 28 June 2019 * DA Form 705 (Army Physical Fitness Test Scorecard) * Fiscal Year 2014 Award Tracker * Letter, U.S. Army Human Resources Command (AHRC), Awards and Decorations Branch (ADB), 3 March 2020 * Letter, AHRC, Soldier Programs and Services Division, 1 March 2022 * Officer Record Brief, 22 May 2022 * Letter, AHRC ADB, 1 June 2022 * Memorandum, Applicant, 20 June 2022 FACTS: 1. The applicant states, in effect, he was recommended for award of the BSM, but it was never signed by the approving authority. The award was disposed of as part of a whistle blower reprisal by his chain of command. He was falsely accused of being a toxic leader by Soldiers trying to cover up their own misdeeds. He successfully was retained by a Separation Board and then was successful in petitioning the ABCMR by removing an Officer Evaluation Report (OER) and any associated documents as well as presenting his records to a Special Selection Board (SSB). 2. Evidence shows, the applicant, while performing duties in military occupational specialty 31A (Military Police) as a member of the U.S. Army Reserve (USAR) in the rank/grade of Captain/O-3, served in Afghanistan for the period 21 March 2014 to 13 December 2014. The applicant is currently serving in the rank/grade of Major/O-4 in the USAR. 3. The applicant provides a/an: a. Narrative and Citation for award of the BSM as well as a DA Form 638 dated 18 October 2014 which shows he was recommended for award of the BSM (1st oak leaf cluster) by his garrison commander for the period 21 March to 15 December 2014. She stated the [applicant's] leadership was instrumental to the overall success of the Customs Mission throughout Afghanistan. The approval authority (Major General (MG) did not sign the document. b. DA Form 1574-2 dated 28 June 2017, which found the allegation that [the applicant] violated Army Regulation 135-175 (Separation of Officers), paragraph 2-11 due to substandard performance of duty, in that he received a special derogatory evaluation report on a Referred OER, dated 30 November 2014, for toxic leadership was not supported be a preponderance of the evidence. The findings did not warrant separation. In view of the findings, the board recommended pursuant to Army Regulation 135-175, and Army Regulation 15-6 (Procedure for Investigating Officers and Boards of Officers), [the applicant] be retained in the U.S. Army. c. ABCMR Record of Proceedings, AR20180003005, dated 28 June 2019, in which the Board carefully considered the applicant's request, supporting documents and evidence in the records. (1) The Board considered the applicant's statement, his record of service and deployment, his medical evacuation, two command climate surveys and his relief for cause. (2) The Board considered the applicant's contentions regarding the administrative and substantive errors in the contested OER, his prior and subsequent OERs, his completion of the Captain's Career Course and his Military Outstanding Volunteer Service Medal. (3) The Board reviewed the sworn statements of the applicant and Master Sergeant (MSG) and the summarized interview memoranda prepared by the investigating officer at the time, the absence of a copy the 15-6 investigation, the actions taken by the chain of command and responses to Members of Congress (MOC) regarding the action. (4) The Board further considered the documented Board of Inquiry, the sworn testimony of the witnesses, to include that of the 15-6 Investigating Officer and the convening authority's approval of the recommendation to retain the officer. (5) Based on a preponderance of evidence, the Board determined that there were inconsistencies in the investigation that led to the applicant's relief and that it was unjust to retain the contested OER in his record. (6) After reviewing the application and all supporting documents, the Board found that relief was warranted. As a result, the Board recommended that all Department of the Army records of the individual concerned be corrected by: Removing the OER for the period 20140116 thru 20141130 and any associated documents from his Official Military Personnel File (OMPF) and replace it with a memorandum for that period of non-rated time, and; Presenting his records to a SSB for Fiscal Year 2016 (FY) 16 Reserve Component (RC) MAJ, Army Promotion List (APL), Promotion Selection Board). d. Letter from the AHRC, Chief, ADB to a MOC dated 3 March 2020, regarding a nomination to award the BSM to the applicant. The Chief ADB stated, in effect, that they could not determine whether the nomination was fully adjudicated by his wartime chain of command at the time. He further stated the applicant must contact U.S. Forces – Afghanistan. If the finalized order and completed DA Form 638 were not in their archives the ADB needed a completed DA Form 638 endorsed by MG and a letter of explanation from the applicant's former chain of command on why the nomination was not finalized. e. Letter from AHRC, Chief Soldier Programs and Services Division to the applicant, dated 1 March 2022, thanking him for his recent e-mail to President Biden regarding his desire to be awarded the BSM. AHRC, reiterated that, as stated in previous correspondence to a MOC on his behalf, they are unable to determine whether the previously provided incomplete DA Form 638 was fully adjudicated by his wartime chain of command. They reiterated, if he had not done so, he should contact his previous chain of command to attempt to locate a finalized order and completed DA Form 638 for the BSM in their archives. If he was unable to locate such documents, they had to receive a new, fully executed DA Form 638 and the entire award recommendation had to be sent to his former wartime chain of command through the rank of MG, effective the terminal date of award period, for their review and newly dated endorsements as well as requiring a letter of explanation from his former chain of command on why the previous nomination was not finalized. f. Letter from the AHRC, Chief, ADB to a MOC dated 1 June 2022, regarding his inquiry dated 26 May 2022, to award the BSM to the applicant. AHRC stated they would like to render favorable action concerning this matter; however, they remained unable to forward with this recommendation to the ADB. They acknowledged receipt of a partially executed DA Form 638, nevertheless, as stated to another MOC, the DA Form 638 must be endorsed by MG . Once they receive a fully adjudicated recommendation, they would review the nomination for further consideration. g. Memorandum to the Army Review Boards Agency dated 20 June 2022, requesting finalization of the award of the BSM. The memorandum states, in effect: (1) He was recommended for a BSM for his distinguished service prior to false allegations of being a "toxic leader" being leveled against him. Unfortunately, the chain of command rushed to punish him without an adequate or legal investigation. As a result, the award he was supposed to have received was merely disposed of. There is no provision in Army Regulation 600-8-22 (Military Awards) to simply dispose of an award that was properly received. Since any award serves an open and active personnel action then the award needs to be either officially downgraded or officially disapproved. Since it has been definitively proven by both a Show Cause Board (Separation Board) and now the ABCMR that all allegations prior to the ruling of the of the ABCMR Board in his favor, he didn't have adequate documentation to justify the awarding of the BSM. (2) The 415th Military Police Detachment was mobilized 16 January 2014, with him as their commander. After completing pre-deployment training at Joint Base McGuire Dix Lakehurst, the 415th Military Police Detachment arrived in Afghanistan on 26 March 2014. The unit mission was Customs and Border Clearance inspections of all U.S. and select coalition partners' cargo and personnel leaving Afghanistan. (3) The 415th Military Police Detachment of 40 Soldiers flawlessly conducted Customs Operations for the entire theater, supporting more than 70,000 U.S. Soldiers and Department of the Army civilians and select coalition forces. They successfully trained more than 300 Customs Border Clearance Agents throughout Regional Command-East and supported Central Command in training an additional 700 Soldiers. In addition to increasing operational effectiveness, his company cleared and processed more than 1,300 flights, 45,000 passengers, over 135,000 bags, over 3000 pallets, 200 vehicles and cleared over 6,000 containers and Conex boxes, provided "Know Before You Go" briefings to over 100 units, managed and accounted for 151 Customs Stamps. In July 2014, U.S. Forces-Afghanistan (USFOR-A) assigned responsibility of Theater Customs Program Manager to the unit which included the oversight and responsibility over all Customs Operations within Afghanistan. The 415th Military Police Detachment coordinated with U.S. Air Forces Central 455th Expeditionary Aerial Port Squadron, Coast Guard "RAID" Detachment, U.S. Air Force Joint Inspection Team, and American K-9 handlers for clearing passengers, VIPs, General Officers and cargo leaving the Combined Joint Operations-Afghanistan. They provided support for Naval Criminal Investigative Service, Criminal Investigation Division, Federal Bureau of Investigation, Counter-Intelligence, and other Federal law enforcement agencies for investigations and for cargo leaving theater. They supported CJ-3 SPACE in clearing Secret "Special Intelligence" cargo and all units leaving with Classified Materials. The 415th Military Police Detachment was responsible for preventing illegal contraband, dangerous items, and pestilence from returning to the United States. (4) The DA Form 638 Recommendation for the BSM, letter of lateness and receipt of acknowledgment that the award recommendation had been received was sent to the J1 at U.S. Forces Afghanistan. On November 12, 2014, Colonel (COL) informed she was initiating an Army Regulation 15-6 investigation of MSG and himself. The reason for the investigation was never made clear at the time. It was as a result of a negative Command Climate Survey. (5) Due to the condensed timeline of the investigation, he was interviewed by the Investigating Officer (IO) without a lawyer, despite having requested one. COL advised him to meet with the IO officer without a lawyer if he did not want the investigation to be concluded without his statement. On 7 December 2014, he was relieved of his command. This was outside his rating period but backed dated to fit on the OER. (6) On 28 June 2017, a Show Cause Board convened at the 200th Military Police Command in Fort Meade, Maryland. That Board Determined that he should be retained by the Army and that they had determined that the evidence didn't support the relief for cause OER. received the results back from the ABCMR board on 2 September 2021. The results of the board are dated 24 June 2021. The board determined the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommended that all Department of the Army records of the individual concerned be corrected by: * Removing the OER for the period 20140116 thru 20141130 and any associated documents from his OMPF and replace it with a memorandum for that period of non-rated time, and; * Presenting his records to a SSB for FY 2016, 16 RC MAJ, APL, Promotion Selection Board. (7) He has made numerous congressional requests and has contacted multiple Inspector General Offices seeking an answer, but they have all provided vague responses with no consensus on what the correct answer should be. If there is a better answer in which to resubmit this award for approval beyond his prior congressional and Inspector General attempts then he is unaware. The congressional Liaison's Office has told him to mail the award to USFOR-A, but never provided him a point of contact or an address. They also told him to find MG and send the award directly to him for signature. The Inspector General's Office told him to go through his MOC and have the award placed into the hands of the awarding authority. Unfortunately, that goes back to the congressional liaison's office unable to provide him with an appropriate point of contact. (8) There is not a clear answer provided in Army Regulation 600-8-22 for an award that was received, but improperly disposed of as part of a whistleblower reprisal. The spirit of the regulation implies that the chain of command would be impartial and unbiased and that all awards should be properly processed. There is not a provision in Army Regulation 600-8-22 that covers what happens when the Soldier is illegally subjected to a Whistle Blower Reprisal and then the chain of command fails to do the proper paperwork to downgrade or disapprove of the award. The Army did conduct a whistleblower reprisal investigation against the chain of command, including MG who is the approving authority and who had previously signed off on his Relief for Cause OER which was then removed from his OMPF by the ABCMR Board. 4. There is no evidence in his OMPF which shows that he was awarded the BSM. 5. Army Regulation 15-185 (ABCMR) states an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 6. 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. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was 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, available military records, the Board noted the letter of lateness and receipt of acknowledgment that the award recommendation had been received was sent to the J1 at U.S. Forces Afghanistan. The Board agreed the applicant provided sufficient documentation to show the chain of command intended for the applicant to receive the award. The Board determined that the evidence presented is sufficient for award of the Bronze Star Medal. 2. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 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 finalizing his recommendation for award of the Bronze Star Medal for the period 21 March 2014 to 15 December 2014. 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 prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. a. 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. b. Except for award recommendations submitted in accordance with the provisions of Section 1130, Title 10, United States Code (10 USC 1130), each recommendation for an award of a military decoration must be entered administratively into military channels within 2 years of the act, achievement, or service to be honored. An award recommendation will be considered to have been submitted into military channels when it has been signed by the initiating officer and endorsed by a higher official in the chain of command. However, pursuant to 10 USC 1130, a Member of Congress can request consideration of a proposal for the award or presentation of decoration (or the upgrading of a decoration), either for an individual or unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy. Based upon such review, the SECARMY will make a determination as to the merit of approving the award or presentation of the decoration and other determinations necessary to comply with congressional reporting requirements under 10 USC 1130. (1) Members of Congress may request consideration and/or reconsideration of a proposal for an award or presentation of decoration (or the upgrading of a decoration), either for an individual or unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation. Based upon such review, the SECARMY will make a determination as to the merits of approving the award or presentation of the decoration and other determinations necessary to comply with congressional reporting under 10 USC 1130. (2) All requests that are not processed within time limitations and/or theater are considered retroactive and must be processed through the chain of command which was in effect at the time of the service or achievement to be recognized. All commanders in the former chain of command, to include the awards approval authority for the request, must endorse the recommendation for approval, downgrade, or disapproval as appropriate in the intermediate authority blocks on the award form. Every attempt will be made by the recommender to obtain the original chain of command’s endorsement for all award recommendations. In the event an individual is not available, the recommender must provide documentation, such as a memorandum of record, emails, or letters verifying they have taken all reasonable steps to locate the individual. 2. Army Regulation 15-185 prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 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) AR20220008711 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1