IN THE CASE OF:	  

		BOARD DATE:	  30 November 2010

		DOCKET NUMBER:  AR20100013885 


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:

* His company commander's narrative removed
* His reentry (RE) code removed
* Award of the Army Good Conduct Medal (AGCM)
* His advanced individual training certificate
* Pay and allowances from the date of his discharge to the expiration of his term of service

2.  The applicant states he was raped repeatedly over a period of time by noncommissioned officers and higher-graded enlisted Soldiers.  He believes he is entitled to the AGCM because he was denied it because of a local bar to reenlistment and he is entitled to the other corrections requested because his service was truncated in a coverup to silence him.

3.  The applicant provides his basic combat training certificate; his DD Form 214 (Certificate of Release or Discharge from Active Duty); a DA Form 4126-R (Bar to Reenlistment Certificate) and his response to the bar; a vocational interest score sheet; a letter from the applicant dated 17 November 1996 requesting the sexual assault hotline number; and three articles concerning a Junior Reserve Officers' Training Corps instructor's arrest for having sex with an underage boy.


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 military records show that he enlisted in the Regular Army on 13 June 1989.  In conjunction with his enlistment he was given a physical examination.  During that examination the applicant admitted to committing a suicide gesture a year earlier.  He was diagnosed with moderate anxiety reaction and determined medically qualified for enlistment.  

3.  He was awarded the military occupational specialty of interior electrician.

4.  On 27 March 1990, the applicant's commander initiated a bar to reenlistment against the applicant.  The stated reason for the bar was "Cannot adapt to military life:  uncooperative:  Involved in frequent difficulties with fellow soldiers.  Soldier displays no demonstrated potential for further service."  The applicant opted not to submit a statement in his own behalf and, when the bar was approved, opted not to appeal the bar.

5.  In an undated memorandum, the applicant's commander notified him that he determined that he was disqualified for award of the AGCM.  He based the disapproval on the applicant's bar to reenlistment.  The applicant opted not to make a statement in his behalf.

6.  On 28 March 1990, the applicant requested separation due to his perception that he would not be able to overcome his bar to reenlistment.

7.  The applicant's request was approved by the appropriate authority.  Accordingly, on 24 April 1990 the applicant was honorably discharged due to his perceived inability to overcome his locally imposed bar to reenlistment.  He was assigned an RE-3 code and the Separation Program Designator (SPD) "KGF."

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 16-5b provides that Soldiers who perceive that they will be unable to overcome a bar to reenlistment will be allowed to request discharge from the service in spite of any existing service obligation which will not be fulfilled by an early release date.  Soldiers may request discharge anytime after receipt of the bar to reenlistment or notification that an appeal of the bar was disapproved.  

9.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), table 3-6, lists the various RE codes and describes the reason(s) a soldier is assigned a particular code.  The code of RE-1 is assigned to individuals who complete an initial term of active service and who were fully qualified to reenlist when last separated.  The code of RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  

10.  The SPD/RE Code Cross Reference Table directs that SPD "KGF" be assigned the RE code RE-3.  

11.  Army Regulation 600-8-22 (Military Awards) states the AGCM is awarded to individuals who distinguish themselves by their conduct, efficiency, and fidelity during a qualifying period of active duty enlisted service.  After 27 June 1950, to the present time, the current standard for award of the AGCM is 3 years of qualifying service, but as little as one year is required for the first award in those cases when the period of service ends with the termination of Federal military service.  Although there is no automatic entitlement to the Army Good Conduct Medal, disqualification must be justified.  

DISCUSSION AND CONCLUSIONS:

1.  While the applicant states he was raped while on active duty, and his service was truncated to cover up him being raped, there is no evidence to support his contention.

2.  The applicant was given the opportunity to rebut and appeal his bar to reenlistment and rebut the denial of his AGCM.  He did not raise any issues at those times.

3.  The applicant was not involuntarily discharged.  He was discharged at his own request.

4.  The applicant has not submitted any evidence to show the JROTC instructor arrested was in his unit.  However, even if he had it would not form the basis to grant his request.  There would still be no evidence to show he raped the applicant.

5.  While the applicant wrote a letter requesting the telephone number of the sexual assault hot line, that letter was written 6 years after his discharge.

6.  As such, there is insufficient evidence to show that the applicant was improperly discharged.  Therefore, there is no basis to delete His company commander's narrative, remove his RE code, or given him pay and allowances from the date of his discharge to the expiration of his term of service.

7.  Since the applicant did not serve a year of active duty, he did not qualify for the AGCM.

8.  The applicant has not submitted any evidence to show that he was not given a certificate showing his completion of his advanced individual training.  No copy is available in his records.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X____  ___X____  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.



      _______ _   __X_____   ___
               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)                                         AR20100013885





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ABCMR Record of Proceedings (cont)                                         AR20100013885



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