PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           11 February 2003
	DOCKET NUMBER:   AR2002078090

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Ms. Regan K. Smith		Member	
	Mr. Antonio Uribe		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A -  Application for correction of military 
                             records
	Exhibit B -  Military Personnel Records (including
	                  advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that he be reinstated on active duty in the Active Guard Reserve (AGR) program, effective 31 October 2001, and that he be provided all back pay and allowances due as a result.  

3.  The applicant states, in effect, that the bar to reenlistment imposed on him was handled improperly and did not comply with the governing regulation.  He further states that resultant suspension of favorable actions (FLAG) enforced as a result of the bar to reenlistment prevented his reenlistment and attendance at the Advanced Noncommissioned Officer Course (ANCOC).  Finally, he claims that no formal counseling was conducted with him by the unit commander during the six month bar to reenlistment review period, as is required by the regulation.  In support of his application, he provides a decision by the 90th Reserve Support Command (RSC) Inspector General (IG), copies of the bar to reenlistment packet, a copy of his appeal to the bar to reenlistment, and a copy of a signed AGR reenlistment packet.  

4.  The applicant’s military records show that on 1 June 2000, his unit commander initiated a bar to reenlistment on the applicant based on his 20 May 2000 acceptance of nonjudicial punishment (NJP).  On this same date, the unit commander also initiated a FLAG action on the applicant.  On 11 June 2000, the applicant reviewed and acknowledged that he had received the bar to reenlistment.  

5.  On 20 June 2000, the applicant’s battalion commander endorsed the bar to reenlistment with the recommendation that the applicant be barred from reenlistment as a member of the United States Army Reserve (USAR).  On 
30 September 2000, the 90th Reserve Support Group (RSG) recommended approval of the bar and forwarded it to the approval authority.  On 6 November 2000, the commanding general (CG) of the 90th Reserve Support Command (RSC) approved the recommendation that the applicant be barred from reenlistment as a member of the USAR.  There is no record of a copy of the bar to reenlistment being forwarded to the Office of the Chief, Army Reserve (OCAR), once it was filed in the applicant’s record.  

6.  On 18 September 2001, the Chief, Personnel Division, Office of the Chief Army Reserve (OCAR), denied the applicant’s appeal of his bar to reenlistment.  The denial memorandum indicated that the applicant failed to present documents or other evidence to refute the basis for the bar or to justify his retention in the AGR program.  

7.  On 3 October 2001, the 90th RSC, IG, responded to the applicant’s inquiry into whether the bar to reenlistment and FLAG actions imposed on him were illegal.  Based on the irregularities of the documentation flow, the 90th RSC IG determined that the applicant had been denied due process and the opportunity to improve on some or all of the infractions committed.  The final IG recommendation was that the bar to reenlistment on the applicant be lifted and removed, and that the applicant be allowed to reenlist in the AGR in accordance with the governing regulation.

8.  On 22 October 2001, the Department of the Army IG (DAIG) referred a complaint to the IG, Forces Command, for necessary action.  The DAIG requested that the 90th RSC IG reply as to why the applicant’s appeal was denied after the 90th RSC IG had identified that the bar to reenlistment was improperly administered, what actions did the chain of command take to resolve the issue, and was the appeal authority aware of the problems with the bar.  No evidence of a reply to this DAIG inquiry was made available to the Board.  

9.  In connection with the processing of this case, an advisory opinion was received from the Acting Director, Full Time Support Management Directorate, Army Reserve Personnel Command (ARPERSCOM), St. Louis, Missouri.  It contained a recommendation that the applicant be reinstated into the AGR program.  It based this recommendation on the fact that the 90th RSC IG substantiated that the bar to reenlistment on the applicant, which prevented his reenlistment in October 2001, was illegal and not completed in accordance with the governing regulation.  

10.  Army Regulation 140-111 (USAR Reenlistment Program) prescribes the policies, responsibilities, and procedures for USAR reenlistment.  Section VII contains bar to reenlistment procedures.  It states, in pertinent part, that for AGR soldiers, a copy of the approved bar to reenlistment must be sent without delay to the OCAR, Full Time Manning Support Center.  It further states that once a bar to reenlistment has been placed in the record of a soldier, the unit commander will continue a documented evaluation of the soldier, and that the bar will be reviewed by the proper authority every six months.  

CONCLUSIONS:

1.  The Board notes the applicant’s contention that the bar to reenlistment imposed on him was not processed in accordance with the applicable regulation and as a result he was unjustly denied reenlistment in the AGR program, and it finds these claims have merit.  

2.  The evidence of record, as confirmed by the 90th RSC IG and in the ARPERSCOM advisory opinion, confirms that the bar to reenlistment imposed on the applicant was not processed in accordance with the governing regulation and resulted in the applicant being denied due process.  

3.  In view of the facts of this case, the Board concludes that the bar to reenlistment initiated on the applicant on 1 June 2000 be voided, and all references to this bar to reenlistment and associated actions be removed from the applicant’s Official Military Personnel File (OMPF).  

4.  The Board also concludes that it would be appropriate to reinstate the applicant on active duty in the AGR program of the USAR, effective 31 October 2001, as if he had never been separated.  Further, the applicant should be credited with active duty service for the period 31 October 2001 through the present, and he should be provided any back pay and allowances due as a result. 

5.  Further, the Board considered the applicant’s allegation that he was prevented from attending the ANCOC as a result of a FLAG action based on the illegal bar to reenlistment.  However, given the applicant fails to provide any evidence to support this claim, and because the available evidence of record contains no information regarding the applicant’s selection for or scheduled attendance at the ANCOC, the Board is unable to make a fair and impartial judgment on this issue.  The applicant is advised that if he has evidence to show he was unjustly denied attendance at the ANCOC, he should submit a new application with the supporting records and evidence that would allow the Board to render a decision on this issue.  

6.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by voiding the bar to reenlistment initiated on the individual concerned on 1 June 2000; by removing all documents and references to the bar to reenlistment and associated actions from his OMPF; by reinstating him on active duty in the AGR program of the USAR, effective 31 October 2001, by providing him active duty service credit from that date to the present; and by providing all back pay and allowances due as a result.

BOARD VOTE:  

__SAC__  __RKS  _  __ AU  __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_   _Samuel A. Crumpler_  __
		      CHAIRPERSON

INDEX

CASE ID	AR2002078090	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/02/11	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  192	110.0300	
2.		
3.		
4.		
5.		
6.