MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 23 October 2001
         DOCKET NUMBER: AR2001054833

         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
Ms. Deyon D. Battle		Analyst

The following members, a quorum, were present:

Ms. Shirley L. Powell		Chairperson
Mr. Allen L. Raub		Member
Mr. Thomas E. O’Shaughnessy, Jr.		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)

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APPLICANT REQUESTS: That his narrative reason for separation and his reentry (RE) code be changed. He also requests, in effect, that he be furnished separation pay.

APPLICANT STATES: That he had just reenlisted for 3 years when he was barred from reenlisment. He states that he was initially informed that he had 1 year to submit an appeal to the decision to bar him from reenlistment. He further states that he later found out, while he was in the field, that he only had 90 days to submit an appeal. He states that once he submitted his appeal packet it was never forwarded through the proper channels.

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

On 18 June 1971, he enlisted in the Army for 3 years in the pay grade of E-1. He successfully completed his training as a light weapons infantryman and he remained on active duty through a series of continuous reenlistments. He was promoted to pay grade E-6 on 1 June 1980.

Nonjudicial punishment (NJP) was imposed against the applicant on 17 December 1975 for failure to go to his appointed place of duty. His punishment consisted of a reduction in pay grade, a forfeiture of pay and restriction.

On 16 July 1976, NJP was imposed against him for failure to go to his appointed place of duty. His punishment consisted of a forfeiture of pay, restriction and extra duty.

On 27 April 1977, NJP was imposed against him for being derelict in the performance of his duties. His punishment consisted of a reduction in pay grade, a forfeiture of pay, restriction and extra duty.

He had NJP imposed against him again on 21 April 1982 for failure to go to his appointed place of duty. His punishment consisted of a reduction in pay grade.

On 17 February 1988, the applicant was notified that the Department of the Army (DA) Calendar Year (CY) 1987 Sergeant First Class Promotion Selection Board had determined that he should be barred from reenlistment under the Qualitative Management Program (QMP) based on the records of proceedings of nonjudicial
punishment dated 24 May 1972, 17 December 1975, 16 July 1976, 21 April 1977, 7 June 1978 and 20 April 1982. It further identified a noncommissioned officer evaluation report for the period covering April 1985 through September 1985, which indicates that he should not be promoted, as a basis for the bar to reenlistment.

On 25 April 1988, in a statement of options, the applicant indicated that he would submit an appeal to the bar to reenlistment under the QMP. The statement of options indicates that he had 12 months after the date of the bar letter to submit an appeal. However, the records fail to show that he ever submitted an appeal to the bar to reenlistment under the QMP.

On 15 July 1988, the applicant was notified that the Assistant Secretary of the Army (Manpower & Reserve Affairs) had directed his release from active duty as a result of budgetary and manpower restrictions. He was informed that his release from active duty would be accomplished 90 days after receipt of this notification unless he requested an earlier release date. The notification further indicated that he was retirement eligible and that he could submit a request to retire in lieu of elimination under the QMP.

On 29 July 1988, the applicant was notified that since he had previously been identified by the DA centralized selection board for a bar to reenlistment, separation was required in accordance with guidelines prescribed by Military Personnel Message Number 88-219 (Enlisted Qualitative Early Separation). The notification letter indicated that he had over 20 years of active service and that he would be processed for retirement/separation. The notification letter further directed that his commander ensure that he be voluntarily retired from active duty not later than 1 November 1988.

On 16 September 1988, the applicant was sent a corrected copy of the 15 July 1988 notification letter informing him that the portion of the letter, which indicated that he was being retired, was incorrect. The corrected copy of the notification letter indicated that he was being involuntarily separated.

The applicant acknowledged receipt of the early separation notification on 23 September 1988. On 19 December 1988, he was honorably discharged under the provisions of Army Regulation 635-200, chapter 16-5a as a result of a Headquarters DA imposed bar to reenlistment. He had over 17 years of total active service and he was assigned a reenlistment (RE) code of RE-4.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 16 covers discharges caused by changes in service obligations. Paragraph 16-5 applies to personnel denied reenlistment and provides that soldiers who receive DA imposed or locally imposed bars to reenlistment, and who perceive that they will be unable to overcome the bar may apply for immediate discharge. Paragraph 16-8 provides that personnel will be notified of the separation by appropriate commanders and be provided the basis for the separation. Personnel discharged under these chapters will be assigned an RE code of RE-4.


Department of the Army Circular 635-92-1 outlines the eligibility criteria for separation pay and provides separation pay formulas as authorized by Department of Defense Instruction 1332.29 dated 20 June 1991 and other Headquarters, Department of the Army guidance, resulting from public Law
101-510, The National Defense Authorization Act for fiscal Year 1991. The circular also illustrates the various types of separation that are either eligible or ineligible for separation pay. It states, in pertinent part, that separation pay is authorized for soldiers serving on active duty on 5 November 1990 who were involuntarily separated prior to completion of obligated service or who were denied reenlist/continuation. In addition, soldiers who are denied retention as a result of a Department of the Army QMP or local bar to reenlistment are only entitled to receive one-half separation pay.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, 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 this requirement.

2. The Board has noted the applicant’s contentions. However, there is no evidence of record to support his contention that he was told that it was too late for him to submit his appeal or that he submitted the appeal packet and it failed to be forwarded through proper channels.

3. He was properly separated from the service as a result of his DA bar to reenlistment imposed under the QMP. He was not authorized separation pay because he was not serving on active duty on 5 November 1990.

4. His DA imposed bar to reenlistment resulted in the reason for his separation. Therefore, his Report of Separation appropriately shows his narrative reason for separation as Headquarters Department of the Army imposed bar to reenlistment.

5. The RE code that he was assigned appropriately reflects the reason for his separation. Accordingly, there is no basis for changing his RE code.

6. 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

___alr___ __teo ___ ___slp___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001054833
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/10/23
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 1021	100.0000
2. 4	100.0300
3. 189	110.0000
4. 191	110.0200
5.
6.