MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 27 August 2002
         DOCKET NUMBER: AR2002072679

         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. William Blakely		Analyst

The following members, a quorum, were present:

Ms. Irene N. Wheelwright		Chairperson
Mr. Arthur A. Omartian		Member
Mr. Thomas Lanyi		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 military records be corrected to show his correct rank; that he be given back pay and bonus money; and that the reason for his discharge be changed from locally imposed bar to reenlistment to medical discharge.

APPLICANT STATES: In effect, that the length of time it took to obtain his college transcripts and get them added to his military records adversely affected his career. He claims that he incurred undue hardship as a result of being misrepresented by his counsel during the separation process. He also states that he was not aware that his separation from the Army was due to a locally imposed bar to reenlistment until correspondence from the St. Louis Veterans Board informed him subsequent to his discharge. He further states that he requested separation from the Army for medical reasons and not due to an imposed bar to reenlistment. In support of his application, he submits letters from the Department of Veterans Affairs (DVA); the Client Information & Quality Assurance Branch, Army Review Boards Agency; a letter from the Veterans Support Branch, Army Reserve Personnel Command (ARPERSCOM); and a copy of his Correction to DD Form 214, Certificate of Release or Discharge from Active Duty (DD Form 215), dated 8 February 2002.

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

On 29 October 1985, the applicant entered the Army for a period of 3 years and upon completion of training he was awarded military occupational specialty (MOS) 94B (Food Service Specialist). The available records contain no evidence of valor, significant achievement, or service warranting special recognition performed by the applicant during his active duty tenure.

During the enlistment process, the applicant completed Section VI (Enlistment Options Accepted) of his application for enlistment (DD Form 1966), specifying that the US Army Station of Choice Enlistment Option was the only specific program he enlisted for.

His disciplinary record includes his acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on 5 June 1986, for wrongfully using marijuana. In addition, the applicant was formally counseled by members of his chain of command for failure to obey lawful orders on five separate occasions.

On 27 June 1986, the applicant’s unit commander initiated a bar to reenlistment against him. The unit commander cited the numerous counseling sessions conducted by members of the chain of command with the applicant in regard to his repeated disobeying of lawful orders and his acceptance of NJP for wrongfully using marijuana, as the reasons for taking this action.

The applicant acknowledged receipt of the bar to reenlistment and acknowledged his understanding of the basis for the action. On 16 July 1986, the bar to reenlistment was approved by the appropriate authority.

On 22 December 1986, the applicant voluntarily requested separation from the Army under the provisions of Army Regulation 635-200, chapter 16-5b, based on his perception that he could not overcome the basis for the locally imposed bar to reenlistment. He acknowledged that if his request for separation was approved, recoupment of unearned portions of any enlistment or reenlistment bonus was required, and that once separated he would not be permitted to reenlist at a later date.

On 23 December 1986, the applicant’s separation request was approved by the proper separation authority. The separation authority also directed that the applicant be discharged under the provisions of chapter 16, Army Regulation 635-200, by reason of the locally imposed bar to reenlistment, and that he receive an honorable discharge. On 23 January 1987, the applicant was discharged accordingly, after completing a total of 1 year, 2 months, and 25 days of active military service.

The DD Form 214 issued to and authenticated by the applicant with his signature on the date of his separation, confirms that the authority for his discharge was chapter 16, Army Regulation 635-200, and that the reason for his separation was a locally imposed bar to reenlistment.

On 19 April 1989, this Board recommended that the applicant’s record be corrected by amending his enlistment contract to show that he enlisted in the Regular Army in the pay grade of E-3 on 29 October 1985, with the same date of rank. However, the Board also concluded that the applicant was not eligible for further advancement to pay grade E-4 due to his locally imposed bar to reenlistment.

On 8 February 2002, a correction to the applicant’s separation document
(DD Form 215) was published that corrected Item 4a (Rank) and Item 4b
(Pay Grade) of his DD Form 214 to read “PFC/E-3.”

There is no evidence of record or independent evidence provided by the applicant that shows that this rank and pay grade correction either resulted in or did not result in the payment of back pay and allowances by the Defense Finance and Accounting Service.

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Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 16 contains the policy and procedure for the separation of personnel denied reenlistment based on a Department of the Army (DA) or locally imposed bar to reenlistment. It states, in pertinent part, that soldiers who perceive that they will be unable to overcome the bar may apply for immediate discharge. Incident to the request, the solider must state that he understands that recoupment of unearned portions of any enlistment or reenlistment bonus is required and that later reenlistment is not permitted.

Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The SPD code of KGF was the appropriate code for the applicant based on the guidance provided in this regulation for soldiers separating under the provisions of chapter 16, Army Regulation 635-200, by reason of a locally imposed bar to reenlistment. Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents), establishes RE-4 as the proper reentry code to assign to soldiers separated for this reason

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 Board notes the applicant’s contention that his military records should be changed to show his correct rank and that he be provided back pay and bonus money. However, as confirmed in an earlier decision from this Board, he was entitled to an enlistment pay grade of E-3, but was not entitled to the pay grade of E-4 due to the locally imposed bar to reenlistment. His separation document was corrected to show this corrected enlistment rank and pay grade in a DD Form 215 issued to him on 8 February 2002.

2. The applicant has failed to provide any evidence to show that he was not provided back pay and allowances from the DFAS based on this earlier Board decision. Therefore, the Board has elected not to render a judgment on back pay due as a result of this correction of his pay grade to E-3. In regard to the pay grade E-4, this Board concurs with the earlier Board decision that he was not eligible for this enlistment pay grade based on the locally imposed bar to reenlistment.

3. In regard to the applicant’s contention that the reason for his separation should be changed to medical, the Board finds insufficient evidence to support this claim. The evidence of record confirms that his administrative separation was accomplished in compliance with applicable regulations. The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.
4. The record also shows that the applicant voluntarily requested separation based on his perception that he could not overcome the locally imposed bar to reenlistment. He acknowledged his understanding that if his request for separation was approved, he would not be permitted to reenlist in the Army at a later date. Although, he may now feel that he made the wrong choice, this does not provide a sufficient basis for granting the requested relief.

5. In addition, the applicant has failed to provide any evidence to show that he suffered from a medically disabling condition while serving on active duty, which would have warranted processing him for separation through medical channels. He has further failed to show that the existing reason for his discharge was improper or inequitable. Therefore, the Board concludes that there is insufficient evidence to support a change to the narrative reason for his separation at this time.

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

__INW__ __AAO __ _ _TL__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002072679
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/08/27
TYPE OF DISCHARGE	HD,
DATE OF DISCHARGE	19870123
DISCHARGE AUTHORITY	AR 635-200. . . . .
DISCHARGE REASON	Locally Imposed Bar to Reenlistment
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.