BOARD DATE:	  18 December 2012

		DOCKET NUMBER:  AR20120010596 


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 (AGCM).

2.  The applicant states:

a. he should be awarded the AGCM.

	b.  his first request was denied because he was counseled by his company commander for being in an overweight program and she was going to try and bar him from reenlistment.  He signed a counseling statement but it seemed to disappear.  The truth is he went to the Judge Advocate General (JAG) office and they called his company commander and explained to her that she could not have him removed from the service or put him on an overweight program.

	c.  he was not overweight, he weighed 118 pounds, he is 5 feet tall with an extraordinary small neck.  So to measure his neck/waist would be misleading and incorrect due to his size.  There was no chart for weight requirement for his height and 118 pounds is not overweight.  

	d.  the company commander gave him a hard time due to his height but this was harassment.  The JAG office explained this to her and he was released from the overweight program.  He extended his enlistment due to the situation in Panama and he deserves the AGCM.



3.  The applicant provides:

* service personnel records
* DA Forms 5500-R (Body Fat Content Worksheet)
* 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.  The applicant enlisted in the Regular Army on 29 May 1986 for a period of 
3 years.  He completed his training and was awarded military occupational specialty 31N (tactical circuit controller).  He arrived in Panama on 5 January 1987.   

3.  There is no evidence which shows he was overweight.  He provided DA Forms 5500-R which show he exceeded the body fat standard (22% is the maximum allowable %) in:

* September 1987 – 25.07%
* October 1987 – 23.83%
* November 1987 – 22.98%
* April 1988 – 22.98%
* May 1988 – 23.41%
* June 1988 – 23.41% 

4.  On 24 April 1989, a bar to reenlistment was imposed against the applicant for his apathetic attitude toward the Army's weight program.  

5.  He departed Panama on 15 June 1989.

6.  On 28 July 1989, a recommendation for award of the AGCM covering the period 29 May 1986 to 28 May 1989 was disapproved because he was enrolled in the overweight program and barred from reenlistment effective 24 April 1989.

7.  On 12 September 1989, he was counseled on the reasons his AGCM was disapproved.  He elected not to make a statement. 

8.  The bar to reenlistment was reviewed but not recommended for removal on 
3 October 1989. 

9.  On 28 January 1990, he was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his remaining service obligation.

10.  There are no orders for the AGCM in the available records.

11.  Army Regulation 600-9 (Army Weight Control Program) states the maximum allowable percent body fat standard for males (ages 21-27) is 22 percent.  The regulation also states personnel will be continued in a weight control program after the initial 6-month period if they still exceed the body fat standard (or maximum allowable weight).  Suspension of favorable personnel actions will be initiated for personnel in a weight control program.  

12.  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.  

13.  Army Regulation 600-8-22 states that in instances of disqualification as determined by the unit commander, the commander will prepare a statement of the rationale for his or her decision.  This statement will include the period of disqualification and will be referred to the individual concerned for response.  The unit commander will consider the individual’s statement.  If the commander’s decision remains the same, the commander will forward his or her statement, the individual’s statement, and his or her consideration for permanent filing in the individual’s Official Military Personnel File (currently the Army Military Human Resource Record).  The immediate commander’s decision to award the AGCM will be based on his or her personal knowledge and of the individual’s official records for the periods of service under previous commanders during the period for which the award is to be made.  However, there is no right or entitlement to the medal until the immediate commander has approved the award and the award has been announced in permanent orders.

14.  Army Regulation 600-8-22 states individuals for whom a bar to reenlistment has been approved are not eligible for award of the AGCM.  Disqualification for an award of the AGCM can occur at anytime during a qualifying period.  At the time, the custodian of the Soldier’s Military Personnel Records Jacket (currently the Electronic Military Personnel Office (e-MILPO) record) would establish the new “beginning date” for the Soldier’s eligibility for award of the AGCM and indicate the date on the Soldier’s DA Form 2-1 (or e-MILPO record).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be awarded the AGCM.  

2.  He contends he should never have been in the weight control program.  Although he was not overweight, evidence shows he exceeded the body fat standard during the period September 1987 to June 1988.  The governing regulation states personnel will be continued in a weight control program after the initial 6-month period if they still exceed the body fat standard.    

3.  A bar to reenlistment was imposed against him on 24 April 1989 for having an apathetic attitude toward the Army's weight program.  The bar to reenlistment was reviewed but not recommended for removal on 3 October 1989. 
 
4.  Since the governing regulation states individuals for whom a bar to reenlistment has been approved are not eligible for award of the AGCM, there is no basis for granting his request for award of the AGCM.   

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)                                         AR20120010596





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ABCMR Record of Proceedings (cont)                                         AR20120010596



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