APPLICANT REQUESTS:  In effect, that a locally-imposed DA Form 4126-R, Bar to Reenlistment Certificate, dated 8 August 1995, be removed from his Official Military Personnel File (OMPF).

APPLICANT STATES:  In effect, that he did nothing to warrant the imposition of the contested bar to reenlistment.

COUNSEL CONTENDS:  That the bar fails to comply with applicable regulations; that the applicant “. . . has no record of court-martial convictions, non-judicial punishment, or non-payment of just debts”; that the reasons for imposition of the bar cited in Block 10 are too vague to offer an adequate rebuttal  He adds that he sent letters to three different levels of the applicant’s chain of command at Walter Reed Army Medical Center (WRAMC) requesting an explanation of the reasons for the bar’s imposition, but never received a response.

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

He was born on 9 January 1968 and enlisted in the Regular Army for 4 years on 13 April 1988 for training in field artillery.  On 25 November 1991, he reenlisted for 3 years for training as a patient administration specialist in the Army Medical Department (AMEDD).

In 1995, the applicant was a patient administration specialist assigned to WRAMC, Washington, D.C..  At 1900 hours, 10 April 1995, in Wheaton, Maryland, the applicant allegedly entered the off-post apartment of a female soldier with whom he had previously had a close personal relationship and is alleged to have physically assaulted her by choking her neck with his bare hands and slamming her head into a wall.  The alleged assault purportedly occurred because of the termination of their relationship by the female soldier.

The female soldier called the Montgomery County (Maryland) police and a report was taken.  Shortly thereafter, the WRAMC Military Police (MP) were notified at 2130 hours and a DA Form 3975, Military Police Report, was completed listing the applicant as the subject of assault.  The report was later coordinated with an attorney in the Office of The Staff Judge Advocate (SJA) who determined that sufficient evidence existed to formally charge the applicant.  The applicant’s chain of command was notified.

The applicant’s commander, on 18 April 1995, gave the applicant a direct verbal order to stay away from the female soldier.  This order was followed up by a written counseling session by the applicant’s first sergeant in which the applicant was told not to communicate with the female soldier, nor see her for any reason. He was also told that he was being flagged pending action by his chain of command reference the alleged assault.

The applicant violated the order to stay away from the female soldier.  On 5 June 1995, he showed up at her off-post quarters with balloons, a cake, and gifts to celebrate her birthday.  When the female soldier refused to accept the birthday items, the applicant asked for the return of a ring which he had purchased for her.  The female soldier allegedly told the applicant that he could take back everything that he had previously given her.  He then changed his mind and wrote her a note which said, “I am giving you the TV an [sic] everything.”  Two days later (7 June 1995), he showed up at her home with another soldier in an attempt to retrieve the TV set.  The female soldier did not answer her door and the applicant departed.  On 9 June 1995, the applicant filed criminal theft charges against the female soldier in Montgomery County District Court.

On 20 June 1995, the female soldier notified military authorities that the applicant was continuing to attempt to meet with her and cited the 5 and 7 June incidents at her home.  On or about 31 July 1995, the applicant’s commander was notified that civil charges would not be brought against the applicant for the alleged assault on the female soldier.  In response to this information, he initiated a DA Form 4126-R, Bar to Reenlistment Certificate, on 8 August 1995 and forwarded the applicant’s file to the SJA for possible action under the Uniform Code of Military Justice (UCMJ).   The applicant was notified of the bar action on 10 August 1995, provided a copy, and counseled and advised of the basis for the bar.  He indicated that he would submit a statement on his behalf.  On 15 August 1995, applicant’s counsel wrote to the applicant’s company commander asking for specific allegations of misconduct in order to submit a rebuttal to the bar letter.  There is no written record of a response.

Also on 15 August 1995, the applicant’s commander was notified that the applicant had violated WRAMC protocols and the Privacy Act by accessing personal medical information on the female soldier for personal reasons unrelated to the performance of his official duties.  He was ordered by the Chief, Personnel Administration Division to attend a 0800 hours meeting to discuss the matter and he failed to show up

The bar was approved on 5 September 1995 and 2 days later the applicant was, once again, counseled as to the basis for the bar action.  In a formal, written counseling, he was told that the bar was being imposed because of his poor duty performance, conduct, and overall behavior; the alleged assault, the failure to obey a direct order to stay away from the female soldier, and his violation of WRAMC protocols.

Following a legal review by the SJA, the applicant’s commander decided to offer the applicant nonjudicial punishment (NJP) for the alleged assault, for failing to obey a lawful order to stay away from the female soldier, for violating WRAMC protocols, and for failure to obey an order to meet with his work supervisors.  The applicant refused to accept the NJP and demanded a trial by court-martial.  On 12 February 1996, he was tried by a special court-martial.  Although he pleaded not guilty to all charges, he was convicted of disobeying his commander’s order not to have any further contact with the female soldier.

Army Regulation 601-280 prescribes the eligibility criteria and options available in the Army Reenlistment Program. Chapter 6 of that regulation provides for barring from reenlistment individuals whose continued active duty is not in the best interest of the military service. This chapter specifies that bars will be used when immediate administrative discharge from active service is not warranted. Examples of rationale for reenlistment disqualification include, but are not limited to, cannot follow orders, failure to manage personal affairs, causes trouble in the civilian community, no demonstrated potential for future service, and substandard performance of duties.

In the processing of this case, a staff advisory opinion (COPY ATTACHED) was obtained from the DA Review Boards Agency legal advisor.  The opinion concludes that the reasons for imposition of the bar cited in Block 10 of DA Form 4126-R lack the necessary specificity required by AR 601-280 and recommends setting aside the bar if other sufficient notice was not provided.

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

1.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The applicant’s inability to manage his personal relationships created trouble in the civilian community and with his chain of command.  As a result of his bad relationship with a female soldier, he disobeyed a lawful order which led ultimately to his conviction by a special court-martial.

3.  The applicant’s chain of command properly applied AR 601-280 in barring the applicant from reenlistment.  Although the company commander did not cite the specific reasons for imposing the bar in Block 10 of DA Form 4126-R, and apparently did not respond, at least in writing, to the applicant’s counsel’s requests for greater specificity, he did counsel the applicant concerning the basis for the imposition of the bar twice; once orally on 10 August 1995 and once in writing on 7 September 1995.  The applicant, therefore, knew the specific reasons for his bar to reenlistment and could have provided that information directly to his counsel for rebuttal purposes.

4.  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

                                       DENY APPLICATION




						Karl F. Schneider
						Acting Director