IN THE CASE OF:	  

		BOARD DATE:	  12 October 2010

		DOCKET NUMBER:  AR20100018293 


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 the Disqualification Statement for Award of Good Conduct Medal from his official military personnel file (OMPF).

2.  The applicant states this document was not prepared in its entirety and was never approved by his higher command.  He contends he was awarded the Army Good Conduct Medal (AGCM) (2nd Award) by his higher headquarters on 6 April 1996 for the period prescribed in the orders.

3.  He claims he was never presented the disqualification statement or given the opportunity to respond.  He makes reference to Army Regulation 600-37 (Unfavorable Information) which states the Soldier must be presented with an opportunity to respond and if the Soldier refuses to sign, it must be noted in block 3 of the disqualification statement.

4.  He requests the document be removed from his OMPF on the grounds that he has faithfully and honorably served in the U.S. Army for 20 years and has had an outstanding career.  A document of this type, which was filed in his records so long ago, could affect his credibility.

5.  The applicant provides a copy of Bravo Detachment, 18th Personnel Service Battalion, Permanent Orders 000097-007, dated 6 April 1996, and a copy of the Disqualification Statement for Award of Good Conduct Medal, dated 6 March 1996.



CONSIDERATION OF EVIDENCE:

1.  On 8 June 1990, the applicant enlisted in the Regular Army for a period of 4 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 31M (Multichannel Communication System Operator).  His records show he served several tours on active duty and in the U.S. Army Reserve.  He is currently serving on active duty in an Active Guard Reserve status as a company first sergeant/E-8 with a signal battalion.

2.  Permanent Orders 000097-007, published by Bravo Detachment, 18th Personnel Service Battalion, awarded the applicant the second award of the AGCM for the period of service from 8 June 1993 through 7 June 1996.  This order is filed in the applicant's OMPF.

3.  Contained in the performance portion of the applicant's OMPF is a copy of the Disqualification Statement for Award of Good Conduct Medal, dated 20 March 1996.  Page 1 of this form required the applicant's signature and acknowledgement.  This page only contains the company commander's signature and the entry "Soldier unavailable for signature."  Page 2 of this document contains the following, "__X__ I have reviewed the statement or documents submitted on _____.  Disqualification stands.  File this correspondence in accordance with Army Regulation 640-10 (Individual Military Personnel Records)."  Only the commander signed this page of the document.  Page 3 of the document contains the commander's rationale for disqualification of the award.  It contains the statement, "I have disqualified Specialist G____, 2XX-XX-XXXX, for the following reason(s):  Received summarized Article 15 for disrespect."

4.  The applicant's record contains Permanent Orders W-10-572403, dated 25 October 2005, which awarded him the Army Good Conduct Medal (3rd Award) for the period 6 October 2002 through 5 October 2005.

5.  His record contains Permanent Orders W-10-88227, dated 25 October 2008, which awarded him the Army Good Conduct Medal (4th Award) for the period 6 October 2005 through 5 October 2008.

6.  The applicant's records are void of any nonjudicial punishment or documentation pertaining to any acts of indiscipline or reprimand.

7.  A copy of a DA Form 638 (Recommendation for Award), dated 11 October 2006, shows the applicant was recommended for award of the Bronze Star Medal for his meritorious and distinguished service in support of Operation Iraqi Freedom 05-07.  His record shows he was issued a Meritorious Service Medal as the approved award.

8.  Copies of the applicant's DA Form 2166-8 (Noncommissioned Officer Evaluation Reports) consistently show he exceeded the standard as evidenced by his ratings of "excellence" throughout his military career.

9.  Army Regulation 672-5-1 (Military Awards), in effect at that time, provides that for each instance in which disqualification for award of the AGCM is determined by the unit commander, he or she will prepare a statement of rationale for the decision.  The statement will include the period of disqualification and will be referred to the individual in accordance with Army Regulation 600-37, paragraph 3-6.  The commander will consider the affected individual's statement and if the commander's decision remains the same, he/she will forward disqualification statement, the individual's statement, and his/her (commander's) consideration for filing in the Soldier's record.

10.  Army Regulation 600-37 states that unfavorable information will not be filed in an official personnel file unless the recipient has been given the chance to review the documentation that serves as the basis for the proposed filing and make a written statement or to decline, in writing, to make such a statement.

11.  Army Regulation 600-37 also states that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Therefore, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.

12. Army Regulation 640-10, in effect at the time, controlled the filing of documents in military personnel records.  It authorized the filing of the Disqualification Statement for Award of Good Conduct Medal on the performance portion the OMPF in the commendatory and disciplinary section.

13.  Army Regulation 600-8-104 is the current regulation that controls the filing of documents in military personnel records.  It 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.

14.  The Wikipedia website explains procedural due process in the United States as one which is generally governed by explicit guarantees of procedural rights under the Bill of Rights.  Most of these rights have been incorporated under the 14th Amendment to the Constitution of the United States.  Among those rights is the constitutional right to procedural due process, which has been broadly construed to protect the individual so that statutes, regulations, and enforcement actions must ensure that no one is deprived of life, liberty, or property without a fair opportunity to affect the judgment or result.  At a basic level, it is essentially based on the concept of fundamental fairness.  As construed by the courts, it includes an individual's right to be adequately notified of charges or proceedings, the opportunity to be heard at these proceedings, and that the person or panel making the final decision over the proceedings be impartial in regards to the matter before them.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to remove the Disqualification Statement for Award of Good Conduct Medal from his OMPF was carefully considered and was found to have merit.

2.  Regulatory guidelines state that unfavorable information will not be filed in an official personnel file unless the recipient has been given the chance to review the documentation and makes a written statement or declines, in writing, to make such a statement.  The document in question appears to have been incomplete and not prepared within the regulatory guidelines of Army Regulation 672-5-1.

3.  His records contain no nonjudicial punishment or reprimands.  It does show he was awarded the AGCM (1st Award) for the same period in which the disqualification statement was filed.  It is unclear why the applicant was unavailable for signature or if he was, in fact, afforded the opportunity to make a statement prior to the filing of this document.  Unfortunately, this document was filed in the applicant's OMPF without his acknowledgement.

4.  Although no regulatory violation exists in filing this type of document in the OMPF, it does appear that a violation of procedural due process occurred during the preparation and the implementation phases.  As such, in the interest of equity and justice, it would be appropriate to expunge the Disqualification Statement for Award of Good Conduct Medal, dated 20 March 1996, from the applicant's OMPF.



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 expunging the Disqualification Statement for Award of Good Conduct Medal, dated 20 March 1996, from his OMPF.



      __________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)                                         AR20100018293



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ABCMR Record of Proceedings (cont)                                         AR20100018293



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