IN THE CASE OF:	    

		BOARD DATE:	         28 August 2008

		DOCKET NUMBER:  AR20070016983 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that a 9 February 2001 memorandum disqualifying him for award of the Army Good Conduct Medal, filed in the performance portion of his OMPF (Official Military Personnel File), be removed.

2.  The applicant states, in effect, that his former company commander disapproved his first award for the Army Good Conduct Medal pending an adverse action which ended favorably.  The applicant continues that his company commander later approved his first award for the Army Good Conduct Medal.  The applicant continues that a memorandum for the disqualification of the first award for the Army Good Conduct Medal was erroneously filed in his MPRJ (Military Personnel Jacket Record) and in the performance section of his OMPF.  The applicant requests that the memorandum for disqualification be removed from his MPRJ and OMPF.

3.  The applicant provides copies of the disapproval memorandum, dated 9 February 2001; and the former Commander's approval memorandum of record, dated 13 December 2006 in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 23 September 1997 and he is currently serving on active duty in the rank of sergeant first class/pay grade E-7.  



2.  The applicant provided a memorandum, dated 9 February 2001, from the Department of the Army, Bravo Battery, 2nd Battalion, 4th Field Artillery, Fort Sill, Oklahoma.  This memorandum shows that his battery commander disapproved his award of the Army Good Conduct Medal on 10 January 2000 due to the applicant's off-duty misconduct.  The memorandum also shows the disapproval of the Army Good Conduct Medal was imposed as an administrative action under the provision of Army Regulation 600-37 (Unfavorable Information) and was not punishment under the Uniform Code of Military Justice.  The applicant's record shows at the time he received the disqualification his rank was specialist/pay grade E-4.  The applicant's record shows that he was unavailable to sign acknowledging receipt of the disapproval.

3.  Headquarters, United States Army Field Artillery Center, Fort Sill, Oklahoma Permanent Orders 323-006, dated 19 November 2001, shows the applicant was awarded the first award of the Army Good Conduct Medal during the period 23 August 1997 to 22 August 2000.  

4.  Headquarters, United States Army Field Artillery Center, Fort Sill, Oklahoma Permanent Orders 095-011, dated 3 April 2002, shows the applicant was awarded the Army Good Conduct Medal (1st Award) during the period 21 (sic) September 1997 to 22 September 2000.  

5.  Department of the Army, Detachment A, 38th Personnel Services Battalion Permanent Orders 54-013, dated 23 February 2004, shows the applicant was awarded the Army Good Conduct Medal (2nd Award) during the period 23 September 2000 to 22 September 2003.

6.  Department of the Army, Detachment A, 38th Personnel Services Battalion Permanent Orders 140-018, dated 20 May 2005, shows a duplicate award of the Army Good Conduct Medal (2nd Award) for the period 23 September 2000 to 22 September 2003 was awarded the applicant.

7.  An award certificate reflecting Permanent Orders 207-03, dated 26 July 2006, shows the applicant was awarded the Army Commendation Medal for exceptionally meritorious service during the period 10 December 2002 to 30 April 2006.  

8.  Department of the Army, Detachment C, 38th Personnel Services Battalion Permanent Orders 303-419, dated 30 October 2006, shows the applicant was awarded the Army Good Conduct Medal (3rd Award) during the period 23 September 2003 to 22 September 2006.

9.  Department of the Army Detachment C, 38th Personnel Services Battalion Permanent Orders 335-401, dated 1 December 2006, revoked Permanent Orders 323-006, dated 19 November 2001.

10. Department of the Army, Detachment C, 38th Personnel Services Battalion Permanent Orders 335-402, dated 1 December 2006, revoked Permanent Orders 140-018, dated 20 May 2005.

11.  The applicant's record shows that on 1 August 2008 he was promoted to the rank of sergeant first class/pay grade E-7.

12.  The applicant provided a memorandum from Headquarters, Multi-National Corps - Iraq, dated 13 December 2006.  The memorandum shows that his previous commander who originally disapproved his first award of the Army Good Conduct Medal stated the disapproval was based on the applicant pending adverse action.  The commander continues that the situation resulted favorably for the applicant and he later approved the award and he voided the disqualification.  

13.  Review of the applicant's records shows his commander's disapproval memorandum, dated 9 February 2001, for the first award of the Army Good Conduct Medal in the performance section of his OMPF.  A copy of this disqualification memorandum is also located on his MPRJ.  However, his records contain no additional documents in reference to his adverse action.

14.  Army Regulation 600-8-22 (Military Awards) states that commanders may disqualify Soldier’s from award of the Army Good Conduct Medal by preparing a statement of the rationale for his or her decision.  The statement will include the period of disqualification and will be referred to the individual for comment.  The unit commander will then consider the Soldier’s statement, if provided, and if his 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 OMPF.  The custodian of the individual’s local file will forward the documents to the Commander, United States Army Enlisted Records and Evaluation Center for permanent filing in the individual’s OMPF. 

15.  Army Regulation 600-37 sets forth policy and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely or inaccurate is not filed in an individual's official personnel files; and ensure that the best interest of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.  In pertinent part, it states a letter to be included in a Soldier’s OMPF will be referred to the recipient concerned for comment.  A letter may be filed in the OMPF only upon the order of a general officer or by direction of an officer having general court-martial jurisdiction over the individual.  

16.  Paragraph 3-6(b) of this regulation states that letters filed in the OMPF will be filed on the performance portion (P-fiche).  The direction for filing in the OMPF will be contained in an endorsement or addendum to the letter.  A letter to be included in a Soldier’s OMPF will (1) be referred to the recipient concerned for comment according to paragraph 3–6.  The referral will include reference to the intended filing of the letter.  (a) This referral will also include and list applicable portions of investigations, reports, and other documents that serve, in part or in whole, as the basis for the letter, providing the recipient was not previously provided an opportunity to respond to information reflected in that documentation.  (2) Contain a statement that indicates it has been imposed as an administrative measure and not as a punishment under UCMJ, Article 15.  Minor behavior infractions or honest mistakes chargeable to sincere but misguided efforts will not normally be recorded in a Soldier’s OMPF. Once placed in the OMPF, however, such correspondence will be permanently filed unless removed through the appeal process. 

17.  Army Regulation 600-8-104 (Military Personnel information management) states that the restricted fiche is used for historical data that may normally be improper for viewing by selection boards or career managers.  Documents on this fiche are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; and corrections to other parts of the OMPF. 
 
18.  Army Regulation 600-8-104 states that once placed in the OMPF, the document becomes a permanent part of that file.  The document will not be removed from a fiche or moved to another part of the fiche unless directed by one of several agencies, including this Board.  It does note that the custodian of the OMPF may remove documents in the OMPF only when the documents have been improperly filed. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the memorandum of disqualification, dated 9 February 2001, for the first award of the Army Good Conduct Medal, filed in the performance portion of his OMPF should be removed.

2.  Evidence of record shows that the applicant's battery commander disapproved the applicant's first award of the Army Good Conduct Medal, for the period 23 August 1997 to 22 August 2000, dated 3 April 2002, because of his off-duty misconduct.  The memorandum was filed in the performance section of the applicant's OMPF and in his MPRJ under the provision of Army Regulation 600-37 (Unfavorable Information).  

3.  Evidence of record shows in the interim he later received the first award of the Army Good Conduct Medal on 3 April 2002, for the period 21 (sic) September 1997 to 22 September 2000.  

4.  Evidence of record shows he received award of the Army Good Conduct Medal (2nd Award) on 23 February 2004, for the period 23 September 2000 to 22 September 2003; and for the Army Good Conduct Medal (3rd Award) on 30 October 2006, for the period 23 September 2003 to 22 September 2006.

5.  The applicant's record also shows that since his adverse action ended favorably and no additional documentation exist in his record for misconduct, his former battery commander voided the disapproval of the first award of the Army Good Conduct Medal.  

6.  As such, in the interest of equity and justice, it would be appropriate to remove the 9 February 2001 memorandum, associated with the action to disqualify the applicant for the first award of the Army Good Conduct Medal from his OMPF and MPRJ. 

BOARD VOTE:

___X____  ___X___  ___X____  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 9 September 2001 memorandum, associated with the action to disqualify the applicant for the first award of the Army Good Conduct Medal for the period 12 June 2000 to 11 June 2003, from his OMPF and MPRJ. 



      _______ _X   _______   ___
               CHAIRPERSON
      
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.

ABCMR Record of Proceedings (cont)                                         AR20070016983



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ABCMR Record of Proceedings (cont)                                         AR20070016983



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