MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            19 May 1999       
	DOCKET NUMBER:    AR1999023104

	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	
	Ms. Wanda L. Waller 		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Robert G. Hinkle		Member	
	Mr. Roger W. Able		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 a summary court-martial order, dated 14 November 1977, be set aside and that his rank be restored to private first class.  He also requests award of the National Defense Service Medal and the Good Conduct Medal. 

APPLICANT STATES:  In effect, that in 1978 he was blamed for another soldier’s actions (kicked a soda machine while drunk) and received a summary
court-martial at Fort Bragg, North Carolina.  He contends that the commander reduced the other soldier in grade and he was court-martialed for disobeying a direct order when he refused to sign the Article 15 for the other soldier’s offense. He requests award of the National Defense Service Medal and the Good Conduct Medal for his period of service.  He states that received top honors in basic, advanced individual training and graduated from the paratrooper school.    

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant enlisted on 15 July 1975 for a period of 3 years.  He successfully completed his training as an administrative specialist.  

While assigned to Fort Bragg, North Carolina, nonjudicial punishment (NJP) was imposed against the applicant on 1 June 1977 for being derelict in the performance of his duties.  His punishment consisted of a reduction to pay grade E-3 and forfeiture of $100 pay per month for 2 months.  The applicant appealed the punishment and partial relief was granted (punishment was mitigated to forfeiture of $100 pay per month for l month) on 14 June 1977.  On 6 July 1977, the punishments of reduction to pay grade E-3 and forfeiture of $100 pay per month for 1 month were set aside, and all rights, privileges, and property affected were restored.

On 12 July 1977 NJP was again imposed against the applicant for four specifications of failure to repair. 

On 14 November 1977, the applicant was convicted by summary court-martial for failure to obey a lawful order.  He was sentenced to be reduced to E-1 and perform hard labor without confinement for 45 days.  The convening authority approved the sentence on 14 November 1977.  

The applicant received his third NJP on 2 March 1978 for failure to repair.

The applicant was released from active duty with an honorable discharge on
14 July 1978 and transferred to the Army Reserve.  On 1 July 1981 he was discharged with a general discharge for completion of terms of enlistment or period of obligated service.   
The applicant’s DD Form 214 (Report of Separation from Active Duty), which was authenticated in his own hand, does not show the National Defense Service Medal or the Good Conduct Medal.

There is no evidence that the applicant served a period of service which qualifies for award of the National Defense Service Medal.  His records show that he entered active duty on 15 July 1975 and was separated on 14 July 1978.  

There is no evidence in the applicant’s records that he was recommended for or awarded the Good Conduct Medal.  

On 10 July 1981, the applicant requested that the Army Discharge Review Board (ADRB) upgrade his general discharge (from the Army Reserve) to honorable.  He contended that it was unfair for him to receive a general discharge due to the fact that he did not report to his active reserve unit.  He stated that he had spoken with his commander and informed him that his reserve commitment was interfering with his civilian employment.  He goes on to state that he was assured at that time his request would be granted and all necessary paper work was submitted.  On 26 April 1983, the ADRB, determined that he was properly discharged and denied his request.

Army Regulation 640-10, in effect at the time, set forth the basic authority for the filing of unfavorable information in the Official Military Personnel File (OMPF).  Table 4-1 of that regulation provided, in pertinent part, that court-martial orders that have at least one specification of guilty would be filed in the local Military Personnel Records Jacket and copies of all court-martial orders would be filed permanently in the OMPF regardless of the findings. 

Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the National Defense Service Medal is awarded for honorable active service for any period between 27 July 1950 through 27 July 1954, 1 January 1961 through 
14 August 1974, and 2 August 1990 through 30 November 1995.
 
Army Regulation 600-8-22 provides that the Good Conduct Medal 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.  Although there is no automatic entitlement to the Good Conduct Medal, disqualification must be justified.  

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

1.  The statutory authority under which this Board was created (Title 10, U.S.  Code, section 1552, as amended) precludes any action by this Board which would disturb the finality of a court-martial conviction.  

2.  Notwithstanding the applicant’s contention that he was court-martialed for disobeying a direct order when he refused to sign the Article 15 for the other soldier’s offense.  The evidence of record shows that, contrary to his plea of not guilty, he was convicted by summary court-martial for failure to obey a lawful order.  

3.  The applicant’s summary court-martial order is properly filed in his OMPF in accordance with applicable regulations and the applicant has failed to provide sufficient evidence to warrant its removal.

4.  There is no evidence of record available to the Board, and the applicant has provided no evidence, which shows he completed a period of active service during a period of eligibility for the National Defense Service Medal.  Therefore, the applicant is not entitled to this award.  

5.  There is no evidence of record available to the Board, and the applicant has provided no evidence, which shows he was recommended for or awarded the Good Conduct Medal.  However, evidence of record does show the applicant received three NJP’s and one summary court-martial during his enlistment.  Therefore, the Board concludes the applicant does not meet the qualifications for award of the Good Conduct Medal.  

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

7.  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____  RGH_____  RWA___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999023104	
SUFFIX		
RECON		
DATE BOARDED	19990519	
TYPE OF DISCHARGE	(GD)	
DATE OF DISCHARGE	19820701	
DISCHARGE AUTHORITY	AR 135-178  CHAPTER 3	
DISCHARGE REASON	COMPLETION OF TERMS OF ENLISTMENT OR PERIOD OF OBLIGATED SERVICE	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	134	
2.	129	
3.	107	
4.		
5.		
6.