MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 7 October 2003
                  DOCKET NUMBER: AR2003086698

         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. Beverly A. Young		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Shirley Powell		Member
Mr. Robert Duecaster		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, correction of his records to show he was retired from the Regular Army.

APPLICANT STATES: That he was not allowed to retire from the Army. At the time of the bar to reenlistment, he was awarded the Good Conduct Medal. In support of his application, he submitted a copy of his letter to the President of the United States and a personal statement.

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

After having prior service in the U.S. Air Force, the Air National Guard and the U.S. Army Reserve (USAR), the applicant enlisted in the Regular Army on 2 January 1975 for a period of four years. The applicant was discharged from active duty on 5 December 1979. He reenlisted in the Regular Army on 6 January 1979 for a period of three years. He remained on active duty through a series of continuous reenlistments.

Records show that the applicant's unit commander initiated a bar to reenlistment against him on 6 December 1988. The commander cited as the basis for the bar to reenlistment the applicant's letter of indebtedness (19 January 1988) and his being in the weight control program since 7 December 1987. The commanding general stated that the applicant displayed an apathetic attitude towards the standards prescribed by Army Regulation 600-9 (Army Weight Control Program), set a poor example for other soldiers and did not measure up to the standards of a professional solider, and could qualify for retirement through removal of the bar following demonstrated rehabilitation and compliance with Army Regulation 600-9.

On 27 January 1989, the commanding general officer recommended approval of the bar to reenlistment without extension of the applicant's current term of service to qualify for nondisability retirement.

On 24 February 1989, the bar to reenlistment was approved by the commanding officer of the U.S. Army Enlistment Eligibility Activity.

In a 1 March 1989 endorsement, the Installation Reenlistment Noncommissioned Officer (NCO) of the United States Army Signal Center at Fort Gordon, Georgia, stated that the applicant would be formally counseled and advised that bars approved by the Commander, U.S. Army Enlistment Eligibility Activity, St. Louis, Missouri may not be appealed. The Installation Reenlistment NCO also stated that the applicant's bar to reenlistment was approved without extension to reach his retirement eligibility and that the applicant must demonstrate that he meets the standards of a professional soldier and NCO in order to qualify for removal of the bar and retirement.

The bar to reenlistment was reviewed on 23 August 1989 and was not recommended for removal.

The applicant's personnel records contain a DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated 8 September 1989, which shows he was flagged effective on 7 September 1989 and was entered into the Weight Control Program.

The bar to reenlistment was reviewed again on 29 March 1990 and was not recommended for removal.

The applicant was awarded the fifth award of the Good Conduct Medal for the period 11 January 1987 through 10 January 1990 by Headquarters, United States Army Signal Center and Fort Gordon Permanent Orders 030-002, dated 1 February 1990.

The bar to reenlistment was reviewed again on 27 June 1990 and was not recommended for removal.

The applicant was discharged from active duty on 30 July 1990 under the provisions of Army Regulation 635-200, chapter 4 at his expiration term of service. His DD Form 214 shows he completed 15 years, 6 months, and 25 days during this period and 4 years total prior active service.

Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel. Paragraph 12-4, implements Title 10 United States Code Section 3914 which governs 20 year retirement by a soldier of the Regular Army, the Army National Guard of the United States and the U.S. Army Reserve. In pertinent part, the regulation provides that a request for retirement may be submitted by a soldier who has completed 20 years, but less than 30 years, of active Federal service in the U.S. Armed Forces. Approval of the request for retirement will be at the discretion of the Secretary of the Army.

Army Regulation 601-280 prescribes the eligibility criteria and options available in the Army Reenlistment Program. Paragraph 6-5d(3) in effect at the time, states that bar to reenlistment procedures against soldiers having 18 but less than 20 years of active Federal service at expiration term of service, and who are not extended to attain retirement eligibility according to (2) above, will be approved by HQDA. It also states that such requests for bars to reenlistment will be forwarded to Commander, U.S. Army Enlistment Eligibility Activity in St. Louis, Missouri and will contain a statement that it is the intent of the commander(s) concerned to deny the soldier the opportunity to attain retirement eligibility.

Army Regulation 600-8-22 (Military Awards) provides in paragraph 4-8(b) that an individual whose retention is not warranted under standards prescribed in Army Regulation 604-10, paragraph 2-1, or for whom a bar to reenlistment has been approved under the provisions of Army Regulation 601-280, chapter 6 (specifically for the reasons enumerated in Army Regulation 601-280, paragraphs 6-4a, b, and d) are not eligible for award of the Army Good Conduct Medal. (Paragraph 6-4d refers to soldiers against whom a bar to reenlistment may be initiated.)

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 evidence of record shows the applicant served on continuous active duty from his last reenlistment on 6 January 1979 through 30 July 1990.

3. The evidence of record shows the applicant received a bar to reenlistment in December 1988 for a letter of indebtedness and for being in the weight control program and failing to lose the required weight. The Board notes that the bar to reenlistment was approved in February 1989 without an extension of the applicant's term of service to reach his retirement eligibility. The Board notes that after the bar to reenlistment was approved, he was placed back into the Weight Control Program. The Board also notes that the applicant's bar to reenlistment was reviewed on three occasions and was not recommended for removal. The Board concludes that his command had sufficient justification for not lifting the bar to reenlistment.

4. The Board acknowledges that he was awarded the Good Conduct Medal (5th Award) during the period he was under the bar to reenlistment. However, by regulation, that Good Conduct Medal was erroneously awarded.

5. At the time of his discharge on 30 July 1990, the applicant had completed 19 years, 6 months and 25 days of active military service. Therefore, he did not complete the required 20 years of qualifying service for retirement.

6. Based on the foregoing, the Board has determined that there is no error or injustice that exists in this case and 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

FNE_____ SP_____ RD_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2003086698
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20031007
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	19900730
DISCHARGE AUTHORITY	AR635-200, chapter 4
DISCHARGE REASON	Expiration Term of Service
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	136.0000
2.
3.
4.
5.
6.