RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 March 2007
	DOCKET NUMBER:  AR20060011116 


	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. Gerard W. Schwartz

Acting Director

Mr. John J. Wendland, Jr.

Analyst


The following members, a quorum, were present:


Mr. William F. Crain

Chairperson

Mr. Edward E. Montgomery

Member

Ms. Rea M. Nuppenau

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, correction of his records to show that beginning with the time he was scheduled to complete the Reserve Officers' Training Corps (ROTC) program he was commissioned as a second lieutenant.  He also requests, in effect, promotion in the normal cycles to first lieutenant and captain in the Army National Guard (ARNG).

2.  The applicant states, in effect, he was erroneously disenrolled from the Army ROTC and appointed as a sergeant/pay grade E-5 in the ARNG.

     a.  The applicant states that during his 4 years of active duty service as a member of the USMC, he acquired the tattoos which are now on his body and whose presence have apparently affected his Army career.  Subsequent to his honorable separation from active duty in 1994, the applicant remained in the USMC Reserve and attended college.  

     b.  In August 1996, the applicant contracted with the Army ROTC and began his junior year in college.  The applicant maintains that he was one of the better cadets in the ROTC program at his college.  However, due to financial hardship, he was not able to attend ROTC Advanced Camp during the summer of 1997. Consequently, under the guidance of his Professor of Military Science, the applicant enlisted in the ARNG Simultaneous Membership Program (SMP) and was assigned to an ARNG infantry unit in Ohio.  The applicant adds that during his senior year he was extremely busy as a full-time college student, working a full-time civilian job, and performing his ARNG duties.  In August 1998, the applicant graduated from Franklin University with a Bachelor of Science degree in Business Administration with an emphasis in Finance.

     c.  The applicant states that, on 6 June 1998, the Army changed its tattoo policy and included the provision "tattoos on the hands, neck, or head (those parts of the body that can be seen while wearing the class 'A' uniform) are not allowed."

     d.  On 20 June 1998, the applicant began ROTC Advanced Camp at Fort Lewis, Washington.  While there, the commandant saw his tattoos and ordered that a board of officers be convened to determine if the applicant's tattoos were in violation of the new tattoo policy.  The applicant states that the board of officers allowed the applicant to graduate ROTC Advanced Camp, but decided not to grant him a commission until the matter was referred to Headquarters, U.S. Total Army Personnel Command (PERSCOM), Alexandria, Virginia.

     e.  The applicant adds that the matter was referred back to the Commanding General of ROTC and he ordered a second board of officers.  He asserts that the board of officers originally found that he was not in violation of the regulation and that he should be given a commission.  However, as the findings worked their way up the chain-of-command, Headquarters, PERSCOM, issued a memorandum explaining the new regulation and the board of officers was ordered to rewrite its findings based on the new guidance.  The applicant states he was erroneously disenrolled from the ROTC program, in 1999 or 2000, although the cadre at his university and ROTC Advanced Camp were supportive of him being commissioned.

     f.  The applicant continued to serve in the ARNG, was promoted to sergeant/ pay grade E-5, but failed to get his commission.  He then transferred from the Ohio ARNG to the Oklahoma ARNG.  Upon arrival, the applicant states that the commanding officer noticed he had a college degree and asked him if he was interested in the State's Officer Candidate School (OCS) program.  The applicant agreed to enroll, but subsequently received a job offer in North Carolina, disenrolled from OCS, and departed the unit in April 2002.

     g.  Upon arrival at his new unit in North Carolina, based on his college degree, the applicant states his executive officer (XO) asked him if he was interested in becoming an officer.  However, after relating the applicant's ROTC experience and receiving feedback from the battalion S-1 (adjutant), the XO told the applicant he could not apply for a direct commission.  With regard to the tattoo policy, the applicant pointed out to the XO that the Army regulation did not discriminate between officer and enlisted personnel and that, if being commissioned would be in violation of the regulation, then his retention as an enlisted Soldier would also violate the same regulation.  The applicant concludes by stating the issue that he raised has not been resolved.

     h.  The applicant adds that he was ordered to active duty, transferred as a mechanic to the 1452nd Transportation Company, and deployed in support of Operation Iraqi Freedom II.  He has since redeployed and decided to stay with the transportation unit.

     i.  The applicant concludes by stating that despite the submission of several applications by him and repeated requests to his commanding officers, he was continually denied a commission.  The applicant further states, in effect, that because of serving overseas and elsewhere he was hindered in obtaining legal relief.  However, he continues to seek relief in the form of an appointment as a commissioned officer in the U.S. Army.

3.  The applicant provides a 3-page self-authored statement of his military history covering the period October 1990 to the present (i.e., the date of his application);
DA Form 597 (Army Senior Reserve Officers' Training Corps (ROTC)
Nonscholarship Cadet Contract), dated 9 January 1997; Cadet Command Form
139-R (Cadet Enrollment Record), dated 17 April 1997; PCN TPF-T91 (Cadet Record Brief), dated 19 November 1998; DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers), dated 18 July 1998; DA Form 1574, dated 22 February 1999; and Hot Topics, Army Tattoo Policy, online article, dated 29 August 1999.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests, in effect, relief for the applicant from the Army Board for Correction of Military Records (ABCMR) to remedy an injustice that first occurred in 1998 and has been continued and repeated several times since then.  Counsel recounts the applicant's military service, maintains that there was uncertainty as to the meaning and proper application of the Army tattoo policy, and asserts that the applicant had no advance notice of the Army's new tattoo policy.

2.  Counsel states, in effect, the Army acted unfairly and illegally in refusing to commission the applicant by reason of a new policy of which he had no warning when he executed his contract with the Army to become an ROTC cadet.  Counsel also states, the Army "tattoo policy" was improperly and illegally applied with respect to the applicant's tattoos because the "test of offensiveness", which was the basis of his disenrollment, was not permissible.  Counsel adds that even if the criterion of "offensiveness" were permissible, its application to the applicant was unreasonable and contrary to all the evidence.  Counsel also states that, if reasonably applied, Army regulations concerning tattoos did not preclude the applicant's service as a commissioned officer in 1998 or at any time thereafter.  Counsel further states, in light of the injustice that has occurred and the applicant's continuing efforts to serve his country as a commissioned officer, the ABCMR should now correct his records to reflect that for many years he has performed Federal service as a commissioned officer.

3.  Counsel provides an 18-page "Brief in Support of Request for Consideration of Application for Correction of Military Records" pertaining to the applicant's application, filed 2 August 2006.


CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 26 August 2005, the date of his discharge from the ARNG.  The application submitted in this case is dated 29 July 2006.

2.  The applicant's military service records show that he enlisted in the U.S. Marine Corps (USMC) Reserve on 9 August 1990 and entered active duty in the USMC on 22 October 1990.  The applicant was awarded military occupational specialty (MOS) 0351 (Antitank Assaultman), he served in Operation Desert Storm from 9 October 1991 to 19 February 1992, and attained the rank of corporal/pay grade E-4.  On 21 October 1994, the applicant was honorably released from active duty after completing a total of 4 years net active service.

3.  The applicant's military service records contain a copy of a DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States), dated 27 August 1997, that shows he enlisted in the ARNG for a period of 8 years in pay grade E-5.

4.  The applicant's military service records contain a copy of AGOH Form 145-1 (ARNG - ROTC Simultaneous Membership Program (SMP) Application Form and Transmittal), dated 27 August 1997, and NGB Form 594-1 (Annex ___
DD Form 4/DA Form 1966 - Simultaneous Membership Program Agreement Army National Guard), dated 27 August 1997, that show the applicant enlisted as a cadet/pay grade E-5 in the ROTC SMP.

5.  In support of his application, the applicant provides the following documents.

     a.  DA Form 597 (Army Senior Reserve Officers' Training Corps (ROTC) Nonscholarship Cadet Contract), dated 9 January 1997, that shows in Part I (Agreement of Nonscholarship Cadet Enrolling in the Senior ROTC Program Advanced Course), paragraph 2 (I further understand that:), subparagraph c, in pertinent part, "My enrollment, continuation in, and completion of the ROTC Advanced Course Program does not commit the Army to appoint me as an officer.  Such continuance and appointment will be made at the discretion of the U.S. Army and, in part, will depend upon my satisfactorily meeting the requirements for continuance and appointment as established by Federal law, Army regulation, and this contract."

     b.  Cadet Command Form 139-R (Cadet Enrollment Record), dated
17 April 1997, Part II (Enrollment Eligibility Checklist), Enrollment Criteria,
Item 9 (Medical Requirements) that shows the applicant had an approved exam and was eligible for enrollment.

     c.  PCN TPF-T91 (Cadet Record Brief), dated 19 November 1998, that shows, in pertinent part, the applicant passed the ROTC Advanced Camp.

     d.  DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers), dated 18 July 1998, that shows, in pertinent part, that the applicant
"is clearly in compliance with two of the three components of AR 670-1 policy concerning tattoos.  Specifically, he has no visible tattoos or brands on his neck, face or head, and he does not have any type of tattoos or brands that are visible while wearing a Class A uniform."  This document goes on to state that "[t]he Army tattoo policy was expanded on 5 June 1998 and added a third component:  'tattoos on other areas of the body that are prejudicial to good order and discipline are prohibited."  This document shows, in pertinent part, that tattoos characterized as the "spider web", the applicant acknowledged, "if not explained in full detail, could be misconstrued as racist and/or obscene by some members of the armed forces and civilian community."  This document also shows that the applicant stated "he was not willing to remove or alter the 'spider web' [identified in Exhibits attached to the DA Form 1574] tattoo even if it meant not receiving a commission."  This document further shows, in pertinent part, that "[t]wo voting board members found the [applicant's] 'spider web' tattoo in violation of AR 670-1 as amplified in the 5 June 1998 message, specifically, 'prejudicial to good order and discipline'.  The other voting board member dissented."  However, based on the majority decision, the board of officers felt the applicant was not in compliance with AR 670-1 and recommended he not be commissioned.  The findings and recommendations of the board of officers were approved on 18 July 1998.

     e.  DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers), dated 22 February 1999, that shows, in pertinent part, "[t]hat [the applicant] does not possess officer-like qualifications as evidenced by his appearance in the summer PFU [Physical Fitness Uniform], or the class B uniform with short sleeves, or the BDU [Battle Dress Uniform] with sleeves rolled up."  The board of officers found that the applicant's tattoos do not violate
AR 670-1, with changes, prior to the issuance of Administrative Guidance, dated 31 December 1998; however, he is in violation of Department of the Army message, subject:  Administrative Guidance to Army Tattoo Policy in accordance with AR 670-1, dated 31 December 1998.  The board of officers also found that it is necessary for the applicant to alter his appearance to meet appointment eligibility requirements in accordance with the above referenced administrative guidance, and that the applicant indicated he was willing to alter his appearance at Army expense as provided for in the above referenced administrative guidance.  The board recommended the applicant be retained in the ROTC program and be given the opportunity to have enough tattoos removed, at Army expense, to be in compliance with the administrative guidance.  The findings and recommendations of the board of officers were approved on 22 February 1999.

     f.  Hot Topics, Army Tattoo Policy online article of an interview with Brigadier General Clayton E. M_____, Director, Human Resources Directorate, Office of the Deputy Chief of Staff for Personnel, wherein he discusses the Army tattoo policy as set forth in Army Regulation 670-1 (Wear and Appearance of Army Uniforms and Insignia).  This article shows, in pertinent part, that the Medical Command is prepared to assist in removing unacceptable tattoos and brands and that commanders will refer Soldiers who voluntarily agree to removal of inappropriate tattoos to the Army Medical Treatment Facility for removal.  The Medical Command will provide treatment for command referred Soldiers at Army expense.

6.  Army Regulation 670-1 (Wear and Appearance of Army Uniforms and Insignia), in effect at the time, prescribed the authorization for wear, composition, and classification of uniforms, and the occasions for wearing all personal, optional, and commonly worn organizational Army uniforms.  In pertinent part, this Army regulation, with changes, outlines the Army tattoo policy and states that visible tattoos or brands on the neck, face or head are prohibited.  Tattoos on other areas of the body that are prejudicial to good order and discipline are prohibited.  Additionally, any type of tattoo or brand that is visible while wearing a Class A uniform and detracts from a soldierly appearance is prohibited.

7.  Army Regulation 670-1 also provided counseling requirements and states that commanders will ensure Soldiers understand the tattoo policy.  For Soldiers who are not in compliance, commanders may not order the removal of a tattoo or brand.  However, the commander must counsel Soldiers and afford them the opportunity to seek medical advice about removal or alteration of the tattoo or brand.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and his Counsel contend, in effect, the applicant's records should be corrected to show that he was commissioned as a second lieutenant beginning with the time he was scheduled to complete the ROTC program.  They base their contention on the premise that the Army acted unfairly and illegally in refusing to commission the applicant by reason of a new policy of which the applicant had no warning when he executed his contract with the Army to become an ROTC cadet.  They also contend, in effect, the Army tattoo policy was improperly and illegally applied with respect to the applicant's tattoos because the "test of offensiveness" was not permissible.  They further contend, in effect, that the applicant should be promoted in the normal cycles to first lieutenant and captain in the ARNG because Army regulations concerning tattoos did not preclude the applicant's service as a commissioned officer in 1998, or at any time thereafter.  

2.  The ABCMR stipulates to the applicant's and Counsel's argument that the tattoo policy set forth in Army Regulation 670-1 did not discriminate between officer and enlisted personnel.  However, the issue before this Board is whether the applicant was eligible and entitled to appointment as a commissioned officer in the U.S. Army.  Therefore, the fact that the applicant continued to serve in the ARNG in an enlisted status is not the salient issue in this case.  Similarly, the issue of whether the applicant should have been processed for separation/ discharge from the ARNG is also not the subject of the applicant's request or the matter before this Board.

3.  The evidence of record shows that the applicant acquired the tattoos in question prior to his enlistment in the Army ROTC program.  The evidence of record also shows that during the period of time the applicant was in the process of completing his ROTC Advanced Camp and course requirements, the Army's tattoo policy was evolving and changing.  As a result, the commandant at the applicant's ROTC Advanced Camp appointed a board of officers to determine if the applicant's tattoos were in compliance with Army policy.  The evidence of record shows that, by majority decision, a board of officers found one of the applicant's tattoos was "prejudicial to good order and discipline" and in violation of the Army regulation.  Therefore, the board determined the applicant was not in compliance with the Army tattoo policy and recommended he not be commissioned.

4.  There is no evidence of record showing either board of officers found the applicant ineligible for appointment as a commissioned officer based on a "test of offensiveness."  In fact, the board of officers found the applicant's tattoos to be "prejudicial to good order and discipline" and in violation of the Army regulation.  Therefore, there is no evidence that a board of officers or the Army acted improperly and illegally applied the Army tattoo policy.

5.  The evidence of record shows that during his appearance before the first board of officers, the applicant stated he was not willing to remove or alter the "spider web" tattoo, even if it meant not receiving a commission.  The evidence of record also shows that during his appearance before the second board of officers, the applicant indicated he was willing to alter his appearance, at Army expense, as provided for in the administrative guidance relating to the Army tattoo policy.  The evidence of record further shows that the second board of officers recommended the applicant be given the opportunity to have enough tattoos removed at Army expense to be in compliance with the Army tattoo policy.  However, there is no evidence of record, and the applicant and Counsel fail to provide evidence, that shows the applicant sought medical treatment for the removal of his tattoos at Army expense in order to be compliant with the Army tattoo policy and eligible for appointment as a commissioned officer in the U.S. Army.

6.  In the absence of evidence to the contrary, the evidence of record indicates that the applicant failed to take necessary action to be in compliance with Army regulatory policy.  As a result, the applicant failed to meet the requirement for appointment as a commissioned officer in the U.S. Army.  Therefore, in view of all of the foregoing, the applicant is not entitled to correction of his records to show he was appointed a commissioned officer in the U.S. Army in the grade of rank of second lieutenant nor is he entitled to be appointed and/or promoted to the grade of rank of first lieutenant or captain.

7.  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.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___WFC _  ___EEM    ___RMN_  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

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.




         _William F. Crain____
          CHAIRPERSON




INDEX

CASE ID
AR20060011116
SUFFIX

RECON
20070MDD
DATE BOARDED
2007/03/08
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
20050826
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
102.0400.0000
2.
102.0200.0000
3.

4.

5.

6.