MEMORANDUM OF CONSIDERATION

IN THE CASE OF:   

BOARD DATE:             17 February 1999                 
DOCKET NUMBER:    AC84-08206D
			    AR1999015973

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. Gerald E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. Charles H. Lounderman		Chairperson	
	Mr. Fred N. Eichorn		Member	
	Mr. John Saputo		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

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

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  Reconsideration of his previous application to correct his records by:

a.  promoting him to sergeant first class (E-7) as of 22 November 1983 with additional promotions as appropriate;

b.  placing him on the retired list as of 22 November 1989 with 23 years, 4 months and 8 days of service; 

c.  awarding him two Good Conduct Medals and the Meritorious Service Medal; and,

d.  by compensating him for the period between his discharge, 22 November 1983, and when he started receiving VA Benefits, 10 August 1988. 

APPLICANT STATES:  In effect, that he was falsely accused, slandered, found guilty of offences without being afforded the opportunity to defend himself, his service was misrepresented and he was illegally discharged.  The applicant avers that his rights under the Uniform Code of Military Justice (UCMJ) were violated.  He further avers that false statements were made to Congress and that the Board is guilty of compounding and covering up these facts with it’s prior decision and subsequent administrative closures of his case.  He contends that he was improperly removed from the E-7 promotion list solely due to a single DUI.  The applicant takes specific and repeated exception to the statement in a 17 June 1984 response to a Congressional inquiry which states “…A careful records check of his personnel file (201) revealed a 10 year history of substandard performance which included numerous incidents of failure to pay just debts, and three Article 15’s, culminating with the DUI incident on August 1983.”  He indicates that in addition to his over 17 years of active duty he has six years of reserve duty which entitles him to retirement.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 28 August 1985 (COPY ATTACHED).

The applicant’s request for reconsideration is virtually identical to his prior submission.  The applicant raises several questions and or makes allegations which were not specifically addressed in the prior Board decision, therefore, it is appropriate to refer these issues to the Board.

The applicant’s military record shows the following derogatory information:

	a.  a 21 October 1969 Article 15, UCMJ non-judicial punishment (NJP) for being drunk and disorderly;

	b.  a 24 February 1970 NJP for operation a motor vehicle without having his license in his possession and operation a vehicle without proper base registration;

	c.  three NJPs for failure to go to his appointed duty on 6 December 1973, 5 October 1974, and 28 October 1980;

	d.  a 21 September 1983 Letter of Reprimand for apprehension for driving under the influence of alcohol (DUI) on 13 August 1983;

	e.  a 23 August 1983 suspension of post driving privileges due to the DUI;

	f.  a statement that the applicant had been counseled on several occasions during 1983 in reference to failure to pay just debts in a timely manner;

	g.  a statement that the applicant was having marital problems which were resulting in a negative impact on his duty performance.

The applicant’s Enlisted Efficiency Report (EER) do reflect high marks, and average of 124, with the only negative factors noted on them as having to do with the above noted events or related to the applicant’s limitations due to a physical profile.

Army Regulation 135-180 implements statutory provisions governing the granting of retired pay to soldiers and former Reserve Component soldiers.  Paragraph 2-1 of that regulation states, in pertinent part, that to be eligible for retired pay, an individual need not have a military status at the time of application, but must have attained age 60, completed a minimum of 20 years of qualifying service, and served the last 8 years of his qualifying service as a Reserve component soldier.

Army Regulation 600-8-19 sets forth the basic authority for enlisted promotions and reductions.  Paragraph 4-18 sets forth the rules for administrative and command initiated removals from the promotion lists for SFC, MSG, SGM.  It lists specific factors which will result in removal, to include but not limited to, soldiers who are reduced in grade, discharged to accept a commission, discharged without reenlistment within 24 hours, and those who are barred from reenlistment or denied reenlistment.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  As previously noted, under AR 601-280, upon receipt of the 1980 NJP the applicant was required to obtain a waiver in order to extend or reenlist.  It is noted that, had the applicant’s records been properly reviewed following the 1973 NJP, he should have been required to obtain a waiver to reenlist in 1975 and or 1977.

2.  The applicant having high ratings on his EERs and a finding of substandard performance are not mutually exclusive.  Each derogatory entry in the applicant’s record is a finding of substandard performance and in fact the applicant has an identifiable history of substandard performance dating back not 10 but rather 14 years to his first NJP in 1969.  Substandard performance does not relate solely to duty performance as recorded on an EER or efficiency ratings.

3.  The applicant was removed from the promotion list due to a bar to reenlistment.  This bar is mandatory under AR 600-8-19 and was automatically imposed when his NJP wavier request was denied.

4.  The applicant was properly removed from the E-7 promotion list.  With this removal he is not entitled to promotion to E-7 nor any higher rank.

5.  The applicant was afforded all administrative due process in the filing for and appeal of the denial of the reenlistment waiver.  The record clearly shows that the DUI was not the sole reason for the denial but only the culminating event.

6.  As the applicant did not complete 20 years of active duty nor did he complete the required 8 years for a reserve retirement he is not entitled to placement on the retired list.

7.  The applicant did not serve the requisite time for consideration of the additional Good Conduct Medals nor has he supplied any indication that he was ever recommended for these awards or the Meritorious Service Medal.

8.  Without a favorable finding of entitlement to either restoration to active duty or retirement for the period of 22 November 1983 to 10 August 1988, there is no entitlement to compensation for this period.

9.  The replies to Congress may not have been worded as succinctly or as completely as the applicant might have liked, however, they correctly reflect the rationale for the denial of the applicant’s request for a reenlistment wavier.

10.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

11.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__CHL_ _  ___FNE_   __JS____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC84-08206D
AR1999015973	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	 1999021711	
TYPE OF DISCHARGE	 	
DATE OF DISCHARGE	 	
DISCHARGE AUTHORITY	  . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	107.0017/63	
2.	107.0056/102	
3.	128.14/297	
4.	129.00/307	
5.	131.02/312	
6.	136.00/338