IN THE CASE OF:	  

		BOARD DATE:	  9 March 2010

		DOCKET NUMBER:  AR20090017191 


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, award of the Army Good Conduct Medal (AGCM).

2.  The applicant states that the AGCM is not included in the list of awards contained on his DD Forms 214 (Armed Forces of the United States Reports of Transfer or Discharge), dated 19 June 1964 and 19 June 1967.

3.  The applicant provides his 19 June 1964 and 19 June 1967 DD Forms 214 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 record shows he initially enlisted in the Regular Army and entered active duty on 30 March 1962 and that he was trained in and awarded military occupational specialty (MOS) 141.60 (Cannoneer).

3.  On 15 August 1963, a summary court-martial (SCM) found the applicant guilty of violating Article 134 of the Uniform Code of Military Justice (UCMJ) for wrongfully sitting down on his post while posted as a sentinel on or about 
13 August 1963.  The resultant sentence was a forfeiture of $72.00 per month for one month and 45 days restriction to the limits of the battery area.

4.  On 19 June 1964, the applicant was honorably discharged for the purpose of immediate reenlistment.  The DD Form 214 he was issued at the time shows he had completed 2 years, 2 months, and 20 days of active military service during the period covered by the DD Form 214 (30 March 1962-19 June 1964).  It also shows in Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) that he earned the Marksman Marksmanship Qualification Badge with Rifle Bar.

5.  On 20 June 1964, the applicant reenlisted for a period of 3 years. 

6.  On 23 November 1966, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the UCMJ for being disrespectful toward a superior noncommissioned officer on or about 19 November 1966.  His punishment for this offense was a forfeiture of $30.00 and a reduction to 
private first class/E-3 (PFC)/E-3 (suspended). 

7.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he completed an overseas tour in Germany from 11 October 1962 through 
17 August 1965.  Item 38 (Record of Assignments) shows that during his Germany service, he received a "good" conduct and " satisfactory" efficiency rating for the period 11 October 1962 through 6 February 1963; and a "good" efficiency rating for the period 1 July 1963 through 17 August 1965.

8.  On 19 June 1967, the applicant was honorably released from active duty (REFRAD), in the grade of corporal/E-4 (CPL/E-4), after completing 3 years of active military service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's 
DD Form 214 shows he earned the National Defense Service Medal, Vietnam Service Medal, and Republic of Vietnam Campaign Medal with Device (1960).  


9.  Army Regulation 672-5-1 (Awards) provided the Army's awards policy, including the criteria for the AGCM, in effect at the time of the applicant's REFRAD.  It stated, in pertinent part, that in order for a member to be eligible for the AGCM, he/she must have received all "excellent" conduct and efficiency ratings and must not have been convicted by a court-martial during the qualifying period.  

10.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Chapter 4 prescribes the policy for award of the AGCM.  It states, in pertinent part, that the AGCM is awarded to individuals who distinguish themselves by their conduct, efficiency and fidelity during a qualifying period of active duty enlisted service.  This period is 3 years, except in those cases when the period for the first award ends with the termination of a period of Federal military service, in which case a period of more than 1 year is a qualifying period.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have received the AGCM was carefully considered.  However, the governing regulation in effect at the time of the applicant’s REFRAD required that a member receive “excellent” conduct and efficiency ratings at all of his/her active duty assignments and that the member not have been convicted by a court-martial during the qualify period.  

2.  The evidence of record in this case confirms the applicant was convicted by an SCM on 15 August 1963, and that he received less than "excellent" conduct and efficiency ratings during the qualifying period.  As a result, he did not meet the regulatory criteria necessary to support award of the AGCM.  Therefore, it would not be appropriate to grant the requested relief in this case. 

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  

BOARD VOTE:

________  ________  ________  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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   _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)                                         AR20090017191



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ABCMR Record of Proceedings (cont)                                         AR20090017191


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