RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 September 2006
      DOCKET NUMBER:  AR20060002990


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Eric N. Andersen              |     |Chairperson          |
|     |Ms. Rose M. Lys                   |     |Member               |
|     |Mr. Richard O. Murphy             |     |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 separation be changed to a
15-year retirement.

2.  The applicant states, in effect, he was denied reenlistment after the
court-martial cleared him.  He had two weeks to reenlist, but his command
denied him the chance to reenlist.  He should not have been denied the
chance to reenlist.  The [local bar to reenlist] recommendation was
submitted two years earlier.

3.  The applicant also requests to know what the last entry in item 35
(Record    of Assignments, Organization and Station or Oversea Country) of
his DA Form   2-1 (Personnel Qualification Record) is.  He also requests a
copy of his “deleted” DD Form 214 (Certificate of Release or Discharge from
Active Duty) for the period ending 15 September 1989.

4.  The applicant provides two pages of his DA Form 2-1 and a 26 September
2005 letter from the National Personnel Records Center.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 15 September 1989.  The application submitted in this
case is dated 9 October 2005.

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.  The applicant enlisted in the Regular Army on 1 August 1974.  He was
honorably discharged for the purpose of immediate reenlistment on 29 August
1976.  He reenlisted on 30 August 1976.  He last reenlisted on 16 September
1983 for 6 years, making his expiration term of service (ETS) 15 September
1989.  He was promoted to Staff Sergeant, E-6 on 1 July 1984.

4.  On 4 November 1987, the applicant’s company commander initiated a local
bar to reenlistment on the applicant.  The commander noted that the
applicant’s overall performance and conduct had been far below par of what
was expected from a noncommissioned officer and that the applicant
routinely ignored his chain of command and disobeyed lawful orders from his
supervisors.

5.  On 4 November 1987, the applicant indicated that he desired to submit a
statement in his own behalf.  He stated that he received a field grade
Article      15 for six specifications of failing to repair, absence
without leave, and disobeying a lawful order.  The applicant felt all the
charges were false and that the failure to repair charges resulted from a
misunderstanding between him and his section sergeant.  The applicant
states he was following up on medical appointments and at all times his
section sergeant was informed of his whereabouts.  The applicant stated
that, on 28 and 29 July 1987, he was in Cumberland County jail for writing
one bad check, and the company knew his whereabouts at the time.  He stated
he was never given the order the Article 15 said he disobeyed.

6.  The applicant stated that he informed the battalion commander that he
would not accept the Article 15 and wanted a court-martial.  As of 5
November, he had not been served with a charge sheet for the summary court-
martial.  He characterized his contribution to the Army as a positive one.
In light of the conflicts between himself and his chain of command, he
requested a transfer.

7.  On 10 December 1987, the applicant’s battalion commander recommended
the applicant be barred from reenlistment.  The battalion commander noted
that, shortly after assuming command in August 1986, he became aware that
the applicant was having trouble adhering to standards of conduct and
performing as a noncommissioned officer.  He was involved in an incident on
the unit tactical site involving drinking alcohol and having a party for
his junior enlisted Soldiers.  The commander stated he took no Uniform Code
of Military Justice action at that time due to conflicting stories and
legal advice.  In November 1986, the battalion commander administered a
Field Grade Article 15 to the applicant for failing to report to sickcall
after he was excused from the unit physical training formation in order to
attend sick call.  Following that, he reassigned the applicant to another
battery to give him a fresh start.  During July 1986, the applicant was
arrested for failure to appear and for uttering worthless checks.  Also,
prior to his assignment to the battalion, he had been charged with simple
assault.  During July and August 1987, and again in September 1987, the
applicant missed several formations.  The applicant did request trial by
court-martial after refusing the Article 15.

8.  On 11 January 1988, the general court-martial convening authority
(GCMCA) approved the local bar to reenlistment on the applicant.

9.  By memorandum dated 20 January 1989, the applicant was notified that
the Calendar Year 1988 Sergeant First Class Board determined that he was to
be barred from reenlistment under the Department of the Army Qualitative
Management Program.  One Enlisted Evaluation Report was cited as the
document that led to the determination.  The applicant apparently
successfully appealed this Headquarters, Department of the Army imposed bar
to reenlistment.

10.  On 10 July 1989, the applicant’s acting company commander recommended
that the applicant’s local bar to reenlistment not be removed.  On 23
August 1989, the applicant’s company commander recommended that his local
bar to reenlistment not be removed.

11.  On 15 September 1989, the applicant was honorably discharged from
active duty upon his ETS.  He had completed 15 years, 1 month, and 15 days
of creditable active service.

12.  The last entry in item 38 of the applicant’s DA Form 2-1 contains
three handwritten entries – “890916,” “Discharge,” and what might be the
abbreviation “Arpercen” (Army Reserve Personnel Center); however, the last
word cannot be made out clearly enough to definitely identify it as
“Arpercen.”

13.  On 26 September 2005, the National Personnel Records Center informed
the applicant that if he required a copy of his separation document that
did not contain his characterization of service, authority and narrative
reason for separation, reenlistment eligibility code, and separation
program designator/number he could request a “deleted” copy from that
Center.

14.  A “deleted” copy of his DD Form 214 for the period ending 15 September
1989 was not available in the applicant’s records.  A “deleted” copy of his
DD Form 214 for the period ending 29 August 1976 was available.  A copy
will be forwarded to the applicant so he may see what a “deleted” copy
looks like.

15.  Army Regulation 635-5 (Separation Documents), version effective 1
October 1979, stated that copies 1 and 4 of the DD Form 214 would be
provided to the member.  Copy 4 would be completed completely.  Copy 1
would not contain the authority and narrative reason for separation, the
reenlistment eligibility code, or the separation program designator/number.

16.  Army Regulation 601-280 (Total Army Retention Program), chapter 6 of
the version in effect at the time, stated Soldiers may not be reenlisted
without the recommendation of the unit commander.  A bar to reenlistment is
initiated without regard to a Soldier’s ETS.  Any commander in the
Soldier’s chain of command may initiate a bar to reenlistment.  The first
general officer in the Soldier’s normal chain of command, or GCMCA, is the
approval authority for Soldiers with 10 to 18 years of active Federal
service at ETS.  Approved bars to reenlistment will be reviewed by the
member’s company or comparable commander at least each     6 months after
the date of approval and 30 days before the Soldier’s scheduled departure
from the unit or separation from the service.  When removal is not
recommended, the bar will remain in effect or the Soldier will be
considered for elimination.

17.  Fiscal Year 1993 was the first time early retirement was authorized,
as a drawdown tool.  Soldiers with a bar to reenlistment who had completed
over     18 years of active Federal service could have applied for early
retirement.

DISCUSSION AND CONCLUSIONS:

1.  A Soldier is not entitled to reenlist.  The unit commander’s
recommendation is required in all cases.

2.  On 11 January 1988, the GCMCA approved the local bar to reenlistment on
the applicant.  In the absence of evidence to the contrary, it is presumed
that the applicant’s bar to reenlistment was reviewed at the proper
intervals.  It was last reviewed on 23 August 1989, and the company
commander’s recommendation was that it not be removed.  There is no
evidence to show that regulatory procedures were not properly followed or
that the applicant was improperly separated upon his ETS on 15 September
1989.

3.  Early retirement authority did not exist until four years after the
applicant’s separation.

4.  It cannot be determined exactly what the last entry in item 35 of his
DA Form  2-1 might be.

5.  A copy of the applicant’s “deleted” DD Form 214 for the period ending
        15 September 1989 is not available.  A copy of that document should
have been provided to the applicant.  A “deleted” copy is used as a
convenience for a member in cases where employers or other interested
parties may require proof of military service but the member does not
desire to let that party know the reason for his or her separation.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 September 1989; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on    14 September 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

__ena___  __rml___  __rom___  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.




                                  __Eric N. Andersen____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060002990                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060914                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |136.05                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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