MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 10 July 2003
         DOCKET NUMBER: AR2002079546

         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. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Mr. Roger W. Able		Chairperson
Ms. Barbara J. Ellis		Member
Mr. Larry C. Bergquist		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 the records of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), imposed against him on DA Forms 2627 (Record of Proceedings Under Article 15, UCMJ), dated 15 February 1990 and 9 April 1990, be removed from his Official Military Personnel File (OMPF); that his records be corrected by reinstating his security clearance, dated 9 September 1992; and that his Reenlistment Eligibility (RE) Code be changed from RE-4 to RE-1.

APPLICANT STATES: In a memorandum, dated 19 September 1994, that upon his return to Fort Lewis, Washington, from a highly sensitive assignment in Korea, he filed for a divorce. The process lasted for more than 2 years and involved congressional investigations and false accusations made by his then estranged wife. The divorce left him in financial ruins and ended his military career of 13 years. His personal belongings were in storage in both Kentucky and North Carolina. When he went to Kentucky to get his belongings, the Finance Office at Fort Knox refused to advance him pay for the move until the IG got involved. The process took 4 days and the U-Haul truck broke down three times. His official leave status expired and he was late returning to Fort Lewis. Each time the vehicle broke down, he telephonically notified the unit Charge-of-Quarters (CQ) and he obtained proof from the U-Haul company. It was not until 15 February 1990, that his chain of command charged him with being absent without leave (AWOL) for the time period and imposed NJP against him.

Further, the applicant states that, on 3 April 1990, he was falsely accused of intentionally defrauding the Government by using a Government-issued Diners Club Card to rent an automobile from Budget Car Rental, Tacoma, Washington, for personal use, not Government business. In fact, he used the rental car to travel back and forth from work, and to conduct official business during duty hours. He adds that the only thing that he was guilty of was not paying his credit card bill on time. He believes that, in July 1990, he was unfairly subjected to a chapter 14 hearing due to the above incidents, his severe financial problems, and illegal garnishments of his pay by the Fort Lewis Finance Office. He believes that it was unfair that a local bar to reenlistment that had been removed was held against him during his appeal of a Qualitative Management Program (QMP) action. He believes that his chain of command failed to support him, manipulated Army Regulations and misused information to separate him. Additionally, he believes that he should be allowed to reenlist because he is trainable and he has over 13 years of priceless experience.

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

He served in an active duty status in the Regular Army from 29 January 1981 until he was honorably separated on 30 April 1994 in the rank of sergeant first class, pay grade E-7. His active military service equals 13 years, 2 months and 28 days.
The evidence available also indicates that the applicant served in Korea from 30 November 1986 to 2 November 1987. On 9 November 1987, he was reassigned to Fort Lewis.

On 22 February 1990, NJP was imposed against the applicant for being AWOL from his unit from 18-22 December 1989. His punishment included the forfeiture of $785.00 pay for 1 month (suspended until 25 August 1990) and 30 days of extra duty. There is no evidence to indicate the applicant appealed this action.

On 27 March 1990, a local bar to reenlistment was imposed against the applicant because of the 22 February 1990 NJP for AWOL and his financial problems. He had dishonored checks; letters of indebtedness, and his check cashing privileges had been suspended. His security clearance was revoked from 16 March 1992 to 9 September 1992.

On 9 April 1990, NJP was again imposed against the applicant for attempting to defraud the Government by falsely pretending to have rented an automobile from Budget Rental Car of Tacoma Washington while in conduct of official Government business, then knowing that the pretense was false, and by means thereof did wrongfully obtain from CITICORP Diners Club Inc. service of some value to wit: interest free credit and use of a Diners Club Credit card without payment of an annual fee. His punishment included performing 45 days of extra duty. It was directed that the original DA Form 2627 be filed on the performance fiche in his OMPF.

On 10 July 1993, the Enlisted Records and Evaluation Center (EREC), Fort Benjamin Harrison, Indiana, notified the applicant that he had been barred from reenlistment by the Department of the Army (DA) under the provisions of the QMP. The EREC QMP notification also informed the applicant that the QMP action was the result of a determination made by the 1993 Master Sergeant Promotion Selection Board. Subsequent to a comprehensive review of his file, the QMP decision was based on the above 9 April 1990 NJP action and the revocation of his security clearance on 16 March 1992. An option election form was also provided with the QMP notification action. The applicant completed this form and elected to submit an appeal.

On 9 September 1993, the applicant indicated in his appeal to EREC that he should not be barred from reenlistment; his performance had improved; he had demonstrated strong leadership ability; he had attended numerous courses to include the Special Forces Advanced Noncommissioned Officers Course and had graduated with an 84.74 percent grade point average; and that he had received the Army Achievement Medal. He also indicated that his OMPF was in error because his security clearance had been revoked, but later reinstated on 9 September 1992.

The applicant's immediate chain of command supported him and recommended that his appeal be approved. However, the Deputy Commander, I Corps, Fort Lewis, recommended disapproval and stated the applicant's appeal did not justify the removal of the DA QMP Bar to reenlistment. The Deputy Commander also stated that the applicant had a NJP for being AWOL and that the applicant should be separated at his expiration of his term of service.

On 27 December 1993, the EREC notified the applicant that a Department of the Army (DA) Standby Advisory Board (STAB) considered and disapproved his QMP appeal. The STAB determined that the applicant's performance and potential performance were not in keeping with the standards expected of the Noncommissioned Officer Corps. The DA Bar remained in effect.

On 30 April 1994, the applicant was separated under the provisions of chapter 16-8, Army Regulation 635-200, by reason of reduction in force, and assigned an RE code of RE-4. As part of his involuntary separation, he was paid half separation pay in the amount of $15,194.67.

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 covers eligibility criteria, policies, and procedures for enlisting and processing into the RA and the eligibility for prior service applicants for enlistment. That chapter includes a list of Armed Forces RE codes and RA RE codes. An RE code of RE-4 and a separation program designator (SPD) code of "JCC" applies to those individuals discharged under the provisions of chapter 16-8, Army Regulation 635-200, as a result of the Qualitative Retention Program, due to reduction in force. An RE-4 code signifies a non-waivable disqualification.

Army Regulation 27-10 provides policy for the administration of military justice. Chapter 3 provides that NJP is appropriate in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate. It is a tool available to commanders to correct, educate and reform offenders whom the commander determines cannot benefit from less stringent measures; to preserve a member's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring fewer resources than trial by court-martial. The imposing commander is not bound by the formal rules of evidence before courts-martial and may consider any matter, including unsworn statements the commander reasonably believed to be relevant to the case. Furthermore, whether to impose punishment and the nature of the punishment are the sole decisions of the imposing commander.

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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 are regularly screened for grades E-5 through E-9 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.

Army Regulation 600-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 16 covers discharges caused by charges in service obligations. Paragraph 16-8 provides for the early separation of soldiers due to reduction in force, strength limitations, or budgetary constraints. It states, in pertinent part, that soldiers may be separated prior to expiration of enlistment of fulfillment of active duty obligation when authorization limitations, strength restrictions, or budgetary constraints require the Regular Army active duty enlisted force to be reduced in number.

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 NJP actions that the applicant received were imposed in compliance with applicable laws, regulations and policies. The punishments imposed were neither unjust nor disproportionate to the offenses, and there is no evidence of a violation of any of the applicant's rights. The applicant has not presented a valid reason for removing the NJP's from his OMPF.

3. There is no evidence in the applicant's record that indicates members of his chain of command inappropriately influenced the reason for his discharge or the discharge process, and he has failed to provide independent evidence to corroborate his contention.

4. The evidence available confirms that the applicant was discharged by reason of reduction in force in accordance with applicable regulations after being barred from reenlistment as a result of a DA bar under the provisions of the QMP. The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected without the separation process.

5. The applicant has provided this Board with no evidence that supports a basis for removal of his current RE code. He was separated and assigned a Code of RE-4 in accordance with regulations then in effect. Based upon the stated separation authority and narrative reason for separation, his separation code and reentry code are correct.

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

__rwa___ __bje___ __lcb___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002079546
SUFFIX
RECON
DATE BOARDED	20030710
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	100.0300
2.
3.
4.
5.
6.

In 1993, the DA Form 2697, dated 9 April 1990, that he received for the Diner's Club Card incident and the revocation of his security clearance were bases for the justification for the QMP action. Prior to the imposition of the DA bar to reenlistment he had an RE Code of RE-1