IN THE CASE OF:	  

		BOARD DATE:	  19 January 2012

		DOCKET NUMBER:  AR20110014613 


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 award of the Army Good Conduct Medal.

2.  The applicant states the award was not awarded in what appears to be an oversight.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 5 June 1973.

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 (RA) on 4 June 1970 for a period of 3 years.  He held military occupational specialty 11B (Light Weapons Infantryman).  He was honorably discharged on 17 March 1971 for the purpose of immediate reenlistment.

3.  His DD Form 214 for this period of service shows he completed 9 months and 14 days of total active service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of this DD Form 214 shows the:

* National Defense Service Medal
* Parachutist Badge
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)

4.  He reenlisted in the RA on 18 March 1971 and he subsequently assigned to Vietnam on 30 April 1971.  He was assigned to Company B, 2nd Battalion,
503rd Infantry, 173rd Infantry Brigade (Airborne) on 11 May 1971.

5.  On 9 November 1971 he was wounded in action and he was transferred to the 85th Evacuation Hospital in Vietnam.  He was further reassigned to the Medical Holding Company at Fitzsimmons General Hospital, Fort Carson, CO.  After treatment, he was ultimately assigned to the 1st Battalion, 8th Infantry at the same station.

6.  On 22 January 1973, the applicant's immediate commander initiated a DA Form 268 (Report of Suspension of Favorable Personnel Actions) against him by reason of elimination from the Army.

7.  The applicant's immediate commander notified him by memorandum that he was being recommended for separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) due to unsuitability for military service based on his character and behavior disorder and his inability to cope with military life.  The immediate commander stated the applicant's conduct and efficiency ratings had been excellent.

8.  On 1 June 1973, the applicant acknowledged the above notification and subsequently consulted with legal counsel regarding the pending separation action.  He was advised of its effect and the rights available to him.  He waived consideration of his case by a board of officers and personal appearance before a board of officers, and elected not to submit a statement in his own behalf.

9.  The applicant's immediate commander subsequently initiated separation action against him in accordance with Army Regulation 635-200 for unsuitability with an Honorable Discharge Certificate.
10.  Consistent with the chain of command's recommendations, the separation authority approved the applicant's discharge for unsuitability under the provisions of Army Regulation 635-200.  

11.  Accordingly, on 5 June 1973, the applicant was honorably discharged from active duty in the rank/grade of specialist four (SP4)/E-4 for unsuitability.  His
DD Form 214 for this period of service shows he completed 2 years, 2 months, and 27 days of net service this period for a total of 3 years and 11 days of total active service.  Item 24 of his DD Form 214 for this period of service shows the:

* Vietnam Service Medal with two bronze service stars
* Republic of Vietnam Campaign Medal with Device (1960)
* Purple Heart
* Combat Infantryman Badge
* One overseas service bar

12.  His records do not contain official orders awarding him the Army Good Conduct Medal.  Item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record) shows he received all "excellent" conduct and efficiency ratings during his military service (except on 9 November 1971 while at the hospital, he received an "unknown" rating).

13.  Army Regulation 672-5-1 (Awards), in effect at the time, provided that the Army Good Conduct Medal was awarded to individuals who completed a qualified period of active duty enlisted service.  This period was 3 years except in those cases when the period for the first award ended with the termination of a period of Federal military service.  The enlisted person must have had all "excellent" conduct and efficiency ratings and no convictions by a court-martial.

14.  Army Regulation 600-31 (Suspension of Favorable Personnel Actions for Military Personnel in National Security Cases and other Investigations or Proceedings), in effect at the time, prescribed the procedures for suspending favorable personnel actions, to include awards, decorations, and commendations.

14.  Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions  (Flags)), currently in effect, prescribes policies, operating tasks, and steps governing the suspension of favorable personnel actions.  It lists the actions prohibited by a flag, including awards and decorations.

DISCUSSION AND CONCLUSIONS:

1.  The regulation in effect at the time required the enlisted person to have had all "excellent" conduct and efficiency ratings.  Ratings of "unknown" for portions of the period under consideration were not disqualifying.  There was no right or entitlement to the medal until the immediate commander made a positive recommendation for the award and the awarding authority announced the award in general orders.

2.  The applicant in this case had a flagging action imposed against him on
22 January 1973 for the purpose of elimination from the Army.  Although he completed 3 years and 11 days of honorable service and he received an honorable discharge, the imposed flagging action prohibited him from being recommended for or awarded an award or decoration, including the Army Good Conduct Medal.  Therefore, 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)                                         AR20110014613



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110014613



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1