RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 JULY 2005
      DOCKET NUMBER:  AR20040007218


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Ted Kanamine                  |     |Chairperson          |
|     |Mr. John Meixell                  |     |Member               |
|     |Mr. Lawrence Foster               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his 1989 separation document
reflect his current status with the Army.

2.  The applicant states he was “forced” out of the Army in a foreign
country with no support and no passport.  He states that was clearly
against standard operating procedures and that his experience is a real
disgrace to the American way of life.

3.  The applicant provides extracts from his military personnel file
documenting his military service, including training certificates,
promotion and award orders, and reenlistment documents.  He submits several
documents associated with his early years of military service, including a
1978 recommendation for OCS (Officer Candidate School), which he never
attended.

4.  His supporting documents were submitted as part of a lengthy, tabbed
index.  However, some of the documents listed on the index, specifically
copies of his separation reassignment orders, were omitted from those
tabbed documents; although they were identified in the index listing.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant’s discharge be rescinded and his
records corrected to show that he was not properly discharged from the Army
“to date.”

2.  Counsel states that the applicant’s spouse is German, but that the
applicant did not request to be discharged in Germany.  He states that his
separation orders were changed to read that he was separating from a
separation point in Germany rather than at Fort Dix, New Jersey.

3.  Counsel maintains that the “Command” was attempting to cover up the
fact that they had “barred a good Soldier with a perfect record prior to
being assigned to that unit from reenlisting.”  He states that the
“Command” did not want to give the applicant a chance to explain why he was
being discharged from the Army to anyone at the separation point at Fort
Dix.

4.  Counsel provides a transcript of an interview with the applicant, which
was conducted in May 2001 in which the applicant contends that he was
railroaded out the military.  In the interview transcript the applicant
states that he ran into a situation with his supervisor, a female Soldier.
He maintained that the supervisor “had connections” and that they were all
female and “pretty much all over the community,” that she may have been a
lesbian and that he was interfering “with her what she was doing more than
the military.”

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 23 July 1989.  The application submitted in this case is
dated
16 December 2003.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  Records available to the Board indicate that the applicant entered
active duty in June 1976.  He was initially trained as an artilleryman but
was subsequently reclassified as a military policeman as part of a
reenlistment action.  He served tours of duty in Germany between October
1976 and December 1978 and January 1981 and September 1984.  His final tour
of duty in Germany commenced in April 1986, nearly 2 years after his last
reenlistment action.

4.  In February 1982 the applicant was punished under Article 15 of the
Uniform Code of Military Justice (UCMJ) for absenting himself from his
place of duty as a result of incapacitation.  He was assigned to a military
police company in Germany, on his second tour, at the time.

5.  In February 1984, while assigned to another military police company
during that same second tour in Germany, he was punished again under
Article 15 of the UCMJ, for falsifying an official document, being absent
from his place of duty, and being disrespectful towards a noncommissioned
officer.

6.  In April 1986 the applicant returned to Germany for his third tour of
duty and was initially assigned to the 501st Military Police Company.  He
was promoted to pay grade E-6 in September 1986.

7.  In March 1987 he was counseled about being at his place of duty,
telling the truth, and his below level duty performance.  He was reassigned
to another military element in November 1987.  Following his reassignment,
he continued to receive counseling statements regarding his duty
performance and failure to properly perform his duties.

8.  Although an October 1987 performance evaluation report rated the
applicant with a score of 120 out of a possible 125, the report did note
that the applicant “required close monitoring and supervision.”
Nonetheless, the report recommended the applicant be promoted with his
peers and that he be assigned to a troop leadership position.

9.  In April 1988 he was relieved of his duties as a military police desk
sergeant.  There is no indication that the applicant appealed the
evaluation report.  He was subsequently assigned duties as supervisor and
POV (privately owned vehicle) impoundment NCO (noncommissioned officer).

10.  The rating officials on the applicant’s October 1987 and April 1988
performance evaluation reports were identical.

11.  In October 1988 the applicant’s commander initiated a local bar to
reenlistment against the applicant.  The commander cited the applicant’s
UCMJ actions, his performance counseling, and his relief for cause
evaluation report as the basis for the action.  A major general, commander
of the 1st Armored Division in Germany and the applicant’s general court-
martial authority, ultimately approved the bar to reenlistment.

12.  The applicant appealed the bar to reenlistment arguing that the bar to
reenlistment was initially submitted in May 1988 but no action was taken
until his commander departed and then his supervisor resubmitted the
action.  He indicted that he felt he contributed to the overall
accomplishment of the unit’s mission and believed that there was a severe
conflict between him and his supervisor.  He noted that since his
reassignment to new duties his job performance had been outstanding.  His
appeal was apparently denied.

13.  His May 1989 performance evaluation report indicated that he was a
successful Soldier.  His senior rater, however, placed him in the second
block for overall performance and in the third block for overall potential.


14.  On 27 March 1989 orders were issued assigning the applicant to the
transition point at Fort Dix, New Jersey for separation processing
effective
22 June 1989.  The order indicated his separation date was scheduled for
23 June 1989.

15.  On 18 May 1989 the applicant was permitted to extend his service
contract by an additional month pending completion of action on his appeal
of his local bar to reenlistment.  As a result of his 1-month extension,
his separation date was then scheduled for 23 July 1989.

16.  On 18 July 1989 new orders were issued assigning the applicant to the
transition point in Germany for separation processing.  The orders
indicated his separation date was 23 July 1989, in compliance with the May
1989 extension of his service contract.

17.  The applicant was released from active duty on 23 July 1989 at the
completion of his service contract.  His service was characterized as
honorable.  His separation code “JBK” indicates that he was separated with
a local bar to reenlistment in place.  His separation document shows that
he was separated in Bamberg, Germany, and that he authenticated the
accuracy of the information on his separation document by his signature.
He also provided an address in Germany as his mailing address following
separation.

18.  Army Regulation 601-280 establishes the policies and provisions for
imposing a local bar to reenlistment.  It notes that a bar to reenlistment
denies reenlistment to Soldiers whose immediate separation under
administrative procedures is not warranted, but whose reentry into or
service beyond his or her scheduled separation with the Active Army is not
in the best interest of the military service.  It also provides that any
commander in the Soldier’s chain of command may recommend removal of a bar
to reenlistment.

19.  Army Regulation 635-200 states that a Soldier eligible for separation
who is serving in a foreign country may be separated therein, upon approval
by the major Army overseas commander provided that Soldier requests
separation in that country his or her separation in that country is not
precluded by other provisions of the regulation, and the foreign government
concerned has either formally or informally consented to the separation of
the Soldier within its territory.  It states that no Soldier will be
separated in a foreign country until the Soldier has obtained documents
needed for his or her lawful continued presence in that country.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence and the applicant has not provided any that his
local bar to reenlistment was erroneous or imposed as a means of
“railroading” him out of the Army.

2.  Contrary to counsel’s contention that the applicant was a “good Soldier
with a perfect record prior to being assigned to that unit from
reenlisting,” the evidence shows that the applicant had two incidents of
misconduct during a prior tour of duty in Germany which contributed to his
local bar to reenlistment.

3.  The applicant’s statement that his separation resulted from a conflict
with his female supervisor is also not supported by the evidence of record.
 The evidence shows that the applicant received a fairly favorable
performance evaluation report from the female Soldier in question, prior to
receiving his relief for cause performance evaluation report.

4.  The Board also notes that any commander in his chain of command could
have requested that his local bar to reenlistment be lifted if such was
warranted.  The fact that no such recommendation was made further supports
a conclusion that the applicant’s bar to reenlistment was not entirely the
result of any conflict he may have had with his immediate supervisor.

5.  The applicant has provided no evidence that he was separated overseas
without his consent.  The evidence shows that while he originally did have
orders which transferred him to Fort Dix, New Jersey for separation
processing, those orders ultimately became invalid when his separation date
changed as a result of his 1-month extension.  When new separation orders
where issued they were issued indicating that he would be separated
overseas.  In order for such an action to happen, the applicant would have
had to have been involved in the process.  The fact that he authenticated
his separation document and provided a local German address as his location
following separation supports this conclusion.

6.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 23 July 1989; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
22 July 1992.  The applicant did not file within the 3-year statute of
limitations and has not provided a compelling explanation or evidence to
show that it would be in the interest of justice to excuse failure to
timely file in this case.





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___TK        ___JM __  __LF  ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  _____ Ted Kanamine______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040007218                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050719                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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