IN THE CASE OF:
BOARD DATE: 28 August 2014
DOCKET NUMBER: AR20140013224
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 the Good Conduct Medal Disqualification Statement contained in the performance section of his Official Military Personnel File (OMPF) be transferred to the Restricted section of his OMPF or removed altogether.
2. The applicant states, in effect, that at the time he received his nonjudicial punishment (NJP) he was told that it and all associated documents would be filed in the Restricted section of his OMPF. The DA Form 2627 (Record of Proceedings of NJP) is filed in the Restricted section of his OMPF; however, shortly after he received NJP, his commander disqualified him for award of the Army Good Conduct Medal based on the same incident and it is filed in the performance section of his OMPF and will alert selection boards to look in the restricted section of his OMPF.
3. The applicant provides no additional documents with his application.
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 was serving in the U.S. Army Reserve (USAR) when he enlisted in the Regular Army on 31 July 2001 for a period of 3 years. He was promoted to pay grade E-5 on 1 January 2006.
3. On 17 February 2009, while serving in Iraq, NJP was imposed against the applicant for negligence in discharging a firearm in the clearing barrel at an entry control point. The applicant did not appeal his punishment and the imposing commander directed that the NJP be filed in the Restricted section of his OMPF.
4. On 26 February 2009, the applicants commander notified the applicant that he was disqualifying him for award of the Army Good Conduct Medal for the period 20060403 20090303 for offenses committed during that timeframe and disciplinary actions taken against him. The type of disciplinary actions taken are not described. The applicant elected not to submit a statement in his own behalf and the memorandum of disqualification was filed in the performance section of his OMPF.
5. The applicant was promoted to the pay grade of E-6 on 1 January 2010.
6. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual personnel files. Paragraph 7-2 (Policies and Standards) states that once an official document has been properly filed in the OMPF it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.
7. Army Regulation 600-8-104 (Army Military Human Resource Record Management) states Army Good Conduct Medal disqualification notifications are filed in the Performance folder of the OMPF.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that the memorandum of disqualification for award of the Good Conduct Medal should be transferred to the Restricted section of his OMPF or removed in its entirety has been carefully considered and found to lack merit.
2. The memorandum of disqualification is properly filed in the performance section of his OMPF and he has provided no evidence to show that the memorandum is in error or unjust.
3. The Army has an interest in maintaining the integrity of records and the disqualification for award of the Good Conduct Medal is a permanent disqualification and must remain a matter of record.
4. Additionally, documents are not removed from an individuals records based on the individuals perceived opinions that the documents will prevent further career progression.
5. Accordingly, there appears to be no basis to remove or transfer a properly filed document in his OMPF or to grant his request.
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) AR20140013224
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ABCMR Record of Proceedings (cont) AR20140013224
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