MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 19 June 2003
         DOCKET NUMBER: AR2003084214

         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:

Mr. John N. Slone		Chairperson
Ms. Lana E. McGlynn		Member
Mr. William D. Powers		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 narrative reason and authority for his discharge be changed and that he be given separation pay.

APPLICANT STATES: In effect, that he is an honorably discharged and disabled veteran who strongly feels that an injustice was done to him in 1989. He goes on to state that he was advanced to the pay grade of E-4 around 1986 – 1987 and his military occupational specialty required him to have a security clearance. In 1989, he and his family resided in government quarters and his first sergeant called him in and informed him that he was being reduced to the pay grade of E-2. He continues by stating that when he met with the commander and the first sergeant, he was informed that he was being demoted because he had been promoted two years earlier by a previous commander and did not have a security clearance. In addition, he was being barred from reenlistment. He also states that he believes these actions should have been reviewed and decided at a higher level and because he could not keep his family in Germany as an E-2, he had no choice but to accept the discharge. He further states that he feels it unjust that he did not receive separation pay that other soldiers received who accepted early discharges during the draw-down and believes he should have been discharged in the pay grade of E-4, for the convenience of the government, with entitlement to compensation for his service.

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

He enlisted in Atlanta, Georgia, on 19 April 1984, for a period of 4 years, enlistment in the pay grade of E-3, training as a telecommunication center operator and a cash enlistment bonus.

He successfully completed his basic combat training at Fort Jackson, South Carolina and his advanced individual training (AIT) at Fort Gordon, Georgia. Upon completion of his AIT he remained at Fort Gordon for duty as a telecommunications center operator until he was transferred to Germany on 12 December 1985. He was advanced to the pay grade of E-4 on 1 February 1986.

On 1 October 1986, the United States Army Central Personnel Security Clearance Facility dispatched a notice of intent to revoke the applicant's security clearance due to his extensive amount of delinquent debts. He was afforded an opportunity to submit matters in his own behalf.

The applicant elected to submit matters in his own behalf and on 20 November 1986, a determination was made that his response was not sufficient to mitigate the circumstances of his case. Accordingly, his security clearance was revoked.

On 26 November 1986, nonjudicial punishment (NJP) was imposed against him for the wrongful use of marijuana. His punishment consisted of a reduction to the pay grade of E-3, a forfeiture of pay and extra duty.

On 21 May 1987, NJP was again imposed against the applicant for wrongfully purchasing tax-free goods for the production of income (also known as black marketing). His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay (suspended for 6 months) and extra duty.

He was advanced to the pay grade of E-3 on 1 November 1987 and to the pay grade of E-4 on 1 June 1988.

On 3 August 1988, the applicant reenlisted for a period of 3 years and assignment to Fort Ord, California.

On 20 April 1989, the applicant's commander initiated a recommendation to bar the applicant from reenlistment. He cited as the basis for his recommendation the applicant's disciplinary record, his repeated incidents of uttering dishonored checks and indebtedness and his failure to respond to counseling. The applicant elected not to submit matters in his own behalf and the battalion commander approved the bar to reenlistment on 9 May 1989.

Although the specifics are not explained in the available records, the applicant was reduced to the pay grade of E-2 on 15 August 1989, as a result of NJP being imposed against him.

The applicant's commander reviewed his bar to reenlistment on 15 November 1989 and informed the applicant that he had continued to perform in an unsatisfactory manner and was not responding to repeated counseling sessions. Accordingly, his bar would not be removed at that time. The applicant indicated his concurrence with the content of the counseling at the time.

On 20 November 1989, the applicant submitted a request for discharge under the provisions of Army Regulation, paragraph 16-5b, due to his inability to overcome the circumstances that led to his bar to reenlistment. He indicated that he believed that his military career was over and that he needed to achieve other goals aside from the military and continue with his life.

The appropriate authority approved his request and directed that he be furnished with an Honorable Discharge Certificate.

Accordingly, he was honorably discharged on 17 January 1990 under the provisions of Army Regulation 635-200, paragraph 16-5b, due to a locally imposed bar to reenlistment. He had served 5 years, 8 months and 29 days of total active service and was issued a Reentry (RE) Code of "3."
Army Regulation 601-280, in effect at the time, prescribes the eligibility criteria and options available in the Army Reenlistment Program. Chapter 6 of that regulation provides for barring from reenlistment individuals whose continued active duty is not in the best interest of the military service. This chapter specifies that bars will be used when immediate administrative discharge from active duty is not warranted. Examples of rationale for reenlistment disqualification include, but are not limited to, AWOL, indebtedness, recurrent nonjudicial punishment, slow promotion progression, no demonstrated potential for future service, and substandard performance of duties.

Army Regulation 635-200 sets forth the basis authority for the separation of enlisted personnel. Chapter 16 covers the discharges caused by changes in service obligations. Paragraph 16-5 applies to personnel denied reenlistment and provides that soldiers who receive DA imposed or locally imposed bars to reenlistment, and who perceive that they will be unable to overcome the bar may apply for immediate discharge.

RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable. Certain persons who have received nonjudicial punishment are so disqualified, as are persons with bars to reenlistment, and those discharged under the provisions of chapters 9, 10, 13, 14, and 16 of Army Regulation 635-200.

Department of the Army Circular 635-92-1 outlines the eligibility criteria for separation pay and provides separation pay formulas as authorized by Department of Defense Instruction 1332.29 dated 20 June 1991 and other Department of the Army guidance resulting from Public Law 101-510. The circular also illustrates the various types of separation that are either eligible or ineligible for separation pay. It states, in pertinent part, that separation pay is authorized for soldiers serving on active duty on 5 November 1990, who had completed at least 6 years of active service, who were involuntarily separated prior to completion of obligated service or who were denied continuation of further service. It further states that soldiers with a bar to reenlistment who requests early separation under the provisions of Army Regulation 635-200, paragraph 16-5 are not eligible for separation pay. The provisions of law authorizing separation pay were not retroactive to personnel who separated prior to 5 November 1990.

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 applicant’s bar to reenlistment was imposed in compliance with the applicable regulation with no indication of procedural errors which would tend to jeopardize his rights.

3. The applicant was afforded the opportunity to submit matters in his own behalf when he was notified that a bar was being imposed and chose instead not to do so.

4. Not only did the applicant not dispute the reasons for the bar, he elected to separate from the service rather than to attempt to overcome the circumstances of the bar.

5. The applicant clearly was not eligible for separation pay because he separated 10 months before separation pay was authorized, because he had not served 6 years of active service and because separation pay was not authorized under the provisions for which he elected separation.

6. The applicant's contentions have been noted by the Board and the Board finds that they are not supported by the evidence of record. The applicant was barred from reenlistment as a result of his own misconduct, failure to pay his debts and unsatisfactory performance of duty.

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

__js ____ ___wdp__ __lem ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002084214
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/06/19
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 291	128.0800/SEP PAY
2.
3.
4.
5.
6.