RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 OCTOBER 2005
      DOCKET NUMBER:  AR20050003987


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Rene R. Parker                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John Meixell                  |     |Chairperson          |
|     |Mr. James Gunlicks                |     |Member               |
|     |Ms. Jeanette McCants              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that the memorandum denying him award of the
Army Good Conduct Medal (AGCM) be removed from his Official Military
Personnel File (OMPF).

2.  The applicant states his signature is not on the document and he was
not aware of the situation.  Additionally, he states there are no records
of an Article 15 on his fiche.

3.  The applicant provides a copy of the memorandum Subject:
Disqualification for Award of the Good Conduct Medal, dated 19 July 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant's OMPF shows that he was awarded three AGCMs.  The 1st
award was from 12 July 1991 to 11 July 1994.  The 2nd award was from
12 July 1994 to 11 July 1997.  The applicant's 3rd award was from 12 July
1997 to 11 July 2000.

2.  The applicant's OMPF also shows that on 19 July 2004 the commander
disqualified him for the award of the Army Good Conduct Medal.   The
commander stated that his rationale for disqualifying him is based on the
applicant receiving an Article 15 during the time period.  The memorandum
does not identify the specific period of disqualification.

3.  The referral memorandum to the applicant, dated 19 July 2004, shows
that the applicant was "unavailable for signature."  Therefore, no election
or acknowledgement was checked on the memorandum.

4.  There are no records of nonjudicial punishment or any type of adverse
actions contained on the applicant's OMPF.

5.  Army Regulation 600-8-22, Military Awards, states that the immediate
unit commander's decision to award the AGCM will be based on his or her
personal knowledge and of the individual's official records for periods of
service under previous commanders during the period for which the award is
to be made.  The lack of official disqualifying comment by such previous
commanders qualifies the use of such period toward the award by the current
commander.  Additionally, paragraph 4-5 lists the qualifying period of
service as each 3 years completed on or after 27 August 1940.

6.  Paragraph 4-6, character of service, states that while any record of
nonjudicial punishment could be in conflict with recognizing the soldier's
service as exemplary; such record should not be viewed as automatically
disqualifying.  The commander analyzes the record, giving consideration to
the nature of the infraction, the circumstances under which it occurred and
when.

7.  Paragraph 4-8, disqualification for the AGCM, states that conviction by
courts-martial terminates a period of qualifying service; a new period
begins the following day after completion of the sentence imposed by the
court-martial.  Individuals whose retention is not warranted, or for whom a
bar to reenlistment has been approved, are not eligible for award of the
AGCM.  In instances of disqualification as determined by the unit
commander, the commander will prepare a statement of the rationale for his
or her decision.  This statement will include the period of
disqualification and will be referred to the individual according to Army
Regulation (AR) 600-37, Unfavorable Information, paragraph 3-6.  The unit
commander will consider the affected individual's statement.  If the
commander's decision remains the same, the commander will forward his or
her statement, the individual's statement, and his or her consideration for
filing in the individual's DA Form 201 (Military Personnel Records Jacket
(MPRJ)).

8.  AR 600-37, paragraph 3-6 states that unfavorable information will be
referred to the recipient for information and acknowledgment of his or her
rebuttal opportunity.  Acknowledgement and rebuttal comments or documents
will be submitted generally in the following form:  "I have read and
understand the unfavorable information presented against me and either
submit or decline to submit statements or documents in my behalf."  If a
recipient refuses to acknowledge the referral of unfavorable information,
the reprimanding official will prepare the following statement: "On (date),
(name) has been presented with the unfavorable information and refuses to
acknowledge by signature." The letter can then be directed for filing.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records show that he would have been eligible for the
4th award of the ACGM from the period 12 July 2000 to 11 July 2003.
However, he was disqualified one year after the through date of the award.
The rationale cited by the commander was "an Article 15 during this time
period."

2.  The applicant's records reveal that an Article 15 was not filed in
either his performance or restricted fiche.  However, the absence of the
Article 15 from the applicant's fiche does not prove that the applicant did
not receive nonjudicial punishment.
3.  A review of the applicant's OMPF does not reveal any other derogatory
information that would disqualify him for the award of the AGCM.

4.  The issue is not whether the applicant received an Article 15 or not
but, more accurately, if the disqualification action was processed
appropriately.  The memorandum disqualifying the applicant for award of the
AGCM states "unavailable for signature."  The absence of the applicant's
signature substantiates his claim that he was unaware of the action.  The
memorandum for disqualification was not referred to him for his
acknowledgement and or rebuttal.  Therefore, the applicant was not afforded
due process in the issuance of the disqualification memorandum.  In view of
these facts, it would be appropriate, and in the interest of justice and
equity to remove the disqualification memorandum from the applicant's file.

BOARD VOTE:

___JM __  __JG____  __JM ___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was 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
removing the memorandum, Subject:  Disqualification for Award of the Good
Conduct Medal, dated 19 July 2004, from the applicant's OMPF.





                                  ______John Meixell__________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050003987                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051020                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |107.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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