IN THE CASE OF:	  

		BOARD DATE:	  6 December 2011

		DOCKET NUMBER:  AR20110009924 


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.  He states, in effect, the nonjudicial punishment (NJP) he received under Article 15, Uniform Code of Military Justice (UCMJ) caused him not to be eligible for award of the AGCM.  The NJP does not show that he was defending the woman he was with from a man who approached her and then slapped her in the face.  His immediate reaction was to protect her by hitting him.  He is sure any man would have done the same. He is hopeful of being awarded the AGCM for his volunteer service in the U.S. Army and volunteering for Vietnam service.  

3.  He provides:

* A copy of the NJP
* Page 3 of his DA Form 20 (Enlisted Qualification Record)
* His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* A DD Form 215 (Correction to DD Form 214)
* Two character reference letters

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 enlisted in the Regular Army on 4 July 1964 for a period of
3 years.  After completion of training, he served in military occupational specialty 32E (Fixed Plant Carrier Equipment Repairman).

3.  His DA Form 20 shows he served in the Republic of Korea from 22 May 1965 through 26 May 1966.  He then served in Vietnam from 27 May 1966 through 
20 May 1967.

4.  Item 33 (Appointments and Reductions) of his DA Form 20 shows the highest rank/grade he attained was specialist four (SP4)/E-4 on 23 September 1966.

5.  Item 38 (Record of Assignments) of his DA Form 20 shows he received a rating of “good” in academic efficiency while attending his initial entry training and a rating of “good” in conduct while assigned to the 57th Signal Company (Support) in Korea.

6.  He provided a copy of the DA Form 2627-1 (Record of Proceedings under Article 15, (UCMJ)), dated 17 January 1966.  This form shows he was administered NJP for assaulting a Korean National by striking him above the right eye.  He was advised of his right to appeal; however, he elected not to appeal or to provide a statement in his own behalf.

7.  On 24 May 1967, he was honorably released from active duty as an overseas returnee and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.  He had completed 2 years, 10 months, and 21 days of total active service.

8.  There is no indication in the available record that he was recommended for or awarded the AGCM.


9.  The applicant provided two character reference letters which attest to him being an honest and upstanding member of the community.  He was also noted to be a model citizen who is deserving of the AGCM.

10.  Army Regulation 672-5-1 (Awards), in effect at the time, stated the Army Good Conduct Medal was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940; for first award only, 1 year served entirely during the period 7 December 1941 to 2 March 1946; and, for the first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year.  The enlisted person must have had all "excellent" conduct and efficiency ratings.  Service school efficiency ratings based upon academic proficiency of at least "Good" rendered subsequent to
22 November 1955 were not disqualifying.  There must have been no convictions by a court-martial.

11.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 implements and amplifies Article 15, UCMJ.  Paragraph 3-18 contains guidance on notification procedures and explanation of rights.  It states that the imposing commander will ensure the Soldier is notified of the commander's intention to dispose of the matter under the provisions of Article 15.  It further stipulates the Soldier will be informed of the following:  the right to remain silent; that he/she is not required to make any statement regarding the offense or offenses of which he/she is suspected; and that any statement made may be used against the Soldier in the Article 15 proceedings or in any other proceedings, including a trial by court-martial.  Paragraph 3-18 further states the Soldier will be informed of the right to counsel, to demand trial by court-martial, to fully present his/her case in the presence of the imposing commander, to call witnesses, to present evidence, to request to be accompanied by a spokesperson, to an open hearing, and to examine available evidence.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant requested to be awarded the AGCM.  He contends the NJP he received does not show his actions were out of defense for the woman he was with at the time.

2.  The evidence of record confirms his Article 15 processing was accomplished in accordance with the governing law and regulation, and that the applicant’s rights were fully protected throughout the process.  He was afforded the opportunity to demand a trial by court-martial during the administration of the Article 15 and to appeal his imposed punishment; however, he elected to do neither.
3.  His record shows he received two ratings of “good” during his period of service.  While the rating of “good” during the period of his initial training does not disqualify him for this award, the rating of “good” during his assignment to the 57th Signal Company (Support) does disqualify him for this award.

4.  There is no indication in the available record and the applicant has not provided any evidence to show his command recommended him for award of the AGCM.  There is also no evidence his receipt of NJP was the contributing factor for him not receiving the AGCM.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief. 

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)                                         AR20110009924



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ABCMR Record of Proceedings (cont)                                         AR20110009924



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