PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:                              
	DOCKET NUMBER:   AC 9809205
	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	
	M .		Analyst	

  The following members, a quorum, were present:

	Mr. 		Chairperson	
	Mr. 		Member	
	Mr. 		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.  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.  

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.  In the applicant’s application to the Army Discharge Review Board (ADRB), he provided statements from his two counsels 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 cites 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.

17.  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.  The ADRB should have restored his rank to Staff Sergeant and changed is reentry code to 1, but did not do so.

18.  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.

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 he 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 and his reentry code changed to 1.  

4.  The applicant charges racial discrimination was involved; however, he supplies no supporting documentation and 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.  It is reasonable to presume his facts are correct and, if so, in the absence of the racial issue and given the circumstances of his case, he would have received a letter of reprimand and been reclassified and reassigned vice being discharged for misconduct.

5.  The applicant’s enlistment would have expired on 25 February 1997 and since there is good reason to conclude that, but for his premature discharge, he would have remained on active duty to complete that enlistment, it appears appropriate and proper to void his premature discharge, thus reviving his old enlistment contract, to show that he continued to serve under that enlistment, 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.  (This change would not make it appropriate to consider the applicant for any grade higher than E-6.  It is reasonable to presume that had he remained on active duty, with a letter of reprimand in his records, he would not have been selected for promotion).

6.  It does not appear 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 give the applicant an early retirement, in accordance with the NDAA for FY 93, effective 31 January 1997.  (Note:  The reentry code for a retiree is 4.)

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 ADRB-corrected discharge which was issued to the applicant on 16 August 1996;

    b.  giving him all active duty back pay and allowances due him, in pay grade E-6, from 20 January 1993 through 31 January 1997;

     c.  showing that he was 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; 

      d.  by giving to 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.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

                       GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION

                                                                                                                               
					 	   CHAIRPERSON