MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           13 June 2000                   
	DOCKET NUMBER:   AR1999027669

	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. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Elizabeth Buchanon		Chairperson	
	Mr. John H. Kern		Member	
	Ms. Barbara J. Ellis		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:  That he be reinstated in an active reserve status in the grade of Sergeant First Class (SFC), E-7; that his records be corrected to show he remained on active duty until the end of his active guard/reserve (AGR) tour; that his records be corrected to show he was promoted to Staff Sergeant (SSG), E-6 in a timely manner while on his AGR tour; that his records be corrected to show he attended the military schools he has otherwise missed; that his lost time be expunged from his records; that his non-commissioned officer evaluation reports (NCO-ERs) for the periods 14 October 1995 through             13 October 1996 and 14 October 1996 through 9 May 1997 be corrected to remove untrue, unfair information.  If the above is not granted, that he be reinstated in the U. S. Army Reserve (USAR) in the grade of SSG with retroactive pay and allowances.  If that is not granted, that his discharge be upgraded to honorable; that the Army pay storage and basic allowance for quarters (BAQ)/variable housing allowance (VHA); that his Article 15 be removed and he be reimbursed the Article 15 forfeitures; that his bar to reenlistment be lifted; that his bar to enter military installations be lifted; that he be placed in the same position he would have been had he been transferred as he requested; and that he receive retroactive pay and allowances to include active duty BAQ and VHA to 1995 with award of drill pay for missed drills.

APPLICANT STATES:  That his discharge was wrongful because the separation authority did not have the proper Uniform Code of Military Justice (UCMJ) authority over him.  Any absence without leave (AWOL) was the result of an adverse environment created by the chain of command in the 104th Training Division.  He was not AWOL from 12 – 14 August 1995.  A Pay Inquiry shows he was excused for the 12th and 14th.  In October he called the unit and left messages that he was sick and would be in touch with the unit.  On                   13 November 1995 his lawyer contacted the unit.  He was stressed through overwork and threats to his person.  He was denied time to seek medical and dental attention.  He was persecuted when the unit sent the military police to his apartment manager to let them search his home in an effort to find things on him. He was not provided the opportunity to rebut the elimination action.  He was first reduced in grade and then discharged without a separation board.  His waiver was done under duress and the reduction was a tool used to separate him without a separation board.  He was suffering from depression at the time and should have been medically discharged or given treatment prior to discharge.  His last two NCO-ERs were provided without an adverse NCO-ER cover letter and he was denied the opportunity to rebut.  In addition, no rating scheme had been published.  Many of the individuals connected with his case will not make statements and he asks the Board to investigate the circumstances surrounding his discharge citing Nolen v. Rumsfeld (1976, CA 5 Ga) as the basis for his request.  Supporting evidence is as listed on the enclosure to the DD Form 149 and includes sick call slips or records of medical/dental treatment dated 17 and   31 May 1995; 16, 17 and 28 August 1995; 4, 11 and 12 October 1995;              25 January 1996; and 15 March 1996.
COUNSEL CONTENDS:  That the applicant’s discharge was wrongful because the separation authority considered unlawful information, considered tainted, unreliable information, considered perjured information and his separation was unfair and unjust.

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

After having had prior service in the U. S. Navy Reserve and the Army National Guard, he enlisted in the USAR on 18 October 1990.  He was awarded primary military occupational specialty (MOS) 38A (Civil Affairs Specialist) and secondary MOS 16J (Forward Area Alerting Radar Operator) on 17 June 1992.  He was promoted to Sergeant (SGT), E-5 on 1 October 1992.  He was voluntarily ordered to active duty in an AGR status in the rank of SGT on 10 September 1994 to perform duties as a supply sergeant and was attached to Headquarters, 104th Training Division, Vancouver, WA as a supply sergeant.  

The applicant completed the one-week USAR Basic Supply course on                21 October 1994.

On 30 January 1995, the applicant was further attached to Headquarters and Headquarters Company, 104th Training Division, Vancouver, WA as a supply sergeant.  

The applicant completed the six-week Unit Supply Specialist course at Fort Lee, VA on 7 March 1995.  

On 8 May 1995, the applicant completed a DA Form 4187, Personnel Action requesting reassignment out of the 104th Training Division citing verbal harassment and abuse, statements made by the Command’s executive officer that were not entirely true, violation of his rights, threats of UCMJ actions,    courts-martial, and unwarranted threats.  His commander signed the form recommending approval.  

The applicant was on authorized leave from 7 through 11 August 1995.  His status was changed from leave to AWOL on 12 August 1995 and from AWOL to present for duty on 15 August on DA Forms 4187, Personnel Action.  Apparently finance had charged him with AWOL on 15 August 1995.  A Pay Inquiry was forwarded to finance noting “Soldier returned to duty on the 15 of August, should he had been charged for the 15 as well?  Please correct 12 Aug – 14 August 95.”

The applicant received an annual NCO-ER for the period September 1994 through August 1995.  In part IIIf the rater failed to list any counseling dates.  In part IVa the rater checked three “no” blocks for NCO values with three related negative comments.  In part IVb the rater checked two “needs some improvement” blocks with related negative comments.  The rater checked his potential as “marginal.”  The senior rater checked his overall performance and overall potential as a low “successful” (a “3” rating out of a possible high of “1” and a low of “5.”)  He entered laudatory comments.  In part II, the reviewer noted that he nonconcurred with the rater and or senior rater evaluations and on an attachment noted that he disagreed with the senior rater’s evaluation.   

The applicant filed a complaint with the Inspector General’s (IG) office and on   14 September 1995, the 104th Training Division IG’s office informed him that his complaint was being processed.  On 19 September 1995, the IG forwarded a request to the U. S. Trial Defense Services, Fort Lewis, WA for a legal services advisor to be appointed for the applicant.  The final IG report is not available.

On 22 September 1995, the First Sergeant ordered the applicant to report to Madigan Army Hospital at Fort Lewis, WA to see a doctor (for a mental status evaluation).  The First Sergeant later made a sworn statement that the applicant screamed at him “This is ridiculous, this is insane.  I’m not going to see a doctor. To hell with you and to hell with your orders” and ran out of his office. 

A civilian having breakfast at Denny’s Restaurant wrote a statement noting he observed a commotion involving the applicant and a female (the unit’s Personnel Staff NCO) on 22 September 1995.  The applicant was yelling at the female and into the telephone in the restaurant, he left and started to get in his truck.  When the female followed and moved closer to him he hit her, knocking her backward against the side of the vehicle.  The applicant provides another statement that appears to have been taken in April 1999 from a waitress at Denny’s who stated “Seems to me the female as the aggravator.”  

The applicant was AWOL from 22 through 28 September 1995.  During this period, he was evaluated by a civilian psychologist who determined that there was no evidence of a thought disorder but that he had been under severe stress during the past 5 months and his coping skills had been pushed to their limit.  He appeared very anxious and depressed because of his situation.  The psychologist recommended he be granted a leave of absence as a temporary respite from his problems with intensive work in a psychotherapy situation to reduce stress and restore coping skills as well as understand his responsibility and contribution to the situation.  

On 28 September 1995, the applicant returned to his unit with his attorney to sign out on leave.  The purpose of the leave was so he could obtain counseling recommended by a civilian clinical psychologist.  

On 11 October 1995, the applicant underwent a mental status evaluation.  He was psychiatrically cleared for any administrative action deemed appropriate by his command.

On 16 October 1995, the applicant was detailed to the 3d Battalion, 413th Regiment, Training Support Brigade, Vancouver, WA for 180 days.

On 19 October 1995, the applicant was counseled for being late for duty.  He refused to sign the counseling statement and stated that traffic was bad, apparently due to an accident.  Another counseling statement was prepared that day noting he left work with no explanation or reason or informing anyone.

On 19 October 1995, the applicant was reported AWOL.  On 27 October 1995, an attorney for the applicant wrote to the Staff Judge Advocate, 104th Training Division recommending the applicant be barred from reenlistment, that he then stated that he could not overcome that bar, and then that he be released from active duty and transferred to a Troop Program Unit or the Individual Ready Reserve as a way of solving his significant emotional and coping concerns.  
On 19 November 1995, the applicant was reported present for duty. 

On 28 November 1995, the applicant was detailed to Headquarters, 104th Training Support Brigade, Fort Lewis, WA.

In December 1995, the zones of consideration for the 1996 USAR AGR SSG Promotion Board and Qualitative Management Program Screen were announced.  The applicant was in the zone of consideration.

On 4 February 1996, the Commander, 104th Training Division requested from the Commander, I Corps and Fort Lewis delegation of nonjudicial punishment authority over AGR soldiers assigned to the command.  On 15 February 1996, such authority was granted.

On 14 February 1996, the applicant requested assistance from his command sergeant major for reinstatement of his entitlement to VHA/BAQ and separate rations.

On 21 February 1996, the applicant departed AWOL and returned to duty            1 March 1996.

On 3 March 1996, the Commanding General, 104th Training Division recommended the applicant be separated under the provisions of Army Regulation 635-200, chapter 14 for patterns of misconduct.  He cited the applicant’s disrespectful conduct to military superiors, an assault upon an NCO and repeated absences from his place of duty without authority as the basis for the recommendation.  He recommended the applicant receive a discharge under other than honorable conditions (UOTHC).  

On 6 March 1996, the applicant completed a separation physical examination and was found qualified for separation.
On 25 March 1996, the applicant accepted nonjudicial punishment under Article 15, UCMJ from the Commanding General, 104th Division for being AWOL from    12 to on or about 15 August 1995, 22 through 28 September 1995, 19 October through 19 November 1995 and 21 February through 1 March 1996; for disobeying a lawful order; for being disrespectful in language towards an NCO; and for assaulting an NCO by pushing her with open hands.  His punishment was a reduction to Specialist, E-4 and a forfeiture of $661.00 pay for 2 months.  He appealed in part because he stated he did not believe the 104th Division had UCMJ authority over him.  The orders bringing him onto active duty stated that UCMJ responsibility resided with I Corps and Fort Lewis.  On 2 April 1996, his attorney forwarded his appeal to the Commanding General, U. S. Army Reserve Command and acknowledged in his cover letter that the applicant recognized that the Commander, 104th Training Division had been delegated UCMJ authority over him.  On 11 April 1996 the Commander, U. S. Army Reserve Command denied his appeal.  

On 26 March 1996, the applicant was advised by consulting counsel of the basis for the recommended action to separate him for misconduct.  He waived consideration of his case by an administrative board and waived personal appearance before such a board.  He checked that he would submit a statement in his own behalf but no statement is available.  He and his civilian attorney signed this document.  Two other acknowledgments are available wherein the applicant initialed that he requested that his case be considered by an administrative separation board; however, neither of the documents is dated or signed by the applicant although his attorney signed both.

On 2 May 1996, the Commanding General, I Corps and Fort Lewis approved the recommendation for separation and directed the applicant receive a discharge UOTHC.

On 6 May 1996, the applicant was discharged, with a UOTHC discharge, in pay grade E-1 under the provisions of Army Regulation 635-200, chapter 14 for misconduct.  He had completed a total of 2 years and 12 days of creditable active service and 10 years and 8 days of inactive service.  He had 49 days of lost time.

On or about 7 August 1996, the applicant wrote to the President of the United States for assistance.  In his letter he noted that the 104th Division had suspended his allotment of VHA and BAQ on 1 September 1995. 

On 11 October 1996, the Joint Personal Property Shipping Office at Fort Lewis, WA prepared a memorandum requesting the applicant be reimbursed for personal funds expended for movement of personal property.  It cannot be determined what office this memorandum was sent to.  

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.  Paragraph 5-16 states that, normally, only the Chief, Army Reserve, the Commander, Army Personnel Command or higher authority within the office of the Secretary of the Army are authorized to order release from active duty of an AGR soldier under this paragraph.  However, this paragraph will not be used as authority for release from active duty of an AGR soldier who meets the criteria for separation under other provisions of this regulation.  For example, a soldier who has established a pattern of misconduct will be processed for separation under the provisions of chapter 14.  Chapter 1 states that commanders who are general court-martial convening authorities and their superior commanders are authorized to order separation per this regulation.  Chapter 2 states that a soldier who has 6 or more years of total active and reserve service on the date of initiation of recommendation for separation is entitled to a hearing before an administrative separation board.

Army Regulation 635-40 governs the evaluation for physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  In pertinent part, it states that an enlisted soldier may not be referred for physical disability processing when action has been started under any regulator provision which authorizes a characterization of service of under other than honorable conditions.

Army Regulation 623-205 establishes the policies and procedures for the      NCO-ER system.  Paragraph 4-2 states that an NCO-ER accepted for inclusion in an NCO’s OMPF is presumed to be administratively correct, to have been prepared by the properly designated rating officials and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Paragraph 4—7 of that regulation also states that the burden of proof in an NCO-ER appeal rests with the applicant.  Accordingly, to justify deletion or amendment of an NCO-ER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.

On 14 March 2000, the Army Discharge Review Board denied the applicant’s request for an upgraded discharge.

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.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The Commanding General, I Corps and Fort Lewis, the general court-martial authority, approved the applicant’s discharge and the Board concludes he did have UCMJ authority over the applicant.

3.  The Board concludes that going AWOL is not a reasonable response by any soldier, much less an NCO, to an “adverse command environment.”  In addition, the applicant has presented no evidence, other than self-authored statements, substantiating the “adverse environment.”  The Board notes that the Pay Inquiry the applicant cites as showing he was excused on 12 and 14 August 1995 does not state that.  It states he was AWOL from 12 through 14 August 1995 and present for duty on 15 August 1995.  The evidence of record shows he departed AWOL again.  As an NCO, the applicant should know that calling his unit and telling them he was sick is not being “present for duty” and did not change his AWOL status.  Neither is having his lawyer contact his unit sufficient to change his status to present for duty.

4.  The applicant has provided evidence to show that he went on medical and dental appointments a number of times which is contrary to his contention that he was denied time to seek medical and dental attention.

5.  The applicant has provided no evidence to show he was threatened.  The Board concludes that being ordered to report for a mental status evaluation is not a threat considering his prior behavior.  He provides no evidence to show the military police were sent to his apartment manager in an effort to “find things on him.”

6.  The Board notes the applicant’s request that the Army pay storage and BAQ/ VHA.  However, he provides evidence to show the Joint Personal Property Shipping Office at Fort Lewis, WA requested he be reimbursed for personal funds expended for movement of personal property but does not provide the final action taken on this request.  The Board also notes that he informed the President of the United States that the IG’s office at the 124th Regional Support Command assisted him in getting back pay of his BAQ and VHA before he left active duty.  Without additional evidence the Board cannot determine what further reimbursement the applicant is requesting.

7.  The Board notes that the applicant was provided the opportunity to rebut his elimination action.  He checked that he desired to submit a statement in his own behalf but if he did he did not provide a copy of it to the Board for consideration.  He provides no evidence to show his waiver of his right to a separation board was made under duress.  On the contrary, he had previously initialed and had his attorney sign two documents stating he wished to have his case considered by such a board.  The document both he and his attorney actually signed stated he waived his right to a separation board.  

8.  The Board concludes that his reduction in grade was an appropriate punishment for the offenses cited in his Article 15 and that it was not a tool to discharge him without a separation board.  His right to a separation board was based on his time in service, not his grade.

9.  The Board notes that the applicant did seek medical attention for depression at least once and on 15 March 1996 went on sick call for “possibility breakout of hives.”  Because of the characterization of his discharge, he was not authorized referral to the physical disability system and therefore was not authorized to be considered for a medical discharge.  

10.  The only NCO-ER available is for the period September 1994 through August 1995.  The NCO-ERs referred to by the applicant, for the periods           14 October 1995 through 13 October 1996 and 14 October 1996 through 9 May 1997 are not available and have not been provided by the applicant.  In addition, he provides no evidence to show there was no published rating scheme nor that any of his NCO-ERs were not prepared by the properly designated rating officials and represented the considered opinion and objective judgment of the rating officials at the time of preparation.  Also, there is no regulatory provision for referring an adverse NCO-ER to the soldier prior to completion.

11.  The applicant contends that Nolen v. Rumsfeld (1976, CA 5 Ga) requires the Board to investigate the circumstances surrounding his discharge.  That case does not require it to do so.  The case states “The ABCMR’s function is to investigate and determine if a serviceman is suffering from an injustice caused by an error in military records…It cannot, and is not required to make a decision based on information it does not have.  The Board may deny an application if it determines that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.”  It is the applicant’s responsibility to obtain and present all necessary evidence to support his application.  The Board concludes that he has failed to submit sufficient relevant evidence to show that his discharge or his characterization of service were not appropriate.

12.  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

__eb____  __jhk___  __bje___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR1999027669	
SUFFIX		
RECON		
DATE BOARDED	20000613	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.