PROCEEDINGS

	IN THE CASE OF:   

	BOARD DATE:           2 December 1999 
	DOCKET NUMBER:  AR1999023277

	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. Gerald E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Ms. Sherri V. Ward		Chairperson	
	Mr. Van B. Cunningham		Member	
	Ms..Barbara J. Ellis 		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 a reconsideration of his previous application to correct his records by granting him active duty credit for the period 23 March 1983 to 17 April 1989, voiding of his 12 January 1983 non-judicial punishment (NJP) with restitution of all rights and privileges and a purging his records of the prior ABCMR appeals.

3.  The applicant states, in effect, that had he not had the improper bar to reenlistment his commander either would not have punished him or he would have received a less severe punishment, thereby, allowing for him to have continued his carrer.  He contends that as soon as he was made aware that the urinalysis had been determined to be improper he started his attempts to reenlist. These attempts included his original application to this Board as well as those that did lead to his return to active duty in 1989.  He avers that he should be credited with the time between his forced discharge and the date he was finally allowed to reenlist.  He further states that the continuation of the ABCMR actions in his record will be a negative factor in future promotions and duty assignments.

4.  The applicant’s case is reopened in accordance with the Army Board for Correction of Military Records Reconsideration Project (ABCMR-RP) criteria.  Incorporated herein by reference are military records which were summarized in a Record of Proceedings to reflect the Board's 13 August 1986 consideration of his 4 April 1985 application.  This review and the 8 April 1992 Memorandum of Consideration are incorporated herein by reference as if wholly set forth.  The applicant’s interim request was administratively closed.

5.  The applicant submits a statement from a sergeant first class recruiter who assisted him in his efforts to reenlist.  The statement indicates that the applicant had applied to reenlist both prior to his original application to this Board and again upon receipt of his favorable Board action.  In January 1987, the applicant again applied for enlistment and was denied, as the military was not accepting prior service personnel at that time.  The recruiter reports that he notified the applicant in December 1988 of a change in policy and started the enlistment process in January 1989 with final acceptance and induction on 18 April1989.

6.  The applicant’s records show that he returned to active duty as a private (E-2) on 18 April 1989 and has progressed well attaining the rank of staff sergeant   (E-6) on 1 July 1993.  During this second period of service the applicant has received several awards, decorations and commendations including an Army Commendation Medal and five Army Achievement Medals.

7.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waiverable. Certain persons who have received nonjudicial punishment are so disqualified, as are persons with bars to reenlistment, and those discharged under the provisions of chapters 9, 10, 13, and 14 of Army Regulation 635-200.

8.  Title 31, U.S. Code, § 3702 provides a 6 year statute of limitations on claims against the Government and the Comptroller General has held that an action by a Corrections Board is insufficient to authorize payment beyond the period of limitations. 

CONCLUSIONS:

1.  The recruiter’s statement supports the applicant’s contention that he had attempted to enlist significantly earlier than he was accepted.  The recruiter’s statement indicates that the applicant was barred from reenlistment due to his RE code from 23 March 1983 until the 13 August 1986 Board action and then barred due to recruitment policy for former service members until he was notified of the change in policy in December 1988.  

2.  The applicant’s bar to reenlistment has previously been deemed improper.  Had he not been improperly barred in 1983, the applicant would not have had to face the recruiting bar for the period of 1986 to 1988.  

3.  Excluding the improper bar, the Board can find no evidence that the applicant would have been precluded from immediate reenlistment in 1983 although, due to the NJP, he would have required a waiver.  However, an injustice was created that resulted in the continuation of the applicant’s inability to reenlist.  It is in the interest of justice to correct this situation and grant the applicant service credit for that period of time he was improperly bared from service.

4.  While it is equitable to grant the applicant service credit for some of the time between his 1983 discharge and his 1989 reenlistment, since he did not serve on active duty during this period it would not be appropriate to pay him for this period.

5.  The applicant has submitted no evidence that the NJP action was improper or unduly harsh.  Therefore, there is no evidence to support a voiding of that action or restitution of rank or monies forfeited as a result of that action.

6.  While the Board can understand the applicant’s concerns that the evidence be removed from his records as ordered in the Board’s earlier decision, it is not appropriate to further purge the record of these actions.  However, as a matter of equity, the Board deems it appropriate to have this action and associated documentation transferred to the applicant’s restricted fiche.

7.  In view of the foregoing findings and conclusions, the interest of justice would be served by correcting the applicant’s records as recommended below.

8.	The Board can not extend the 6-year limitation on claims established by Title 31, U.S. Code, section 3702.

RECOMMENDATION:

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

a.  by granting the individual concerned active duty service credit for the period of 4 April 1985, the date of his original application to the Board, to 17 April 1989 for purposes of pay and longevity;

b.  by paying the individual concerned any monies due as a result of this action consistent with the 6-year limitation; and 

c.  upon completion of all other actions, by placing all correspondence dealing with the three Board actions in the restricted portion of record for the individual concerned.

2.  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

_svw____  ___vbc__  __bje____  DENY APPLICATION

		_     _Sherri V. Ward___________
		        CHAIRPERSON

INDEX

CASE ID	AR1999023277	
SUFFIX		
RECON	 	
DATE BOARDED	 199902977	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT IN PART	
REVIEW AUTHORITY		
ISSUES         1.	134.00	
2.	100.06	
3.	112.07	
4.		
5.		
6.