IN THE CASE OF: BOARD DATE: 7 February 2023 DOCKET NUMBER: AR20220003032 APPLICANT REQUESTS: reversal of the U.S. Army Human Resources Command, Awards and Decorations Branch denial of his request that the Army Commendation Medal, awarded for his acts of heroism on 3 February 2020, be upgraded to a Soldier's Medal. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Forms 149 (Application for Correction of Military Record) (2), with continuation page * Exhibits a through ab as follows: * original DA Form 638 (Recommendation for Award) * downgraded DA Form 638 * eyewitness affidavit, * eyewitness affidavit * police report * map of accident * sworn statement, * sworn statement, * sworn statement, applicant * officer record brief (ORB) * four press releases * numerous email correspondence * biography, general officer * award citation, Soldier's Medal * award packet, Soldier's Medal * confirmation of State award processing * correspondence, U.S. Army Human Resources Command (AHRC), Freedom of Information Act (FOIA) Office * request for reconsideration, Soldier's Medal * reconsideration denial from AHRC FACTS: 1. The applicant states, in effect, the ABCMR should approve his original recommendation for award of the Soldier's Medal for heroism. He contends that unequal application of the standards outlined in Army Regulation (AR) 600-8-22 (Military Awards), paragraph 3-15, a lack of due diligence, disregard for the proper handling of the award recommendation packet, and refusal of the AHRC to process a request for reconsideration resulted in an unjust downgrade of the recommended award. 2. The applicant further states, in effect: a. From May through August of 2021, when the Montana G1 requested an updated status from the National Guard Bureau (NGB), they were told that the award was processing at AHRC. Because of the perceived mishandling of the packet prior, he contacted AHRC directly to verify the supporting documents within the award packet were received. On 17 August 2021, using the e-mail address posted on the AHRC website, he inquired if the Awards Section had received an awards packet containing a list of supporting documents that was sent through channels from his G1. He was informed that a “fully executed 638 was not received,” at AHRC (exhibit q). This was in light of the award packet having been returned without action multiple times prior when requesting additional supporting documents with no mention of the DA Form 638 (Recommendation for Award) not being fully executed. b. On the 18 August 2021, Staff Sergeant (SSG) from the NGB contacted the Montana G1 requesting a copy of the original DA Form 638 that was sent previously from NGB to the Montana G1 for upload into the Integrated Personnel and Pay Systems- Army (IPPS- A) (exhibit r). The signature date on both the original DA Form 638 (exhibit a) and the completed DA Form 638 (exhibit b), along with the email correspondence, indicate that both DA Forms 638 were processed at the NGB level and should have already been received by AHRC prior to August of 2021. Reference exhibit p as the packet was returned by AHRC on 12 May 2021, where it mistakenly cites missing documents that were previously submitted months prior but fails to mention an incomplete DA Form 638. To reiterate, the packet was then forwarded again from the NGB to AHRC, as verified by SSG on 17 May 2021 (exhibit p). It was not until he contacted AHRC that the DA Form 638 was mentioned as not “fully executed” (exhibit q). The award recommendation was downgraded shortly after he made contact with AHRC (exhibit b). c. The Montana G1 received notice of the downgraded award on 15 October 2021 when the Army Commendation Medal set was received in the mail, but the original supporting documents were not. The Montana G1 awards clerk had to search IPPS-A files to locate copies of the signed DA Form 638, award orders and copy of the award certificate. The signature date on the award was 15 September 2021; a full 30 days prior to receipt of the mailed award set with no communication from higher on the status of the award. d. He asks the board to review the award certificate produced by AHRC as the citation is factually incorrect and misrepresents his actions that morning (exhibit t). The Army Commendation Medal citation shown on the certificate appears to be an attempt to justify the downgrade as it would indicate he removed himself and the casualty from harm’s way. This is not factually correct and is in direct conflict with the events as depicted in both signed affidavits (exhibits c and d), the police report (exhibit e), and the crash scene photos that shows where the casualty laid as evidence by the pool of blood on the interstate deck (exhibit f). He contends that he stayed with the casualty in the middle of an active interstate providing both first aid as well as protecting the vulnerable casualty. This official source document, including the factually inaccurate statement, will be a part of his permanent records unless full relief is granted. He believes that this is evidence that the recommendation for the award was not given equal treatment and the changing of the factual circumstances, as represented by the citation written by AHRC and not the proposed citation from the original DA Form 638, demonstrates the narrative was altered in order to reinforce the justification of the downgrade to the recommended award instead of using the original citation that represented the factual events that took place that morning. Furthermore, exhibit l is the Army press release and describes that SSG (Soldier unrelated to this case) did exactly what the AHRC produced certificate indicated he did. However, SSG was awarded the Soldier’s Medal while his recommendation was downgraded. The applicant asks that this be considered direct evidence that there was an unjust disparity in the application of regulatory guidance towards him when the approving authority created an official document that cites actions that are identical to what another Soldier did to receive an award, for which he was originally recommended for, but his recommendation was still downgraded. e. Due to the factually inaccurate citation on the award certificate, he requested through the Inspector General’s (IG) office, a copy of the award submission packet that was reviewed by the approving authority. On the 4 November 2021 he received a copy of the submission packet from the IG’s office, and he discovered that there were five missing evidentiary documents (exhibits u and v). Of the five documents, three provide substantive evidence to the recommendation for award approval (exhibits f, g, and h). The documents were previously sent forward by Montana’s G1 through both eTracker and IPPS-A, only to be excluded in the final submission at either the NGB or AHRC level. f. On guidance from the IG’s office, he requested a copy of the awards packet through the use of a FOIA request on 4 November 2021. This was done to ensure that he had a true copy of the awards submission packet. The AHRC FOIA office advised him that, as a member of the Active Guard Reserve (AGR), he had to go through his unit for the request (exhibit w). He did not find this process in Title 5, U.S. Code, section 552. g. On 7 November 2021, after identifying the fact that multiple documents of the original submission packet were not included as supporting evidence to the approval authority, he submitted a request for reconsideration in accordance with AR 600-8-22, paragraph 1-16, through channels, (exhibit x) and his reconsideration was entered into IPPS-A on 9 November 2021. On the 17 November 2021, the NGB annotated within IPPS-A that the reconsideration packet was forwarded to AHRC for final determination. He received a mailed copy of a notice from the AHRC stating that they had received his FOIA request, and it was being processed. The date of notice was 8 November 2021, but he did not receive the notice until 18 November 2021 because an incorrect address was used (he assumes no malfeasants, just a clerical error). Two control numbers were assigned along with a web link that was cited as a resource where he would be able to check the status of his request. The URL was non-functional when he tried to use it (exhibit z). h. On the 6 December 2021, he received a mailed copy of the award packet from AHRC (exhibit aa). The FOIA packet confirmed that the original award submission, downgraded by the approving authority, was missing multiple supporting documents at the time of downgrade to include photographic evidence from the crash scene and two sworn statements from Senior Noncommissioned Officers (NCO)(exhibits f, g, and h). On the 6 January 2022, the Montana G1 Awards Section received notice that his request for reconsideration was returned without action and cited that his request did not constitute new and substantive evidence (exhibit ab). This action was taken in light of the previously unreviewed photographic evidence (exhibit f) that when coupled with the sworn statements (exhibits g and h) demonstrate that all his actions were performed in the middle of an active interstate where he put his life in jeopardy in order to protect the life of another. The photographic evidence was not seen prior as it was a portion of the original submission packet that was separated prior to reaching the approval authority as demonstrated by exhibits v and aa. The evidence and sworn statements support and amplify the original recommendation in accordance with AR 600-8-22, paragraph 3-21w(6), however, this evidence was dismissed as non-substantive even though they tied his location during the event to the middle of an active interstate where he stayed to ensure the safety of the casualty while risking personal harm. Eyewitness statements (exhibits c and d) also support this. i. To further support the evidence of an unjustly dismissal, he asks the ABCMR to review his request for reconsideration (exhibit x). He made several references in that request, with supporting evidence, to the fact that he did not move the casualty from the middle of the interstate. He did this to highlight the fact that the Army Commendation Medal certificate (exhibit t) contains factually incorrect information. j. The AHRC made no attempt to address or correct this fabricated narrative which is now a permanent official source document in his military record. The Army Commendation Medal Award certificate presents a false account of the events of that morning that greatly diminishes his actions. k. On a separate DD Form 149, the applicant states that in 2016, the Defense Secretary ordered a review of awards out of the concern that Soldiers were not receiving the appropriate recognition, due in part to inconsistency in the adjudication process. He believes there has been a bias in the adjudication of the award recommendation in his case and there is evidence that the original recommendation was not given due diligence as well as an appearance that the recommendation was downgraded in a dismissive fashion. The AHRC produced a factually inaccurate official source document which indicates the award recommendation was not given due process and the totality of his actions were disregarded. l. He further contends that there has been inconsistency with the application of standards set by AR 600-8-22, paragraph 3-15, with regards to an award recommendation for himself when compared to recent historical precedents, and that his award recommendation did not receive objective consideration when compared with these similar past awards. He provides numerous examples of individuals that were awarded the Soldier's Medal, as identified in Department of the Army press releases. The specific environmental conditions vary; however, he believes the events are similar enough to warrant a direct comparison to his own experiences. These examples show Soldier's that rendered aid at the site of a traffic accident or when they assisted in finding lost hikers resulting in the award the Soldier's Medal, one being awarded posthumously. 3. At the time of his application, the applicant was a Major (MAJ) serving in the AGR. 4. The record shows that the on 13 April 2021, the applicant was recommended for the Soldier's Medal for an act of heroism which occurred on 3 February 2020. His entire command recommended approval. The award narrative reads as follows: The applicant, Montana Army National Guard, distinguished himself by exceptional meritorious heroism in the performance of outstanding service to the Montana Army National Guard as the Human Resource Officer for the 1889th Regional Support Group on 3 February 2020. In the early morning of 3 February 2020, the applicant was traveling from his home in to his place of duty in via Interstate 15. At 0545 he came upon the scene of a traffic accident. A pedestrian was struck by a vehicle that was traveling at an estimated speed of 75 miles per hour. Without hesitation for his personal safety, he immediately took decisive action. Knowing that in the pre-dawn hours and with the location of the accident partially obstructed from the view of oncoming traffic, the risk of a secondary collision was high. The applicant immediately started performing a casualty assessment of the unconscious pedestrian that was laying prone in the middle of the interstate. With limited medical supplies, the applicant looked to stem the flow of blood from multiple lacerations the pedestrian sustained from both the impact with the vehicle and the follow on slide across the roadway due to vehicle coming to a sudden stop. Along with the lacerations, the applicant also did what he could to stabilize and immobilize the pedestrian's neck and head in order to prevent further injury. With the pedestrian still unconscious, the applicant performed a quick examination of the driver that struck the pedestrian. While she was unharmed, the applicant realized that there was a sudden increase in traffic and that all parties in the middle of the road were in danger of being struck and killed. He took up position in the middle of the interstate in order to flag down traffic. Using nothing more than a light from his cell phone, he established positive control over the flow of high-speed traffic that was approaching. During this time, the pedestrian started to regain consciousness and began attempting to move. With oncoming semi-trucks and other vehicles passing at high rates of speed within mere feet but fearing that the pedestrian could further injure himself, the applicant made the decision to turn his back on the oncoming traffic. By removing the ability to monitor traffic and provide for his own safety, he took steps to ensure the pedestrian remained immobile and preventing further injury all the while being exposed to the potentially tainted blood of the pedestrian. The emergency first responders arrived on the scene after over 20 minutes and assumed medical care of the pedestrian. The applicant then continued to control the flow of traffic at the site while the first responders stabilized the individual, ensuring their safety. Law enforcement officials arrived on the scene after the ambulance was leaving the area. Without question, the applicant's personal courage allowed him to step in and gain control of a highly dangerous scene by risking his life, in order to ensure that others would live. Seven law enforcement members have lost their lives so far in 2020 doing exactly what the applicant did. By braving freezing temperatures, hours before sunrise, he controlled the scene of the accident for close to fifty minutes while providing medical care to a critically injured man. His bravery is the epitome of the American Soldier and consistent with the core values of the United States Army. His actions are in keeping with the finest traditions of military service and reflect distinct credit upon himself, the 1889th Regional Support Group, the Montana Army National Guard, and the United States Army. 5. On 15 September 2021, the Commander, AHRC, and the orders issuing authority, downgraded the Soldier's Medal recommendation and awarded the applicant the Army Commendation Medal (4th Oak Leaf Cluster). The applicant was issued an Army Commendation Medal Certificate, in Permanent Order 258-0001, published by the AHRC on 15 September 2021. The citation shown on the certificate reads: For heroism on 3 February 2020, while providing medical care for a critically injured man. [The applicant] pulled an individual who was struck by a vehicle out of the middle of the road, using the light from his cellphone to attempt to slow other drivers. [The applicant's] selfless actions reflect great credit upon him, the Montana Army National Guard, and the United States Army. 6. His military records contains a Memorandum For Record, Subject: Reconsideration of [applicant], which shows the Chief, Awards and Decorations Branch, stated that on 13 September 2022, the Commanding General (CG), AHRC, exercising authority delegated by the Secretary of the Army and in accordance with AR 600-8-22, paragraph 1-16, reconsidered the previously approved award of the Army Commendation Medal (4th Oak Leaf Cluster) as announced in AHRC Permanent Order 258-0001, dated 15 September 2021. The CG, AHRC determined that the applicant's actions, though certainly heroic, did not meet the criteria for the Soldier's Medal and upheld his previous determination that the Army Commendation Medal was the appropriate award. 7. The applicant's exhibits are presented in chronological order. a. A Vehicle Crash Report, diagram, and photographs (exhibits e, and f). b. Sworn Statements from individuals that attested that the applicant told them he took actions to render aid and safeguard the injured pedestrian while putting himself in harm's way by directing traffic in the middle of a busy interstate. (exhibits g, and h). c. The applicant's sworn statement (exhibit i), 15 June 2020, wherein he described, in effect, his actions after coming upon an accident scene in which a pedestrian had been struck by a vehicle along the interstate at approximately 0545 hours. He stated that in addition to rendering aid to the pedestrian and the driver, he signaled the oncoming traffic to slow down by using the light of his cellphone. In doing so, he had to stand in the center of the road close to fast moving vehicles and often placed himself in harm's way because he had to turn his back to the traffic in order to check on the casualty. He repeatedly checked on the victim while directing traffic until the first responders arrived at 0620 hours. d. The original DA Form 638 (exhibit a), 12 June 2020, which shows he was recommended for the Soldier's Medal for heroism for an incident that occurred on 3 February 2020. His entire chain of command recommended approval. The award narrative is the same; however, the certificate citation reads for: Exceptional meritorious service and extraordinary heroism while providing medical care under extreme conditions for a critically injured man. [The applicant} used his own body to shield a helpless individual in predawn hours on a major interstate while responding to the scene of an accident. [The applicant] remained calm and took control of a terrifying situation until first responders could arrive. [The applicant] risked his life in order to protect the life of another. His selfless actions and bravery reflect great credit to himself, the Montana Army National Guard and the United States Army. e. Affidavit, the driver of the vehicle that hit the pedestrian, 23 December 2020 (exhibit c). She stated that she witnessed the applicant stop to render aid and ensure no one else was hurt. She saw the applicant check on the casualty and redirect traffic from the middle of the road. The applicant moved between the man in the road and redirecting traffic for about 20 minutes until the ambulance arrived. f. Affidavit, motorist who avoiding hitting the pedestrian by swerving onto the shoulder, 23 December 2020 (exhibit d). This witness stated the applicant restored order to a catastrophic situation. The applicant put himself between the oncoming traffic and the pedestrian in order to preserve the integrity of the accident scene and prevent injuries to any one from another vehicle barreling through the accident scene. g. Email correspondence, 1 April 2021 and 6 April 2021 between the NGB Awards Action Officer and G1 NCO (exhibit o). The discussion is primarily about determining a presentation date for the applicant's award and the need to push the date back because the award had been "kicked around and returned multiple times trying to get all the pieces." h. DA Form 638, 13 April 2021. The applicant provided multiple copies of this award which reflects the same information discussed earlier in this Record of Proceedings. i. Email correspondence,12 May 2021 to 17 May 2021 (exhibit p) between NGB Awards Action Officer and G1 NCO. In this discussion the G1 NCO asks the NGB Awards Action Officer for the status of the applicant's award and to ensure all the documents, to include the witness statements were reviewed before returning the award without action. As of 17 May 2021, the award was at AHRC for review. j. Email correspondence, 17 August 2021 to 18 August 2021 (exhibit q), wherein the AHRC Awards Board Analyst informs the applicant that the award was not being processed and being returned because they did not receive a fully executed DA Form 638. k. Email correspondence, 18 August 2021 (exhibit r), wherein the NGB Awards Action Officer informed the applicant that she sent the packet to HRC but was unaware of the issue with the DA Form 638. The Awards Action Officer requested the applicant have his unit send the DA Form 638 directly to her for review prior to sending to HRC. l. An Army Commendation Medal Certificate with orders (exhibit t), 15 September 2021. m. Four press releases pertaining to other Soldiers who were awarded the Soldier's Medal for similar instances. n. Email correspondence, 4 November 2017 (exhibit u) from the IG's Office stating the applicant's award packet was attached for review. o. The applicant's email FOIA request, 4 November 2017, with response (exhibit w). p. Applicant's request for reconsideration of previous award recommendation, 7 November 2021 (exhibit x). The applicant stated that with the assistance of the IG he had determined that evidentiary documents submitted by his unit were not seen by the approving authority. He believed the missing documents provided new, substantive and material evidence on the risk to bodily harm by voluntarily placing himself in harm's way, as well as the totality of his action on 3 February 2020. There were five missing documents that were not seen by the approval authority of which three supported the original recommendation for award of the Soldier's Medal: a story board with photographic evidence of the scene, the sworn statement by and the sworn statement by q. A FOIA Response, 8 November 2021 (exhibit z), acknowledging receipt of the applicant's request. r. Email correspondence, 9 November 2021 (exhibit y) wherein it appears the G1 informed the applicant that a "CRM" ticket was established to process his reconsideration. s. FOIA memorandum (exhibit aa), 29 November 2021, wherein the AHRC responded to the applicant's request for his original Soldier's Medal recommendation packet. The FOIA Office informed the applicant that they located a file with 18 pages (not identified). Four pages contained privacy-related information about other parties and were removed. The applicant was also informed that he should contact the State Highway Patrol for law enforcement records. t. AHRC memorandum, 3 January 2022 (exhibit ab) wherein the Chief, Awards and Decorations Branch, AHRC, notified the Director, NGB that the applicant's reconsideration request to award the Soldier's Medal in lieu of the Army Commendation Medal, including all of the information in support of the request, was being returned without action. The applicant's packet did not constitute new and substantive information. u. A general officer biography and ERB (exhibits s and j). 8. Regulatory guidance states that 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 having award approval authority. a. The Soldier's Medal is awarded for distinguished heroism not involving actual conflict with the enemy. The minimum degree of heroism is required as for award of the Distinguished Flying Cross. The extraordinary act must have resulted in an accomplishment so exceptional and outstanding as to clearly set the individual apart from his or her comrades or from other persons in similar circumstances. The performance must have involved personal hazard or danger and the voluntary risk of life under conditions not involving conflict with an armed enemy. Awards of the Soldier's Medal will not be made solely on the basis of saving a life, assisting emergency personnel, or acting as a "good Samaritan." A Soldier's Medal recommendation will be disapproved or downgraded to an Army Commendation Medal. b. 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, distinguished himself or herself by heroism, meritorious achievement or meritorious service. It can be awarded for acts for noncombatant-related heroism which do not meet the requirements for an award of the Soldier's Medal. c. AR 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 will decide cases on the evidence of record. It is not an investigative body. Applicants do not have a right to a hearing before the ABCMR. BOARD DISCUSSION: 1. 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. 2. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The Board noted that the Soldier's Medal is awarded for distinguished heroism not involving actual conflict with the enemy. The extraordinary act must have resulted in an accomplishment so exceptional and outstanding as to clearly set the individual apart from his or her comrades or from other persons in similar circumstances. The performance must have involved personal hazard or danger and the voluntary risk of life under conditions not involving conflict with an armed enemy. Awards of the Soldier's Medal will not be made solely on the basis of saving a life, assisting emergency personnel, or acting as a "good Samaritan." A Soldier's Medal recommendation will be disapproved or downgraded to an Army Commendation Medal. a. The applicant's record shows he was cited for heroism on 3 February 2020, while providing medical care for a critically injured man. He pulled an individual who was struck by a vehicle out of the middle of the road, using the light from his cellphone to attempt to slow other drivers. b. The Commanding General, HRC, exercising authority delegated by the Secretary of the Army and in accordance with AR 600-8-22, paragraph 1-16, reconsidered the previously approved award of the Army Commendation Medal, and determined that the applicant's actions, though certainly heroic, did not meet the criteria for the Soldier's Medal and upheld his previous determination that the Army Commendation Medal was the appropriate award. c. Given the totality of the situation, including what the applicant perceived as missing documents, the Board determined the Army Commendation Medal is the appropriate award for his actions. ? 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. Army Regulation (AR) 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. It states: a. 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 having award approval authority. b. The Soldier's Medal is awarded for distinguished heroism not involving actual conflict with the enemy. The minimum degree of heroism is required as for award of the Distinguished Flying Cross. The extraordinary act must have resulted in an accomplishment so exceptional and outstanding as to clearly set the individual apart from his or her comrades or from other persons in similar circumstances. The performance must have involved personal hazard or danger and the voluntary risk of life under conditions not involving conflict with an armed enemy. Awards of the Soldier's Medal will not be made solely on the basis of saving a life, assisting emergency personnel, or acting as a "good Samaritan." A Soldier's Medal recommendation will be disapproved or downgraded to an Army Commendation Medal. c. 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, distinguished himself or herself by heroism, meritorious achievement or meritorious service. It can be awarded for acts for noncombatant-related heroism which do not meet the requirements for an award of the Soldier's Medal. d. Paragraph 3-21w(6) states properly constituted award recommendations will include records, extracts, sketches, maps, diagrams, and photographs which support and amplify the award of heroism. 2. AR 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 will decide cases on the evidence of record. It is not an investigative body. Applicants do not have a right to a hearing before the ABCMR. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220003032 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1