RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 January 2008
	DOCKET NUMBER:  AR20070009899 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Mr. Curtis Greenway

Chairperson

Mr. Joe R. Schroeder

Member

Ms. Qawiy A. Sabree

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 that his records be corrected to show the rank of Sergeant Major (SGM)/E-9 or Chief Warrant Officer Four (CW4)/W-4 and that he be returned to active duty.

2.  The applicant states, in effect, that he was discharged from active duty for personal reasons and that he and his platoon sergeant did not get along.  When he applied for Warrant Officer School his platoon sergeant placed him on 30 day notice.  His company commander promised him if he continued to perform that he would negate the 30 day notice.  The applicant continues that time ran out and he had to leave the Army.  During the 30 day notice he received the Army Achievement Medal and it should allow for good standing. 

3.  The applicant provides a DA Form 638 (Recommendation for Award), dated 
2 December 1994; an Army Achievement Medal Certificate, 8 December 1994; a U.S. Army Human Resources Command, St. Louis (USAHRC-STL) Chronological Statement of Retirement Points, dated 28 December 2006; and a Standard Form 180 (Request Pertaining to Military Records), dated 27 January 2007.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant had prior service.  He enlisted in the Regular Army on 31 May 1988 and was honorably discharged on 2 January 1992 for the purpose of immediate reenlistment on 3 January 1992 for 4 year term of service.

3.  A DA Form 4126-R (Bar to Reenlistment Certificate), dated 8 July 1994, shows the applicant was barred from reenlistment for a dishonored check, numerous disciplinary counselings (i.e., need for improvement, failure to inform Soldiers, and disrespect to a commissioned officer), sleeping on guard duty, relief for cause action, and conduct unbecoming of a non-commissioned officer. The applicant stated in his own behalf that he agreed with some of the statements against him.  He further stated, "However these statements to the most part are results of a personality conflict between SFC R___ J___ and I.  Again I am re affirming my commitment to excellent and loyal service to my country and our allies.  I refuse to not be successful in any endeavor that I seek."

4.  Headquarters, 2nd Battalion, 502nd Infantry Regiment, 101st Airborne Division Permanent Orders Number 18-02, dated 8 December 1994, show that the applicant was awarded the Army Achievement Medal for the period 1 September 1994 through 5 December 1994. 

5.  The applicant was honorably discharged on 25 April 1995, under the provisions of Army Regulation 635-200, paragraph 16-5b, by reason of non-retention on active duty and a total of 9 years, 10 months, 23 days of active duty service.  He had completed 6 years, 10 months, and 25 days of creditable active service this period.

6.  A DA Form 4187 (Personnel Action) is not available to show that the applicant requested immediate separation from the military due to his inability to overcome his bar to reenlistment.

7.  Army Regulation 635-200 sets policy and procedures for the separation of enlisted personnel.  Paragraph 16-5b authorizes Soldiers with a locally-imposed bar to reenlistment who perceive that they will be unable to overcome the bar to reenlistment to request immediate separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show the rank of SGM or CW4 and that he be returned to active duty.  Evidence of record shows he was awarded the Army Achievement Medal prior to his separation from active duty.  However, it appears that the applicant had a history of disciplinary infractions that led to his bar to reenlistment.

2.  In the absence of evidence to the contrary, it is presumed that the applicant's separation was accomplished in compliance with applicable regulation and without procedural errors that would jeopardize his rights.  

3.  Given the facts of the applicant’s numerous counselings and behavior during his last enlistment period, it does not appear that his contention that he was in good standing is entirely valid.  There is no evidence to show that he applied for Warrant Officer School or that he was placed on a "30 day notice."  Therefore, relief is not warranted.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__CG ___  __JRS __  __QAS__  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.





     ___ Curtis Greenway _
          CHAIRPERSON




INDEX

CASE ID
AR20070009899
SUFFIX

RECON

DATE BOARDED
15 JANUARY 2008
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MS. MITRANO
ISSUES         1.
112.0200.0000
2.

3.

4.

5.

6.