IN THE CASE OF:	   

		BOARD DATE:	  15 October 2013

		DOCKET NUMBER:  AR20130004503 


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 awarded the Army Good Conduct Medal (AGCM) for the period 12 November 2001 – 11 November 2004.

2.  The applicant states that his commander disqualified him for award of the AGCM due to him having received nonjudicial punishment (NJP) on 12 August 2004; however, his commander did not follow the procedures outlined in Army Regulation 600-8-22 in that he did not refer the disqualification to him and afford him the opportunity to submit a statement in his own behalf.  He goes on to state the disqualification along with the statement from the individual concerned is required to be filed in the official records.  However, his commander did not request such a statement.

3.  The applicant provides a copy of the memorandum disqualifying him for award of the AGCM.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 12 November 1992 for a period of 4 years and training as a personnel administration specialist.  He completed basic training at Fort Knox, Kentucky and advanced individual training at Fort Benjamin Harrison, Indiana before being assigned to Fort Gordon, Georgia for his first assignment.



2.  On 24 August 1995, he was transferred to Fort Lewis, Washington and on
9 September 1996 he began on-the- job training as an animal care specialist.  He departed Fort Lewis in March 1997 to attend formal training as an animal care specialist at Fort Sam Houston, Texas.  He remained on active duty through continuous reenlistments and was promoted to the pay grade of E-5 on 1 August 2004.

3.  On 12 August 2004, NJP was imposed against him for being derelict in the performance of his duties by failing to train his Soldiers on how to conduct physical fitness training.  The imposing commander directed that the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) be filed in the restricted section of his Official Military Personnel File (currently known as the Army Military Human Resource Record (AMHRR)). 

4.  On 4 November 2004, his commander signed a memorandum disqualifying him for award of the AGCM and informing him that the disqualification was based on the 12 August 2004 NJP imposed against him.  The applicant acknowledged receipt of the memorandum on 18 November 2004.

5.  The applicant was promoted to the pay grade of E-6 on 1 February 2007 and he continued to serve until he was honorably retired on 30 November 2012 and was transferred to the retired List effective 1 December 2012.  He had completed 20 years and 19 days of active service and his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was awarded the Meritorious Service Medal, Army Commendation Medal (4th Award), Army Achievement Medal (6th Award), AGCM (5th Award), National Defense Service Medal (2nd Award), Global War on Terrorism Expeditionary Medal, Global War on Terrorism Service Medal, Army Service Ribbon, Overseas Service Ribbon (4th Award), Military Outstanding Volunteer Service Medal, and the Driver and Mechanic Badge with Mechanic Bar.

6.  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.  

7.  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 AMHRR.  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.

8.  Army Regulation 600-8-22 states that while any record of NJP could be in conflict with recognizing the Soldier’s service as exemplary such record should not be viewed as automatically disqualifying.  The commander analyzes the record, giving consideration to the nature of the infraction, the circumstances under which it occurred, and when.  Conviction by courts-martial terminates a period of qualifying service; a new period begins the following day after completion of the sentence imposed by the court-martial.  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’s contention that he should be awarded the AGCM for the period 12 November 2001 – 11 November 2004 has been noted and appears to have merit. 

2.  Although the award of the AGCM is not an automatic entitlement, disqualification must be justified and the individual concerned must be afforded an opportunity to respond to the basis for the disqualification.

3.  In the applicant’s case, it appears that the applicant was informed by his commander that the decision had been made to disqualify him for award of the AGCM based on the NJP the commander had imposed against him 3 months prior.  However, he did not afford the applicant the opportunity to respond to the reason for disqualification or to submit a statement in his own behalf. 



4.  Inasmuch as the applicant was not afforded his rights under the prevailing regulation, it would serve the interest of justice to award him the AGCM (5th Award) for the period 12 November 2001 – 11 November 2004 and to correct his DD Form 214 to show that he received six awards of the AGCM.

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:

* Deleting the entry “Army Good Conduct Medal (5th Award)” from item 13 of his DD Form 214
* Awarding him the Army Good Conduct Medal (5th Award) for the period 12 November 2001 – 11 November 2004
* Adding the entry “Army Good Conduct Medal (6th Award) to item 13 of his DD Form 214




      _______ _   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)                                         AR20130004503



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ABCMR Record of Proceedings (cont)                                         AR20130004503



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