MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 29 May 2003
         DOCKET NUMBER: AR2002079609

         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. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Mr. Luther L. Santiful		Chairperson
Mr. Frank C. Jones		Member
Mr. Lester Echols		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 he be reinstated on the Army/Guard Reserve (AGR) 2001 staff sergeant (SSG) Permanent Promotion Selection List, sequence number 122, with his date of rank (DOR) backdated to correspond to that, which was received according to the order in which he would have been normally promoted.

APPLICANT STATES: That a flag was initiated and later removed. He received a bar to promotion that was also later removed and he immediately reenlisted.
In support of his application, he submits three memorandums and four DA Forms 268 (Report of Suspend Favorable Personnel Action [Flag]).

EVIDENCE OF RECORD: The applicant's military records show he is currently serving in the AGR Program with the 315^th Quartermaster Detachment, Jacksonville, North Carolina, as an assistant water treatment supervisor, in military occupational specialty (MOS) 77W.

He was promoted to sergeant (SGT/E-5) effective 12 June 1993, with a date of rank (DOR) of 12 June 1993.

The applicant provided a copy of a DA Form 268, dated 24 October 2000, which shows that a flag was initiated effective 26 July 2001, for Army Physical Fitness Test (APFT) failure.

On 3 August 2001, the applicant was flagged for adverse action with an effective date of 26 July 2001.

On 8 September 2001, his command recommended that he be removed from the AGR 2001 SSG Permanent Promotion Selection List. His removal was based on his pattern of unsatisfactory conduct.

On 28 September 2001, the applicant's flag for APFT failure was removed.

On 8 January 2002, the applicant was barred from reenlistment and was removed from the AGR 2001 SSG Permanent Promotion Selection List. On 15 January 2002, the applicant appealed his bar to reenlistment.

On 14 March 2002, the applicant's command recommended removal of the applicant's bar to reenlist to the Commander, Headquarters, 171^st, Corp Support Group (CSG). On 19 April 2002, the 171^st CSG concurred with the command's decision and recommended removal of the applicant's bar to reenlistment.

On 6 May 2002, the applicant's bar was removed. On that same day, his flag for adverse action was removed. On 23 May 2002, the applicant reenlisted for a period of 6 years in the AGR.

A copy of an automated printout from the Full Time Support Management Directorate (FTSMD), Army Reserve Personnel Command (AR-PERSCOM) was provided to a staff member of the Board. This printout shows that the applicant had a sequence number of "122" on the AGR 2001 SSG Permanent Promotion Selection List, was flagged, barred from reenlistment, and was removed from the list.

In the processing of this case an advisory opinion was provided by the Acting Director, FTSMD. The opinion recommended that the applicant be reinstated to the 2001 U.S. Army Reserve AGR Promotion List, sequence number 122, with his DOR backdated to correspond to that which he would have been normally promoted. He was removed from the promotion list because of his bar to reenlist and Flag. His commander removed the bar to reenlistment effective 30 April 2002 and the Flag was removed effective 6 May 2002.

The applicant was provided a copy of the favorable opinion for possible comment prior to consideration of this case. The applicant responded within the timeframe allotted and concurred on 10 December 2002.

Army Regulation 140-111 governs the immediate reenlistment or extension of current members of the USAR assigned to the Selected Reserve, the Individual Ready Reserve (IRR), and the Standby, and personnel serving on active duty in the AGR program. Paragraph 1-30 pertains to conditions warranting a bar to reenlistment for individuals whose continued active duty is not in the best interest of military service. Examples of rationale for reenlistment disqualification are, but not limited to, APFT failure, patterns of unsatisfactory conduct, AWOL, indebtedness, recurrent nonjudicial punishment, slow promotion progression, no demonstrated potential for future service, substandard performance of duties, and substandard appearance (overweight).

Paragraph 1-34 of the same regulation pertains to review and disposition of imposed bars to reenlistment. It states that after placing an approved bar to reenlistment in a soldier's Military Personnel Records Jacket (MPRJ), the company, detachment, or comparable commander of the unit to which the soldier is assigned, or attached for duty and administration, will continue to document evaluation of the soldier. Approved bars to reenlistment will be reviewed by the proper unit commander at least 6 months after the date of approval, and 30 days before the soldier's scheduled departure from the unit, or separation from the service. A recommendation to remove a bar to reenlistment may be submitted at any time by the soldier's unit commander if they feel that the soldier has proven worthy of retention in the USAR or AGR status. Each commander in the soldier's command will endorse recommendations for removal of a bar to reenlistment personally.

Army Regulation 140-158 prescribes policy and procedures pertaining to the classification, promotion, reduction, and grade restoration of enlisted soldiers
of the US Army Reserve (USAR). Paragraph 3-25 pertains to removal from the promotion recommended list. It states that on notification from a promotion authority, the authorities will remove a soldier's name from the recommended list. The promotion authority will direct the removal from the recommended list of the name of the soldier who has been barred from reenlistment under the provisions of Army Regulation 140-111. Once the soldier is removed from a recommended list, the action is final unless the soldier is later exonerated.

Paragraph 3-27 pertains to reinstatement on the promotion recommended list. It states that a soldier removed from a list and later completely exonerated will be reinstated on the recommended list. To be completely exonerated, the action that caused the initial removal must have been erroneous or should not have been imposed so the soldier is free of any blame or accusation. For example, a soldier receives a bar to reenlistment for failure to comply with Army Regulation 600-9 and is removed from the recommended list under paragraph 3-25, barred from reenlistment under the provisions of Army Regulation 140-111. Subsequent compliance with Army Regulation 600-9 and removal of the bar to reenlistment does not mean that the action that caused the removal was erroneous. Therefore, the soldier is not "completely exonerated" and reinstatement is not authorized. In no case should a reinstatement be delayed more than 30 days. If the soldier would have been promoted had they not been removed from the list, they will be promoted when the next vacancy occurs for that MOS and grade.

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 applicant was flagged for APFT failure and it was later removed. He was later flagged for adverse action and was recommended for removal from the AGR 2001 SSG Permanent Promotion Selection List based on his pattern of unsatisfactory conduct.

2. The applicant was barred from reenlistment and was removed from the AGR 2001 SSG Permanent Promotion Selection List. He appealed his bar and it was later removed. His flag for adverse action was removed on 6 May 2002 and the applicant later reenlisted on 23 May 2002.

3. Notwithstanding the FTSMD advisory opinion, the applicant is not entitled to reinstatement on the AGR 2001 Permanent Promotion Selection List. The regulation clearly prohibits it.



4. 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.

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

__ls___ __fj___ ___le_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002079609
SUFFIX
RECON
DATE BOARDED	20030529
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	310
2.
3.
4.
5.
6.