IN THE CASE OF:	  

	BOARD DATE:	  15 July 2008

	DOCKET NUMBER:  AR20080009461 


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 removal of permanent orders revoking award of the Good Conduct Medal and a disqualification statement for award of the Good Conduct Medal from his Official Military Personnel File (OMPF).

2.  The applicant states that during his prior enlisted service, his immediate commander directed that orders awarding him the Good Conduct Medal be revoked, initiated a disqualification memorandum denying him award of the Good Conduct Medal, and ordered both documents be placed on his OMPF.  He further adds that by regulation, in instances of disqualification, the commander was required to prepare a memorandum stating the rationale for his/her decision to disqualify the Soldier and refer this memorandum to the Soldier affected.  The unit commander will consider the affected Soldier’s statement, which was not done in the applicant’s case.  If the commander’s decision remains the same after reviewing the individual’s statement, the commander will forward the disqualification memorandum together with the individual’s statement and his/her consideration to the OMPF, which again, was not done in the applicant’s case.  The applicant further adds that filing the commander’s statement in the OMPF without his statement and the commander’s statement of consideration is unjust and warrants removal of these documents from the OMPF.  He concludes that now he is a commissioned officer, when his records are reviewed in the future for promotion or personnel decisions, he feels he would be disadvantages and miss out on opportunities.   


3.  The applicant provided a copy of the Disqualification Memorandum, dated 27 February 1998; a copy Permanent Orders 83-01, dated 24 March 1998, revoking his award of the Good Conduct Medal; and his statement, dated 27 February 1998, in support of his application. 

CONSIDERATION OF EVIDENCE:

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 Army Board for Correction of Military Records (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.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show that he enlisted in the Regular Army for a period of 6 years on 14 November 1994.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 68B (Aircraft Power-Plant Repairman).  The highest rank/grade he attained during this period of military service was specialist (SPC)/E-4.  He was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement) on 15 August 2000.

3.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 shows he was awarded the Armed Forces Service Medal, the NATO Medal, the Good Conduct Medal, the National Defense Service Medal, the Army Service Ribbon, the Overseas Service Ribbon, the Expert Marksmanship Qualification Badge with Rifle Bar, the Aircraft Crewman Badge, and the Driver and Mechanic Badge with Driver-Wheel Bar.

4.  On 27 February 1998, while a member of Headquarters and Headquarters Company, U.S. Army Transportation Center, Fort Eustis, Virginia, the applicant’s immediate commander notified him by memorandum that it was her intent to disqualify him for award of the Army Good Conduct Medal for the period July 1994 to July 1997.  The immediate commander cited the applicant’s two instances of Article 15 during the period covered by this award.  She further directed the applicant to acknowledge the memorandum and submit a rebuttal.

5.  On an unknown date, the applicant acknowledged the memorandum by indicating that he had read and understood his disqualification for award of the Good Conduct Medal and by signing the memorandum.  However, he did not circle the appropriate entries indicating if he wanted to submit an appeal or if an appeal was submitted. 

6.  On 24 March 1998, Headquarters, 765th Transportation Battalion, Fort Eustis, Virginia, published Permanent Orders 83-01, revoking Permanent Orders 51-04, issued by the same Headquarters on 20 February 1998, pertaining to award of the Good Conduct Medal.  

7.  The Commander Disqualification Memorandum and the Permanent Orders that revoked the applicant's award of the Good Conduct Medal, were received by the Human Resources Command (HRC) Indianapolis (formerly known as the U.S. Army Enlisted Records and Evaluation Center or USAEREC) and on 8 May 1998 were filed in the Performance section of the OMPF

8.  On 14 May 2008, the applicant was appointed as a second lieutenant in the Engineer Corps of the U.S. Army Reserve.

9.  The applicant submitted a copy of the rebuttal statement, dated 27 February 1998, that his immediate commander should have considered at the time.  In this rebuttal statement, the applicant stated that a slight lack of judgment led to his incidents.  He further adds that he served honorably, and was twice recognized as the Soldier of the Month; Soldier of the Quarter; and runner-up Brigade Soldier of the Year.  He further adds that he was also recognized with several awards and decorations including the NATO Medal and the Armed Forces Expeditionary Medal.  He concludes that he was working a part time job to help pay for his education and that given his history of hard work and exemplary service, he appealed to the commander to reconsider her decision regarding awarding him the Good Conduct Medal

10.  Chapter 2 of Army Regulation 600-8-104 (Military Personnel Information Management/Records) governs the composition of the OMPF, and states in pertinent part that the performance fiche is used for filing performance, commendatory and disciplinary data.  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 certain agencies, to include this Board.



11.  Table 2-1 of Army Regulation 600-8-104 states, in pertinent part, that Disqualification statement for award of the Good Conduct Medal is filed in the permanent section of the Performance fiche on the OMPF. Furthermore, Table  2-1 states that approval correspondence and statements are filed in the permanent section of the OMPF while allied documents are filed in the restricted section of the OMPF.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant’s immediate commander initiated a disqualification memorandum to disqualify him from award of the Good Conduct Medal.  He was presented with a copy of this memorandum and acknowledged receipt.  However, he did not indicate if he elected to submit a rebuttal to her decision.  It is unclear if and when the applicant submitted his statement to his commander.  

2.  It appears that the commander reviewed the applicant’s statement and that her decision remained the same, given the applicant’s two instances of Article 15.  It also appears that the commander forwarded the disqualification memorandum together with allied documents to the OMPF.  The revoked order is correctly filed on the performance section and the disqualification memorandum is correctly filed on the restricted section of his OMPF.  It is unclear why the applicant’s rebuttal statement is not filed on his OMPF.  

3.  Removing the disqualification memorandum and/or the revoked order from the OMPF could suggest, at a future date, that the applicant did not receive the Good Conduct Medal as a result of an administrative oversight and he could very well be issued orders awarding him the Good Conduct Medal, when he was disqualified from that award.  

4.  The purpose of maintaining the OMPF is to protect the interests of both the U.S. Army and the Soldier.  In this regard, the OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; and any corrections to other parts of the OMPF.  Once placed in the OMPF, the document becomes a permanent part of that file and will not be removed from or moved to another part of the OMPF unless directed by an appropriate authority.

5.  Despite his two Article 15s in the 1990s, it appears that the applicant has rebounded in an outstanding manner as evidenced by his recent appointment as a second lieutenant in the USAR.  It does not appear that the disqualification memorandum or the revoked order impacted his appointment as a second lieutenant. 
6.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement.  Therefore, he is not entitled to relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



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       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)                                         AR20080009461



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ABCMR Record of Proceedings (cont)                                         AR20080009461



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