IN THE CASE OF: BOARD DATE: 28 April 2016 DOCKET NUMBER: AR20160003486 BOARD VOTE: ____x____ ___x___ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 28 April 2016 DOCKET NUMBER: AR20160003486 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is 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 performance folder of his official military personnel file the memorandum, dated 15 October 2015, subject: Army Good Conduct Medal Disqualification. _____________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. IN THE CASE OF: BOARD DATE: 28 April 2016 DOCKET NUMBER: AR20160003486 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 the removal of the Army Good Conduct Medal disqualification memorandum, dated 15 October 2015, from his official military personnel file (OMPF). 2. The applicant states: a. In accordance with Army Regulation 600-8-22 (Military Awards), paragraph 4-8, he was not informed of the Army Good Conduct Medal disqualification memorandum and was not provided the opportunity to submit a rebuttal prior to submission to his OMPF. He is providing a memorandum from the imposing authority, the company commander, stating proper procedures were not followed, the disqualification memorandum was filed erroneously, and the commander supports the removal. b. He was involved in an incident that required a commander's inquiry; however, the inquiry was not completed prior to the disqualification memorandum being issued and forwarded through his unit S-1 to the U.S. Army Human Resources Command (HRC). 3. The applicant provides a statement of support. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 20 November 2003 and he held military occupational specialty 12B (Combat Engineer). He served through several reenlistments and/or extensions and was promoted to the rank/grade of sergeant first class (SFC)/E-7 on 1 March 2012. 2. Permanent Orders 339-002, dated 4 December 2012, issued by the Joint Prisoner of War (POW)/Missing in Action Accounting Command, HI, awarded him the Army Good Conduct Medal (3rd Award) for the period 19 November 2009 through 19 November 2012. 3. In January 2015, he was assigned to the Operations Group, Joint Multinational Readiness Center (JMRC), Germany. 4. The performance folder of his OMPF contains a memorandum, dated 15 October 2015, subject: Army Good Conduct Medal Disqualification, wherein his company commander, Captain (CPT) MTL, stated in part: a. The applicant has been found ineligible for the Army Good Conduct Medal for the period 20 November 2012 through 21 November 2015 due to failure to remain within guidelines set forth during the qualification period. The applicant currently has a suspension of favorable actions (FLAG) in his records for a commander’s investigation. b. The applicant will be given the opportunity for rebuttal and is referred to Army Regulation 600-37 (Unfavorable Information), paragraph 3-6, for an individual statement and to present a case to dispute the allegations leading to the disqualification. I recommend this memorandum and supporting documents be filed in his OMPF. 5. On 4 November 2015, the 15 October 2015 memorandum was added to the performance folder of his OMPF. 6. The applicant provides a memorandum from CPT MTL, dated 11 January 2016, wherein CPT MTL stated, in part: a. As the officer who directed the filing of the disqualification memorandum in the applicant’s OMPF, he requests its removal on the basis that it was erroneously filed. The applicant was involved in an incident that required a commander’s inquiry. While the applicant was still flagged, he deliberately circled “no” on the monthly AAA-199 report since the outcome of the investigation was still pending. b. His S-1 generated the disqualification memorandum and he signed the memorandum with the intent that it be routed to the applicant for him to respond before making a final determination. His training room skipped that step and had the memorandum filed in the applicant’s OMPF without his knowledge. At issue was that the applicant was never given the opportunity for rebuttal, nor was his individual statement uploaded with the memorandum as required by regulation. He requests the memorandum be removed as proper procedures were not filed. 7. The applicant’s record contains a DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) he received on 14 January 2016 for 11 months of rated time for the period 3 January through 31 December 2015, while serving as Observer Coach Trainer, Operations Group, JMRC. His rater, CPT MBO, checked the “yes” block for all the Army values and rated his overall performance and potential as “among the best.” His senior rater, Major MDG, rated his overall performance as “successful-1” and overall potential as “superior-1.” The reviewing official, Lieutenant Colonel MDG, concurred with the rater and senior rater evaluations. 8. The applicant is currently serving on active duty in the rank of SFC. His record is void of any evidence that shows since his assignment to Germany in 2015, he was convicted by a court-martial, had a bar to reenlistment placed against him, or that he received a letter of reprimand or nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ). His record is void of orders awarding him the Army Good Conduct Medal (4th Award). REFERENCES: 1. Army Regulation 600-8-22 states the Army Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency, and fidelity. This period is 3 years except in those cases when the period for the first award ends with the termination of a period of active Federal military service. Although there is no automatic entitlement to the Army Good Conduct Medal, disqualification must be justified. a. While any record of NJP could be in conflict with recognizing the Soldier’s service as exemplary, such record should not be viewed as automatically disqualifying. The commander analyzes the record, giving consideration to the nature of the infraction, the circumstances under which it occurred, and when. b. Paragraph 4-8a states convictions by courts-martial terminates a period of qualifying service for the Army Good Conduct Medal; a new period begins the following day after completion of the sentence imposed by the court-martial. c. Paragraph 4-8b states individuals whose retention is not warranted or for whom a bar to reenlistment has been approved under the provisions of Army Regulation 601-280 (Army Retention Program) are not eligible for award of the Army Good Conduct Medal. d. Paragraph 4-8c states in instances of disqualification as determined by the unit commander, the commander will prepare a memorandum stating the rationale for his/her decision. The memorandum will include the period of disqualification and will be referred to the individual according to Army Regulation 600-37. The unit commander will consider the affected individuals statement. If the commander’s decision remains the same, the records manager will upload the memorandum and the individual statement for filing in the Soldier’s OMPF. e. Paragraph 4-8dstates disqualification for an award of the Army Good Conduct Medal can occur at any time during a qualifying period (for example when manner of performance or efficiency declines). The personnel officer will establish the new “beginning date” for the Soldier’s eligibility for award of the Army Good Conduct Medal, enter the new date and code in the Soldier’s Electronic Military Personnel Office (eMILPO) record, and submit the eMILPO transactions. These procedures do not apply if a Soldier is disqualified under the provisions of paragraph 4-8b. 2. Army Regulation 600-37, paragraph 3-6, states unfavorable information will be referred to the recipient for information and acknowledgement of his or her rebuttal opportunity. DISCUSSION: 1. The evidence of record does not show that the Army Good Conduct Medal disqualification memorandum, dated 15 October 2015, was referred to the applicant for his information and acknowledgement, or that he was given the opportunity to submit a rebuttal to the disqualification prior to the memorandum being placed in the performance folder of his OMPF. 2. Although a flagging action may have been placed against him that may have temporarily suspended the awarding of the Army Good Conduct Medal (4th Award), his record is void of any evidence that shows in 2015 he was convicted by a court-martial, had a bar to reenlistment placed against him, received a letter of reprimand, or that his duty performance declined. In addition, the disqualification memorandum does not address any specific issues that may have warranted this action other than the flagging action. 3. As stated by his unit commander, it appears the disqualification memorandum was prepared and submitted without providing the applicant due process. As a matter of equity, it should be removed from his OMPF. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003486 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003486 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2