MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           17 May 2000                    
	DOCKET NUMBER:   AR1999033874

	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	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Fred Eichorn		Member	
	Mr. Raymond J. Wagner		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 the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	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, the applicant requests removal from his official files of the memorandum disqualifying him for award of the Army Good Conduct Medal, and that he receive that award for the period in question. 

He states that there were no disciplinary actions, and no explanations were offered why he was disqualified for that award.  He provides a copy of an order showing that he was awarded the Army Good Conduct Medal for the three year period after the period in question, and a copy of his DD Form 214 of                 27 December 1993 showing his record of service, to include the numerous awards that he has received. 

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

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

The applicant enlisted in the Army Reserve delayed entry program (DEP) on     22 May 1986,and was discharged from that program upon his three year enlistment in the Regular Army on 1 July 1986.  He was promoted to pay grade E-4 on 1 October 1988.  He reenlisted for five years on 28 December 1988.

The memorandum disqualifying him for award of the Army Good Conduct Medal for the period 1 July 1986 to 1 July 1989 is dated 20 April 1989.  That memorandum indicates that 15 December 1987 was the date of the disqualification, and the rationale for the decision [to disqualify him for the award] implied that he received nonjudicial punishment under Article 15, UCMJ.  A notation on that memorandum indicates that the applicant refused to sign (acknowledge) that he had read and understood the unfavorable information presented against him, and there is no information whether or not he elected to make a statement.

The applicant received nonjudicial punishment on 17 October 1989 for being AWOL from 6-8 September 1989. 

He was released from active duty on 27 December 1993 in the rank of Specialist, pay grade E-4, and transferred to the Army Reserve Control Group (Reinforcement).  He had 7 years, 5 months, and 27 days of service.

Subsequent to his release from active duty the applicant has been a member of the Army Reserve, and was promoted to Sergeant effective 17 October 1995.  His evaluation reports, with one exception, have been excellent.  He was ordered to active duty in an Active Guard/Reserve (AGR) status on 23 February 1998.  He has completed the Army recruiter course

Army Regulation 600-8-2 prescribes the Army policy for individual awards.  Chapter 4 of that regulation concerns the award of the AGCM.  Paragraph 4-1 states that the AGCM is awarded for exemplary behavior, efficiency, and fidelity and is awarded on a selective basis to each soldier who distinguishes himself by his exemplary conduct, efficiency, and fidelity.  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.

Paragraph 4-8c states that in instances of disqualification as determined by the unit commander, the commander will prepare a statement of the rational for his decision.  The statement will include the period of disqualification and will be referred to the individual concerned.  The unit commander will consider the affected individual’s statement, and, if the commander’s decision remains the same, the commander will forward his statement and the affected individual’s statement for filing in the individual’s military personnel records jacket.  

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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 27 December 1993, the date of his release from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 27 December 1996.

The application is dated 15 November 1999 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

___cmf__  ___fe____  ___rjw__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR1999033874	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000517	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  102	142.00	
2.	134.02	
3.	107.00	
4.		
5.		
6.