IN THE CASE OF:	  

		BOARD DATE:  7 August 2012

		DOCKET NUMBER:  AR20120007230 


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 the memorandum denying him award of the Army Good Conduct Medal (AGCM) be removed from his Official Military Personnel File (OMPF) or placed in the restricted portion of his OMPF.

2.  The applicant states:

* he has a memorandum for disqualification of the AGCM from 2004 in his OMPF stating he missed movement to Iraq, but he did eventually deploy 
* he would like the memorandum moved to the restricted portion of his OMPF or removed in its entirety
* the command was aware he went to Iraq a month late due to his wife's pregnancy issues
* the memorandum is unfairly preventing him from being promoted and denying him career progression opportunities
* the disqualification memorandum was signed by a commander other than his own at the time

3.  The applicant provides a copy of the memorandum and a self-authored statement.  



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 record shows he enlisted in the Regular Army (RA) on 29 July 1993 and served until he was honorably discharged on 28 July 1996.  He again enlisted in the RA on 1 May 1997.  

3.  His OMPF shows that on 29 August 2004 his company commander disqualified him for the award of the AGCM.  The commander stated that his rationale for disqualifying him was based on the applicant's adverse actions of missing movement during the deployment to Iraq in support of Operation Iraqi Freedom II.  The memorandum disqualified him from receipt of the AGCM for the period 30 June 2001 through 1 July 2004.  

4.  On the same date, the applicant concurred with the intent of disqualification of award of the AGCM as attested to by his signature.  

5.  There are no records of nonjudicial punishment or any type of adverse actions contained in the applicant's OMPF.

6.  Army Regulation 600-8-22 (Military Awards) 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 (Unfavorable Information), 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.

7.  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.

8.  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.

9.  Army Regulation 600-8-104 (Military Personnel Information Management/Records) controls 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.  This regulation 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records show he would have been eligible for award of the ACGM from the period 30 June 2001 through 1 July 2004.  However, he was disqualified through the date of the award.  The rationale cited by the commander was due to the "adverse actions of missing movement."

2.  A review of the applicant's OMPF does not reveal any other derogatory information that would disqualify him for further award of the AGCM. 

3.  The issue is not whether the applicant received unfavorable information or not, but more accurately, if the disqualification action was processed appropriately.  The memorandum disqualifying the applicant for award of the AGCM states "I concur."  The applicant's signature substantiates his claim that he was aware of the action.  The memorandum for disqualification was referred to him for his acknowledgement and/or rebuttal.  Therefore, the applicant was  afforded due process in the issuance of the disqualification memorandum.  In view of these facts, he is not entitled to have the disqualification memorandum removed from the performance portion of his OMPF nor is he entitled to have it moved to the restricted portion of his OMPF.




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)                                         AR20120007230





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120007230



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1