IN THE CASE OF:	  

		BOARD DATE:	  14 June 2012

		DOCKET NUMBER:  AR20110024399 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show the Army Commendation Medal and the Army Good Conduct Medal.

2.  The applicant states, in effect:

	a.  He was presented the Army Commendation Medal and Army Good Conduct Medal, at the end of his tour in Germany.  His tour was involuntarily extended due to Stop Loss and he subsequently departed on terminal leave in October 1990.  He performed all of his duties admirably and was promoted to corporal (CPL)/E-4 after only 20 months of service.  He served 41 months of active service and during the initial 36 months he never had any unfavorable actions documented such as an Article 15 or court-martial action.  

	b.  During his assignment to the 2nd Battalion, 15th Infantry Regiment he was the unit training noncommissioned officer (NCO) for 18 months.  He was noted as a stellar performer by the command during garrison and field operations.  He was quickly promoted to E-4 in less than 18 months time in service.  He was recognized as NCO material, awarded the rank of CPL, and performed all of his duties at a superior level.  He no longer has the certificates or orders for the above awards and just recently realized the awards are not listed on his DD Form 214.

3.  The applicant provides his DD Form 214.

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 records show he enlisted in the Regular Army on 28 July 1987 and he held military occupational specialty 11H (Heavy Anti-Armor Weapons Infantryman).  He was assigned to the 5th Battalion, 15th Infantry Regiment, Germany.

3.  On 27 August 1990, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for misuse of government property (a unit computer).  His punishment was a forfeiture of one-half of his pay for 2 months, 30 days of extra duty, and reduction from CPL to private (PV2)/E-2.  His Article 15 is not available for review with this case.

4.  He was honorably released from active duty on 19 December 1990 in the rank of PV2 and transferred to the U.S. Army Reserve.  He completed 3 years, 4 months, and 22 days of active service.

5.  His DD Form 214 shows the:

* Army Service Ribbon
* Overseas Service Ribbon
* Expert Marksmanship Qualification Badge with Rifle Bar (M-16)
* Expert Marksmanship Qualification Badge with Pistol Bar (.45 Caliber)
* Sharpshooter Marksmanship Qualification Badge with TOW Gunner Bar
* Parachutist Badge

6.  His records do not contain orders for the Army Commendation Medal or the Army Good Conduct Medal (1st Award).

7.  A DA Form 2A (Personnel Qualification Record), dated 24 August 1990, shows his immediate reenlistment prohibition (ERUP) code as "9W" (Unacceptable, Article 15).

8.  Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flags), in effect at the time, provided for the suspension of favorable actions on Soldiers and stated a flag would be placed against a Soldier when they were pending adverse actions such as court-martial or NJP under Article 15, UCMJ.  Paragraph 1-14 stated, in pertinent part, a flag prohibited personnel actions such as reenlistment, extension, and awards and decorations.  

9.  Army Regulation 600-8-22 (Military Awards) states the Army Commendation Medal may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguishes himself or herself by heroism, meritorious achievement, or meritorious service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

10.  Army Regulation 600-8-22 states the Army Good Conduct Medal 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.  Although there is no automatic entitlement to the Army Good Conduct Medal, disqualification must be justified.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record is void of orders showing the applicant was awarded the Army Commendation Medal.  There is no evidence and he did not provide any evidence that shows he was ever awarded the Army Commendation Medal.  The governing Army regulation states that formal recommendations, approval through the chain of command, and announcement in orders are required for personal decorations (which include the Army Commendation Medal).  Therefore, he is not entitled to the requested relief.

2.  The available evidence shows that he received NJP and was reduced to PV2 in August 1990.  His DA Form 2A reflected that his ERUP was listed as "9W" which indicated he was ineligible for reenlistment due to a pending adverse action.  The governing Army Regulation states a flag was required for Soldiers pending an Article 15.  In the absence of evidence to the contrary it is presumed the applicant's records were flagged pending his Article 15 and he was ineligible for award of the Army Good Conduct Medal.  In addition, in the absence of orders, there is insufficient evidence to correct his records to show award of the Army Good Conduct Medal (1st Award).  

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)                                         AR20110024399



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ABCMR Record of Proceedings (cont)                                         AR20110024399



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