IN THE CASE OF:	  

		BOARD DATE:	  12 May 2015

		DOCKET NUMBER:  AR20150004532 


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 reconsideration of his request for removal of Army Good Conduct Medal (AGCM) disqualification documents from his Official Military Personnel File (OMPF).

2.  The applicant states in accordance with Army Regulation 600-37 (Unfavorable Information) the commander was supposed to allow him five working days to acknowledge receipt and submit a rebuttal in response to the disqualification action.  However, he was not given the opportunity because he was never informed (either verbally or in writing) of the disqualification for the period 25 July 1996 to 24 July 1999.  He states the commander's notification and decision documents are both dated 19 November 1997, which shows he was not notified or given the opportunity to submit a rebuttal.  He adds that he received the AGCM for the period cited and never questioned the award because he did not have any knowledge of the commander's disqualification decision.  He concludes that the documents should be removed from his OMPF.

3.  The applicant provides copies of the commander's notification and decision documents.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20150000213 on 19 February 2015.
2.  The applicant enlisted in the Regular Army (RA) on 25 July 1996.  He was awarded military occupational specialty 92F (Petroleum Supply Specialist).  Through a series of reenlistments he continued to serve on active duty.  He attained the rank of staff sergeant/pay grade E-6 on 1 October 2006.

3.  A review of the applicant's military service records shows the following documents are filed in the restricted folder of his OMPF.

   a.  Headquarters, 1st Battalion (Mechanized), 8th Infantry, Fort Carson, CO, memorandum, dated 19 November 1997, subject:  Good Conduct Medal Disqualification, that shows the Commander, Headquarters and Headquarters Company (HHC), notified the applicant of his intention to disqualify him for award of the AGCM for the period July 1996 through July 1999.  The reason for the disqualification was based on the applicant being flagged (i.e., the suspension of favorable personnel actions) due to failure of the Army Physical Fitness Test (APFT).

   b.  The lower portion of the memorandum shows a prepared 1st Endorsement provided for the purpose of the applicant's response.  It is blank (no entries).

   c.  Commander, HHC, 1st Battalion (Mechanized), 8th Infantry, Fort Carson, CO, memorandum, dated 19 November 1997, subject:  Good Conduct Medal Disapproval, addressed to the Commander, 4th Personnel Service Company (PSC), Fort Carson, CO, that shows the Commander, HHC, indicated the applicant was not available to sign the document, the disqualification stands, and a new period of qualification for the AGCM begins on "0207" (i.e., July 2002).

4.  A further review of the applicant's military service records shows the following permanent orders (PO) are filed in the performance folder of his OMPF.

   a.  Detachment B, 4th Personnel Battalion, Fort Carson, CO, PO 038-01, dated 4 February 2000, that awarded him the AGCM (2nd Award) [sic] for the period 25 July 1996 to 24 July 1999.

	b.  Detachment C, 502nd Personnel Services Battalion, Fort Carson, CO, 
PO 309-47, dated 5 November 2002, that awarded him the AGCM (2nd Award) for the period 25 July 1999 to 24 July 2002.

	c.  Detachment D, 502nd Personnel Services Battalion, Fort Carson, CO, 
PO 172-019, dated 21 June 2005, that awarded him the AGCM (3rd Award) for the period 25 July 2002 to 24 July 2005.

	d.  Headquarters, 4th Brigade Support Battalion, 1st Stryker Brigade Combat Team, 4th Infantry Division, Fort Carson, CO, PO 020-006, dated 20 January 2015, that awarded him the AGCM (4th Award) for the period 25 July 2005 to 
24 July 2008.

   e.  Headquarters, 4th Battalion, 10th Infantry Regiment, Fort Jackson, SC, 
PO 320-10, dated 16 November 2011, that awarded him the AGCM (5th Award) for the period 25 July 2008 to 24 July 2011.

5.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant entered active duty this period on 25 July 1996 and he was honorably discharged on 16 December 2011 to accept appointment as a commissioned officer in the Army.

   a.  He had completed 15 years, 4 months, and 22 days of net active service this period.

   b.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) shows, in pertinent part, the AGCM (5th Award).

6.  The applicant was appointed as a RA officer in the rank of second lieutenant in the Medical Service Corps on 17 December 2011.  He was promoted to first lieutenant on 17 June 2013.

7.  Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning military awards and decorations.

   a.  Chapter 4 shows 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.  Unit commanders are authorized to award the AGCM to enlisted personnel serving under their command jurisdiction who meet the established criteria.  Although there is no automatic entitlement to the AGCM, disqualification must be justified.

   b.  Paragraph 4-8 prescribes the policy pertaining to disqualification for the AGCM.  It provides that in instances of disqualification 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 the memorandum, the individual's statement, and his/her consideration to the appropriate office for filing.  The disqualification memorandum will be permanently filed in the Soldier's OMPF.  The commander will forward a copy of the documents to the PSC and the personnel automation section (PAS) chief to update the electronic Military Personnel Office (eMILPO) system.

   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).  The PSC PAS chief will establish the new "beginning date" for the Soldier's eligibility for award of the AGCM, enter the new date and code on the Soldier's eMILPO record, and submit an eMILPO transaction.

8.  Army Regulation 600-8-104 (Army Military Human Resource Record Management) provides policies, operating tasks, and steps governing the OMPF.

   a.  Chapter 2 governs the composition of the OMPF and shows that award orders are filed in the performance folder of the OMPF.  It also shows the commander's disqualification statement for award of the AGCM, along with the Soldier's statement and any enclosures, are filed in the performance folder of the OMPF.

	b.  Once placed in the OMPF, the documents become a permanent part of that file.

9.  Army Regulation 600-37 sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files.

   a.  It ensures that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files.  It also ensures that the best interests of both the Army and Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.

   b.  Chapter 3 (Unfavorable Information in Official Personnel Files), paragraph 3-2 (Policies), provides that unfavorable information will not be filed in an official personnel file unless the recipient has been given the chance to review the documentation that serves as the basis for the proposed filing and make a written statement, or to decline, in writing, to make such a statement.  This statement may include evidence that rebuts, explains, or mitigates the unfavorable information.  The issuing authority should fully affirm and document unfavorable information to be considered for inclusion in official personnel files.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his request for removal of the AGCM disqualification documents that are filed in his OMPF should be reconsidered because he was not notified of or given the opportunity to respond to the commander's proposed disqualification action and he subsequently received the AGCM for the cited period of service.

2.  The evidence of record shows, on 19 November 1997, the commander notified the applicant of his intention to disqualify him for award of the AGCM for the period July 1996 through July 1999 based on the applicant being flagged due to failure of the APFT.

   a.  There is no evidence of record that shows the applicant acknowledged receipt of the proposed action or that he submitted a rebuttal in response.

   b.  The evidence of records shows, on 19 November 1997, the commander indicated the applicant was not available to sign the document.  It also shows the commander determined that the disqualification stands, and he established a new period of qualification for the AGCM beginning July 2002 (emphasis added).

   c.  It is not clear why the commander would disqualify the applicant for the AGCM prior to the end of the 3-year period of qualifying service (i.e., 24 July 1999) given the fact that a suspension of favorable personnel actions was in effect at the time.  It might have been appropriate to establish the disqualification period from 25 July 1996 through the date prior to the lifting of the Flag action, if/when the applicant actually passed the APFT.  Otherwise, the disqualification period could have been established from 25 July 1996 through 24 July 1999.  However, on 19 November 1997 (emphasis added), the commander established the period of disqualification from 25 July 1996 through 24 July 1999 and then established July 2002 (emphasis added) as the new "beginning date."

   d.  Thus, it is clear that the commander's action to disqualify the applicant
for the AGCM was administratively incorrect.  More importantly, the evidence of record indicates that the applicant was not afforded due process.

3.  Records show the applicant received five awards of the AGCM during the enlisted period of active duty service under review (i.e., 15 years, 4 months, and 22 days).  Thus, the evidence of record strongly supports a conclusion that the AGCM disqualification documents are in error and/or incomplete.

4.  The policy and procedures set forth in Army Regulation 600-37 governing the filing of unfavorable information in the OMPF were not complied with in this case.  Moreover, the overwhelming evidence indicates the memorandum disqualifying the applicant for award of the AGCM was invalid.

5.  Therefore, it is concluded that it is in the best interests of both the Army and the applicant to remove the documents from his OMPF.

BOARD VOTE:

___x____  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR20150000213, dated 19 February 2015.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing from the individual's OMPF the Headquarters, 1st Battalion (Mechanized), 8th Infantry, Fort Carson, Colorado, memorandum, dated 19 November 1997, subject:  Good Conduct Medal Disqualification, and the Commander, Headquarters and Headquarters Company, 1st Battalion (Mechanized), 8th Infantry, Fort Carson, Colorado, memorandum, dated 19 November 1997, subject:  Good Conduct Medal Disapproval.

2.  To ensure this decision results in no unintended harm to the individual concerned, following completion of the administrative corrections directed herein, the ABCMR Record of Proceedings dated 19 February 2015, this ABCMR Record of Proceedings, and all documents related to this appeal will be returned to this Board for permanent filing.  The ABCMR Records of Proceedings and associated documents will not be filed in the individual's OMPF.



      __________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)                                         AR20150004532



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ABCMR Record of Proceedings (cont)                                         AR20150004532



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