IN THE CASE OF: BOARD DATE: 17 May 2023 DOCKET NUMBER: AR20220007075 APPLICANT REQUESTS: * removal of the Army Good Conduct Medal (AGCM) disqualification memorandum from his Army Military Human Resource Record (AMHRR) * a personal appearance hearing before the Board via video/telephone APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Self-authored Memorandum for the Department of the Army Suitability Evaluation Board (Request for Removal of Disqualification Statement for Award of AGCM of (Applicant)), 28 July 2022 * Commander, 339th Transportation Detachment, Memorandum (Award of the Army Reserve Components Achievement Medal (ARCAM)), 8 December 2019 * DA Form 638 (Recommendation for Award), 2 June 2020 * DA Form 2166-9-2 (Noncommissioned Officer Evaluation Report (Staff Sergeant- First Sergeant/Master Sergeant)) covering the period 1 July 2019 through 28 September 2020 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 3 December 2020 * 450th Movement Control Battalion, Manhattan, KS, Orders 21-299-00001, 26 October 2021 * Commander, 339th Movement Control Team, Memorandum (Disqualification of the Army Good Conduct Medal), 23 February 2022, with auxiliary document * 625th Transportation Detachment (Movement Control Team) Memorandum (Request Removal of Disqualification Statement for Award of Good Conduct Medal for (Applicant)), 18 July 2022 * 450th Transportation Battalion (Movement Control) Memorandum (Request Removal of Disqualification Statement for (Applicant)), 26 July 2022 ? FACTS: 1. The applicant states the disqualification statement in question has been found untrue and unjust based on violation of policies and procedures outlined in Army Regulation 600-8-22 (Military Awards) and Army Regulation 600-37 (Unfavorable Information). Army Regulation 600-37 allows such removal if a later investigation determines such information is untrue and/or unjust, in whole or in part. 2. The applicant enlisted in the U.S. Army Reserve (USAR) on 26 August 2010. 3. His records contain a marriage certificate showing he married on 19 December 2018. 4. He was promoted to the rank/grade of staff sergeant/E-6 effective 1 July 2019. 5. Headquarters, 451st Expeditionary Sustainment Command, Orders VE-213-0005, 1 August 2019, ordered him to active duty as a member of his Reserve Component unit on 28 November 2019 to report to the mobilization station at Fort Hood, TX, in support of Operation Enduring Freedom (Spartan Shield) with a reporting date of 1 December 2019. 6. Headquarters, III Corps and Fort Hood, Orders HO-339-0014, 5 December 2019 ordered his deployment in a temporary change of station status with the 339th Transportation Corps Movement Control Team in support of Operation Enduring Freedom (Spartan Shield), Arifjan, Kuwait, proceeding on or about 27 December 2019. 7. He was honorably released from active duty on 3 December 2020 by reason of completion of required active service and transferred to the control of his Reserve Component unit. His DD Form 214 shows he completed 1 year and 6 days of net active service during this period. Item 18 (Remarks) of his DD Form 214 shows the following entries: * Served in a Designated Imminent Danger Pay Area * Service in Kuwait from 29 December 2019-18 May 2020 * Service in Iraq from 18 May 2020-18 May 2020 * Service in Kuwait from 18 May 2020-5 October 2020 * Ordered to Active Duty in Support of Operation Enduring Freedom (Spartan Shield) in Accordance with Title 10, U.S. Code, Section 12302 8. 450th Movement Control Battalion, Manhattan, KS, Orders 21-299-00001, 26 October 2021, reassigned him from the 339th Transportation Corps Movement Control Team to the 625th Transportation Corps Movement Control Detachment effective 26 October 2021.? 9. The 339th Movement Control Team, Manhattan, KS, memorandum from the commander (Disqualification of the Army Good Conduct Medal), 23 February 2022, states: You are disapproved for the award of the Army Good Conduct Medal for the period of Active Duty Service from 28NOV2019 to 03DEC2020 [28 November 2019 to 3 December 2020] due to: a. Lack of integrity – refused to perform HAZMAT [hazardous materials] duties for mission after you were directed to, then but [sic] you took credit for this additional duty on your evaluation. b. Creating a hostile work environment for the team. c. Initiating a fight with the acting XO [executive officer], 1LT after being caught submitting a fraudulent award. d. And other Infractions of Army Values as noted on your counseling statements. Your new eligibility period begins immediately after the end date listed in paragraph 1 of this memorandum. The local record custodian will record this date in your Enlisted Record Brief. A rebuttal in writing may be submitted no later than three working days for reconsideration of my decision. Failure to submit a rebuttal within the allowed time will finalize this action as stated. This memorandum will be forwarded to your Official Military Personnel File for permanent filing in accordance with AR [Army Regulation] 600-8-22 [Military Awards], paragraph 4-7d. 10. He did not acknowledge the memorandum with his signature or date. 11. Headquarters, 88th Readiness Division, Fort Snelling, MN, Orders 22-227-00011, 15 August 2022, released him from his current assignment by reason of expiration of his Army National Guard or USAR service obligation. He was reassigned to the USAR Control Group (Reinforcement) effective 15 August 2022. 12. He provided: a. the 339th Transportation Detachment memorandum (Award of the ARCAM), 8 December 2019, showing he was awarded the ARCAM for 3 years of qualifying and continuous service in the Reserve Components for the period 26 August 2016 through 25 August 2019; b. the DA Form 638, 2 June 2020, showing he was awarded the Army Commendation Medal with 1st Oak Leaf Cluster for the period 29 December 2019 through 17 September 2020. c. his DA Form 2166-9-2 covering the period 1 July 2019 through 28 September 2020, showing his principal duty as Transportation Movement Supervisor assigned to the 339th Movement Control Team with ratings of "Met Standard" or "Exceeded Standard" in all performance elements. His senior rater rated him as "Qualified" and commented, in part: "NCO [noncommissioned officer] Refuses to sign"; d. the 625th Transportation Detachment (Movement Control Team) memorandum from the acting commander (Request Removal of Disqualification Statement for Award of Good Conduct Medal for (Applicant)), recommending removal of the AGCM disqualification statement from his AMHRR and awarding him the AGCM (1st Award) for the period 28 November 2019 through 3 December 2020; and e. the 450th Transportation Battalion (Movement Control) memorandum from the commander (Request Removal of Disqualification Statement for (Applicant)), requesting removal of the AGCM disqualification statement from his records. She noted the declination letter was filed incorrectly and requested removal of the document from his AMHRR. 13. He is currently serving in the rank/grade of staff sergeant/E-6 assigned to the 149th Transportation Corps Company (Seaport Operations) at Fort Eustis, VA. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the applicant's military records, the Board found that relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicants petition and available military records the Board determined based on the 450th Transportation Battalion (Movement Control) memorandum from the commander there was sufficient evidence to support removal. The Board granted relief to correct the applicant records by removing the Army Good Conduct Medal (AGCM) disqualification memorandum from his Army Military Human Resource Record (AMHRR). 2. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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 by removing the Army Good Conduct Medal (AGCM) disqualification memorandum from his Army Military Human Resource Record (AMHRR). 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: 1. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the Army Board for Correction of Military Records (ABCMR). The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of evidence. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Army Regulation 600-8-22 (Military Awards) prescribes Department of the Army policy, criteria, and administrative instructions concerning individual and unit military awards. Chapter 4 provides guidance for award of the AGCM. a. Paragraph 4-1 (Intent) states the AGCM 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. There is no right or entitlement to the AGCM until the immediate commander has approved the award and the award has been announced in permanent orders. b. Paragraph 4-4 (Basis for Approval) states the immediate unit commander's decision to award the AGCM will be based on his or her personal knowledge of and the individual's official records for periods of service under previous commanders during the period for which the award is to be made. c. Paragraph 4-6 (Qualifying Eligibility Criteria) states that throughout a qualifying period, each enlisted Soldier must meet all the following criteria for an award: (1) The immediate commander evaluates the Soldier's character as above reproach. (2) The record of service indicates the Soldier has: * willingly complied with the demands of the military environment * been loyal and obedient to his or her superiors * faithfully supported the goals of his or her organization and the Army * conducted himself or herself in an exemplary manner as to distinguish him or her from fellow Soldiers? (3) While any record of nonjudicial punishment or unfavorable action could be in conflict with recognizing the Soldier's service as exemplary, such record should not be viewed as automatically disqualifying. The commander will analyze the record, giving consideration to the nature of the infraction, the circumstances under which it occurred and when. (4) Suspension of favorable personnel action does not automatically terminate the eligibility period. The reason for suspension must be considered by the unit commander (for example, an adverse action flag may disqualify the eligibility period whereas a flag for weight control program that results in a Soldier achieving Army standards typically does not result in disqualification). The approving commander must consider the totality of the Soldier’s performance. (5) In terms of job performance, the Soldier's efficiency must be evaluated and must meet all requirements and expectations for that Soldier's grade, military occupational specialty, and experience. d. Paragraph 4-7 (Disqualification for the AGCM) states: (1) Conviction by courts-martial terminates a period of qualifying service; a new period begins the following day after completion of the sentence imposed by the court- martial. (2) Individuals whose retention is not warranted or for whom a bar to reenlistment has been approved are not eligible for award of the AGCM. (3) Individuals whose retention is not warranted under standards prescribed in Army Regulation 380-67 (Personnel Security Program) are not eligible for award of the AGCM. (4) In instances of disqualification as determined by the unit commander, the commander will prepare a memorandum stating the rationale for his or 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's statement for filing in the Soldier's Official Military Personnel File (OMPF). (5) 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 in the Soldier's Electronic Military Personnel Office record, and submit the Electronic Military Personnel Office transaction. These procedures do not apply if a Soldier is disqualified under the provisions of paragraph b. 3. Army Regulation 600-37 (Unfavorable Information) provides that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered. Paragraph 3-7 (Referral of Information) states: a. Except as provided in paragraph 3-3, unfavorable information will be shared with the recipient for acknowledgment of his or her rebuttal opportunity, prior to filing. b. Recipients will be provided 7 calendar days (active duty Soldiers (all components) or USAR Soldiers in troop program units), or 30 calendar days (Army National Guard/USAR Soldiers not on active duty) to make a statement, or to decline, in writing, to make such a statement. The notice will state the date by which the statement must be provided. The statement may include evidence that rebuts, explains, or mitigates the unfavorable information. Acknowledgment and rebuttal comments or documents will be submitted generally in the following form: (1) "I have read and understand the unfavorable information presented against me, and submit the following statement or document(s) on my behalf." (2) "I have read and understand the unfavorable information presented against me, and elect not to make a statement." c. If a recipient refuses to acknowledge the referral of unfavorable information, the reprimanding official will prepare the following statement: "On [insert date in YYYY/MM/DD format], [insert name in first, middle, last sequence] has been presented with the unfavorable information and refuses to acknowledge by signature." The memorandum can then be directed for filing (see paragraph 3-5). 4. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes policies governing the Army Military Human Resource Records Management Program. The AMHRR includes, but is not limited to, the OMPF, finance-related documents, and non-service related documents deemed necessary to store by the Army. a. Paragraph 3-6 provides that once a document is properly filed in the AMHRR, the document will not be removed from the record unless directed by the ABCMR or other authorized agency. b. Appendix B (Documents Required for Filing in the Army Military Human Resource Record and/or Interactive Personnel Electronic Records Management System) contains the list of all documents approved by the Department of the Army and required for filing in the AMHRR and/or interactive Personnel Electronic Records Management System. The AGCM disqualification memorandum is filed in the performance folder of the Soldier's OMPF. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220007075 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1