MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:        14 October 1998       
	DOCKET NUMBER:   AC98-05692

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. Robert W. Garrett		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records
	Exhibit B - Military Personnel Records (including advisory opinion, 
	             if any)

APPLICANT REQUESTS:  In effect, that all records and references indicating that he was disqualified for award of the Good Conduct Medal and passed over for promotion be expunged; that he be recalled to active duty with retroactive pay and allowances; that he be considered for promotion and if selected receive all due pay and allowances; and that all rights, privileges, and property be restored to him.  

APPLICANT STATES:  Counsel provides a brief in support of the applicant.  

COUNSEL CONTENDS:

That he received a prejudicial statement of disqualification for the Army Good Conduct Medal.  This statement was placed in his record without an opportunity for him to submit a rebuttal, violating Army regulations.  This statement contributed to the applicant’s being passed over for promotion, and those failures (passovers) should be set aside and he should be allowed to fairly compete for promotion without the unfair, inaccurate and prejudicial statement.

Counsel states that the applicant left the active Army on 1 March 1997 having retired because he had surpassed the 20 plus year mark and had been passed over for promotion.  The statement disqualifying him for award of the Army Good Conduct Medal was placed in his records in 1986 and he was passed over for promotion in subsequent years.

Counsel provides 20 enclosures to his memorandum in support of the application, summarized as follows:

•	The applicant had an outstanding Army career, enlisting in 1966, serving in Vietnam, and being awarded various medals, including the Air Medal, Meritorious Service Medal, four Army Commendation Medals, and the Army Achievement Medal, among others.  He obtained a BA degree while serving with the Army Reserves.
•	In 1986 the applicant’s commanding officer placed a statement in his official record which precluded him from receiving a Good Conduct Medal.  He was not offered an opportunity to review the statement, much less rebut it.  The applicant applied to the Suitability Evaluation Board, thereby exhausting all administrative remedies.  That board stated that his request did not come under its purview, and referred him to the Army Board for Correction of Military Records (ABCMR).
•	The applicant applied to the ABCMR on 22 February 1991 and on                 7 April 1993 the ABCMR denied his request, finding it untimely and not in the interest of justice to excuse his tardiness.  He requested reconsideration, stating that he should not have been penalized for applying to the internal (Suitability Evaluation) board in an attempt to exhaust his remedies.  On       3 February 1994 the executive secretary [of this Board] informed the applicant that the ABCMR denied his request for reconsideration because he had not presented new evidence.  That official informed him that the ABCMR had considered the merits of his application.  
•	The applicant resubmitted his request, and on 16 August 1995 the Board again denied relief.  The applicant filed suit in district court because the ABCMR failed to consider the merits of his application.  After the suit was filed, the government agreed to remand the case to this Board for reconsideration of the merits of the issue. 
•	Counsel provides a statement which caused the applicant to be issued a statement disqualifying him for award of the GCM.  He states that the applicant took ammunition to his home, after conclusion of a live-fire exercise on 18 August 1985, because the vault [to store the ammunition] had already been secured, and the ammunition could not be secured at the command.  The next morning he notified his command that he had the ammunition.  He did not immediately return the ammunition because he had to report to Fitzsimons Army Medal Center in Colorado, because he was suffering from black-outs.  He returned the ammunition on 6 September 1995, en route to his command for a drill weekend.
•	The applicant’s battalion commander issued a letter of reprimand, which was removed from his record when the applicant was transferred.  His NCO evaluation report for the period was unremarkable, except that it showed that the applicant was a better than average soldier.  On 15 March 1986 that same battalion commander awarded him a letter of commendation.  His record was unblemished until 30 July 1986 when his battalion commander issued the statement of disqualification.  Consequently, he was not selected for promotion even though he had above average NCO evaluation reports, as shown in exhibit 18, since that time.  He was forced to retire because of his time in grade and his non-promotion.    

Counsel cites errors and injustices on page 6 of his memorandum, states that when the Army fails to follow its regulation to the detriment of the member, this Board must correct the error.  He states that in this case the Army failed to follow its regulations.  Those regulations were not mere procedural ones, but went to the core of the substantive issue in this case.  Counsel quotes from Army Regulation 672-5-1, in effect at that time, which prescribes the criteria for award of the Good Conduct Medal, and the actions that a commander must follow should he decide not to award that medal, to include notifying the soldier, considering his rebuttal should he submit one, and if his decision remains the same, to forward the disqualifying statement, the individual’s statement, and his consideration, for eventual filing in the individual’s OMPF. 

Counsel states that the applicant’s overall record is strong, that the applicant deserved due process of law, and that if the commanding officer had followed Army regulations, he may not have issued the statement.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in memorandums prepared to reflect the Board’s original decision on his case on 7 April 1993 and the reconsideration of his case on 16 August 1995 (COPIES ATTACHED).  

On 8 August 1997, it was agreed and approved by the judge for the District Court for the District of Columbia that this Board would review the applicant’s request for relief, that the applicant could submit further documents in support of his application, and if pursuant to this review, the ABCMR denied the relief he seeks, the applicant could seek judicial review of that denial.  The copy of this stipulation is exhibit 14 of counsel’s brief. 

The applicant’s NCO evaluation reports subsequent to the 1995 reconsideration of his case have been outstanding, with both his rater and senior rater stating that the applicant’s overall potential for promotion and/or service in positions of greater responsibility was superior.

The applicant retired on 28 February 1997 in the rank of Staff Sergeant E-6.  He had over 20 years of active service and over 6 years of inactive service.  In addition to the awards previously mentioned, he also received the Army Good Conduct Medal (5th award), NCO Professional Development Ribbon (Advanced Level), Aircraft Crewman Badge, and awards for his service in Vietnam, among others.  He has received the Meritorious Service Medal and the Army Commendation Medal subsequent to the reconsideration of  his case.  Additionally, his DD Form 214 shows completion of numerous military schools and courses.  

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  Other than an incident in 1967 for which he received nonjudicial punishment under Article 15, UCMJ, for disobeying a lawful order, and the incident in 1985 for which he received a letter of reprimand for his failure to secure ammunition, the applicant’s military service has been exemplary, as evidenced by the awards that he received, the schools and courses that he completed, and his evaluation reports.

2.  The applicant received an administrative letter of reprimand on 
5 October 1985 for his failure to secure live ammunition for the period 
18 August 1985 through 6 September 1985.  In that letter, his battalion commander stated that the applicant failed to store and secure live ammunition in the unit arms room and did store that ammunition at a location other than the arms room.  That official stated that the applicant was aware of proper storage procedures and failed to comply with such procedures.  In issuing this letter, the applicant was requested to elect one of three options, i.e., to submit statement or documents in his own behalf, to elect not to make a statement, or to refuse to acknowledge the letter by not signing.  The applicant stated, as indicated by his signature, that “I have read and understand the unfavorable information presented against me and elect not to make a statement.” 

3.  On 30 July 1986 that same battalion commander forwarded a statement of disqualification for award of the Good Conduct Medal.  That commander did not offer the applicant an opportunity to rebut this statement as required by Army Regulation 600-8-22.  And on 12 August 1986 the applicant, in a letter to his battalion commander, protested the statement of disqualification, pointing out to that official that in accordance with the governing Army regulation, a single incident is not necessarily automatically disqualifying [for award of the GCM], and that he had not been afforded the opportunity to rebut the statement as required by regulation.  The applicant also reminded his commander that his last two evaluation reports, signed by that commander, did not indicate any evidence to suggest any disqualifying conduct. 

4.  In his 22 February 1991 application to this Board, the applicant again stated that the battalion commander did not follow regulatory procedures in disqualifying him for award of the GCM, that the denial of the award had a negative career impact substantially in excess of that originally intended, that  failure to award the medal resulted in unintended punishment that was disproportionate to the offense of improperly storing ammunition and that the proceedings were not conducted under appropriate law and regulation.   He stated that had the requirements for notice of denial been observed, he would have furnished cogent mitigation and extenuation elements in support of the GCM award.   

5.  During the original processing of this case in 1993, an advisory opinion was obtained from the Office of The Judge Advocate General (OTJAG).  At that time  that office reviewed the circumstances under which the applicant received the letter of reprimand and the statement of disqualification for award of the GCM.  The opinion stated that there was no doubt that the statement of disqualification was not referred to the applicant in accordance with regulations; however,  subsequent actions taken by the command had cured the procedural error, except that the applicant’s remarks concerning the action were not filed with the action.  He stated that the applicant was entitled to a partial remedy, that is, that he was entitled to have his comments in rebuttal to the statement of noncompliance filed in his military records.  NOTE:  This Board could not determine if his rebuttal to the statement of noncompliance was in fact filed in his military records at that time; however, that rebuttal has now been included in his official record.  The Board believes, however, that the presence or the absence of this rebuttal statement has not had, and does not now have, any effect on the applicant’s case.  

6.  That opinion stated that in August-September 1986 the Inspector General of the 96th Army Reserve Command reviewed the case, including the applicant’s 
12 August 1986 rebuttal letter, with the battalion commander, and that the battalion commander elected to adhere to his original decision.  Satisfied that the applicant had been provided with an opportunity to present his case, the IG closed the case without further action.

7.  The OTJAG opinion further stated that on 30 September 1986 the applicant requested that the 96th ARCOM commander look into his case, and after discussing the matter with the IG and the battalion commander, the ARCOM commander informed the applicant that he found no reason to change the battalion commander’s decision to disqualify the applicant for award of the GCM. Then on 11 November 1987 the applicant requested his new battalion commander to overturn the statement of disqualification.  That commander, who apparently had been aware of the applicant’s duty performance, informed the applicant that his investigation revealed that there was sufficient cause to disqualify the applicant for award of the GCM and he would not overturn the decision. 

8.  The OTJAG opinion went on to quote the governing regulation concerning award of the GMC, that is, there is no right or entitlement to the medal and that unit commanders are to award this medal to soldiers who have distinguished themselves from their fellow soldiers by their exemplary conduct, efficiency, and fidelity.  He stated that the applicant’s commander was obviously aware of the applicant’s record of performance, both favorable and unfavorable information, and that the applicant had been provided an opportunity to express his reasons why the medal should be awarded.  He concluded that the procedural error was harmless to the applicant’s substantive rights, and cured by his subsequent opportunity to comment on the action.  

9.  Notwithstanding counsel’s argument, and in spite of the fact that the applicant’s battalion commander failed to allow the applicant to review and rebut, the statement disqualifying him for award of the GCM, this error was, in fact, a procedural error, and that mistake had been rectified long before the applicant applied to this Board for relief.  The applicant’s case had been reviewed by the ARCOM IG, the ARCOM commander, and his new battalion commander, all who determined that the statement of disqualification was indeed proper, and that the applicant had ample opportunity to present his case.
  
10.  Counsel’s contention that the battalion commander would not have issued the statement had he followed Army regulations [allowing the applicant to rebut the statement] is repudiated by the information provided in the aforementioned OTJAG advisory opinion, in which the battalion commander had conferred with both the ARCOM IG and the ARCOM commander, after the applicant’s 
12 August 1986 protest letter, and adhered to his original decision to disqualify the applicant for award of the GCM. 

11.  The applicant’s contention, in his 1991 application to this Board, that the denial [of the award] had a negative career impact substantially in excess of that originally intended, and that failure to award the medal resulted in unintended punishment that was disproportionate to the offense, has been noted by this Board.  The battalion commander, at the time he issued the statement of disqualification, may or may not have considered the impact that it would have  on the applicant’s career.  However, his intent was clear, to disqualify him for award of the Good Conduct Medal.  In this respect, this Board can only reiterate the rationale provided by the 1995 Board in denying the applicant’s request for reconsideration.  That is, that individuals in positions of authority must decide on the appropriate response to a situation and that the effect of a course of action is not a more important consideration than correcting behavior or maintaining good order and discipline.

12.  The Board notes that the applicant did not contest the letter of reprimand he received in 1985, which may have formed the basis for the disqualification for award of the GCM.  The applicant knew that this letter was temporary (not in his OMPF), and would be removed from his military personnel file.  This Board believes that the applicant had ample opportunity to rebut this letter, had no excuse nor reason for his behavior, however, was not unduly concerned at that time because of the temporary nature of this reprimand, i.e., its inclusion in his military personnel records jacket would not affect his promotion opportunities.  The Board also feels that original procedural error, was not material, and if this error was not made, would not have altered the applicant’s record.  Over the past 12 years, the applicant has received every fair and just consideration in the disposition of his case, and neither the applicant nor counsel has provided any substantially new information or evidence concerning this matter.  Consequently, there is no reason for this Board to overturn its previous decision.
   
13.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__JNS__  __EMW__  _RWG___  DENY APPLICATION

						Loren G. Harrell
						Director