BOARD DATE:	  20 November 2012

		DOCKET NUMBER:  AR20120009252 


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 that he be reinstated to the rank/grade of specialist (SPC)/E-4 and that he be issued the Army Good Conduct Medal (AGCM).

2.  He states his "rank was taken away even though all criteria [were met]."

3.  He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).  

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.  On 13 November 2002, the applicant enlisted in the Regular Army.  After completing initial entry training, he was awarded military occupational specialty 19D (Cavalry Scout).  On 1 August 2004, he was promoted to SPC/E-4.  On 17 March 2005, he reenlisted.

3.  His record shows he served in Iraq from 17 June 2004 to 16 June 2005.  

4.  On 4 August, 1 September, and 29 September 2005, he was counseled for failure to be at his appointed place of duty at the time prescribed.  

5.  On 24 October 2005, his company commander imposed nonjudicial punishment (NJP) against him under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go to his appointed place of duty at the time prescribed on 1 August, 1 September, and 29 September 2005.  His punishment included reduction to private first class (PFC)/E-3.  He did not appeal the punishment.

6.  On 10 November 2005, he was counseled for verbally threatening to kill his company commander.  

7.  His Enlisted Record Brief shows his AGCM eligibility date as 12 November 2005.  

8.  On 16 November 2005, he was counseled for failing to go to his appointed place of duty at the time prescribed.

9.  A DA Form 2627 (Record of Proceedings under Article 15, UCMJ) shows, on 9 January 2006, his company commander informed him he was considering whether he should receive NJP for wrongfully communicating a threat to kill the company commander.  On 20 January 2006, the commander determined no punishment would be imposed.

10.  A DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) shows the applicant's commander initiated a flagging action against him, effective 11 January 2006, due to a field-initiated elimination action.  

11.  On 13 February 2006, the applicant's company commander notified the applicant that he was initiating action to separate him for minor disciplinary infractions under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 14 with a general discharge.  He was informed the reasons for the action were his failure to report on three occasions and for communicating threats towards the company commander.  The applicant acknowledged receipt of this action on the same date.


12.  On 21 February 2006, the applicant consulted with counsel concerning the basis for his contemplated separation action for minor disciplinary infractions under the provisions of Army Regulation 635-200, chapter 14; the rights available to him; and the effect of a waiver of his rights.  He elected to submit statements in his own behalf, and he acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  The statements he submitted in his own behalf are not included in the available record.

13.  On 8 March 2006, the separation authority approved the separation action and directed the issuance of a general discharge.  On 24 March 2006, he was discharged in accordance with the separation authority's decision.  His DD Form 214 shows he held the rank/grade of PFC/E-3 and he completed 3 years, 4 months, and 12 days of net active service this period.

14.  His record does not show he was awarded the AGCM, nor does it include a justification for disqualification.

15.  On 5 March 2008, the Army Discharge Review Board (ADRB) informed the applicant the board voted to upgrade the characterization of his service to honorable.  The ADRB Case Report and Directive shows the board determined his reason for discharge was proper and equitable.

16.  Army Regulation 600-8-22 (Military Awards) states the AGCM 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 AGCM, disqualification must be justified.

17.  Army Regulation 27-10 (Military Justice) states reduction in rank is an authorized form of NJP.  

18.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) states company commanders are authorized to reduce Soldiers in the rank of SPC and below.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for reinstatement to the rank/grade of SPC/E-4 and the issuance of the AGCM.  



2.  A proper authority imposed NJP against him that included reduction to 
PFC/E-3, which was the rank/grade he held when he was discharged.  There is no evidence showing an error, inequity, or injustice in his reduction process.  In the absence of such evidence, there is no basis for reinstating him to the rank/grade of SPC/E-4.

3.  Prior to his eligibility date for award of the AGCM, which was 12 November 2005, he received NJP for failing to go to his appointed place of duty at the time prescribed on three occasions and he verbally communicated a threat to kill his company commander.  It is clear he did not distinguish himself by his conduct, efficiency, and fidelity during the full 3-year qualifying period.  Therefore, he is not entitled to award of the AGCM or issuance of the 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)                                         AR20120009252



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ABCMR Record of Proceedings (cont)                                         AR20120009252



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