IN THE CASE OF:	  

	BOARD DATE:	  20 May 2008

	DOCKET NUMBER:  AR20080003328 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1. Application for correction of military records (with supporting documents provided, if any).

2. Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests lifting of a suspension of favorable personnel actions (FLAG) imposed against him as a result of criminal charges, and restoration of all rights and privileges, to include grade advancement, pay increases, and death benefits for the death of his dependent child.

2.  The applicant states that a flag was placed against him for "pending civilian charges" from October 1984 to January 1987.  He also adds that, on 18 December 1991, civil charges against him were dropped and he was found innocent.  However, the flag that was imposed against him barred him from receiving any favorable actions, including reenlistments, pay raises, advancement in rank, and the hope of a military career.  

3.  The applicant provides a self-authored statement, dated 6 February 2008, in support of his application.

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's records show that he enlisted in the Regular Army for a period of 3 years on 19 January 1984.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 64C (Motor Transport Operator).  He was assigned to the 104th Transportation Company, Fort Devens, Massachusetts.  Furthermore, he was promoted to private (PV2)/E-2 on 1 July 1984 and to private first class (PFC)/E-3 on 1 October 1984.

3.  The applicant's records further show that he was awarded the Army Service Ribbon and the Marksman Marksmanship Qualification Badge with Rifle Bar    (M-16).  His records do not show any significant acts of valor during his military service.

4.  The applicant's records also show that he was confined in the hands of civilian authorities from 5 December 1984 to 14 December 1984.  The facts and circumstances surrounding this confinement are not available for review with this case.

5.  On 5 February 1986, the applicant received a failing score on his annual Skill Qualification Test (SQT), 53 percent.  

6.  On 9 April 1986, the applicant was tendered a General Officer Letter of Reprimand for his flagrant disregard to the law and the safety of his fellow Soldiers and the general public by operating a motor vehicle while drunk, on 29 March 1986.  The applicant acknowledged receipt of the General Officer Letter of Reprimand and elected not to submit a statement on his own behalf.  

7.  On 4 August 1986, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of the Military Justice (UCMJ) for operating a motor vehicle while drunk, on or about 29 March 1986, and for consuming an alcoholic beverage and being a person under twenty-one years of age, on or about 29 March 1968.  His punishment consisted of forfeiture of $150.00 pay per month for two months (one month forfeiture of $150.00 suspended for 4 months), 14 days of extra duty, and 14 days of restriction.

8.  On 8 October 1986, the applicant's immediate commander initiated a Bar to Reenlistment Certificate against the applicant.  The applicant was furnished a copy and acknowledged receipt of the Bar to Reenlistment Certificate on the same day.  

9.  On 14 October 1986, the applicant's battalion commander approved the Bar to Reenlistment Certificate.

10.  On 14 January 1987, Headquarters Fort Devens, Fort Devens, Massachusetts, published Orders 8-44, reassigning the applicant to the U.S. Army Separation Transition Center for separation processing, effective 16 January 1987.  Accordingly, the applicant was relieved from active duty on 27 January 1987.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was relieved from active duty in accordance with chapter 4 of Army Regulation 635-200 (Personnel Separations) for expiration of his term of service.  This form further shows that he completed 3 years of creditable military service and that he was assigned Reentry Codes of RE-3 and RE-3B. 

11.  The applicant's records do not contain a copy of the DA Form 268 (Report of Suspension of Favorable Actions), initiated against the applicant for being under charges or restraint by civilian authorities.  Furthermore, the applicant's records do not contain a copy of the DA Form 268 for removal of suspension of favorable personnel actions.

12.  In his statement dated 6 February 2008, the applicant states that he was flagged from 4 October 1984 until his separation from the Army in January 1987, as a result of being accused of causing the death of his 3-month old son, through means of shaking him.  Once the charges against him were resolved, the flag was lifted to give him an honorable discharge.  He was subsequently convicted in 1989 of the murder of his son and was sentenced to 10-15 years of confinement. However, on 18 December 1991, the convicting judge overturned the verdict due to the overwhelming evidence of his innocence and the charges were dismissed. He also states that he tried to correct his record, but the Army refused to allow his advancement in grade, pay increases, and the death benefits due to the death of a registered dependent during active duty.  He also states that in April 1995, he suffered a severe head injury that led to a complete memory loss and damage to his brain.  He concludes that his record should be corrected to show allotments for insurance policies covering his dependent's health and life to accompany his Army medical benefits, as well as full compensation for barring his grade advancement in pay grade, and payment of benefits and bar to reenlistment.

13.  Army Regulation 600-31 (Suspension of Favorable Personnel Actions For Military Personnel), in effect at the time, prescribed policies and procedures to prevent favorable personnel actions from being initiated or completed when such actions would not serve the best interests of the US Army.  It stated, in pertinent part, that favorable personnel actions will be suspended for members against whom an investigation is initiated.  Investigation is initiated by military or civilian authorities concerning creditable allegations or incidents that reflect unfavorably on the character or integrity of the member.  It is initiated when these authorities make a conscious decision, based on available information, to investigate the involvement of the Army member.  Suspension will be initiated on all members when the investigation is formal or E4 through E9 and all commissioned and warrant officers when the investigation is informal and may result in administrative, punitive, or disciplinary action.  Furthermore, favorable personnel actions will be suspended for all members under charges or restraint by civilian authorities.

14.  Army Regulation 601-280 (Army Retention Program) prescribes the criteria for the Army Retention Program.  Section VIII of the regulation in effect at the time covered the bar to reenlistment procedures.  It stated, in pertinent part that Soldiers, against whom a bar to reenlistment proceeding is initiated, often have records which disclose the recurrence of one or a combination of the following:
Late to formations, details, or assigned duties; absent without leave (AWOL) for 1- to 24-hour periods; losses of clothing and equipment; substandard personal appearance or hygiene; continuous indebtedness; reluctance to repay or late payments; recurrent Article 15 punishments; frequent traffic violations; rides sick call without medical justification; late returning from pass or leave; cannot follow orders; shirks; takes too much time; apathetic; disinterested; cannot adapt to military life; uncooperative; involved in frequent difficulties with fellow Soldiers; fail to manage' personal, marital, and/or family affairs, including failure to respond to duty requirements because of parenthood or custody of dependents (minor or adult); causes trouble in the civilian community; involved in immortal acts; failure to achieve individual weapons qualification; failure to pass the Skill Qualification Test (SQT); failure to pass the Army’s Physical Fitness Test for record; loss of qualification in MOS; noncompetitive for promotion; slow rank progression resulting from a pattern of marginal conduct or performance; and/or no demonstrated potential for future service (repeated counseling statements or other indicators).

15.  Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policies pertaining to enlisted personnel management, classifications, reclassifications, testing, evaluations, and promotions and reductions.  Chapter 7 prescribed the enlisted promotions and reductions function of the military personnel system.  It stated, in pertinent part, that promotion to Specialist four (SP4)/E-4, without a waiver, required 24 months time in service and 6 months time in grade.  It also stated that a Soldier was considered in a non-promotable status if that Soldier was flagged or ineligible for reenlistment due to a bar to reenlistment. 

16.  Family SGLI (FSGLI), a Department of Defense (DOD) program, started on 1 November 2001, provides life insurance coverage for the spouses and dependent children of all servicemembers (Active Duty and Ready Reserve) who have full-time SGLI coverage.  A “dependent child” includes a natural born child, legally adopted child, a stepchild who is a member of the servicemember’s household, a child between the ages of 18 and 23 who is a full-time student, and/or a child who is permanently incapable of self-support before age 18.

17.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of Armed Forces RE codes, including Regular Army RE codes:

	a.  RE–1 applies to persons completing their term of service who are considered qualified to reenter the Army.

	b.  RE-3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.

	c.  RE-3B applies to persons who have time lost during their last period of service.  They are considered ineligible for enlistment unless waiver is granted. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of the DA Form 268 that initiated and/or removed the suspension of favorable personnel actions.  Nevertheless, it appears that the applicant was flagged because he was in civil confinement and pending a civil investigation.  Even if the applicant's charges were dropped after his discharge from the Army, he was in a non-promotable status and ineligible for promotion to the next higher grade(s).  

2.  The evidence of record also shows that the applicant had one instance of nonjudicial punishment of a serious nature, a General Officer Letter of Reprimand, and an instance of SQT failure.  His immediate commander evaluated his potential under the "whole person concept" and determined that he was not considered suitable for future military service.  Accordingly, he imposed a bar to reenlistment against him.  The approval authority concurred with the immediate commander and approved the applicant's bar to reenlistment.

3.  The evidence of record further shows that the applicant was not involuntarily discharged.  He was honorably relieved from active duty on the date his enlistment contract expired.  Furthermore, the reentry codes he received upon his discharge did not prevent him from reentering the Army.  There is no evidence and the applicant did not provide substantiating evidence that he was denied reentry into the Army or pursuing an Army career.

4.  The evidence of record shows that at the time of the applicant's military service, the Army did not have the Family SGLI program.  There is no provision to allow retroactive payments of FSGLI benefits to Soldiers who served in the Army prior to enacting this program.  

5.  Prior to automation and online capabilities, a Soldier's servicing military pay office facilitated the payment of premiums pertaining to commercial insurance policies purchased by Soldiers through the allotment process.  At the time, Soldiers completed an allotment form and submitted it through the proper channels and the military pay office deducted the amount of allotment from the Soldier's end of month pay.  However, there is no evidence in the available records and the applicant did not provide substantiating evidence that shows he was denied an allotment to a financial institution or an insurance provider. 

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 did not submit evidence that would satisfy that requirement.  Therefore, he is not entitled to relief.









BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.



							XXX
       _   _______   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080003328



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080003328



7


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1