IN THE CASE OF:	  

		BOARD DATE:	        29 JULY 2008

		DOCKET NUMBER:  AR20080008461 


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, in effect, that his separation authority, narrative reason for separation, separation code and Reentry (RE) Code be changed to reflect that he was discharged by reason of completion of required service and that he was fully eligible to enlist in the Armed Forces. 

2.  The applicant states that his separation was forced on him by superiors who were biased, prejudiced and racist.  He also states that he was told to either sign the papers or be kicked out with a dishonorable discharge.  He further states that his 3rd, 4th, 6th, 9th and 14th Constitutional rights have been violated and that he does not agree with the decision of the Army Discharge Review Board (ADRB) to deny his request for a change of his separation authority, separation code, RE Code and narrative reason for separation.  He goes on to state that the ADRB did not properly consider all of the evidence he submitted and the record of proceedings contains obvious errors because it reflects that he served in 1991, which is obviously false. 

3.  The applicant provides a list of exhibits he submits with his application and a hand-written letter explaining his application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 15 April 1975 and enlisted in Atlanta, Georgia in the Regular Army on 16 November 1993 for a period of 4 years and training as a chaplain’s assistant.    

2.  He completed his basic combat training at Fort Knox, Kentucky and was transferred to Fort Monmouth, New Jersey to undergo his advanced individual training (AIT) as a chaplain’s assistant.  He completed his AIT and was transferred to Korea on 26 April 1994, where he served as a chaplain’s assistant until 25 April 1995, when he departed Korea for assignment to Fort Bragg, North Carolina.    

3.  He was assigned to the 3rd Battalion, 27th Field Artillery Regiment for duty as a chaplain’s assistant on 29 May 1995.

4.  During the period of July 1995 through August 1996, the applicant was counseled no less than 18 times for a variety of reasons ranging from failure to be at his appointed place of duty at the prescribed time, for being disrespectful towards superiors, for failure to report to duty on time, for failure to report to barracks clean-up as ordered, for failure to perform maintenance on his assigned vehicle, for his attitude and appearance, for using a government vehicle without permission, unsatisfactory performance and conduct, for failure to properly prepare himself and his assigned vehicle for movement to the field, for leaving his guard post without permission and leaving a machine gun and radio unsecured, and for failure to exercise initiative in the performance of his duties.

5.  On 21 August 1996, the applicant’s commander initiated action to bar him from reenlistment.  He cited as the basis for his recommendation that the applicant’s failure to maintain good order and military discipline had resulted in a record of misconduct requiring repetitive correction or disciplinary actions.

6.  The applicant elected not to submit a statement in his own behalf and the battalion commander approved the bar to reenlistment on 29 August 1996.      

7.  On 3 September 1996, the applicant’s commander notified him that he intended to initiate action to separate him from the service under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance due to his repeated failure to respond to counseling, disciplinary action, corrective training and the failure to exhibit potential for advancement.

8.  On 18 October 1996, the applicant submitted a request for separation under the provisions of Army Regulation 635-200, paragraph 16-5b, due to his perceived inability to overcome the basis for his bar to reenlistment.  The appropriate authority approved his request and directed that he be furnished an Honorable Discharge Certificate.


9.  Accordingly, he was honorably released from active duty (REFRAD) on 3 December 1996 under the provisions of Army Regulation 635-200, paragraph 16-5b, due to non-retention on active duty.  He had served 3 years and 18 days of total active service and was issued a RE Code of “3.”  His report of separation (DD Form 214) issued at the time of his REFRAD indicates that he had not completed his first full term of service.

10.  The applicant was honorably discharged from the United States Army Reserve on 26 July 2001, upon completion of his statutory service obligation.  

11.  On 26 April 2006, the applicant applied to the ADRB for a change to his separation authority, separation code, RE Code and narrative reason for separation.

12.  In paragraph VI of the facts and circumstances of the ADRB proceedings, it indicates that the applicant was notified of the commander’s intent to bar him from reenlistment and that on 13 May 1991, the commander approved the bar.  This is obviously and administrative error because the applicant was not in the Army in 1991.  However, the facts and circumstances clearly indicate that the applicant requested discharge under the provisions of Army Regulation 635-200, Chapter 16, due to his perceived inability to overcome the basis for the bar to reenlistment and that it was approved by the appropriate authority.  After carefully examining the applicant’s record of service, the ADRB determined that his narrative reason for discharge was both proper and equitable and voted unanimously not to change it.

13.  The applicant is currently incarcerated by the Mississippi Department of Corrections.

14.  Army Regulation 635-200 sets forth the basis authority for the separation of enlisted personnel.  Chapter 16 covers the discharges caused by changes in service obligations.  Paragraph 16-5 applies to personnel denied reenlistment and provides that soldiers who receive bars to reenlistment, and who perceive that they will be unable to overcome the bar may apply for immediate discharge.  A discharge under honorable conditions is normally considered appropriate.

15.  Army Regulation 635-200, chapter 13, in effect at the time, established policy and provided guidance for eliminating enlisted personnel for unsatisfactory performance and who were unsuitable for further military service.  An individual could be separated for unsatisfactory performance if it was determined that the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.          

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The applicant’s bar to reenlistment was imposed in compliance with the applicable regulation with no indication of procedural errors which would tend to jeopardize his rights.

3.  The applicant was afforded the opportunity to submit matters in his own behalf when he was notified that a bar was being imposed and chose instead not to do so.

4.  Not only did the applicant not dispute the reasons for the bar, he elected to separate from the service rather than to attempt to overcome the circumstances of the bar.     
   
5.  The applicant’s contention that he was forced to separate from the service has been noted; however, he has failed to show through the evidence submitted and the evidence of record that such was the case.  While the evidence of record does show that the applicant’s commander had initiated action to separate him from the service for unsatisfactory performance, the applicant instead exercised his option to request discharge for his perceived inability to overcome the bar to reenlistment, which is also indicative that he had been properly advised of is rights at the time.

6.  Accordingly, he was properly discharged due to non-retention on active duty and was properly issued a RE Code of “3” in accordance with the applicable regulations.  Additionally, his DD Form 214 properly indicates that he did not complete his first full term of service.

7.  The applicant’s contention that his discharge was based on bias, prejudice and racism has been noted and found to lack merit.  The applicant has submitted no evidence to support his contention and the evidence of record indicates a pattern of misconduct that warranted the action taken by the chain of command at the time.  Accordingly, there appears to be no basis to grant the applicant’s request.   




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)                                         AR20060006391



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ABCMR Record of Proceedings (cont)                                         AR20080008461



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