BOARD DATE:	  29 November 2012

		DOCKET NUMBER:  AR20120015126 


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 transfer of a memorandum of disqualification for the Army Good Conduct Medal (AGCM) from the performance portion of his Official Military Personnel File (now known as the Army Military Human Resource Record (AMHRR)) to the restricted portion.  He also requests that the decision made by the Department of the Army Suitability Evaluation Board (DASEB) on 7 January 2010 be removed from the performance portion of his AMHRR.

2.  The applicant states:

* he received an Article 15 in October 2005 which was placed in his restricted portion of his file
* in March 2008 a disqualification for the AGCM memorandum was placed in the performance portion of his AMHRR
* the disqualification memorandum describes the incident for which he received the Article 15
* he requested to have the disqualification memorandum transferred to the restricted portion of his AMHRR and he was denied
* a copy of DASEB decision was placed on the performance and restricted portions of his AMHRR
* he would like all documents referring to the Article 15 to be transferred to the restricted portion of his AMHRR


3.  The applicant provides:

* DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 6 October 2005
* disqualification memorandum for the AGCM, dated 3 March 2008
* self-authored statement to the DASEB, dated 7 December 2009
* notification of DASEB decision, dated 13 January 2010
* DASEB memorandum for Commander, U.S. Army Human Resources Command, dated 13 January 2010
* self-authored memorandum for the Army Review Boards Agency (ARBA), dated 25 July 2012

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 12 October 1995.  He completed training as a cannon crewmember.  He is currently serving as a member of the Regular Army through continuous reenlistments.

2.  The applicant accepted nonjudicial punishment on 6 October 2005 for wrongfully using anabolic androgenic steroids, a controlled substance.  The DA Form 2627 shows he elected not to demand trial by court-martial.  He requested a closed hearing and he initialed that matters in his defense, mitigation, and/or extenuation would be presented in person.  After considering all matters in his defense, the applicant's commander directed filing the DA Form 2627 in the restricted portion of his AMHRR.

3.  On 3 March 2008, the applicant's commander forwarded a memorandum for the Commander, U.S. Army Enlisted Records and Evaluation Center (EREC), requesting that the applicant be disqualified for the AGCM for the period 12 October 2004 to 11 October 2007.  The memorandum shows wrongful use of anabolic androgenic steroid, a controlled substance, as the reason for the disqualification.  The memorandum was filed in the performance portion of the applicant's AMHRR.

4.  On 7 December 2009, the applicant applied to the DASEB requesting transfer of the memorandum requesting disqualification for the AGCM from the performance portion of his AMHRR to the restricted portion.  The DASEB denied his request on 7 January 2010.  The DASEB decision was filed in the performance and restricted portions of his AMHRR.

5.  The applicant provides a self-authored memorandum addressed to ARBA stating:

* before filing the disqualification for the AGCM in his AMHRR, his commander never gave him a chance under Army Regulation 600-37 (Unfavorable Information), paragraph 3-6, to write a statement
* he was given the Article 15 in October 2005 and the disqualification was filed in March 2008 during his deployment to Iraq
* his commander was not present for the UCMJ hearing and was not aware of the situation
* the disqualification filed in the performance portion of his AMHRR makes him look like a failure
* it was his only downfall in 17 years of service
* he has been eligible for promotion to sergeant first class since 2008
* he is 100-percent sure the disqualification for the AGCM and DASEB decision are the two documents keeping him from being promoted

6.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards.

	a.  The AGCM is awarded for exemplary behavior, efficiency, and fidelity in active Federal military service.  It is awarded on a selective basis to each Soldier who distinguishes himself or herself from among his or her fellow Soldiers by his or her exemplary conduct, efficiency, and fidelity throughout a specified period of continuous enlisted active Federal military service.  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.

	b.  Paragraph 4-8(c) states that in instances of disqualification for the AGCM as determined by the unit commander, the commander will prepare a memorandum stating the rationale for his or her decision.  This memorandum will include the period of disqualification and will be referred to the individual according to Army Regulation 600-37, paragraph 3-6.  The unit commander will consider the affected individual's statement.  If the commander's decision remains the same, the commander will forward his or her memorandum and the individual's statement, and his or her consideration to the Commander, EREC, ATTN:  PCRE-RP, 8899 East 56th Street, Indianapolis, Indiana  46249-5301.  These documents will be permanently filed in the Soldier's AMHRR.  The commander will forward a copy of the documents to the Personnel Servicing Company and the personnel automation section chief to update the electronic military personnel office.

7.  Army Regulation 600-37 prescribes policies and procedures regarding unfavorable information considered for inclusion in official personnel files.  It states except as provided in paragraph 3–3, unfavorable information will be 

referred to the recipient for information and acknowledgment of his or her rebuttal opportunity.  Acknowledgement and rebuttal comments or documents will be submitted generally in the following form.

	a.  “I have read and understand the unfavorable information presented against me and submit the following statement or documents in my behalf.”

	b.  “I have read and understand the unfavorable information presented against me and elect not to make a statement.”

8.  If a recipient refuses to acknowledge the referral of unfavorable information, the reprimanding official will prepare the following statement: “On (date), (name) has been presented with the unfavorable information and refuses to acknowledge by signature.”  The letter can then be directed for filing per paragraph 3–4.

9.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) provides policies and procedures for maintenance of a Soldier's personal information.  The performance portion of a Soldier's AMHRR is used to document the Soldier's performance.

	a.  The performance portion will be used for filing performance, commendatory, and disciplinary data.  The performance portion is routinely used by career managers and selection boards.  Documents placed in the performance portion are limited to those that provide evidence of a Soldier's demonstrated performance.  These documents are used for evaluation and selection purposes.  Documents will not be obliterated or moved from the performance portion unless directed by an authority authorized to correct or move documents filed in the performance portion.

	b.  Paragraph 2-4a states that once placed in the AMHRR, the document becomes a permanent part of that file.  The document will not be removed or moved to another part of the file unless directed by, among other agencies, the Army Board for the Correction of Military Records or the AMHRR custodian when documents have been improperly filed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  His supporting evidence has been considered.


2.  He states he was never given a chance to write a statement before the disqualification for the AGCM was filed in his AMHRR.  

3.  There is no evidence in the available record that shows the applicant was afforded the opportunity to respond to the memorandum requesting his disqualification for the AGCM.  The available evidence suggests that the applicant's commander forwarded the memorandum to the Commander, EREC without the applicant's knowledge.  

4.  In accordance with the applicable regulation, in instances of disqualification for the AGCM the commander will prepare a memorandum stating the rationale for his or her decision.  This memorandum will include the period of disqualification and will be referred to the individual according to Army Regulation 600-37, paragraph 3-6.  The unit commander will consider the affected individual's statement.

5.  There is no evidence in the available record showing that the applicant's commander followed the governing Army regulation in regard to notifying him of the filing of the AGCM disqualification memorandum in the performance portion of his AMHRR.  The disqualification memorandum should be removed from his record as he was not afforded due process.

6.  The DASEB's notification of resolution of unfavorable information, dated 13 January 2010 and the DASEB’s Record of Proceedings, dated 7 January 2010 should also be removed from his record as it references his disqualification for the AGCM.  

7.  In view of the foregoing, the applicant's record should be corrected as recommended below.

BOARD VOTE:

___x_____  __x______  ___x_  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing all documents pertaining to his disqualification for the AGCM, to include the DASEB Record of Proceedings and these ABCMR Proceedings, from the performance and the restricted portions of his AMHRR and returning them to this agency for appropriate filing.




      _______ _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)                                         AR20120015126





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ABCMR Record of Proceedings (cont)                                         AR20120015126



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