MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 7 March 2002
         DOCKET NUMBER: AR2001060670

         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:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Mr. John P. Infante		Member
Ms. Regan K. Smith		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 a Record of Proceedings under Article 15, Uniformed Code of Military Justice (UCMJ) be removed from his Official Military Personnel File (OMPF); that his reentry (RE) code be changed from RE-4 to
RE-1; and removal of a Department of the Army (DA) imposed bar to reenlistment.

APPLICANT STATES: That, while he was in Germany, he made a terrible mistake in judgement 10 years ago, when he chose to drive home from the Noncommissioned Officers (NCO) club, after consuming two glasses of champagne. He states that he rarely consumed alcohol and that the club was having a holiday social event when he consumed the alcohol. He further states that when he left the club he did not feel intoxicated; however, a military policeman stopped him and he took a roadside test, to include a breathalyzer, which concluded that he was over the legal limit and driving while intoxicated. He states that he accepted an Article 15 and that he submitted an appeal and that his appeal was denied. He states that he was discharged from active duty in 1993 and that he joined the Washington Army National Guard (WAARNG) in 1994. He concludes by stating that he has been in the WAARNG for almost 7 years and he would like to have the bar to reenlistment removed and his RE code changed so that he can have the opportunity to accept additional responsibilities. In support of his appeal he submits seven letters of recommendation; copies of his NCO Evaluation Reports for the periods covering May 1993 through September 2000; a copy of an unsigned and undated
Article 15; a copy of a General Officer Memorandum of Reprimand (GOMOR) dated 16 September 1991; a copy of his acknowledgement of receipt of the GOMOR dated 27 November 1991; a copy of a memorandum that he forwarded through his chain of command requesting that the GOMOR be filed in his local record; a copy of a memorandum from his former unit commander dated 9 December 1991, recommending that the GOMOR be placed in his local record; a copy of a memorandum dated 14 February 1992, from his former Commanding General directing that the GOMOR be placed in his OMPF; and a copy of his Qualitative Management Program (QMP) appeal packet and decisional documents.

EVIDENCE OF RECORD: The applicant's military records are unavailable for review. Information herein was obtained from military records provided by the applicant.

He enlisted in the Army on 1 December 1980 and he successfully completed his training as an electronic warfare/intercept tactical systems repairer. He reenlisted in the Army on 31 October 1984.




The available records show that on 16 September 1991, the applicant was furnished a GOMOR for being apprehended by police on 2 September 1991, for driving a vehicle under the influence of alcohol. In the GOMOR, the community commanding general stated that he refused to perform the breath alcohol test properly and that his poor performance of the field sobriety test gave further indication of his impairment. The community commanding general informed him that operating a vehicle while under the influence of alcohol is extremely dangerous and all too frequently does, result in property damage, personal injury and even death. He was told that endangerment of the soldiers, family members, and property of the community would not be tolerated. The applicant was informed that the GOMOR was administrative in nature and was not punishment under the provision of Article 15, UCMJ. The community commander informed him that he intended to direct that the reprimand be filed in his OMPF; however the determination would not be made until he considered any response or rebuttal he cared to submit as well as comments of his chain of command. The applicant was told that he had 7 days from the date that he acknowledged receipt of the GOMOR to submit any response, rebuttal, or other matters, which he wished to be considered.

The applicant acknowledged receipt of the GOMOR on 27 November 1991 and on 9 December 1991, he submitted a memorandum through his chain of command in response to the GOMOR. In his memorandum, he stated that Article 15 proceedings were administered on 27 November 1991. He further stated that, as a result of the inconsistencies between the MP report and witnesses statements, coupled with his previously unblemished record, the unit commander directed that the Article 15 be placed in his restricted fiche so that it would not destroy or hinder his military career. He requested that the GOMOR not be placed in his OMPF and he recommended that it be placed in his local records. The applicant’s commanding officer also recommended that the GOMOR be placed in his local records.

On 14 February 1992, the deputy commanding general directed that the GOMOR be placed in the applicant’s OMPF.

Although it is not a part of the available records, it appears that the applicant was notified by the Department of the Army Sergeant First Class Promotion Selection Board on 5 April 1993 that he was being barred from reenlistment under the Qualitative Management Program (QMP). The board identified the 16 September 1991 GOMOR as the basis for his bar to reenlistment.

The applicant elected to appeal the bar to reenlistment under the QMP and did so on 22 April 1993. In his appeal to the bar to reenlistment he requested that his records be reviewed again. He stated that he appealed the GOMOR using


unsubstantiated allegations and inconsistencies in the military police reports and witnesses statements as a basis. He stated that it was his opinion that had all statements been considered, he would never have received the GOMOR. He went on to state that the GOMOR did not accurately reflect his performance or professionalism as an NCO and that he had always met or exceeded the standards of the military.

On 26 April 1993, the applicant’s commanding officer recommended approval to his appeal to the bar to reenlistment. He stated that he had reviewed the proposed bar to reenlistment and the applicant’s OMPF and that he considered the issuance of the GOMOR to be unsubstantiated and to lack evidence proving that he was drunk or under the influence of alcohol. In his recommendation for approval, the commanding officer listed the applicant’s accomplishments.

On 11 June 1993, the deputy commanding general recommended disapproval of the applicant’s appeal to the bar to reenlistment stating that the applicant had an additional serious incident subsequent to receiving the GOMOR. The deputy commanding general further stated that he lacked the maturity to learn from his mistakes and therefore should not be entrusted with the care and guidance of young soldiers.

A Department of the Army Standby Advisory Board reviewed his appeal and denied his request. In doing so, the board directed that he be separated from the service no later than 31 December 1993. The board further directed he be discharged under the provisions of Army Regulation 635-200, chapter 16-8, as a result of a reduction in authorized strength, under the QMP. The board also directed that he be assigned an RE-4 code.

Accordingly, he was honorably discharged on 30 December 1993, under the provisions of Army Regulation 635-200, chapter 16-8, as a result of a reduction in authorized strength. He was assigned an RE code of RE-4.

Only one of the NCOER’s that the applicant submitted in behalf of his appeal was furnished to him while he was on active duty in the Regular Army. The NCOER was for the period covering May 1993 through December 1993 and it shows that he received “success” in all of his standards. He was rated as “fully capable” in his overall potential for promotion and/or service in positions of greater responsibility.

The Record of Proceedings under Article 15, UCMJ, that the applicant submitted for review is either not legible or incomplete as it fails to show signatures and dates. It also fails to show whether any punishment was imposed.

Army Regulation 600-200, chapter 4, sets forth policy and prescribes procedures for denying reenlistment under the QMP. This program is based on the premise that reenlistment is a privilege for those whose performance, conduct, attitude, and potential for advancement meet Army standards. It is designed to (1) enhance quality of the career enlisted force, (2) selectively retain the best qualified soldiers to 30 years of active duty, (3) deny reenlistment to nonprogressive and nonproductive soldiers, and (4) encourage soldiers to maintain their eligibility for further service. The QMP consists of two major subprograms, the qualitative retention subprogram and the qualitative screening subprogram. Under the qualitative screening subprogram, records for grades
E-5 through E-9 are regularly screened by the DA promotion selection boards. The appropriate selection boards evaluate past performances and estimate the potential of each soldier to determine if continued service is warranted. Soldiers whose continued service is not warranted receive a QMP bar to reenlistment and an RE code of RE-4.

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. The Department of the Army bar to reenlistment under the QMP was imposed in compliance with the applicable regulation with no indication of procedural errors which would tend to jeopardize his rights.

2. The applicant is requesting removal of an Article 15 from his OMPF. However, the available records fail to show that the Article 15 that he submitted as a part of his application to this Board was ever signed, dated, and filed in his OMPF. Nonetheless, the Article 15 was never cited as the basis for his bar to reenlistment. It was the GOMOR that was cited as the basis for his bar to reenlistment.

3. The applicant has failed to show through the evidence submitted with his application that the GOMOR, which served as the basis for his selection under the QMP, was not sufficient to justify the imposition of the bar, nor has sufficient evidence been provided to justify removal of the bar to reenlistment.

4. As a result of his bar to reenlistment, the applicant was properly assigned an RE code that is consistent with his narrative reason for separation and there is no basis for changing his RE code.

5. This Board has reviewed the NCOER’s that the applicant submitted with his application. However, the NCOER’s had nothing to do with his being barred from reenlistment or the type of RE code that he was assigned.




6. 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.

7. 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

____jpi __ ___rks __ ___rvo __ DENY APPLICATION

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

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INDEX

CASE ID	AR2001060670
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/03/07
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 277	126.0000
2. 280	126.0300
3.
4.
5.
6.