IN THE CASE OF: BOARD DATE: 5 October 2021 DOCKET NUMBER: AR20210005037 APPLICANT REQUESTS: * removal from his official records a Disqualification Memorandum for award of the Army Good Conduct Medal * award of the Army Good Conduct Medal, March 2017 through March 2020 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Army Regulation (AR) 600-8-22 (Military Awards) * Personal Statement * Email from the Inspector General, 24 April 2020 * Decision to retain him, by an administrative separation board, 31 March 2020 * DA Form 268 (Report to Suspend Favorable Personnel Actions), dated 6 April 2020 * Counseling Statement, dated 6 April 2020 FACTS: 1. The applicant states he was under a law enforcement investigation from March 2017- February 2020 and was flagged. While flagged, he was given the memorandum for disqualification of the Army Good Conduct Medal and it was uploaded into his official military personnel file (OMPF) prior to the investigation completion. Upon completion of the investigation, the flag was removed favorably with no fault found on him. Per AR 600-8-22, paragraph 4-7, "if the commander's decision to disqualify is based upon an open investigation, a disqualification memorandum should not be prepared and placed into the Soldier's AMHRR (Army Military Human Resource Record) until the investigation is complete." Based on these factors the removal is warranted for the removal of the disqualification memorandum and the award should be retroactively reinstated. 2. Review of the applicant's service records shows: a. Having had prior service in the U.S. Marine Corps, the applicant enlisted in the Regular Army on 16 February 2008. He holds military occupational specialty 68W (Health Care Specialist) b. On 26 March 2009, he was reprimanded for misconduct. The General Officer Memorandum of Reprimand states he was arrested for driving while impaired after being stopped for failing to maintain the limits of his lane. The chain of command recommended filing the GOMOR in his local or official file. The imposing General Officer ordered the GOMOR permanently filed in his record. c. He served through multiple reenlistments in various assignments, including Iraq, Afghanistan, and Qatar. He was promoted to sergeant/E-5 on 1 June 2010 and to staff sergeant/E-6 in November 2014. d. In early 2018, the applicant was investigated for allegations of sexually abusing a child under the age of 12 years. The complete investigation is not available for review. e. On 21 June 2018, the applicant's company commander issued a memorandum, informing the applicant of his intent to disqualify the applicant from receiving award of the Army Good Conduct Medal (AGCM) for the period 20150721 through 20180721. The reason for disqualification is/are as follows: He did not meet the demands of the military environment nor did he conduct himself in such an exemplary manner as to distinguish himself from his fellow Soldiers. He was flagged for a law enforcement investigation. The commander advised the applicant of his right to submit a rebuttal f. The applicant acknowledged receipt of this disqualification memorandum and indicated that he did not want to make a statement. g. The commander issued a memorandum informing the applicant he was disapproved for the award of the Army Good Conduct Medal for the period of Active Duty Service from (20150721) to (20180721) due to his flag for a law enforcement investigation. His new eligibility period begins immediately after the end date listed above. The commander ordered this memorandum forwarded to the applicant's OMPF for permanent filing in accordance with AR 600-8-22, paragraph 2-10. h. On 21 July 2019, an administrative separation board convened at Fort Sam Houston, TX to consider of the applicant should be separated or retained. The administrative separation board having carefully considered the evidence, and found the allegations that the applicant sexually abused a child under the age of 12 years, as listed in the notification of proposed separation, is not supported by a preponderance of the evidence and that the findings do not warrant separation. The administrative separation board recommended his retention. i. On 10 March 2020, by memorandum, the Chief of Administrative and Civil Law at Fort Sam Houston stated: (1) Pursuant to AR 15-6 (Procedure for Investigating Officers and Board of Officers), paragraph 2-7, he reviewed the enclosed Board of Inquiry (BOI). The BOI complied with legal requirements as to composition and appointment. The BOI did not substantiate claims of misconduct against [Applicant] and they unanimously voted to retain him in the service. (2) The BOI made the following findings: "The allegation that [Applicant] sexually abused a child under the age of 12 years, as listed in the notification of proposed separation, is not supported by a preponderance of the evidence," and that "The findings do not warrant separation." (3) There were no procedural or substantive due process issues affecting the respondent and the BOI raised no other facts not addressed by the evidence. j. On 31 March 2020, the convening authority approved the findings and recommendations of the administrative separation board and ordered the applicant retained. k. On 3 April 2020, the applicant's immediate commander counseled him that his flag from favorable action in accordance with AR 600-8-2 for involuntary separation is going to be removed. This flag removal has an effective date of 31 March 2020. His status has changed from unfavorable to favorable. l. On 6 April 2020, the same commander signed a DA Form 268, removing the flag effective 31 March 2020 and indicating the case had been closed favorably. m. On 24 April 2020, by email, an Inspector General official responded to the applicant's concern regarding his command improperly disqualifying him from award of the Army Good Conduct Medal. The official informed him: (1) As we previously discussed, he (the official) spoke to his Company Commander and reviewed with her specific policy regarding the Army Good Conduct Medal as provided in AR 600-8-22, Military Awards. In June 2018, his previous commander issued him a memorandum disqualifying him for the award, basing this decision on an open investigation and his suspension of favorable personnel actions (flag) for that investigation, and uploaded this to his OMPF. (2) This is in contravention to policy. Per AR 600-8-22, paragraph 4-7, "if the commander's decision to disqualify is based upon an open investigation, a disqualification memorandum should not be prepared and placed into the Soldier's AMHRR until the investigation is complete." (3) Since then, the investigation was closed after charges were dropped and his flag was removed favorably. An administrative separation board decided to retain him in service. His Company Commander stated she would remedy this situation by requesting removal of this disqualification memorandum from your OMPF. Subsequently, she would consider whether to award the Army Good Conduct Medal for this previous 3-year qualifying period of service. (4) The issue of his command improperly disqualifying you from award of the Army Good Conduct Medal is founded. 3. By regulation (AR 600-8-22), the Army Good Conduct Medal (AGCM) is awarded for exemplary behavior, efficiency, and fidelity in active Federal military service, on a selective basis to each Soldier who distinguishes himself/herself from among his or her fellow Soldiers by exemplary conduct, efficiency, and fidelity throughout a specified period of continuous enlisted active Federal military service, as outlined in this chapter. 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. a. Disqualification for the AGCM. The commander will prepare a memorandum when he/she determines the Soldier is not qualified stating the rationale for his/her decision. This memorandum will include the period of disqualification and will be referred to the individual. The unit commander will consider the affected individual's 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 AMHRR. b. If the commander’s decision to disqualify is based upon an open investigation, a disqualification memorandum should not be prepared and placed into the Soldiers AMHRR until the investigation is complete. c. Disqualification for an award of the AGCM can occur at any time during a qualifying period (for example, when manner of performance or efficiency declines). The personnel office will establish the new “beginning date” for the Soldier’s eligibility for award of the AGCM, enter the new date and code on the Soldier’s electronic record. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was warranted. Board members noted that the applicant was pending an investigation and was flagged during the period March 2017 to February 2020. During that period, he was issued a non-disqualification memo of the Army Good Conduct Medal and it was uploaded into his official record prior to the investigation completion. The investigation cleared him and his flag was removed favorably with no fault found on him. According to the regulation, a disqualification memorandum should not be prepared and placed into the Soldier's official record until the investigation is complete. Board members found sufficient evidence to that the disqualification memo's removal is warranted and the award reinstated. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X: X: X: GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 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 by1. * removal from his official records a Disqualification Memorandum for award of the Army Good Conduct Medal from his AMHRR * award him the Army Good Conduct Medal for the period March 2017 through March 2020 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. REFERENCES: Army Regulation 600-8-22 (Military Awards) provides for award of the Army Good Conduct Medal. It is awarded for exemplary behavior, efficiency, and fidelity in active Federal military service. It is awarded on a selective basis to each Soldier who distinguishes himself or herself from among his or her fellow Soldiers by exemplary conduct, efficiency, and fidelity throughout a specified period of continuous enlisted active Federal military service, as outlined in this chapter. 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 4–7. Disqualification for the Army Good Conduct Medal. a. The commander will prepare a memorandum when he or she determines the Soldier is not qualified stating the rationale for his or her decision. This memorandum will include the period of disqualification and will be referred to the individual according to AR 600–37. The unit commander will consider the affected individual's 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 AMHRR. If the commander’s decision to disqualify is based upon an open investigation, a disqualification memorandum should not be prepared and placed into the Soldiers AMHRR until the investigation is complete. b. Disqualification for an award of the AGCM can occur at any time during a qualifying period (for example, when manner of performance or efficiency declines). The personnel office will establish the new “beginning date” for the Soldier’s eligibility for award of the AGCM, enter the new date and code on the Soldier’s eMILPO record, and submit the eMILPO transaction. These procedures do not apply if Soldier is disqualified under the provisions of paragraph 4–7b. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210005037 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1