IN THE CASE OF: BOARD DATE: 7 June 2023 DOCKET NUMBER: AR20220010747 APPLICANT REQUESTS: award of the Legion of Merit, the Defense Meritorious Service Medal, and a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 8 July 2022 * self-authored statement, undated * letters, 12 October 2011 to 1 April 2012 * self-authored statement, 29 March 2020 * His military records from 30 September 1985 to 30 September 2010, including * DD Forms 214 (Certificate of Release or Discharge from Active Duty) * Discharge Certificates * Noncommissioned Officer Evaluation Reports (NCOER) * promotion documents * awards and decorations * school and training certificates * email traffic between applicant, Army Human Resources Command, and Congressional Representatives, 9 May 2011 to 7 January 2022 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, in effect, that he was recommended for two awards that he never received: a. He requests award of the Legion of Merit as his retirement award. He says that due to circumstances outside of his control, he never received the award or the recommendation. Since he was never awarded or given the recommendation pertaining to the award's recommendation, he has been unable to successfully remedy the situation through the proper channels. b. He requests award of the Defense Meritorious Service Medal for his service while in assigned to Joint Task Force Paladin. The applicant states that he was recommended for award of the Meritorious Service Medal for his time at Joint Task Force Paladin, but due to issues concerning routing issues and unexpectedly redeploying the documentation was lost. Shortly after returning from Afghanistan, the applicant was released from Active Duty two days following redeployment. He believes the award should be a Defense Meritorious Service Medal because he served in a Joint Task Force. 3. Regulatory guidance states that "the Department of Defense (DoD) Military Awards Program is to ensure Servicemembers of the Armed Forces of the United States receive tangible recognition for acts of valor, exceptional service or achievement, and acts of heroism not involving actual combat." The Defense Meritorious Service Medal cannot be awarded by Army channels, as it is a DoD issued award and is governed by DoD Manual 1348.33, Volume 4. Therefore, this portion of the applicant's request will not be addressed by the Board nor discussed further in this Record of Proceedings. 4. The applicant initially enlisted in the Kentucky Army National Guard on 30 September 1985. He served in multiple components and positions culminating as a Master Sergeant in the United States Army Reserve until his retirement on 1 October 2011. 5. He has provided several performance documents from his military record, to include DD Forms 214, NCO Evaluation Reports, and promotion documents, including: a. DD Forms 214 (from periods ending 30 September 1985 to 16 August 2011) that all show he has been honorably released from active duty. His most recent DD Form 214 lists the following awards: * NATO Afghanistan Service Medal * Joint Service Commendation Medal * Meritorious Service Medal * Army Commendation Medal * Joint Service Achievement Medal (3rd Award) * Army Achievement Medal (3rd Award) * National Defense Service Medal (2nd Award) * Afghanistan Campaign Medal w/2 Campaign Stars * Global War on Terrorism Service Medal * Noncommissioned Officer Professional Development Ribbons (3rd Award) * Army Service Ribbon * Overseas Service Ribbon (3rd Award) * Armed Forces Reserve Medal w/M Device (3rd Award) * Multinational Force and Observers Medal (2nd Award) * Parachutist Badge * German Army Marksmanship Badge Bronze b. NCOERs (from October 2002 to September 2010) that all describe his promotion potential as "fully capable" and his overall performance as "successful." c. Promotion documents from 1 December 1992 to 1 July 2008, promoting the applicant to Sergeant (E-5) to Master Sergeant (E-8). 6. The applicant was ordered to active duty on 1 November 2009 and served in Afghanistan in support of Operation Enduring Freedom from 15 November 2009 to 10 October 2010. He was again ordered to active duty in support of Operation Enduring Freedom on 19 February 2011 and deployed to Afghanistan from 1 March 2011 to 14 August 2011. 8. His request comes from his time in Afghanistan, when the applicant states that he was recommended for award of the Defense Meritorious Service Medal as his end of tour (EOT) award, and the Legion of Merit for his retirement award but they were never processed. 9. On 14 August 2011 the applicant redeployed and was released from active duty on 16 August 2011. He retired honorably on 1 October 2011, with 26 years, 4 months, and 27 days of net active service. 10. The email traffic submitted by the applicant shows numerous email chains pertaining to the requested awards between himself, Chief, Personnel Actions, Army Human Resources Command (AHRC), and several congressional representatives from 9 May 2011 to 7 January 2022. a. Email correspondence from 2011 is between himself, Chief, Personnel Actions for the USFOR-A J-1, the Director, USFOR-A J-1, and AHRC, in reference to how retirement awards are processed and who should process the award. There was conflicting guidance in country on who should process the retirement award, as he was assigned to the Individual Ready Reserve (IRR) with 21 years of service. Additionally, there was discussion of submitting a memo from CJTF Paladin to revoke orders for an end of tour (EOT) award and resubmit for reconsideration. AHRC responds to the applicant informing him that his "unit downrange needs to submit [him] for the highest award they feel he's earned." There was no other discussion about an EOT or retirement award. b. Email correspondence from 24 January 2017 to 1 November 2017 is between the applicant and congressional aide, and The applicant expresses his concern that AHRC "has been the source of all the award hindrances…, and that he could take the case to AHRC himself, but they have no solutions." responds to the applicant to ask if he can have anyone from his chain of command at the time to assist in filling out a DA Form 638 to recommend him for the Legion of Merit, and that she has a contact at AHRC that is willing to work with them on processing his award. The applicant responds to the request stating that he does not have a chain of command to sign off on the award, that he needs help from a Sergeants Major or Field Grade officer to assist in writing the narrative for the Legion of Merit, and that AHRC is commanded by a major general and a lieutenant general is needed to approve the award of the Legion of Merit. He continues to say that with the amount of time that has passed, the chances of anyone remembering him or his efforts are slight. The applicant also acknowledges that he is aware that AHRC cannot do anything in regard to the Defense Meritorious Service Medal because it is a Department of Defense award. In later emails, E.M. stated to the applicant that AHRC informed her that any superior officer that can be tied back to him from his last assignment can serve as the recommender for his retirement award. c. Email correspondence from 4 January 2018 to 10 December 2018 contains a chain that starts with asking the applicant if he had any luck contacting his former commanders in regard to recommending him for a retirement award. In early April of 2018 the applicant responds to stating that he has trouble trying to get in contact with anyone from his past chain of command, as he does not have access to any kind of government systems. He then goes on to ask if can provide any points of contact within the Department of Defense or Department of the Army that might be able to hear his case, as he has "run out of options." On 2 May 2018, the applicant provides a list of commanders he's served with, along with a brief synopsis of when he served with them. In an email dated 25 June 2018, suggests contacting LTC to ask if he would be willing to recommend him for a retirement award, while her and her resources attempt to locate contact information for the list of commanders he previously provided. During an attempt to contact a former commander, the applicant received a response on 22 July 2018, from LTC who states "I read your note and am sorry that I cannot really assist you in this… Awards do not make the person and have no real value in life. Relationships and work done well are the true value." d. Email correspondence from 14 January 2019 to 4 November 2019 contains a chain that asks the applicant if he has discussed his case in person with either AHRC or the DoD, to which it does not appear that he responded. There were several emails from the applicant inquiring if his messages and phone calls were being received, as responses have been unanswered. responds that the office is involved in several legal matters that keeps her out of the office and apologizes for the delays. In later emails, E.M. states that she has been made aware that members of Congress "are not permitted to sponsor legislation to correct individual military records." She suggests contacting the former AHRC Commander for assistance and asks the applicant to write her a letter to explain his issue with the retirement award. He responds and asks for an Army liaison to be the preferred method of contact due to his "HRC paranoia… [as he does] not have much trust in anyone that worked for HRC." e. Email correspondence from 13 January 2020 to 12 December 2020 contains a chain that begins with informing the applicant that she will resend his letter to the former AHRC Commander. On 29 March 2020, the applicant drafts an 11 page letter detailing his military career and the mishaps he believes occurred in regard to his retirement and end of tour awards. On 11 September 2020, responds with her edits to the letter the applicant sent to her at the end of March. In an email the applicant sent to on 14 November 2020, he expresses his frustration with the entire process, how long he has tried to remedy the situation, and that he is growing weary. responds with how the agencies her office works with are at limited manning and backlogged due to COVID- 19. In a response, suggests sending the applicant's case to the Army Review Board Agency (ARBA) as another avenue available to the applicant, in which he is apprehensive because he has been unsuccessful in resolving a separate matter. f. Email correspondence from 1 January 2021 to 7 January 2022 contains a chain that begins with the applicant informing that he has had two cases with the ABCMR previously, and the outcomes of both cases. In a later email, offers some critiques to the applicant's letter to assist in removing unnecessary information that may not be well- received. On 7 March 2021, the applicant sends a follow up email, as he has not heard from pertaining to his case. She responds on 11 and 22 March 2021, informing the applicant that her o BECAUSE office has been busy with other issues and has not had time to work on his case, but will provide an update when able. The applicant sent 3 emails in April that received no response, and another on 28 May 2021 asking for a status update. responded to the 28 May email offering advice on the letter that the applicant sent previously, so it would not hinder his chances of having his request honored. On 8 October 2021, the applicant responded to the advice of and insists that the reverse racism he has experienced during his career played a part in him not receiving the honor [awards] he believes he deserves. He closed the email asking for Representative opinion of his case and the letter he provided, as written. 11. A review of the applicant's military record and the evidence provided does not show a recommendation or award of the Legion of Merit. Additionally, the applicant did not complete the Title 10 Section 1130 of the United States Code (Title 10 USC 1130) because he was unable to obtain a recommendation from his chain of command either because he could not contact him or because they declined to provide a recommendation for his retirement award. a. The Title 10 USC 1130 process requires the recommender (in this case the applicant) to requests consideration of an action over the 2-year time limitation and prepare and/or complete a DA Form 638 (Recommendation for Award). 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. b. 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. 12. Regulatory guidance states that the Legion of Merit is awarded to any servicemember of the Armed Force of the United States who has distinguished themselves by exceptionally meritorious conduct in the performance of outstanding services and achievements. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's request, the former service members record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on public law, policy and regulation. Upon review of the applicants petition and available military records, the Board noted a review of the applicant's military record and the evidence provided does not show a recommendation or award of the Legion of Merit nor a recommendation from his chain of command. The governing regulation provides that 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. Based upon a preponderance of the evidence, the Board determined there was insufficient evidence of an error or injustice to warrant relief in this matter. 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 : : : 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. 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. 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 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. 2. Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-11 states applicants do not have the right to a hearing before the ABCMR. The Director of the ABCMR may grant a formal hearing whenever justice requires. 3. Army Regulation 600-8-22 (Military Awards) provides Army policy, criteria, and administrative instructions concerning individual military decorations. a. Paragraph 1-14 states 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. b. Paragraph 3-13 states that the Legion of Merit was established by Act of Congress 20 July 1942 (PL 671–77th Congress). The Legion of Merit is awarded to any Servicemember of the Armed Forces of the United States or a friendly foreign nation who has distinguished himself by exceptionally meritorious conduct in the performance of outstanding services and achievements. Criteria for members of the Armed Forces of the United States are as follows: (1) The performance must have been such as to merit recognition of key individuals for service rendered in a clearly exceptional manner. Performance of duties normal to the grade, branch, specialty, assignment, or experience of an individual is not an adequate basis for this award. (2) For service not related to actual war, the term "key individuals" applies to a narrower range of positions than in time of war, which requires evidence of significant achievement. In peacetime, service should be a special requirement or of an extremely difficult duty performed in an unprecedented and clearly exceptional manner. However, justification of the award may accrue by virtue of exceptionally meritorious service in a succession of important positions. (3) Award will be made without reference to degree. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220010747 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1