IN THE CASE OF:	  

		BOARD DATE:	    24 March 2011

		DOCKET NUMBER:  AR20100022062 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests removal of the memorandum disqualifying the applicant for award of the AGCM and that the applicant be awarded the AGCM for the period 13 November 2004 through 12 November 2007.

2.  Counsel states the applicant's commander unjustly denied the applicant award of the AGCM based on his enrollment in the Army Weight Control Program (AWCP).  He goes on to state that Army Regulation 600-8-22 (Military Awards) makes it clear in paragraph 4-8 that it was the Secretary of the Army's intent to automatically disqualify Soldiers for award of the AGCM based on the disqualifications listed in subparagraphs a through d.  However, enrollment in the AWCP is subparagraph e and, therefore, the commander was without proper and legal authority or documentary evidence to disqualify the applicant for award of the AGCM.  He goes on to state the commander's action placed an extremely prejudicial stigma on the applicant's career that will be difficult to overcome.

3.  Counsel provides copies of:

* the memorandum disqualifying the applicant for award of the AGCM
* the applicant's Enlisted Record Brief (ERB)
* two of the applicant's DA Forms 705 (Army Physical Fitness Test Scorecard)
* a DA Form 4846 (Developmental Counseling Form)
* a DA Form 4126-R (Bar to Reenlistment Certificate), dated 9 November 2007
* four DA Forms 2166-8 (Noncommissioned Officer Evaluation Report)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 13 November 2001.  He was serving in the rank of sergeant as a French horn player in the Army Material Command Band at Aberdeen Proving Ground, Maryland, on 19 October 2007 when his commander initiated a bar to reenlistment against him based on his entry in the AWCP for the fourth time in a 3-year period.  The applicant elected not to submit a statement in his own behalf and the garrison commander (a colonel) approved the bar to reenlistment on 9 November 2007.  The applicant elected not to appeal the bar.

2.  On 31 October 2007, the applicant's commander notified the applicant that he was disqualifying him for award of the AGCM based on his entry in the AWCP for the fourth time during the period 2004 to 2007 (December 2004, May 2006, April 2007, and September 2007).  The applicant elected not to make a statement in his own behalf.

3.  The applicant was promoted to pay grade E-6 on 1 January 2010 and was selected for a nominative position with the U.S. Military Academy Band to serve as supply supervisor.  Accordingly, it must be presumed that his bar to reenlistment was subsequently lifted as his records show no indication he was ever barred.

4.  Army Regulation 601-280 (Total Army Retention Program) provides a list of reasons for which a bar to reenlistment may be initiated against a Soldier in paragraph 8-4d.  Paragraph 8-4e provides a list of reasons for which the commander must initiate a bar to reenlistment.  The first of those reasons is failure to make satisfactory progress in the AWCP.

5.  Army Regulation 600-8-22 provides the disqualifications for award of the AGCM in paragraph 4-8.  It states that individuals will be disqualified for award of the AGCM when a bar to reenlistment has been approved under the provisions of Army Regulation 601-280, chapter 8 (specifically for the reasons enumerated in paragraphs 8-4a-d).

6.  Paragraph 4-6 of Army Regulation 600-8-22 states that each enlisted Soldier must meet all of the following criteria for award of the AGCM throughout the qualifying period:
* the immediate commander evaluates the Soldier's character as above reproach
* the record of service indicates the Soldier has willingly complied with the demands of the military environment
* the Soldier has been loyal and obedient to his or her superiors
* the Soldier faithfully supported the goals of his or her organization and the Army
* the Soldier conducted him or herself in such an exemplary manner as to distinguish him or her from his or her fellow Soldiers

7.  The commander analyzes the entire record, giving consideration to the nature of the infraction, the circumstances under which it occurred, and when.  In terms of job performance, the Soldier's efficiency must be evaluated and must meet all requirements and expectations for that Soldier's grade, military occupational specialty (MOS), and experience.

8.  Paragraph 4-1 of Army Regulation 600-8-22 provides that the AGCM is awarded for exemplary behavior, efficiency, and fidelity in active Federal military service.  It is awarded on a selective basis to each Soldier who distinguishes him or herself from among his or her fellow Soldiers by his or her exemplary conduct, efficiency, and fidelity throughout a specified period of continuous enlisted active Federal military service.  There is no right or entitlement to the medal until the immediate commander has approved the award and the award has been announced in permanent orders.

9.  Paragraph 1-17 of Army Regulation 600-8-22 provides that individuals on whom favorable personnel actions have been suspended neither are recommended for nor receive awards during the period of suspension.  An exception may be made for a Soldier who is flagged for overweight and may be recommended for and presented an award based on valor, heroism, or for length of service retirement.  The first general officer in the chain of command is the approval authority.

10.  Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flags)) provides that a flag will be initiated when an individual is entered in the AWCP and lifted when the commander determines the Soldier is in compliance with the program.  It also states that a flag for weight control blocks awards and decorations.

11.  Army Regulation 635-200 (Personnel Separations) provides in paragraph 18-2 that initiation of separation proceedings is required for Soldiers who fail to meet body fat standards during the 12-month period following removal from the program.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his commander did not have the authority to disqualify him for award of the AGCM based on his entry in the AWCP has been noted and found to lack merit.

2.  The commander was within his regulatory authority to bar the applicant from reenlistment and to deny him award of the AGCM based on his entry in the AWCP for the fourth time in 3 years.

3.  As a result, the applicant was flagged during the entire period he was barred from reenlistment and in the AWCP and thus could not be awarded the AGCM.

4.  It is also noted that the applicant's commander was required to initiate separation action against the applicant because he was enrolled in the AWCP within 12 months of being removed from the program and he did not do so.

5.  In addition, by virtue of the fact there is no entitlement to award of the AGCM and the fact that the commander must make a determination as to whether the Soldier meets all of the requirements and expectations of the Soldier's grade, MOS, and experience, that call rests solely with the commander.

6.  The fact the applicant was a noncommissioned officer and was enrolled in the AWCP on four different occasions in a 3-year period and two of the enrollments occurred within 12 months is not the conduct expected of a noncommissioned officer or a leader, especially since there was no evidence that his being overweight was the result of a medical condition.

7.  Accordingly, denial of the AGCM was within the regulatory authority of the commander and meets the spirit and intent of the provisions for denying award of the AGCM.  The applicant failed to show otherwise.

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 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)                                         AR20100022062



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ABCMR Record of Proceedings (cont)                                         AR20100022062



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