IN THE CASE OF:	  

		BOARD DATE:	  7 February 2013

		DOCKET NUMBER:  AR20120014215 


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 removal of 26 days of time lost from his record and award of the Army Good Conduct Medal (AGCM).

2.  The applicant states his lost time was the result of his having to help his mother.  He claims he was rated as “excellent” during all but one assignment period during his three years of service.  He requests he be reconsidered for award of the AGCM.  

3.  The applicant provides no documentary evidence in support of his request.  

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 record shows the applicant enlisted in the Regular Army on 8 September 1965.  He was trained in and awarded military occupational specialty (MOS) 76V (Equipment Storage Specialist).  He was advanced to specialist four (SP4)/E-4 on 21 December 1967, and this is the highest rank he attained and held on active duty.  

3.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) from 8 August 1967 to 1 August 1968.  Item 38 (Record of Assignments) shows he received “Good” conduct and efficiency ratings during the period of assignment between 17 May and 30 August 1966 at  Fort McPherson, Georgia.  

4.  Item 44 (Time Lost under Section 972, Title 10, U.S. Code and Subsequent to Normal Date Expiration of Term of Service (ETS)) of the applicant’s DA Form 20 contains entries showing the applicant accrued 27 days of time lost during two absent without leave (AWOL) periods and a period of confinement between 
12 November 1966 and 8 February 1967.  There is no indication the applicant tried to resolve these periods of time lost at the time they occurred or at any time prior to his release from active duty (REFRAD).  

5.  The applicant’s disciplinary history also includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on six separate occasions between 6 April 1966 and 
6 July 1968 for a myriad of disciplinary infractions that included multiple failures to repair offenses, making unauthorized phone calls, disobeying lawful orders, and AWOL.  

6.  On 2 August 1968, the applicant was honorably released from active duty after completing 2 years, 9 months, and 23 days of creditable active military service and accruing 27 days of time lost due to AWOL and confinement.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time shows he earned the following awards:

* National Defense Service Medal
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar
* Vietnam Service Medal
* Vietnam Campaign Medal 
* one overseas service bar



7.  Army Regulation 672-5-1 (Awards), in effect at the time, stated the AGCM was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940; for the first award only, 1 year served entirely during the period 7 December 1941 to 2 March 1946; and, for the first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year.  The enlisted person must have had all "excellent" conduct and efficiency ratings.  There must have been no convictions by a court-martial.  However, there was no right or entitlement to the medal until the immediate commander made a positive recommendation for its award and until the awarding authority announced the award in general orders.

8.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents issued to members upon REFRAD, discharge, or retirement.  It also establishes policy for preparation and distribution of the DD Form 214.  The version of the regulation in effect at the time of the applicant's discharge stated that any time lost prior to normal ETS would be entered in item 30 of the DD Form 214.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s requests to remove time lost from his record and to be awarded the AGCM have been carefully considered.  However, there is insufficient evidence to support these requests.  

2.  The evidence of record confirms the applicant was charged with 27 days of time lost between 12 November 1966 and 8 February 1967.  There is no evidence indicating he attempted to resolve these issues through his chain of command at the time they occurred or at any time in the remaining year and five months he served on active duty subsequent to the last period of time lost.  

3.  The regulation in effect at the time required a member to receive all "excellent" conduct and efficiency ratings and not to have had a court-martial in order to qualify for the AGCM.  In this case, the evidence of record shows the applicant received "good" conduct and efficiency ratings during a period of assignment at Fort McPherson, Georgia.  As a result, the applicant did not qualify to be awarded the AGCM at the time of his REFRAD.  Further, based on his extensive disciplinary history there is an insufficient evidentiary basis to support award of the AGCM on an equity basis.  

4.  In view of the foregoing, there is an insufficient evidentiary basis to support granting the 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)                                         AR20120014215



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ABCMR Record of Proceedings (cont)                                         AR20120014215



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