MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 13 SEPTEMBER 2001
         DOCKET NUMBER: AR2001056723

         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. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. John E. Denning		Member
Mr. Terry L. Placek		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: In effect, that his 1986 special court-martial be expunged from his records and actions be taken to enable him to qualify for military retirement, including changing his Reenlistment Eligibility (RE) Code and his SPD (Separation Program Designator) Code.

APPLICANT STATES: He was not guilty of violating “Art 107 UCMJ” (false official statement) and that a careful review of the facts will show that “this is a grave injustice.” He notes that his military record shows that he was an excellent soldier and did not deserve to be court-martialed or reduced in grade. He states the court-martial was in retaliation for reporting the sale of passes by his commander and first sergeant. In a separate letter he states that his conduct and performance was above average, that he received several decorations, had only minor/isolated incidents of misconduct, and was never referred for substance abuse counseling which ultimately impaired his ability to serve. In support of his request he submits a copy of a 1986 letter addressed to the court-martial convening authority which outlined his “nonconcurrance” with the findings of his special court-martial.

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

He entered active duty in 1974 at the age of 20 with 12 years of formal education and a GT score of 106. He successfully completed basic and advanced individual training and initially performed duties as an infantryman in Korea and at Fort Ord, California. On 19 January 1978 he was discharged for the purpose of immediate reenlistment and assigned to Redstone Arsenal in Alabama for training as a missile repairman.

Following completion of his technical training the applicant was assigned to an ordnance detachment in Germany. While in Germany the applicant was awarded a Meritorious Service Medal, three performance based certificates of achievements and was promoted to pay grade E-6. In May 1983 the applicant returned to the United States and was assigned to Fort Hood, Texas. In October 1983 he was promoted to pay grade E-7.

In January 1985 the applicant was punished under Article 15 of the UCMJ (Uniform Code of Military Justice) for use of marihuana which was discovered via a unit directed urinalysis. His punishment included forfeiture of $600.00 per month for two months and extra duty. The applicant did not appeal.

On 7 March 1985 the applicant’s unit commander initiated an action to locally bar the applicant from reenlisting. In her recommendation she noted that actions to separate the applicant for misconduct (abuse of illegal drugs) resulted in a recommendation for retention. However, she noted that the applicant’s “positive urinalysis on 19 Dec 94” was “very serious” and violated the “special trust and confidence” of a soldier. The applicant submitted a statement in his defense noting that he had already been punished and that the bar to reenlistment would impact on future assignments and place a “stigma” on his future. Nonetheless the applicant’s chain of command recommended the applicant be barred from reenlisting. The division commander, a major general, approved the local bar to reenlistment on 12 April 1985.

In November 1985 the unit commander reviewed the local bar to reenlistment. She recommended the bar remain in effect and was supported in her recommendation by the battalion commander.

On 24 March 1986 the applicant was convicted by a special court-martial of rendering a false official statement on 3 February 1986. His sentence included reduction to pay grade E-6.

Although the specifics associated with the false official statement are not contained in records available to the Board the statement submitted by the applicant in his behalf to his division commander in which he “nonconcurred” with the court-martial, and included as evidence with his application to this Board, indicates the statement revolved around changing a code in his records which would permit him to reenlist. In that statement the applicant alleges that “no such conversation took place,” that the individual to whom the statement was allegedly made was confused about which “code” the applicant was talking about, that government witnesses were motivated to testify against the applicant in order to maintain command respectability, and that the entire incident was in retaliation for his initiation of an inspector general investigation against his unit commander and unit first sergeant about the auction of 9-day passes.

A performance evaluation report for the period June 1985 through February 1986 notes that the applicant “admittedly lied to his company commander under oath during the conduct of [an] official investigation” and that “in discussing a possible case of meal card fraud with the company commander he denied any knowledge of the incident when he had, in fact, already provided evidence to the battalion Command Sergeant Major.”

The court-martial sentence was approved and executed and on 17 April 1986 the applicant was reduced from pay grade E-7 to pay grade E-6. On 23 September 1986 the applicant’s then current commander, who was a different individual than the commander who initiated the original bar, reviewed the applicant’s local bar to reenlistment and stated that “after carefully reviewing this action and the soldier’s record of service since the imposition of the bar, it is my decision not to recommend that the bar to reenlistment be removed.” The bar was not removed and on 29 October 1986 the applicant was honorably discharged at the conclusion of his enlistment contract. At the time of his separation he had slightly more than 12 years of continuous active Federal service.

Army Regulation 601-280 establishes the policies and procedures for local bars to reenlistment. It states that local bars are intended to deny reenlistment to soldiers whose immediate separation under administrative procedures is not warranted, but whose reentry into, or service beyond his scheduled separation date (ETS) with the Active Army is not in the best interest of the military service.

Army Regulation 635-5-1 states that SPD Codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty. The primary purpose of SPD Codes is to provide statistical accounting of reasons for separation. They are intended exclusively for the internal use of DOD and the military services to assist in the collection and analysis of separation data. This analysis may, in turn, influence changes in separation policy. SPD Codes are not intended to stigmatize an individual in any manner. SPD Code JBK applies to individuals who are separated at ETS with a bar to reenlistment.

Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE Codes, based on their service records or the reason for discharge. Army Regulation 601-210, then in effect, covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve. Chapter 3 of that regulation prescribed basic eligibility for prior service applicants for enlistment. That chapter included a list of armed forces RE Codes, including Regular Army RE Codes. RE 3 applied to individuals who were not eligible to reenlist at the time of separation. A cross-reference table confirms that RE 3 was the appropriate RE Code when the SPD Code was JBK.

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. Although the applicant believes that removal of his court-martial conviction would enable him to complete sufficient service for the purpose of retirement the evidence of record indicates that his separation from active duty was the result of a locally imposed bar to reenlistment, and not his court-martial conviction.

2. Additionally the Board notes that the applicant’s contention, that his court-martial conviction was in reprisal for reporting his unit commander and first sergeant to the Inspector General, is not supported by any evidence provided by the applicant. The Board notes that a variety of individuals, other than his unit commander, were involved in imposition of the bar to reenlistment, the court-martial conviction, and the decision not to remove the bar.

3. While clearly the court-martial conviction played a part in the unit commander’s decision not to remove the local bar, it was the applicant’s positive urinalysis and UCMJ action more than a year earlier which served as the basis for the initial bar. The applicant has not shown that the local bar to reenlistment was unwarranted, in error, or unjust or that his conduct and performance subsequent to the imposition of the bar was such so as to warrant removal of the bar. His contention that referral for substance abuse counseling would have enabled him to serve successfully is not support by any evidence submitted with the application nor contained in records available to the Board.

4. 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 that requirement.

5. Since there is no basis to grant that portion of his request to expunge his court-martial, there is likewise no basis to grant his remaining requests.

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

__FNE __ __JED __ __TLP __ DENY APPLICATION

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

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INDEX

CASE ID	AR2001056723
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20010913
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.	168.00
2.
3.
4.
5.
6.