IN THE CASE OF:	  

		BOARD DATE:	 14 July 2015 

		DOCKET NUMBER:  AR20150007830 


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 a memorandum disqualifying him for award of the Army Good Conduct Medal (AGCM) be removed from his Official Military Personnel File (OMPF)).

2.  The applicant states his records contain a disqualification memorandum for award of the AGCM which does not show the period of disqualification.  It is dated 1 December 2010.  He received an AGCM for that period.  His records do not contain any punishment during that period of time.  He has been trying to get the document removed since last year.  He is trying to get his records updated for the upcoming promotion board.  He is not implying that it may affect his chances for promotion; however, the document does not belong in his records.   

3.  The applicant provides:

* 1st Battalion, 81st Armor Regiment, memorandum, dated                          1 December 2010
* Headquarters, U.S. Army Garrison Command, Fort Knox, KY, Permanent Orders (PO) 031-0016, dated 31 January 2011

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 enlisted in the Regular Army on 18 February 2004 and he is currently serving in the rank of staff sergeant.

3.  He received nonjudicial punishment on 23 March 2008 for negligently discharging his weapon.

4.  His OMPF shows in the performance folder that on 1 December 2010 the commander disqualified him for the award of the AGCM.   The commander stated adverse action as the reason for the action.  The memorandum does not indicate the period of disqualification nor does it show that he acknowledged receipt.  

5.  His performance folder of his OMPF also contains PO 031-0016, issued by Headquarters, U.S. Army Garrison Command, Fort Knox, KY, dated 31 January 2011 awarding him the AGCM (2nd Award) for the period 17 February 2007 to February 2010.

6.  Army Regulation 600-8-22, in effect at the time, provided policy guidance, criteria, and administrative instructions concerning individual and unit military decorations, medals, ribbons, badges, and similar devices awarded in recognition of accomplishments.  It stated:

	a.  The Army Good Conduct Medal 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 3 years 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.  The immediate unit commander's decision to award the Army Good Conduct Medal 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.
	c.  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 according to Army Regulation 600-37 (Unfavorable Information), 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 statement, the individual's statement, and his or her consideration for filing to the Commander, U.S. Army Enlisted Records and Evaluation Center, for permanent filing in the individual's OMPF.

7.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) governs the composition of the OMPF.  It states documents that award badges, awards, service medals, tabs, or non-Army awards as well as the revocation and amendment of such award documents will be filed in the Soldier's performance folder.  Once placed in the OMPF, the document becomes a permanent part of that file.  The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for removal of the 1 December 2010 memorandum disqualifying him from the second award of the AGCM was carefully considered and found to have merit.

2.  Records show he accepted nonjudicial punishment on one occasion during the period of eligibility for the second award of the AGCM; however, the issue is not the nonjudicial punishment, but the processing of the disqualification memorandum.
 
3.  There is no indication that the memorandum was referred to him for acknowledgement or rebuttal; therefore, it appears that he was not afforded due process in the issuance of the disqualification memorandum.  Additionally, the memorandum does not include the period of disqualification.

3.  Furthermore, he was awarded the AGCM (2nd Award) the month following issuance of the disqualification memorandum.  In view of these facts, it would be appropriate, and in the interest of justice and equity to remove the disqualification memorandum from his OMPF. 




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 from the applicant’s OMPF the memorandum, subject:  Soldier ineligibility of Good Conduct Medal for A CO, 1-81AR, issued by 1st Battalion, 81st Armor Regiment, Fort Knox, KY dated 1 December 2010.




      _______ _   _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)                                         AR20150007830





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ABCMR Record of Proceedings (cont)                                         AR20150007830



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