PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           4 November 1998 
	DOCKET NUMBER:   AC98-07087

	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	
	Mr. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. James E. Vick		Chairperson	
	Mr. Luther L. Santiful		Member	
	Mr. Thomas N. Kuhn		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records
	Exhibit B - Military Personnel Records (including advisory opinion, 
	             if any)

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.  In effect, the applicant requests that he be reinstated into the Regular Army, with the restoration of all rights, privileges, and property; that [once reinstated] he be reclassified into a new MOS (military occupational specialty), preferably 71M (Chaplain’s Administrator); that the nonjudicial punishment action under Article 15, UCMJ, be removed from his official file; and that the NCO Evaluation Report for the period December 1994 to May 1995 be removed from his official file.  In a 1997 addendum to his application he requests that his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show he received the third award of the Army Achievement Medal; that the suspension of personnel actions (“flag”) that expired on 4 January 1996 be removed from his official file; and that the reentry code of “3” on his DD Form 214 be changed to “1”.     

3.  The applicant states that he was denied the right to reenlist when he was eligible by his company commander.  He states that his company commander obtained a confidential medical/mental health evaluation without his knowledge or permission in an attempt to bar him from reenlistment.  He was denied the right to request a change of MOS for a period of over four months.  He received a biased NCO evaluation report by personnel other than his supervisors.  He received nonjudicial punishment, and evidence was later discovered which made this action questionable.

4.  The applicant provides a chronological record of the actions which led to his separation from the Army, dating from October 1994 to January 1996 (two months after his discharge).  He includes various letters, documents, and forms.

5.  He states that in October 1994 he extended his enlistment in order to complete a one year tour in Korea.  He was assigned to a military intelligence unit and assigned various duties, including accountability of property.  In February 1995 he received a counseling statement for failure to be at his place of duty at the required time.  He was also counseled for not completing work by an appointed time.  He was injured in January in a fall from a truck; however, the doctor told him there was nothing wrong with him and to return to duty.  He asked for crutches, because he could not walk.

6.  From the end of January to 15 March 1995 he assisted the Chaplain in daily activities and received the Army Achievement Medal for his efforts.  In February he received two counseling statements, and on 3 March he received a counseling statement from a Captain, his platoon leader.  On 16 March he requested reenlistment.  A memorandum of evaluation was sent to his commander by the doctor who treated him for his injury, and he was not notified that his commander was requesting material pertaining to his mental health.  Also, on 16 March and again on 26 April he received a notice of loss of government property, and was requested to sign and pay for the loss.  He requested a report of survey, which showed a loss of $16.96 instead of the $315.50 they tried to charge him.  This loss was used in an attempt to bar him from reenlistment on two occasions.

7.  On 29 March his commander submitted a bar to reenlistment.  He submitted a statement in his behalf.  

8.  He states that he completed a turn in of a tool room inventory; however, it was lost, with the implication that he was responsible.  He was also informed that there were 4 sets of coveralls missing, again with the implication that he was responsible.  He states that he was placed on menial duties not befitting his rank in April.  In May he was informed that the bar to reenlistment had been disapproved; however, he was directed to continue to perform menial duties.
He submitted a request for reclassification because his MOS of 67H (Observation Aircraft Repairman) was being phased out; however, he was told that there was some action pending, and his platoon sergeant refused to process his request.  He tried to give his platoon sergeant his off-post telephone number, but that that NCO refused it, claiming (erroneously) that he didn’t have access to an outside line.  

9.  On 25 May his commander informed him that she was attempting to bar him from reenlistment a second time.  Again he submitted a statement in his behalf. 
On 13 June he received an adverse NCO evaluation report, which was not prepared by his rating officials.  On 16 June he was informed that the second bar to reenlistment had been disapproved.  He spoke with the Chaplain about administering the oath [of reenlistment] sometime about the 26th or 27th of June, and the reenlistment NCO said that was fine with him. 

10.  On 24 June, not realizing he had duty, he failed to report to staff duty at 0800 hours.  When notified, he left immediately and reported for duty.  He did check the board where the duty rosters were posted and there were none posted.  His platoon sergeant stated that no one knew where he was or how to contact him (He noted that his platoon sergeant refused his telephone number).  The applicant also stated that the two point of contact telephone numbers he left on his door had been erased.  He stated that the staff duty driver was late because he also did not know he had duty.

11.  He received nonjudicial punishment from his new commander, 14 days restriction and 14 days extra duty plus a suspended fine.  He took responsibility for failing to report on time.  It was later that he found evidence that he was set up.  He was informed by his first sergeant that after 14 days the “flag” would be lifted and he could reenlist, but found out that this was not true. 
12.  His commander would not talk with him about removing the suspension in order for him to reenlist.  His reenlistment deadline was 2 August, and after that date he requested information concerning his separation orders.  He received information that he was not entitled to 30 days permissive TDY, and encountered other problems in obtaining his reassignment/separation orders.
       
13.  He attempted to obtain a contract from his new reenlistment NCO in order to enlist in the Army Reserve or National Guard [after his separation from the Regular Army], but was refused.  He states that the “flag” was removed on 
2 October 1995; however, he was still rebuffed when he attempted to obtain a contract.  A meeting was held on 3 October to resolve his complaints, i.e., not finish outprocessing without clearing reenlistment, lack of cooperation.  However, both his battalion and company commander were not there as his advocate; and his only choice was to take leave or wait until his separation date to report to Fort Lewis, Washington.  He finally received valid orders, and left Korea on 
30 October 1995.  He received a final NCO evaluation report on 31 October.  On 1 November, during outprocessing, when he responded affirmatively when asked if he wanted to reenlist, a check indicated that even though there was a “flag” that had been lifted, it had been replaced.  He was extended until 2 November to try to sort things out; but was finally told that he should get out of the Army and then apply to this Board for relief.

14.  He states that he made continued efforts to reenlist when his reenlistment window opened on 8 March until it closed on 2 August.  He encloses character references vouching for his honest and integrity.

15.  He states only two of the Army Achievement Medals that he received are annotated on his DD Form 214, that the expired “flag” has not been removed from his official file, and that he was refused enlistment into the Army Reserve because of the reentry code of “3” on his DD Form 214.   He states that he was informed that he had to wait two years [from his 2 November 1995 separation date] in order to submit a waiver for enlistment in the Army Reserve.  He states, however, that he enlisted in the Idaho Army National Guard on 8 January 1997.
 
16.  The applicant’s military records show that he enlisted in the Army on 
6 December 1984 and remained on continuous active duty until his discharge.  He was trained as an aircraft mechanic, completed the basic NCO course, and attained the rank of Staff Sergeant E-6.  The applicant has received three awards of the Army Achievement Medal, and three awards of the Good Conduct Medal, among others.  He has been assigned to Fort Eustis, Virginia, Fort Huachuca, Arizona, and has had three tours of duty in Korea, among other assignments.
17.  On 5 May 1994 he extended his 5 year enlistment in the Army for 8 months in order to complete a tour of duty in Korea.  This extension resulted in a separation date (ETS) of 1 November 1995.  In October 1994 he was assigned to a military intelligence company in Korea.

18.  On 9 March 1995 the applicant received an Army Achievement Medal for his performance from 27 February to 2 March 1995 as a chapel assistant.

19.  On 16 March 1995 a physician at the 43d Surgical Hospital evaluated the applicant and stated that the applicant had no medical or psychiatric condition which was unfitting for service.  He did have a predominately passive-dependent personality type which would place him at disadvantage in future leadership positions and might impair his ability to improve his performance or display initiative.

20.  A 16 March 1995 document indicated that government property with a cost of $315.50 was lost and that the applicant was the responsible official.  The applicant did not accept responsibility for that loss.  A 21 April 1995 document shows a loss of $16.96.  The applicant accepted responsibility for that loss.

21.  On 16 March 1995 the applicant submitted a DA Form 3340-R (Request for Regular Army Reenlistment or Extension) requesting that he be reenlisted in the Regular Army.  On 20 March 1995 his commander disapproved the request based on his performance.  She stated that she had counseled the applicant in writing on the implications of the action, and had initiated a bar to reenlistment.

22.  On 29 March 1995 the applicant’s commander submitted a bar to reenlistment on the applicant citing his failure to perform assigned duties, failure to follow orders, negligence, loss of equipment, and his lack of potential to become the supervisor of the future (as indicated in the 16 March 1995 memorandum from the doctor at the 43d Surgical Hospital).

23.  On 6 April 1995 the applicant provided a statement requesting disapproval of the bar to reenlistment, citing his military record during his 10 years of service, and attaching copies of previous NCO evaluation reports to his statement.  He did state that during the period 22 February through 16 March 1995, his job performance admittedly was not up to par; however, his performance over time should be considered.  He takes exception to the mental status report provided by the aforementioned doctor, states that the Chaplain he worked for gave him a glowing recommendation, supporting his desire to reclassify in a 71M MOS.  He states that his retention on active duty as a Chaplain’s assistant would benefit the Army.  On 20 April 1995 the applicant’s battalion commander disapproved the bar to reenlistment.
24.  In documents in the applicant’s file (furnished by him with his application), dated 4 May 1995, the applicant comments on his not being notified of the disapproval of the bar to reenlistment until 1 May; he commented on the menial duties he was required to perform; on his request for reclassification that he submitted on 4 May and being told that there was some kind of action pending against him; and on the report of survey that may be required because of missing coveralls. 

25.  On 13 May 1995 in a letter to his battalion commander he requested reclassification to a 71M MOS, and transfer from the battalion, citing various problems within his unit, i.e., his authority as an NCO had been undermined, personality conflicts, he could not trust anyone in his chain of command, his company commander, among others, for failure to notify him of the disapproval of a bar to reenlistment, and of her intention to submit another bar.  He stated that his command sergeant major has been prejudiced against him, that the first sergeant has been given a negative opinion of him, and that his platoon leader has given him a statement of charges for lost equipment, and falsely accused him of stealing and hiding a copy of an inventory record.  He stated that his platoon sergeant has systematically undermined his authority.

26.  On 25 May 1995 the applicant acknowledged submission of another bar to reenlistment.  The applicant’s commanding officer cited the same reasons in this submission as in the previous bar to reenlistment, only adding as a reason, the applicant’s failure to follow orders, his failure to accomplish tasks in a timely manner, and his unreliability.  The applicant provided a statement again requesting disapproval of the bar, reiterating information from his previous statement, and saying that the only new information was a counseling statement from a warrant officer, and that he was sent to work for that warrant officer so that he (the warrant officer) could write a negative counseling statement so his commander could renew the bar to reenlistment.

27.  His NCO evaluation report for the period December 1994 through May 1995 shows his platoon leader, a captain, as his rater, and his commanding officer as his senior rater, with the battalion commander as the reviewer.  That report indicates that he was successful in that portion of the report concerning values/NCO responsibilities, except for responsibility and accountability.  His rater stated that he failed to maintain accountability of equipment, that he received unsatisfactory ratings during a brigade OIP, and that he consistently chose the easy wrong over the hard right.  His rater considered his potential as marginal, and his senior rater stated that he should not be promoted, among other negative comments she made. 

28.  On 5 July 1995 the applicant received nonjudicial punishment under 
Article 15, UCMJ (by his new commanding officer) for failure to report for staff duty at the required time.  The applicant indicated in the record of proceedings that he did not demand trail by court-martial, that he requested an open hearing, and that a person to speak in his behalf was requested.  He also stated that matters in defense, mitigation, and/or extenuation were not presented.   He was required to perform extra duty for 14 days and placed on restriction for 14 days.  Additionally, he was required to forfeit $403.00, which was suspended to be automatically remitted if not vacated before 4 January 1996.  The applicant elected not to appeal this punishment.

29.  On 28 August 1995 a non-transferable “flag” was initiated against the applicant.

30.  An order dated 11 September 1995 reassigned the applicant to the Fort Lewis transition point with a reporting date of 4 October 1995 for transition processing. The order indicated that he was entitled to full separation pay.  The order was revoked on 5 October 1995. 

31.  A 28 September 1995 DA Form 31 (Request and Authority for Leave) shows an approved leave of absence from 4 October to 1 November 1995, to include one day travel time, two days at the Fort Lewis transition point, and 26 days of permissive TDY.

32.  On 2 October 1995 the “flag” against the applicant was removed because the case was closed favorably.

33.  On 5 October 1995 an order was again published assigning him to Fort Lewis with a reporting date of 5 October.  That order indicated that he was entitled to half separation pay.  Again, on 5 October another order was published assigning him to Fort Lewis, this time with a reporting date of 25 October. 

34.  On 9 October 1995 the applicant requested assistance from a member of congress (MC) concerning his problem in attempting to reenlist.  

35.  On 27 October 1995, a “flag” which was supposedly initiated on 
28 September 1995, was removed.  On 2 November 1995 a “flag” was again initiated, effective 27 October 1995.

36.  The applicant received an NCO evaluation report for the period June 1995 through October 1995.  His rater stated that he was successful in all portions of the report concerning values/NCO responsibilities, and that he was fully capable. His senior rater, his new platoon leader, stated that he was fully capable when supervised.  

37.  The applicant was discharged on 2 November 1995.  His DD Form 214 reflects two awards of the Army Achievement Medal and shows a reentry code of “3”.  He had 10 years, 10 months, and 27 days of service.

38.  On 20 November 1995 an official in the office of the chief of legislative liaison (OCLL) replied to a MC concerning the applicant’s attempt to reenlist, stating that on two occasions bars to reenlistment were initiated, but not approved.  The applicant was so informed, but apparently elected not to reenlist at that time.  He informed the MC of the fact of the applicant’s nonjudicial punishment, and the “flagging” action, which made him ineligible for enlistment until the term of his suspended punishment expired.

39.  On 13 December 1995 the applicant again requested assistance from a MC, referring to the aforementioned 20 November 1995 letter to that MC from OCLL. He provided much the same information to the MC that has been stated in this application to this Board.

40.  On 11 March 1996 an official in OCLL replied to the inquiry, providing basically the information iterated above concerning this case.  That official did state, again, that after the disapproval of the first bar to reenlistment, the applicant was eligible to reenlist, but elected not to do so.  He notified the MC of the applicant’s rights during the nonjudicial punishment proceedings, that is, his right to counsel and his right to demand court-martial, and stated that the applicant consulted with a trial defense counsel and elected to accept punishment.  The official also stated that the applicant advised his commander on 12 July 1995 that he did not want to reenlist.  He sated that the “flag” was removed for reassignment purpose.  It was not intended that he be allowed to reenlist, and when the transition point realized the applicant’s intention to reenlist, his former unit in Korea was contacted to obtain a corrected copy which caused the flag to remain in place, preventing the applicant from enlistment in the Reserves.  He said that the applicant did have difficulties in obtaining the correct documents to depart Korea and separate from the Army, but those difficulties were ultimately resolved.  The official stated that the applicant’s failure to reenlist was initially due to his own indecisiveness, and final due to his own misconduct.
  
41.  On 6 July 1996 the battalion chaplain for whom he worked in Korea provided a letter of support, stating that he first met the applicant on 20 January 1995 in the emergency room at Camp Humphreys [ in Korea) suffering from depression and stress.  His next encounter was after his fall from a truck and he was obviously injured.  He (the Chaplain) worked an arrangement with the applicant’s commanding officer that the applicant would work with the Chaplain until he healed.  Because of his work, the applicant received the Army Achievement Medal.  The Chaplain discussed the applicant’s efforts to change his MOS, and his efforts to reenlist, saying that, to the best of his knowledge, the applicant was never told that his bar to reenlistment was disapproved and that he was eligible to reenlist.  The Chaplain referred to a meeting in which he attended concerning the applicant’s reenlistment status; and was informed that because his reenlistment window had closed, he could no longer reenlist.  He was told, however, that he could have reenlisted in June.  The Chaplain stated that the leadership had failed the applicant.  The Chaplain continued by commenting on the matter concerning the statement of charges and the liability for the coveralls, stating again that the leadership failed him.  He stated that the medical evaluation conducted on the applicant revealed no medical or psychiatric condition which was unfitting for service.  The Chaplain commented on the problem that the applicant had in reporting late for staff duty, and stated that neither the applicant nor the duty driver had been aware on Friday night that they had weekend duty.  Neither his platoon sergeant or first sergeant ensured that the applicant knew he had weekend duty, another leadership failure.  The Chaplain stated that the applicant’s battalion did not provide him the opportunity to be an effective NCO and tried to discredit him, tried to bar him from reenlistment, and prevented him from reenlisting when he was eligible, and also prevented him from changing his MOS.  He was singled out for the Article 15 punishment and as a result could no longer reenlist.  The Chaplain recommended that the applicant be placed back on active duty.      

42.  On 26 August 1996 the applicant’s wife wrote this Board in an attempt to confirm certain incidents that she witnessed.  She cited the lack of professionalism in the officers and senior NCOs in the applicant’s unit and the personality conflicts between her husband and two of the unit NCOs.  She went into the circumstances concerning the applicant’s lateness for staff duty, for which he received nonjudicial punishment.  She stated that she witnessed that there was no duty roster posted on the barracks bulletin board and that the phone numbers on his door had been erased.  She also stated that she was a witness at the staff duty desk when the logbook was opened and there was an empty place where the duty roster should have been posted.  She stated that the statement an NCO made that “No one knew where he lived” was false.  She stated that she was suspicious from the beginning that the circumstances surrounding the staff duty incident were highly questionable.  She stated that she and her husband “turned his barracks room upside down” in an attempt to find a missing tool room inventory (that he was accused of stealing).  She stated that she did not trust the two NCOs [with whom he had a .personality conflict], as they had the key to the applicant’s barracks room.
43.  The applicant enlisted in the Idaho Army National Guard for three years on 
8 January 1997.

44.  The applicant’s official file contains no record of the adverse NCO evaluation report, nor the record of proceedings under Article 15, UCMJ; nor the suspension of personnel actions (“flag”) submitted on him.  These documents were furnished by him with his application to this Board.  By the same token, his official file does not contain the counseling statements which he mentions in his application, nor has he furnished this Board those statements with his application. 

45.  Army Regulation 601-280 outlines procedures for immediate reenlistment or extension of term of service.  Paragraph 5-10 states in pertinent part, that a soldier currently serving in the Regular Army who wants to reenlist in the Regular Army or to extend a current RA enlistment will submit a DA Form 3340-R (Request for Regular Army Reenlistment or Extension) to his immediate commander.  The unit commander will make a proper determination concerning the soldier’s desirability for continued RA service.  Disapproval is possible only through a bar to reenlistment.

46.  Chapter 6 pertains to bar to reenlistments and prescribes procedures to deny reenlistment to soldiers whose immediate separation under administrative procedures is not warranted.  A soldier may be barred from reenlistment for a variety of reasons, to include losses of clothing and equipment, inability to follow orders, and lack of demonstrated potential for future service.   The fact that a soldier has been performing in a substandard manner and may have been permitted to remain on active duty for a number of years should not stop a current commander from taking action if the commander feels that such action is justified.  A bar to reenlistment procedure should not be based on generalities, approximate dates, vague places or times.  It should be based on specific incidents substantiated by official remarks made at the time of each occurrence.  The soldier should be counseled on each occurrence.  A bar to reenlistment is initiated without regard to a soldier’s ETS or his reenlistment intent.  

47.  The commander will refer the bar to the soldier for a statement in his own behalf.  Upon receipt of the soldier’s comment, the certificate will be indorsed personally be each commander in the chain of command.  Any commander in the chain of command who does not believe the bar action is warranted will disapprove the action and return it to the initiating commander.

48.  Army Regulation 27-10 provides policy for the administration of military justice.  Chapter 3 provides that nonjudicial punishment is appropriate in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  It is a tool available to commanders to correct, educate and reform offenders whom the commander determines cannot
benefit from less stringent measures; to preserve a member's record of service from unnecessary stigma by record of court-martial conviction; and to further
military efficiency by disposing of minor offenses in a manner requiring fewer resources than trial by court-martial.  The imposing commander is not bound by
the formal rules of evidence before courts-martial and may consider any matter, including unsworn statements the commander reasonably believed to be relevant to the case.  Furthermore, whether to impose punishment and the
nature of the punishment are the sole decisions of the imposing commander.

49.  Army Regulation 600-8-2, sets forth the regulations, policy and criteria for suspension of favorable personnel actions (FLAGS).  Paragraph 1-12 requires initiation of a FLAG when a service member is under charges, restraint or investigation.  This bar to favorable action remains in effect until the member is released without charges, charges are dropped or punishment is completed. 

50.  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 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 RA RE codes.  Code RE-3 applies to persons who are not fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  A soldier who is ineligible for immediate reenlistment because he is under suspension of favorable personnel actions (“flag”) is not qualified for reenlistment. 

51.  Army Regulation 623-205 provides the policies and procedures for the NCO evaluation system and states, in pertinent part, that the NCOER appeals system protects the Army's interest and ensures fairness to the NCO.  At the same time, it avoids impugning the integrity or judgment of the rating officials without sufficient cause.  An evaluation report accepted for inclusion in the official record of an NCO is presumed to be administratively correct, has been prepared by the proper rating officials, and represents the considered opinion and objective judgment of rating officials at the time of preparation.  Appeals alleging bias, prejudice, inaccurate or unjust ratings, incorrect APFT or height/weight data, or any matter other than administrative error are substantive in nature and will 

be adjudicated by the Enlisted Special Review Board.  The burden of proof rests with the appellant. Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and action is warranted to correct a material error, inaccuracy or injustice. 

CONCLUSIONS:

1.  The applicant received three awards of the Army Achievement Medal.  All those awards should be shown on his DD Form 214.

2.  The bars to reenlistment submitted by the applicant’s commanding officer on two occasions were, in the opinion of that official, appropriate.  She apparently felt that the applicant’s usefulness to the Army and his potential were limited.  The decision to submit a bar were hers, and the Board is in no position to question this type of action by a commander in the field.  The Board notes, however, that the medical statement submitted by the commanding officer of the 43d Surgical Hospital and cited by the applicant’s commanding officer in her 
29 March 1995 bar to reenlistment was certainly not apropos and should not have been included with this action.  Notwithstanding her actions to bar the applicant from reenlisting, the applicant’s battalion commander did not go along with either request to bar the applicant from reenlisting, thus allowing him the opportunity to reenlist.

3.  Nonetheless, the applicant did not reenlist when he had the opportunity to do so, during the period after his battalion commander disapproved the first bar to reenlistment, 20 April 1995 until 25 May 1995, the date that he acknowledged submission of the second bar to reenlistment.  The applicant’s contention that there was some action pending, which may have prevented him from reenlisting, is not borne out by the facts.  The applicant could have requested reenlistment immediately after the disapproval of the bar; the commander’s option would have been either to approve his request, or to disapprove it and again submit a bar to reenlistment.  He also had an opportunity to request reenlistment after the second bar to reenlistment was disapproved.  Although the widow of opportunity was small (from 16 June to approximately 24 June 1995, the date that he failed to report to staff duty), considering his contentions of past difficulties, it appears to this Board that he should not have delayed.  That he did so on this occasion, and after the disapproval of the first bar, was his choice. 

4.  As its name indicates, nonjudicial punishment is different from a trial by court-martial.  A nonjudicial punishment hearing is a more informal proceeding where the rules of evidence need not be strictly applied.  Before he elected to accept nonjudicial punishment the applicant was made aware of these differences and of his right to demand court-martial where he would receive the protection of the rules of evidence and could have argued technical matters such as the jurisdictional question.  Instead he chose to have the matter settled at nonjudicial punishment.  

5.  The NJP was imposed in compliance with applicable laws, regulations and policies.  The punishment imposed was neither unjust nor disproportionate to the offense, and there is no evidence of any substantive violation of any of his rights. The applicant has submitted neither probative evidence nor a convincing argument in support of his request that the nonjudicial punishment be set aside and that all his rights and privileges be restored.  Nor has the applicant provided any good reason why the record of nonjudicial punishment should be removed from his official file.  The Board notes that the applicant implies that there was a conspiracy which resulted in him receiving the nonjudicial punishment; however, the applicant has not shown this to be true.  The Board notes that during the nonjudicial punishment proceedings the applicant had the opportunity to offer matters in his defense, i.e., he did not know that he had staff duty, the duty roster was not posted, his telephone numbers were erased on his door, thus he could not be contacted, etc., but he chose not to do so.  He had the opportunity to appeal the punishment, but he chose not to do so, only bringing up the alleged injustice well after the fact.    

6.  The applicant has not provided any evidence to this Board to show that his NCO evaluation report for the period December 1994 through May 1995 was prepared by other than his rating officials, or that this report was unjust or unfair. Nevertheless, the applicant has an avenue of appeal other than this Board, and he should first explore that route prescribed in Army Regulation 623-205 in appealing this report.     

7.  The applicant was properly “flagged” when he received nonjudicial punishment in July of 1995.  This “flag” was apparently inadvertently removed on two occasions, but finally reinstated effective on 27 October 1995.  Because his punishment was not complete until 4 January 1996, the “flag” continued in effect right up to the applicant’s separation date; consequently, he was ineligible to reenlist.  The reenlistment code of “3” on his DD Form 214 is therefore correct.    

8.  The Board has taken note of the mistake made by the applicant’s commanding officer in including a medical report in the bar to reenlistment action; and also the applicant’s difficulties concerning his reassignment to Fort Lewis for separation processing.  The Board also has taken into careful  consideration the letter of support provided by the Chaplain for whom the applicant once worked, and the contentions of his wife.  The character references provided by the applicant with his request have not gone unnoticed.   Nonetheless, except for the definite evidence showing that the applicant received three awards of the Army Achievement Medal, there is no probative evidence to support his request.  The applicant’s allegations are unsupported by the evidence of record.  

9.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the individual concerned received three awards of the Army Achievement Medal.

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

BOARD VOTE:  

__JEV__  __LLS___  __TNK___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON