MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           22 April 2003                  
	DOCKET NUMBER:   AR2002081591

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Melvin H. Meyer		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Ms. Mae M. Bullock		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 to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	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:  Reconsideration of his request to change the reason for his discharge from locally imposed bar to reenlistment, to medical.  In a second letter, he also requests reconsideration of the denial of his request for his records to be corrected to show that he was enlisted in pay grade E-4, and promoted to pay grade E-5, and that he be given an enlistment bonus.

APPLICANT STATES:  The Board made an error in judgment when it denied his request for a change in the reason for his discharge.  As for his rank, he contends, in effect, that he had sufficient college credits to warrant enlistment in pay grade E-4.  Once his enlistment grade is corrected, then his record should be further corrected to show he was promoted from pay grade E-4 to E-5, instead of pay grade E-1 to E-2, since that promotion shows that his proficiency warranted promotion.  He adds that the Board did not consider the fact that he received an Army Achievement Medal (AAM), that he was a member of a unit which set a post record for individual training, and that he scored 298 out of 300 (he does not specify in what).

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's considerations of his case on 27 August 2002 (AR 2002072679) and 19 April 1989 (AC87-05547).

In support of his request, he submits documents pertaining to his Military Occupational Specialty/Medical Retention Board (MMRB), which includes his rebuttal to the finding of that board that he could perform his duties.  He also submits documentation pertaining to his summary court-martial, wherein he was found guilty of three specifications of failure to go to his appointed place of duty.  The documents provided show that the applicant was contesting the MMRB finding he was fit for duty because of severe pain he was experiencing from severe flat feet and moderate arthritis.  He was contesting his court-martial conviction based on his contention that the only reason he did not report for duty was because he was in too much pain to do so.  He also submits a copy of his AAM order.

In a counseling statement given to the applicant on 9 June 1986, it was stated that two noncommissioned officers (NCO’s) told the applicant that refusing to go to work would result in his being given nonjudicial punishment (NJP).  The applicant was reported to have answered “OK.”

In a counseling statement given to the applicant on 10 June 1986, it was stated that the applicant arrived for work 1 hour and 15 minutes late, refused to work, and just sat down.

In a second counseling statement given to the applicant on 10 June 1986, it was stated that when the applicant was asked why he wasn’t at work, he replied that he would not go to work until a doctor examined his feet.  The applicant was then told by the NCO to go to work until his appointment at the health clinic at 1500 hours.  The applicant refused the order.

In a counseling statement given to the applicant on 11 June 1986, it was stated that when it was reported that the applicant refused to go to work again, the first sergeant (1SG) had the applicant report to him.  The applicant told the 1SG that all he wanted was out of the Army and he wasn’t going back to work.  The 1SG then gave the applicant a lawful order to go to work, which the applicant refused.

On 26 August 1986, the applicant was given a permanent physical profile for severe flat feet with arthritis, which was determined to have existed prior to his entry on active duty.

Army Regulation 601-210, Table 2-3, did not provide for the enlistment of soldiers in pay grade E-4.  It did provide for enlistment in pay grade E-3 with advancement to pay grade E-4 after completion of a year’s active military service.  To qualify for this option, the soldier had to have completed a minimum of 90 semester hours of an accredited college program of 4 years.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  The applicant was determined medically qualified to perform his duties within his physical profile limitations.  As such, there was no basis for giving him a medical discharge.

2.  The applicant committed many offenses punishable under the Uniform Code of Military Justice, which resulted in his acceptance of NJP and in his being found guilty by a Summary Court-Martial.  Such conduct certainly warranted him being barred from reenlistment.

3.  The time to contest the bar to reenlistment was at the time it was issued.  The applicant did not take that opportunity.

4.  The fact that he was discharged due to his perceived inability to overcome his local bar to reenlistment could not have come as a surprise to him since he, himself, requested that discharge.

5.  As for his request to have his entry grade further corrected and be promoted to pay grade E-5, the applicant, by his own admission, had completed 80 semester hours at the time of his enlistment.  He was 10 semester hours short of qualifying for enlistment at pay grade E-3 with accelerated promotion to pay grade E-4.  In addition, he was barred from reenlistment prior to his serving a year on active duty.  As such, even if he had been enlisted for pay grade E-3 with accelerated promotion to pay grade E-4, he could not have been promoted.

6.  As for the applicant’s request for a bonus, he has not submitted any evidence that would show that he was eligible for a bonus at the time of his enlistment.

7.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decisions.

8.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit
sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___mhm_  ____clg__  ____mmb  DENY APPLICATION

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

INDEX

CASE ID	AR2002081591	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002081591	
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.	108.04	
2.	131.09	
3.	128.05	
4.		
5.		
6.