MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 5 September 2002
         DOCKET NUMBER: AR2002072364

         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. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Ms. Celia L. Adolphi		Chairperson
Mr. Melvin H. Meyer		Member
Mr. John T. Meixell		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 Article 15s dated 22 November 1995 and 14 May 1996 be voided and his rank be restored and that his Gulf War status be entered on his Certificate of Release or Discharge from Active Duty, DD Form 214.

APPLICANT STATES: That he was unjustly reduced because he informed on a command sergeant major who was illegally endangering the lives of soldiers. In addition, Congress just approved all Gulf-era veterans for "Gulf War" status. He served during the time of the Gulf War. He provides a memorandum from him to the Fort Knox, KY Inspector General's (IG's) office dated 13 November 1995 and an undated letter from Sergeant P___ as supporting evidence.

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

He enlisted in the Regular Army on 10 November 1992.

On 29 July 1994, the applicant was counseled for missing physical training formation.

On 15 August 1994, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for twice failing to go to his appointed place of duty. His punishment was extra duty for 7 days. He requested time to consider whether or not to appeal but decided not to appeal the punishment.

On 7 November 1995, the applicant accepted NJP under Article 15, UCMJ for failing to go to his appointed place of duty. His punishment was extra duty for 7 days. He elected immediately not to appeal the punishment.

On 13 November 1995, the applicant prepared a memorandum addressed to the Fort Knox, KY IG's office. He alleged that his squadron sergeant major required him and other soldiers on extra duty to work with a petroleum distillate, apparently to strip floors, and that the substance they were scraping up could be asbestos. A daily request for the necessary protective outerwear was denied. He was later treated for skin irritation and the doctor questioned him as to why he was not using the proper equipment. The doctor stated the matter would be turned over to the Health Safety Counsel (sic) for investigation. (Attempts by the Board staff to obtain a copy of these investigations were unsuccessful. The Fort Knox IG's database went back to 1996 and the applicant's case was not in that file. The Department of the Army IG did not have a record of his case. Ireland Army Hospital Information Office had no record of a Health Safety Counsel or similar agency.)

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On 15 November 1995, the applicant was counseled for failing to report to morning formation.

On 22 November 1995, the applicant accepted NJP under Article 15, UCMJ for failing to go to his appointed place of duty. His punishment was a reduction to Private First Class, E-3 (suspended until 28 February 1996), a forfeiture of $39.00 pay, extra duty for 14 days, and restriction for 14 days. He appealed the punishment. His appeal was denied. If there was a written appeal, it is not available.

On 8 May 1996, the applicant was counseled for missing formation (on 9 April 1996), for missing a dental appointment (on 9 April 1996), and for missing formation (on 8 May 1996).

On 9 May 1996, the applicant was counseled for missing formation.

On 14 May 1996, the applicant accepted NJP under Article 15, UCMJ for failing to go to his appointed place of duty on 8 May and 9 May 1996. His punishment was a reduction to Private First Class, E-3, a forfeiture of $261.00 (suspended until 13 November 1996), extra duty for 14 days, restriction for 14 days, and an oral reprimand. He did not appeal the punishment.

On 5 June 1996, the applicant was given a locally-imposed bar to reenlistment. The reasons cited for the bar were the applicant's four Article 15s and long history of not making formations and not being at his appointed place of duty.

The applicant appealed the bar. He stated the Article 15 dated 15 August 1994 was for failure to communicate. His commander knew of the applicant's wife's condition and the problems this caused him at work. The action occurred because he did not properly inform his chain of command of his situation at home. The Article 15 dated 7 November 1995 was also for failure to communicate. He had called the day prior to the incident to say that he would not be in formation the next morning. He had never been counseled for failure to maintain proper communications. He should never have received the Article 15 dated 22 November 1995 because he was suffering from injuries sustained during extra duty 7 - 13 November 1995. He also stated that he made many contributions to his unit.

The applicant's appeal was denied.

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On 12 July 1996, the applicant was discharged for disability with severance pay. His physical evaluation board (PEB) paperwork is not available in his records or from the U. S. Army Physical Disability Agency.

Department of Veterans Affairs (VA) booklet, Federal Benefits for Veterans and Dependents, 2002 edition, states that the VA recognizes the period 2 August 1990 through a date to be set as wartime service.

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 notes that the applicant's Article 15 dated 22 November 1995 reduced him to Private First Class but the reduction was suspended. There is no evidence that the suspension was vacated. He was actually reduced with the Article 15 dated 14 May 1996. He did not appeal the 14 May 1996 Article 15 and there is no evidence that would appear to tie in this record of nonjudicial punishment with his IG complaint from November 1995.

3. The Board notes the applicant's 13 November 1995 complaint to the IG. Also noted is the same contention included with his appeal to his bar to reenlistment. However, the results of any IG investigation that may have been conducted were not available and he does not provide any results he may have been provided which could substantiate his allegations. His PEB paperwork is not available so it cannot be determined if his physical disabilities might be related to his November 1995 allegations. (It is noted that he does not make the contention that they are related). Therefore, there is insufficient evidence to substantiate the applicant's contentions that he was unjustly given the 22 November 1995 Article 15 or unjustly reduced later with his 14 May 1996 Article 15.

4. The determination of who meets the eligibility criteria for Gulf War status is a VA responsibility. The VA would make it based upon the member's service as recorded in item 12 of the DD Form 214. There is no authority for a separate entry on the DD Form 214 to indicate a member's "wartime status."

5. 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

__CLA__ ___MHM___ __JTM__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002072364
SUFFIX
RECON
DATE BOARDED	2002/09/05
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	100.03
2.	126.00
3.	133.03
4.
5.
6.