MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           17 June 2003
	DOCKET NUMBER:   AR2003087463

	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. Carl W. S. Chun		Director	
	Ms. Beverly A. Young		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Hubert O. Fry		Member	
	Ms. Marla J. Troup		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:  That the memorandum disqualifying him from award of the Good Conduct Medal be removed from his Official Military Personnel File (OMPF).

APPLICANT STATES:  That there are orders in his OMPF awarding him the Army Good Conduct Medal (Fifth Award), dated 8 April 1999.  He states that in order for him to receive the fifth award of the Good Conduct Medal, the time frame would overlap the time period of the letters of disqualification dated 14 April 1998 and 4 November 1998.  

In support of his application, he submitted a copy of the memorandum disqualifying him from the Good Conduct Medal, dated 14 April 1998; the memorandum disqualifying him from the Good Conduct Medal, dated 4 November 1998; and orders showing award of the Good Conduct Medal (Fifth Award).

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

The applicant enlisted in the Regular Army on 4 October 1994 for a period of three years.  He was promoted to the rank of sergeant on 16 May 1996 and was honorably discharged on 6 March 1997 for the purpose of immediate reenlistment on 7 March 1997.  He was honorably discharged on 17 September 2000 and reenlisted on 18 September 2000 for a period of six years.  He was promoted to the rank of staff sergeant on 1 November 2000.  The applicant is currently assigned to the 169th Engineer Battalion at Fort Leonard Wood, Missouri, in the rank of staff sergeant.

Records show that the applicant received a general officer memorandum of reprimand (GOMOR) on 28 August 1997 for failing to provide financial support to his dependent child in accordance with Amy Regulation 608-99 and XVIII Airborne Corps Master Policy Number 60.  This memorandum shows the applicant was a member of the 20th Engineer Brigade, Fort Bragg, North Carolina at the time of his receipt of the unfavorable information.  

The applicant acknowledged receipt of the memorandum of reprimand on 4 September 1997 and elected to submit a statement in his own behalf.  

In his rebuttal to the memorandum of reprimand, the applicant stated that he had read and understood the unfavorable information against him and requested that the memorandum of reprimand be rescinded or placed in his local file for a period not to exceed one year.  He contended that he would never jeopardize his military career by engaging in such derelict and wrongful conduct.  He stated that he was divorced on 20 August 1990, in Rochester, New York and had only one child at the time of the divorce.  He claimed that the divorce decree stated that he had to provide $540.00 a month for child support but he was unemployed at the time.  He stated that his ex-wife moved to an unknown location in California with their child and he had not seen his daughter since prior to the date of the divorce. He continued to state that his company commander received a letter of non-support from his ex-wife which contained allegations that he had failed to provide support, health, medical, and life insurance benefits for his daughter.  

The applicant also stated that he had no contact with his daughter for over nine years.  He claimed that when he entered the Army in October 1994, he named his daughter as a beneficiary on his life insurance policy and placed her in the DEERS [Defense Enrollment Eligibility Reporting System] as one of his dependents.  He claimed that he had been sending support payments for his daughter since he received his ex-wife's current address.

To better meet his financial obligations, he stated that he had submitted several job applications in search of part-time employment.  In conclusion, he stated that he understood and supported the command's strong position on dependent support.  If he had known the whereabouts of his daughter, he would have helped to support her as he was doing.  Finally, he stated that he had been proactive in attempting to gain a modification of the court order.

On 19 September 1997, the commander of the 20th Engineer Brigade, Fort Bragg, North Carolina reviewed the reprimand, supporting documents, and circumstances surrounding the incident.  The commander recommended that the reprimand be placed in the applicant's OMPF.  The commander stated that the applicant had still failed to comply and provide support for his family and that his indebtedness was an ongoing problem for the applicant.  The intermediate commander reviewed the applicant's reprimand, supporting documents, and circumstances surrounding the incident and recommended OMPF filing.

On 16 October 1997, the deputy commanding general of the XVIII Airborne Corps and Fort Bragg, North Carolina reviewed the supporting documents and reprimand of the applicant in accordance with Army Regulation 600-37, paragraph 3-4b.  The deputy commanding general determined that the reprimand be filed in the applicant's OMPF.  

In a 6 April 1998 memorandum from the commander of HHC, 27th Engineer Battalion at Fort Bragg, North Carolina, the applicant was informed of the commander's intention to disqualify him for award of the Good Conduct Medal for the period October 1994 to October 1997.  His cited reason for the disqualification was the applicant's being flagged within the qualifying period.  The memorandum was referred to the applicant for acknowledgement and rebuttal.  

On 6 April 1998, the applicant acknowledged receipt of the memorandum and elected to submit a statement in his own behalf.  In his rebuttal, the applicant contended that he was not flagged during the qualifying period of October 1994 to October 1997.  He stated that he was flagged/barred on 24 November 1997 which is not during the qualifying period.

On 14 April 1998, the commander reviewed the applicant's statement and decided that the disqualification would stand.  He directed that the memorandum of disqualification be filed in accordance with Army Regulation 640-10.

Records show that the memorandum, dated 14 April 1998, disqualifying the applicant from award of the Good Conduct Medal and all related documents were filed in the Disciplinary Data Section of his OMPF.

In a 4 November 1998 memorandum, the commander of HHC, 27th Engineer Battalion notified the applicant again of his intention to disqualify him from award of the Good Conduct Medal for the period October 1994 to October 1997.  His reason for the disqualification was cited as the applicant's being chaptered under the provisions of Army Regulation 635-200, chapter 14, paragraph 12b, due to an inability to pay his debt promptly; however, there is no evidence of the pending chapter 14 proceedings and the applicant is still on active duty.

On 4 November 1998, the applicant acknowledged receipt of the memorandum and elected to submit a statement in his own behalf.  The applicant contended that he was not a member of HHC, 27th Engineer Battalion during the period October 1994 to October 1997.  He claims that during this period he did not receive any UCMJ [Uniform Code of Military Justice] action and he was promoted to the rank of sergeant, E-5.  He also claimed that he met and exceeded all the criteria as stated in Army Regulation 600-8-22, paragraphs 4-2, 4-4, 4-5, and 4-6. He contended  that the rationale presented in the memorandum dated 4 November 1998 was irrelevant for the period October 1994 to October 1997 and he did not become a member of HHC, 27th Engineer Battalion until 12 November 1997.  He claimed that the derogatory information relevant to his pending chapter case could not be used to justify disqualification of the Army Good Conduct Medal for the period October 1994 to October 1997.  He claimed that this derogatory information could only be used for the period November 1997 to November 2000.

The unit commander reviewed the applicant's statement and determined that the disqualification stood.  He directed that the memorandum be filed in accordance with Army Regulation 640-10.

Records show that the memorandum, dated 4 November 1998, disqualifying the applicant from award of the Good Conduct Medal and all related documents were also filed in the Disciplinary Data Section of his OMPF.

The applicant's Noncommissioned Officer Evaluation Report (NCOER) covering the period May 1996 through January 1997 shows he was assigned to HHC, 27th Engineer Battalion at Fort Bragg, North Carolina during this period.

The applicant's NCOER covering the period February 1997 through December 1997 shows he was assigned to HHC, 20th Engineer Brigade at Fort Bragg, North Carolina during this period.  In Part IV(a) (Values and NCO Responsibilities) of this NCOER, the rater commented that the applicant, "failed to obey orders of higher command"; "failed to handle personal and financial affairs"; and "failed to provide adequate financial support to family members."  

In item Part IV(b) (Competence) of this NCOER, the rater marked "Needs Much Improvement" with the comments:  "personal problems have resulted in soldiers inability to perform his military duties"; "does not show sound judgment in resolving personal problems"; and "does not take advice on solving problems."  The rater also marked " Needs Much Improvement" in Part IV(d) (Leadership) with the comments: "by his inability to solve personal problems, does not set the example for others"; "shows lack of urgency in resolving problems"; and "shows trends of not always being factual in solving problems."  The rater also marked "Needs Much Improvement" under Part IV (f) (Responsibility and Accountability) with the comment: "failed to provide financial support to family members or just debts."  The rating official evaluated the applicant's overall potential for promotion and/or service in positions of greater responsibility as "Marginal."  

The applicant's NCOER covering the period January 1998 through May 1998 shows he was assigned to HHC, 27th Engineer Battalion at Fort Bragg, North Carolina during the period of this report.

The applicant provided a copy of Bravo Detachment, 18th Personnel Service Battalion, Fort Bragg, North Carolina, Permanent Orders Number 098-83, dated 8 April 1999.  These orders awarded him the fifth award of the Good Conduct Medal for the period 2 June 1995 through 1 June 1998 while he was a member of the 27th Engineer Battalion.

The applicant's personnel records contain Detachment D, 38th Personnel Battalion Permanent Order Number 080-006, dated 21 March 2001.  These orders awarded him the second award of the Good Conduct Medal for the period 4 October 1997 through 3 October 2000 while he was a member of the 94th Engineer Battalion in Europe.

There are no orders in the applicant's personnel records which show he was awarded the first award of the Good Conduct Medal.

Army Regulation 600-8-22 prescribes Army policy and criteria concerning individual military awards.  It provides that the Army 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 normally 3 years.  Although there is no automatic entitlement to the Army Good Conduct Medal, disqualification must be justified.  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 concerned for response.  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 in the individual’s Military Personnel Records Jacket (MPRJ), DA Form 201.  The custodian of the MPRJ will forward these documents for permanent filing in the individual’s OMPF.  The immediate 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 the periods of service under previous commanders during the period for which the award is to be made.    

Army Regulation 600-8-104 (Military Personnel Information Management/ Records) prescribes the policies governing the OMPF, the MPRJ, the Career Management Individual File, and Army Personnel Qualification Records.  Paragraph 2-4 of this regulation states that once a document is placed in the OMPF, it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by: the Army Board for Correction of Military Records, the Department of the Army Suitability Evaluation Board, Army appeals board, Chief of Appeals and Corrections Branch of the Total Army Personnel Command, the OMPF custodian when documents have been improperly filed, Total Army Personnel Command as an exception, Chief of the Appeals Branch of the Army Reserve Personnel Center and Chief of the Appeals Branch of the National Guard Personnel Center.

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 evidence of record shows the applicant completed qualifying service of three years for award of the Good Conduct Medal from 4 October 1994 through 3 October 1997.

2.  The Board reviewed the memorandum, dated 14 April 1998, which disqualified the applicant for award of the Good Conduct Medal for the period October 1994 to October 1997.  The Board noted that the commander cited as the rationale for the disqualification was the applicant's being flagged within the qualifying period.  

3.  The Board also reviewed the second memorandum, dated 4 November 1998, which disqualified the applicant for award of the Good Conduct Medal during the qualifying period.  The Board noted that the commander cited as the rationale for the disqualification was the applicant's being separated under the provisions of Army Regulation 635-200, chapter 14, paragraph 12b.  

4.  The Board notes the applicant's contention that he was not flagged nor was he processed for chapter action within the qualifying period.  Other than the commander's statements, there is no evidence of record to confirm or refute his contentions.

5.  However, the Board also notes that the applicant received a GOMOR in August 1997, during the qualifying period.  The regulation allows the immediate commander to make a decision to award the Good Conduct Medal based on the applicant's official records for the periods of service under previous commanders during which the award is to be made.

6.  The Board concludes that the evidence of the applicant's official records were sufficiently documented to disqualify the applicant from award of the Good Conduct Medal for the period 4 October 1994 through 3 October 1997.

7.  The Board notes the applicant has two erroneous Good Conduct Medal orders on file.  Since the Board concludes that he was properly disqualified from award of the Good Conduct Medal for the period October 1994 through October 1997, his first Good Conduct Medal orders (Permanent Orders Number 098-83, dated 8 April 1999) are completely erroneous.  His second set of Good Conduct Medal orders (Permanent Order Number 080-006, dated 21 March 2001), which show he was awarded the second award of the Good Conduct Medal, should have reflected award of the first Good Conduct Medal.  As he does not ask that these erroneous orders be corrected, the Board will take no action to correct those orders.  However, the Board recommends that the applicant coordinate with his servicing Personnel Service Company to correct his records and orders to show awards of the Good Conduct Medal to which he is entitled.

8.  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 this requirement.

9.  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

FNE_____  HOF_____  MJT_____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2003087463	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030617	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	126.0400	
2.		
3.		
4.		
5.		
6.