PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            24 March 1999   
	DOCKET NUMBER:   AC98-09205
				   AR1998012388

	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. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. James C. Hise		Chairperson	
	Ms. JoAnn H. Langston		Member	
	Mr. Calvin M. Fowler		Member	
	Mr. Luther L. Santiful		Member	
	Mr. Raymond V. O’Connor, Jr.,		Member	

	The applicant requests correction of military records as stated in the application to the Board and as restated herein. 

	The applicant did appear before the Board and was not represented by counsel.

	The Board considered the following evidence:

Exhibit A - Application for correction of military records
Exhibit B - Military Personnel Records (including advisory opinion, if any)
Exhibit C - Case Summary
Exhibit D - Live testimony and any evidence introduced during the hearing

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that he be reinstated on active duty.

3.  The applicant’s military records show that he enlisted in the Regular Army on 5 July 1979.  He completed basic training and advanced individual training and was awarded military occupational specialty 71L (Administrative Specialist).
He was selected for recruiter training and on 10 February 1989 was assigned to the Jackson, MS Recruiting Battalion.  On 1 January 1990, he was assigned to recruiting duty in Memphis, TN.  He reenlisted on 26 February 1991 for 6 years.

4.  Prior to the incident leading to his discharge, the applicant had a “clean” record -- no record of disciplinary actions; completion of the Primary Leadership Development Course, Basic Airborne and the Basic Non-Commissioned Officer Course; promotion to Staff Sergeant E-6 on 1 August 1991; two overseas tours; award of the Army Achievement Medal (2d Oak Leaf Cluster), the Army Commendation Medal and the Army Good Conduct Medal (4th Award).

5.  On 13 March 1992, the applicant was suspended from recruiting duties pending investigation of charges he used ringers to qualify applicants.

6.  On 12 June 1992, separation action on the applicant and apparently two others for recruiting improprieties by using ringers to qualify applicants was initiated. 

7.  The applicant acknowledged notification of this action.  He requested consideration of his case by an administrative separation board, personal appearance before such a board, and representation by counsel.

8.  On 21 October 1992, the Military District of Washington Inspector General (IG) (at the time he knew the applicant he was the 2d Brigade, 82d Airborne Division executive officer) provided a letter of recommendation for the applicant, wherein he stated the applicant was selected to serve on the brigade staff over many more senior non-commissioned officers because of his overall manner of performance and excellent reputation.  Based upon his knowledge of the applicant, he would not recommend he be discharged from the Army.  The Training Officer, U. S. Army Recruiting Company, Memphis provided a similar letter.

9.  The board convened on 17 November 1992.  One witness, the Jackson Recruiting Battalion Sergeant Major, stated “If that is the only mistake that he has made I think he should be retained because of all the soldiers that he worked with including the First Sergeant I rated him number one for potential.  I am aware of the charges and if they are found to be true I would still retain him because of his prior commitment and dedication to the service.”  The Station Commander, Columbus Recruiting Station, Jackson, MS stated “I think the total service of the soldier should be considered in making a decision on a soldier that has made a mistake.  If (the applicant) rung in people he should realize that was wrong.  I thing (the applicant) is a good soldier and should be retained in the military.  Yes, I would serve with (the applicant) in combat.”  About eight other witnesses provided similar comments.

10.  The applicant admitted he did use ringers, but he was blackmailed into it.  (One time the station commander, an E-7, told the applicant to sign a test form and he, the E-7, would test the applicant for him.  The E-7 used a ringer.  From then on, when the E-7 told the applicant to use a ringer and the applicant balked, the E-7 would threaten him with an Article 15 or other adverse action.)

11.  The board found the applicant committed misconduct and recommended he be separated with an under other than honorable conditions (UOTHC) discharge.

12.  On 20 January 1993, the appropriate authority approved the recommendation and directed the applicant receive a discharge UOTHC.

13.  Accordingly, he was discharged, with a discharge under other than honorable conditions, in pay grade E-1, on 10 February 1993 under the provisions of Army Regulation 635-200, Chapter 14 for misconduct.  He had completed 13 years, 7 months and 6 days of creditable active service with no lost time.  He is currently employed by the U. S. Postal Service.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

15.  Section 4403 of the National Defense Authorization Act (NDAA) for Fiscal Year 1993 (FY 93) provided the Secretary of Defense a temporary additional force management tool with which to effect the drawdown of military forces through 1999.  During the active force drawdown period (23 October 1992 and ending on 1 October 1999), the Secretary of the Army may authorize an enlisted member with at least 15 but less than 20 years of creditable service a length of service retirement

16.  The July 1996 message implementing the Fiscal Year 1997 Regular Army Enlisted Early Retirement Program did not list eligible MOSs; the U. S. Total Army Personnel Command (PERSCOM) determined which applications would be approved based upon force structure and the best interest of the Army.  As a condition for early retirement, soldiers must have been enrolled in the Public and Community Service (PACS) personnel registry.  (The intent of the early retirement provisions for PACS legislation was to authorize active duty personnel who were approved for early retirement to accrue additional military retirement credit if they took critical jobs.)

17.  In the applicant’s application to the Army Discharge Review Board (ADRB), he provided statements from his two attorneys that they had challenged all the members of the board for cause, in that they had all been on the prior board, had therefore already examined all of the evidence in the case, and had made up their minds that misconduct had occurred.  In addition, the applicant stated his battalion commander had recommended the UOTHC discharge, and he had been relieved of his duties later because an IG investigation found he was responsible for “racial tension” and “unequal discipline.”  He also cited a previous case that involved a white recruiter who was given a letter of reprimand for the same allegations.  Now he, a black recruiter, along with another black and a Puerto Rican recruiter, were being charged with a “serious offense” and discharged from the Army.

18.  On 16 August 1996, the ADRB approved the applicant’s request for correction of his military records.  The ADRB concluded that there were board proceeding irregularities.  That Board directed the applicant’s characterization of service be upgraded to honorable, the reason for discharge be changed to Secretarial Authority, separation code JFF; and the authority for discharge changed to Chapter 5.  When the ADRB upgraded his discharge to honorable, they should also have restored his rank to Staff Sergeant but did not do so due to administrative oversight.

19.  Conversation on 16 September 1998 with an attorney advisor to the Recruiting Command indicates that it is within the commander’s discretion to determine the type of punishment a recruiter should receive for improprieties, which could range from a letter of reprimand to a court-martial.

20.  A formal hearing was granted in the applicant’s case on 24 March 1999.  He attended without counsel.  He testified under oath and further requested that, if he could not be reinstated, that he be granted an early retirement.

CONCLUSIONS:

1.  The Board concludes that an injustice exists in this case.  The applicant was an above average soldier with no record of any disciplinary actions prior to this incident, with several awards and decorations to his credit.  He admitted to committing recruiter impropriety by using ringers to qualify applicants; however, he claims, and the investigating officer backed up his claim, that the E-7 station commander was the principal offender.  

2.  Chapter 14, Army Regulation 635-200 states that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  That is not the case here. Eight witnesses, to include the Recruiting Battalion Sergeant Major, stated the applicant should be retained on active duty even knowing the offense with which he was charged.

3.  The ADRB upgraded the applicant’s discharge to honorable based upon evidence that there were board proceeding irregularities.  Once it was upgraded to honorable, his rank of Staff Sergeant should have been restored.  

4.  The applicant charges racial discrimination was involved; however, he supplies no supporting documentation, too little information is given and the instances he cites are too old to obtain any verifying information from either the Department of Defense IG or the Recruiting Command.  However, he does supply names rather than vague charges.  The Board concludes that his facts are correct and, in the absence of the racial issue, he would not have been discharged for misconduct.

5.  The applicant’s enlistment would have expired on 25 February 1997.  The Board concludes that, but for his premature discharge, he would have remained on active duty to complete that enlistment.  Therefore it is appropriate to void his premature discharge, thus reviving his old enlistment contract, to show that he continued to serve under that enlistment and to grant him full active duty credit through his expiration term of service (ETS).  This would give the applicant creditable active service of 17 years, 7 months and 21 days. 

6.  It is not appropriate or proper to credit the applicant with active service beyond his scheduled ETS, or to now order him directly to active duty on the assumption that if qualified, he would have reenlisted at his ETS.  Reenlistment is a contract, the creation of which requires volitional acts by the applicant which did not occur and which should not be retroactively presumed.  In addition, it is probable the applicant would not be qualified to reenlist at this point in time, i. e., from a prior service status, because he would be only 2 years and 5 months away from his mandatory release date as an E-6 and the minimum reenlistment period is 3 years.

7.  However, it would be appropriate to grant the applicant an early retirement in accordance with the NDAA for FY 93, effective 31 January 1997.
8.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by:

    a.  voiding the applicant’s 20 January 1993 discharge as corrected by the ADRB on 16 August 1996;

    b.  paying him all active duty back pay and allowances due him, in pay grade E-6, from 20 January 1993 (the date the applicant was reduced to Private E-1) through 31 January 1997;

     c.  showing that he retired for length of service, under the Temporary Early Retirement Authority, on 31 January 1997, transferred to the Army Reserve Control Group (Retired), and placed on the retired list on 1 February 1997 in pay grade E-6; and

      d.  by paying him all retired pay and allowances effective 1 February 1997 that will become his due as a result of this correction.

2.  Prior to his placement on the retired list, the applicant will be provided counseling and make an appropriate election concerning the Survivor Benefit Plan.

3.  The applicant should contact the Defense Manpower Data Center, Operation Transition/DMDC, Post Office Box 130, Seaside, CA  93955-0130, telephone number 1-800-727-3677, to register in the PACS.

4.  That so much of the application as is in excess of the foregoing be denied.

					James C. Hise
				______________________
				         CHAIRPERSON

DISSENT:  Two members (Mr. Hise, and Mr. Fowler) dissent from the foregoing conclusions and recommendation.  They were of the opinion that the applicant may have been tricked into committing the first instance of recruiter misconduct but should have gone to higher authority by the second instance, that a Chapter 14 discharge for misconduct with a discharge under other than honorable conditions was appropriate, and that he had provided no evidence of racial 

discrimination other than his own testimony.  Therefore, they recommended only that his rank of Staff Sergeant be restored and that only because it was an administrative oversight on the part of the ADRB.

INDEX

CASE ID	AC98-09205/AR1998012388	
SUFFIX		
RECON		
DATE BOARDED	19990324	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	110.03	
2.	136.05	
3.		
4.		
5.		
6.