MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 4 June 2002
         DOCKET NUMBER: AR2002067890

         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Ms. Jennifer L. Prater		Chairperson
Mr. Arthur A. Omartian		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: In effect, that his bar to reenlistment be overturned, that he be reinstated to active duty in the Regular Army or on an Active Guard/Reserve (AGR) tour, in the military occupational specialty (MOS) of 76J, and that he receive service credit for all time since his discharge.

APPLICANT STATES: In effect, that he was unjustly barred from reenlistment and was forced to separate from the service on the expiration of his term of service (ETS). He goes on to state, in an extensive appeal package, that his chain of command betrayed him when they acted with complete disregard for Army Regulations and the Uniform Code of Military Justice. He contends that they fabricated allegations against him to justify a bar to reenlistment and allowed him to be harassed both professionally and sexually. He further states that his chain of command contended that he was unfit for duty, which was clearly contradicted by his evaluation reports. He also states that in his appeal of the bar to reenlistment, his chain of command removed documents from his appeal that would have had a bearing on its removal, had the approval authority been allowed to view them. As a result, he was denied due process in his appeal. He continues by stating that he has served on active duty for 10 years, including 9½ months in Saudi Arabia and 5 years in the Reserve Components and has never served in such a bad unit as the one who barred him from reenlistment and allowed such treatment of soldiers.

COUNSEL CONTENDS: In effect, that the absence or removal of documents from his appeal of the bar to reenlistment should be sufficient to grant the applicant’s request.

EVIDENCE OF RECORD: The applicant's military records, though somewhat incomplete, show:

He initially enlisted in the Regular Army on 24 February 1978 and served as a military policeman until he was honorably released from active duty (REFRAD) in the pay grade of E-4 on 23 February 1981. He had served 3 years of total active service and was transferred to the United States Army Reserve (USAR) Control Group (Reinforcement).

He continued to serve in the USAR and then the California Army National Guard (CAARNG) and was promoted to the pay grade of E-5 on 5 March 1989. He was ordered to active duty with his unit on 27 December 1990, in support of Operation Desert Shield. He served in Southwest Asia until he was returned with his unit to California on 24 July 1991.

On 26 April 1994, he enlisted in the Regular Army in the pay grade of E-4, for a period of 3 years, assignment to Korea, and duty as a military policeman. He was promoted to the pay grade of E-5 on 1 June 1996.

On 1 September 1999, the applicant’s commander submitted a request for a fit for duty evaluation of the applicant. The results of that evaluation are not present in the available records.

On 27 October 1999, the applicant was counseled by his platoon sergeant (E-7) and was informed that he was being recommended for a bar to reenlistment. He cited as the basis for his recommendation that the applicant’s performance over the past year had been unsatisfactory and marginal, that repeated counseling had met with negative results, and that he lacked the potential for promotion. He also indicated that the applicant had been late for formations, details and assigned duties, that he could not follow orders, he shirks from responsibilities, takes too much time, is recalcitrant, cannot adapt to military life, is uncooperative, is involved in frequent difficulties with fellow soldiers and demonstrated no potential for future service. The applicant submitted a rebuttal to the counseling which is contained in his appeal.

Although the available records do not contain the facts and circumstances surrounding the bar to reenlistment, evidence submitted by the applicant indicates that a bar to reenlistment was imposed against the applicant while he was stationed at Fort Campbell, Kentucky. He appealed the bar and his appeal packet was forwarded through channels. However, the applicant and his military counsel discovered that documents contained in the applicant’s appeal to the bar to reenlistment had been removed. The applicant resubmitted a reconstructed appeal and his counsel requested that an investigation be conducted under the provisions of Army Regulation 15-6. There is no indication in the available records to show if such an investigation was ever conducted.

On 24 January 2000, the applicant’s commander counseled him to the effect that he would allow the applicant to extend his enlistment in order to allow him time to demonstrate that he had the potential to remain in the Army. The applicant extended his enlistment for a period of 6 months. His ETS was changed to 23 August 2000.

On 29 March 2000, the garrison commander appointed an investigating officer to investigate allegations made by the applicant that the noncommissioned officer evaluation report (NCOER) for the period of April 1999 to December 1999 was unjust and illegal. The investigating officer found some discrepancies in the report and recommended two actual changes be made to the report before forwarding it to the Department of the Army.

On 22 August 2000, he was granted another extension of his enlistment for a period of 2 months, which changed his ETS to 23 October 2000.

On 23 October 2000, he was honorably discharged on his ETS. He had served 6 years, 5 months and 28 days of active service during his current enlistment and was paid one-half involuntary separation pay in the amount of $12,391.68. He had a total of 10 years, 8 months and 20 days of total active service and was given a Reentry Code of “3.”

A review of the available records shows no indication of any disciplinary action being taken against the applicant either in an active or Reserve Component status. His records do show that he served in Saudi Arabia in support of Operation Desert Storm/Shield during the period of 6 December 1990 to 24 July 1991.

A review of his evaluation reports show that in December 1990, he received an annual noncommissioned officer evaluation report (NCOER) covering the period from December 1989 to November 1990, evaluating him as a medical supply specialist. In Part IVa, under Values/NCO Responsibilities, the rater gave him a “NO” rating under “Is committed to and shows a sense of pride in the unit – works as a member of the team.” The supporting bullet comment indicates that the applicant needs to learn to work with people from different backgrounds better. In Part V, under Overall Performance and Potential, his rater gave him a “marginal” rating. His senior rater (SR) gave him “Poor” ratings under performance and potential for promotion and indicated that the applicant needs to work on interpersonal relationship skills and that he was capable of accomplishing a mission with some supervision.

In May 1991, he received an NCOER covering the period of December 1990 to May 1991, the period he served in Desert Storm. In Part IVa, his rater gave him “No” ratings under “Is committed to and shows a sense of pride in the unit – works as a member of the team” and “Is disciplined and obedient to the spirit and letter of a lawful order.” The supporting comments indicate that he has trouble working and communicating with his peers as a team member, he does not follow orders without good supervision, he fails to follow instructions and uses his own guidelines. In Parts IVc through IVe, he received “Needs Improvement” ratings under “Physical Fitness and Military Bearing”, “Leadership” and “Training.” The supporting comments indicate that the applicant complains about being over worked, his enthusiasm about his duties is weak, he has little concern for his peers, does not set the example, and needs to learn how to work as a team. His rater gave him a “Marginal” rating under potential for promotion and/or service in positions of greater responsibility. His SR gave him “Poor” ratings under potential and performance and the supporting comments indicate that the applicant has the tools to succeed, but fails to work as a team member, was first to find faults, but last to provide solutions, and that he needed leadership training.

In December 1997, while stationed in Hawaii, he received a change of rater NCOER covering the period from May to October 1997. In Part IVa, the rater gave him a “No” rating under “Is committed to and shows a sense of pride in the unit – works as a member of the team.” The supporting comments indicate that the applicant needs to devote more time to developing effective working relations with the squad. In parts IVb and IVd, the rater gave the applicant “Needs Improvement” ratings under “Competence” and “Leadership.” The supporting comments indicate that there is little indication that the applicant intends to meet the minimum standards required of the MOS, he does not always use the best judgment, is not grounded in the skills of leadership and is unable to lead the team to a level of readiness, cannot be effective to motivate the team and causes negative incidents or embarrassing situations involving soldiers. The rater gave him a “Marginal” rating under potential and performance and the SR gave him “Fair” ratings under potential and performance. The SR’s comments indicate that the applicant had limited potential for continued service.

In April 2000, after being transferred to another MP Company at Fort Campbell, he received a change of rater NCOER covering the period of January to April 2000. In parts IVb and IVe, his rater gave him “Needs Improvement” ratings under “Competence” and “Leadership.” The supporting comments indicate that the applicant fails to accomplish rudimentary tasks expected of a noncommissioned officer, he demonstrated limited tactical knowledge during common task testing, he needs to develop a leadership style that motivates and influences soldiers to accomplish the mission and he fails to take responsibility for his actions or those of his soldiers. His rater gave him a “Marginal” rating under performance and potential and his SR gave him fair ratings. The SR comments indicate that the applicant should not be promoted, that he should be assigned to a position equal to his rank, with strong mentorship and that he possesses limited potential for progression in the military.

A review of the available records also fails to reveal the results of any of the investigations mentioned by the applicant in his appeal to the Board.

Department of the Army Circular 635-94-1 outlines the eligibility criteria for separation pay formulas as authorized by the Department of Defense Instruction1332.29 dated 20 June 1991 and other Headquarters, Department of the Army guidance resulting from Public Law 101-510, the National Defense Authorization Act. The circular also illustrates the various types of separations that are either eligible or ineligible for separation pay. It states, in pertinent part that soldiers who are denied reenlistment are authorized one-half separation pay for involuntary separation. Personnel who are fully eligible reenlist and who decline to do so, are not authorized separation pay.

Army Regulation 601-280 prescribes the eligibility criteria and options available in the Army Reenlistment Program. It provides for barring from reenlistment, individuals whose continued active duty is not in the best interest of the military service. It 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, slow promotion progression, no demonstrated potential for future service, and substandard performance of duties. The bar to reenlistment is not a punitive action. It is intended to put a soldier on notice that they are not a candidate for reenlistment and that they may be a candidate for separation if the circumstances that led to the bar to reenlistment are not overcome.

Army Regulation 601-210 serves as the authority for the issuance of RE codes. It states, in pertinent part, that personnel who are barred from reenlistment at the time they are separated from the service will be issued an RE Code of “3”, which, depending on the needs of the service at the time, is a waivable disqualification.

Army Regulation 15-185 governs the operation of the Army Board for Correction of Military Records. It provides that the Board may deny an application without a formal hearing if insufficient evidence has been presented to indicate probable material error or injustice.

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. Inasmuch as the Board does not have the benefit of reviewing the contested bar to reenlistment, it must presume in the absence of evidence to the contrary, that the action was accomplished in accordance with the applicable laws and regulations in effect at the time.

2. While it appears that some information was removed from the applicant’s appeal of the bar, the evidence submitted by the applicant suggests that he was afforded the opportunity to resubmit the information for consideration. Additionally, the applicant was afforded the opportunity to extend his enlistment in order to demonstrate that he was worthy of having the bar removed and of reenlisting. Given that he separated on his ETS and was given one-half separation pay, it is reasonable to also presume that he did not demonstrate he was worthy of retention and that the bar to reenlistment was not lifted.

3. Although the applicant has submitted numerous selected documents to support his contentions, without the original bar to reenlistment action, those documents do little to show what really happened in this case, nor do they alone, establish any error or injustice.

4. In an attempt to give the applicant the benefit of the doubt, since the bar to reenlistment action is not present in the available records, the Board reviewed both the active and Reserve Component records of the applicant to attempt to establish what happened in this case. In doing so, the Board finds that the applicant has a history of exhibiting the same type of behavior for which he was barred. While he asserts that his unit at Fort Campbell was the only unit in which he encountered such conduct and treatment, his evaluation history reveals that he was similarly evaluated in all units that he served in as a noncommissioned officer.

5. After reviewing all of the evidence submitted by the applicant, as well as the evidence of record, the Board finds no merit to his contentions, nor any basis to reinstate him to active duty.

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

___ao___ ___rks __ __jlp ____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002067890
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/06/04
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 7	100.0600/BAR
2. 192	110.0300/REINSTATE
3.
4.
5.
6.