BOARD DATE:	  5 November 2014

		DOCKET NUMBER:  AR20140016643 


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, in effect, removal of the Army Good Conduct Medal (AGCM) disqualification memorandum and associated documents from his Official Military Personnel File (OMPF) and award of the AGCM for the period 
17 November 2005 to 16 November 2008.

2.  The applicant states that on 15 November 2008 his commander in Iraq made the decision to disqualify him from receiving the AGCM.

   a.  The commander made the decision based on the fact that the applicant was under suspension of favorable personnel actions (Flag) because he was named as one of several subjects in an investigation that had been ongoing since 2007.  The allegations were later determined to be unfounded.  However, he, along with other Soldiers who were named as subjects in the investigation and also were flagged, did not receive the AGCM.

   b.  He received an Army Commendation Medal (ARCOM) for his service in Iraq, as well as a second award of the ARCOM when he was reassigned in 2009. His meritorious service during this time period qualified him for the AGCM and the medal should have been awarded to him after the Flag was closed.  He adds the AGCM that was revoked should be reinstated.

3.  The applicant provides copies of the following documents:

* AGCM disqualification memorandum and associated documents
* two ARCOM award documents
* two promotion orders
* three DA Forms 2166-8 (NCO [Noncommissioned Officer] Evaluation Reports (NCOERs))
* Department of the Army Suitability Evaluation Board (DASEB) memorandum, dated 19 May 2014

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving in the Regular Army in the rank of staff sergeant, in military occupational specialty 68W (Combat Medic/ Health Care Specialist).

2.  A review of the applicant's OMPF shows the following documents are filed in the restricted folder –

* three Headquarters, 716th Military Police (MP) Battalion, Camp Liberty, Iraq, memoranda, dated 15 November 2008, that show –

* his commander notified him of his intention to disqualify him for award of the AGCM for the period 17 November 2005 to 16 November 2008 because he was flagged for adverse action
* he indicated with his initials and signature that he read and understood the unfavorable information presented, and he elected not to make a statement
* his commander approved his disqualification for award of the AGCM and directed the documentation be filed in his OMPF

* DA Form 4950 (AGCM Certificate) for the period 17 November 2005 to		 16 November 2008, signed by the commander, and a large "X" drawn on the document
* Headquarters, 716th MP Battalion, Camp Liberty, Iraq, Permanent Orders 313-004, dated 8 November 2008, that awarded the applicant the AGCM (1st Award) for the period 17 November 2005 to 16 November 2008, and a large "X" drawn on the document

3.  Headquarters, U.S. Army Garrison, Detrick Army Element, Walter Reed National Military Medical Center, Military Personnel Division, Bethesda, MD, Permanent Order 095-51, dated 4 April 2012, awarded the applicant the AGCM (1st Award) for the period 17 November 2008 to 16 November 2011.

4.  In support of his application the applicant provides documents that show he was –

* awarded the –

* ARCOM for meritorious service during the period 26 April 2008 to 10 May 2009
* ARCOM (1st Oak Leaf Cluster (OLC)) for meritorious service during the period 11 July 2006 to 28 December 2009

* promoted to –

* sergeant/pay grade E-5 on 1 March 2011
* staff sergeant/pay grade E-6 on 1 March 2013

* rated "Among the Best" by his rater on three separate NCOERs spanning the period 1 March 2011 through 23 February 2014
* notified that his request for removal of the AGCM disqualification memorandum from his OMPF does not fall under the purview of the DASEB

5.  Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations.  The AGCM is awarded on a selective basis to each Soldier who distinguishes himself or herself from among his or her fellow Soldiers by their exemplary conduct, efficiency, and fidelity throughout a specified period of continuous enlisted active Federal military 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 active Federal military service.  There is no automatic entitlement to the AGCM; however, disqualification must be justified.  

   a.  The immediate unit commander's decision to award the AGCM will be based on his or her personal knowledge and of the individual's official records for periods of service under previous commanders during the period for which the
award is to be made.  The lack of official disqualifying comment by such previous commanders qualifies the use of such period toward the award by the current commander.
   
   b.  In instances of disqualification, as determined by the 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 (Unfavorable Information), paragraph 3–6.  The commander will consider the affected individual's statement.  If the commander's decision remains the same, the commander will forward the decision memorandum, along with the individual's statement and any related correspondence, to the Commander, U.S. Army Human Resources Command (HRC) to be permanently filed in the Soldier's OMPF.  

   c.  Disqualification for an award of the AGCM can occur at any time during a qualifying period (e.g., when manner of performance or efficiency declines).

6.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) provides policies, operating tasks, and steps governing the OMPF.  

   a.  Only those documents listed in the "Documents Required for Filing" are authorized for filing in the OMPF.  Depending on the purpose, documents will be filed in the OMPF in one of three sections:  performance, service, or restricted.

	b.  Paragraph 2-3 (Composition of the OMPF) provides that the restricted section of the OMPF is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of information in this section is controlled.  It may not be released without written approval from the Commander, HRC, or the Headquarters, Department of the Army, selection board proponent.  This paragraph also provides that documents in the restricted section of the OMPF are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the OMPF; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army.

   c.  The OMPF Document List shows the disqualification statement is filed in the performance folder and the allied (associated) documents are filed in the restricted folder.

7.  Army Regulation 600-37 sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.

   a.  Chapter 7 (Appeals and Petitions) provides the policies and procedures for appeals and petitions for removal of unfavorable information from the OMPF.
	
	b.  Paragraph 7-2 (Policies and Standards) provides 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 the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the AGCM disqualification memorandum and associated documents that are filed in his OMPF should be removed and he should be awarded the AGCM for the period 17 November 2005 to 16 November 2008, because the allegations against him for which he was flagged were determined to be unfounded and he received two awards of the ARCOM during portions of the period of service in question.

2.  The evidence of record shows he was awarded the ARCOM for the period   26 April 2008 to 10 May 2009 and the ARCOM (1st OLC) for the period 
11 July 2006 to 28 December 2009.  It is acknowledged that the two awards offer strong evidence in support of his request.  However, the two awards do not offer evidence that he met all of the specific criteria for award of the AGCM.

3.  The evidence of record shows he was flagged at the time of his eligibility for award of the AGCM, when the commander rendered his decision to disqualify him for the award of the AGCM.  There is no evidence of record that shows the commander reversed his decision.  Moreover, the applicant fails to provide any evidence (e.g., from the commander who imposed the disqualification) that the AGCM disqualification decision was made in error, that the flag was favorably lifted because the applicant was exonerated, or that the commander subsequently recommended him for award of the AGCM for the period              17 November 2005 to 16 November 2008.

4.  The AGCM disqualification memorandum serves the purpose of alerting commanders and human resources managers of the prohibition for award of the AGCM for a specified period of time.  The memorandum under review specifically disqualified the applicant for the first award of the AGCM for the period 
17 November 2005 to 16 November 2008.

5.  Permanent orders awarded him the AGCM (1st Award) for the period           17 November 2008 to 16 November 2011.  Thus, it may be concluded that he properly denied award of the AGCM (1st Award) for the period 17 November 2005 to 16 November 2008.

6.  The evidence of record shows the commander's AGCM disqualification decision memorandum is not properly filed in the performance folder of the applicant's OMPF; however, the associated documents are properly filed in the restricted folder of his OMPF.  Despite this administrative error, no action is being taken to direct transfer of the AGCM disqualification decision memorandum to the performance folder of his OMPF.

7.  By regulation, in order to remove a document from the OMPF, there must be clear and convincing evidence showing the document is untrue or unjust.  No such evidence has been provided in this case.  Therefore, the documents in question should not be removed from the applicant's OMPF and he is not entitled to reinstatement of award of the AGCM for the period 17 November 2005 to 
16 November 2008.

8.  Therefore, in view of the foregoing, there is an insufficient evidentiary basis to grant the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x_____  ___x_____  __x___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  This Record of Proceedings and all associated documents will be filed in the restricted folder of the individual's Official Military Personnel File.




      __________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)                                         AR20140016643



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ABCMR Record of Proceedings (cont)                                         AR20140016643



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