MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:                              
	DOCKET NUMBER:   AR1999018294

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. 		Chairperson	
	Mr. 		Member	
	Mr. 		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:  In effect, that his bar to reenlistment be lifted, that his discharge be voided, that he be given back pay from the date of his discharge, that he be promoted from pay grade E-6 to pay grade E-8, and that he be retired for years of service in pay grade E-8.  He also requests that court-martial charges be preferred against his former commander and first sergeant.  He states that these requests are non-negotiable.

APPLICANT STATES:  That the statement he submitted rebutting his bar to reenlistment was not forwarded to the commander who approved the bar, that he was discharged without being offered a board of officers even though he had over 10 years of active service, and that he was discharged while his appeal to his bar was pending, all of which were in violation of regulations.  

The applicant chronicles the events leading to his bar to reenlistment and discharge, denying any wrongdoing in some of the events and charging that he was treated differently than other soldiers for the offenses/actions he did commit.  He contends that he was never counseled for his bad debts as required by regulation and that action was taken against him for his failure to do things for which he was not responsible or for which he was not aware.  He details how he filed two Equal Opportunity (EO) complaints against his commander and first sergeant, both of which were determined to be unsubstantiated; how he requested a court of military inquiry under Article 135, UCMJ, which was denied, and how he was convicted by a court-martial unjustly.

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted in the USAR with no prior service on 14 February 1976 and into the Regular Army in 1979 (his DD Form 4 enlisting him in the Regular Army is not part of his records).

He served continuously on active duty.  He accepted nonjudicial punishment under Article 15, UCMJ, on 20 October 1983 for dereliction of duty.

He was given reasonable evaluation reports until the report covering the period June 1988 to January 1989.  In that report it was said that he needed some improvement in leadership and that he needed to motivate his subordinates to work together as a team.

On 4 September 1990 the applicant was given an academic evaluation report showing that he failed the NCO basic course of the noncommissioned officers education system (NCOES).  In that report it was stated that he failed a test and a retest of a required examination; that he demonstrated an inability to lead by example; that he had not demonstrated the potential for higher level schooling due to his lack of initiative to prepare for course material; and that he reported to the course with inadequate common leader combat skills.  Subsequent to that report, the applicant was given good evaluations and passed the basic NCOES course on his second attempt.

The last two evaluation reports contained in the applicant’s records, for the period covering January 1995 to August 1996, were adverse.  Comments in the reports included “Selectively obeyed orders”, “Does not follow chain of command”, “Delegates responsibilities without following up to ensure compliance”, “Disobeyed a lawful order to ensure weapons range was organized”, “Fails to report to work on time and to keep command informed of his whereabouts”, “Behavior is prejudicial to good order and discipline”, “Abandoned car and failed to register vehicle non-operational”, “Makes excuses to justify wrongs”, etc.

On 13 April 1995 orders were published promoting the applicant to pay grade 
E-7.

On 17 April 1995 the applicant’s commander initiated action to bar him from reenlistment due to his failure to pay his just debts, his inability to train for his job, and his apathy and disinterest.  The applicant chose to submit matters in his behalf in which he acknowledged the debts, stated that his command had not counseled him on the debts as required by regulation, and stated that he anticipated being able to satisfy his debts due to his wife finding work.  The applicant continued that “I have been in the Military for 16 years and have never performed below standards.”  The bar was approved on 12 June 1995 and the applicant initialed the block stating that he would not appeal the bar.  Contrary to the applicant written election, he “appealed” the bar on 9 October 1996.  The applicant’s brigade commander strongly recommended disapproval of that request, stating that the applicant had “been trying to manipulate the system far too long.  In the past sixteen months, since imposition of the Bar to Reenlistment, he has attempted to blame others in order to justify his own shortcomings.”  On 21 November 1996 the applicant’s appeal was denied by the Total Army Personnel Command.

On 28 September 1995 the applicant submitted an EO complaint stating that he had been accused, punished, humiliated, lied to, treated cruelly, maltreated, retaliated against and deprived of career progression.

On 15 December 1995 the applicant submitted a Complaint of Wrong under Article 138, UCMJ, requesting relief from harassment and discrimination, from being wrongfully barred from reenlistment, from being denied attendance at a service school, from being taken off the promotion list, and from being retaliated against for filing an EO Complaint.  That request was returned by the Corps Commander without action since it was not filed in the time prescribed to do so, since many aspects of his complaint had not yet been addressed under appropriate administrative channels, and since there were already ongoing investigations into several of his allegations, making a new investigation redundant.

On 25 April 1996 the applicant’s commander executed a Record of Proceedings Under Article 15, UCMJ, against the applicant for his failure to go to a physical training formation.

On 1 May 1996 the applicant submitted an EO complaint against his commander, his Command Sergeant Major, and his first sergeant.  In that complaint, he specifically requested to be released from the control of those three individuals and assigned to the post gymnasium to work until his next permanent change of station.  The investigation conducted as a result of that complaint revealed that the actions taken against the applicant were due to his poor performance and conduct unbecoming an NCO and not as a result of bias or discrimination.  The Corps Commander approved those results.

On 11 May 1996 the applicant submitted a request for a Court of Military Inquiry under Article 135, UCMJ.  That request was disapproved because the applicant’s situation did not meet the criteria of regulation to convene such a court.

On 28 May 1996 the applicant’s commander preferred charges against him for three specifications of failing to go at the time prescribed to his appointed place of duty, for one specification of disobeying a lawful command, for one specification of violating a general regulation, and for two specifications of signing an official statement with intent to deceive (college credits completed).  On 11 July 1996 the applicant requested a judge advocate major general represent him at his court-martial.  That request was denied.  The court-martial convicted the applicant of one specification, found him not guilty of four specifications, and had dismissed two specifications that had been preferred against him.  The court sentenced him to a reprimand.

Also submitted by the applicant were letters he had sent to his Corps Commander, to the House of Representatives National Security Committee, to the Honorable Janet Reno, Attorney General of the United States, to the Secretary of Defense (two letters) and to President Clinton.

Army Regulation 601-280 prescribes the eligibility criteria and options available in the Army Reenlistment Program.  Chapter 6 of that regulation provides for barring from reenlistment individuals whose continued active duty is not in the best interest of the military service.  This chapter specifies that bars will be used when immediate administrative discharge from active service is not warranted.  Examples of rational for reenlistment disqualification include, but are not limited to, AWOL, indebtedness, recurrent nonjudicial punishment, slow promotion progression, no demonstrated potential for future service, and substandard performance of duties.  Paragraph 6-5e of this regulation states that a soldier will not be separated while an appeal to his or her bar is being considered.  This regulation does not provide for having a board of officers consider a soldier who is being barred from reenlistment.

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

1.  Contrary to the applicant’s contention, a soldier who is barred from reenlisting is not entitled to have a board of officers consider his or her case.  A board of officers is convened when a soldier is being involuntarily separated prior to his or her expiration of term of service (ETS).  This did not occur in the applicant’s case.  He was allowed to complete his enlistment.

2.  As for his contention about being inappropriately separated while his appeal to his bar to reenlistment was being processed, he had waived his formal appellate rights on the bar to reenlistment certificate.  The supplemental review of his bar was not an official appellate action.  As such, he was not exempt from being separated.

3.  As for him not being counseled on his bad debts, the applicant had the years of service and was of the grade to know that failure to pay a just debt is unacceptable conduct for an NCO.  While there is no way to determine whether he was counseled on his debts or not, the applicant must have been aware of the consequences of his failure to pay his just debts.

4.  The applicant’s court-martial conviction and his record of unacceptable performance and conduct appear to be just reasons for barring him from reenlistment.

5.  As for the applicant’s contention that his bar to reenlistment rebuttal was not forwarded with his bar, there is no way to determine the validity of that contention.  However, if he had appealed the bar by marking the applicable block on his bar to reenlistment certificate, he could have submitted that rebuttal at that time.  As such, the Board does not find that argument grounds to grant the relief sought by the applicant.

6.  The Board notes that the applicant stated in his rebuttal that he had never performed below standards in his 16 years of service.  That was not true.  He had been given a substandard annual evaluation report and had failed a service school, and was given an adverse academic evaluation report as a result of that failure.

7.  The applicant’s contentions had been thoroughly investigated without a finding of wrongdoing while he was on active duty.  The Board also finds no wrongdoing on the part of the Army. 

8.  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

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999018294	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.	100.06	
2.	110.03	
3.		
4.		
5.		
6.