MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:         

	BOARD DATE:            28 July 1999
	DOCKET NUMBER:   AR1999027932

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Ms. Margaret V. Thompson		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 his bar to reenlistment dated 1 May 1997 be voided, that he be reinstated to the E-6 promotion standing list, and that he be promoted to the pay grade of E-6 if he met the promotion cut-off score for his military occupational specialty (MOS).

APPLICANT STATES:  In effect, that he was unjustly barred from reenlistment and removed from the E-6 promotion standing list.  He also states that nonjudicial punishment was unjustly imposed against him, that he filed an Equal Opportunity (EO) and Inspector General (IG) inquiry regarding the matter and he believes that he would have met the cut-off score for promotion to the pay grade of E-6 had he not been removed from the promotion standing list.  In support of his application he submits a copy of the bar to reenlistment, a copy of a request for reinstatement to the promotion standing list, three Noncommissioned Officer Evaluation Reports (NCOER), a certificate of Achievement, a memorandum for record of an informal EO complaint, a letter of response regarding his IG inquiry, copies of counseling statements, a memorandum for record indicating his refusal to sign the bar to reenlistment certificate, a letter of intent to remove him from the promotion standing list, and excerpts from an unidentified regulation. 

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

The applicant enlisted on 4 January 1988 for a period of 6 years, training as a field artillery cannon crewman, and payment of a cash enlistment bonus of $7,000.00.  He successfully completed his training and was promoted to the pay grade of E-5 on 1 December 1992.

On 25 June 1993 he reenlisted for a period of 3 years and training as a unit supply specialist.  He again reenlisted on 23 October 1996 for a period of 6 years.

The applicant contacted an NCO in the EO office on 25 February 1997 and filed an informal complaint containing 17 issues regarding the treatment he was receiving in his company.  The results are not present in the available records.

On 11 April 1997 the applicant’s commander initiated action to bar him from reenlistment.  He cited as the basis for his recommendation that the applicant had been counseled on four occasions for failure to go to his place of duty and three times for failure to meet suspenses.  The applicant refused to acknowledge that he had been furnished a copy of the commander’s recommendation or to elect whether or not he desired to submit a statement in his own behalf.

On 14 April 1997 nonjudicial punishment was imposed against the applicant for failure to go to his place of duty.  His punishment consisted of extra duty and restriction for 14 days.  He appealed his punishment on 15 April 1997 and his appeal was denied on 24 April 1997.
The battalion commander approved the recommendation to bar the applicant from reenlistment on 1 May 1997 and the applicant acknowledged on 27 May 1997 that he would submit an appeal.

However, on 2 May 1997 the applicant was counseled by his first sergeant (1SG) and was informed that based on his performance in the unit, he would be given a rehabilitative transfer to another unit in order to give him a fresh start.  The 1SG also informed him that should his performance in his new unit parallel the lack of success in his current unit he would be subject to separation for unsatisfactory performance. 

The applicant nonconcurred with the counseling session and indicated in writing that he had submitted all of the necessary paperwork to conduct an investigation and possible congressional action.  He also indicated that he did not agree with the transfer, that he refused to see how he could be rehabilitated when his record already shows that he had proven himself and that it spoke for itself. 

On 15 May 1997 the applicant received an annual NCOER covering the period from January 1996 to March 1997, evaluating him as a supply sergeant of a military intelligence company.  In part IV, under Values/NCO Responsibilities, the applicant received “Needs Improvement” ratings under competence and leadership.  The supporting comments indicate that the applicant had missed suspenses on four occasions which caused delays in property accountability and that he had failed to report to his place of duty and was late on five occasions, once which disrupted the start of a battalion-level exercise.

In part V, under Overall performance and Potential, the senior rater (lieutenant colonel/battalion commander) rated his overall potential for promotion and or service in positions of greater responsibility as “marginal”.  He recommended that the applicant not be promoted at this time, that he consistently missed suspenses and is often absent from his place of duty, and that he had the potential to be successful with close supervision and further mentoring.

The applicant was subsequently transferred to another unit at the Presidio of Monterrey, California. 

On 27 June 1997 the office of the IG responded to an IG Action Request submitted by the applicant in which he made nine allegations.  The IG found seven of the allegation substantiated and two of the allegations unsubstantiated. The findings of the IG are attached. 

On 24 October 1997 the applicant was notified that he was being removed from the promotion standing list based on his bar to reenlistment.

On 19 December 1997 the applicant received a “Relief for Cause” NCOER covering the period from April 1997 to October 1997, evaluating him as a supply sergeant.  In part IVa, under Values/NCO Responsibilities, he received “No” ratings under “Places dedication and commitment to the goals and missions of the Army and the Nation above personal welfare”, “Is committed to and shows a sense of pride in the unit – works as a member of the team”, and “Is disciplined and obedient to the spirit and letter of a lawful order.”  He received “yes” ratings in the remaining four areas.

In part IVb, he received “Needs Improvement” ratings under Competence, Leadership, and Responsibility and Accountability.  The supporting comments indicate that he knows his job, but was unwilling to tactfully impart his knowledge to others, that he was unwilling to accomplish tasks without constant prodding, that he required constant supervision, that he failed to obey a lawful order from a senior NCO on two occasions and became insubordinate each time, that he consistently failed to inform superiors of his whereabouts despite being counseled by his rater to do so, and that he had been notified that the reason for his relief for cause was his failure to follow orders and his insubordination.

In part V, the senior rater rated his potential for promotion as “Marginal” and indicated in the supporting comments that he should not be promoted, that he failed to conduct himself professionally in refusing to follow orders, that he could not always be counted on to be at his appointed place of duty at the appointed time, that he was resistant to authority, and that he was unwilling to adapt to situations and circumstances to accomplish the mission.

On 2 February 1998 the applicant was convicted by a summary court-martial of being disrespectful towards a senior NCO on 7 October 1997.  His punishment consisted of a letter of reprimand and a forfeiture of pay. 

On 16 February 1998 the applicant’s commander submitted a request to remove the locally imposed bar to reenlistment based on the applicant’s excellent performance of limited duties in the orderly room since his assignment in December 1997.  The appropriate commander approved the recommendation and directed that the bar be removed effective 15 April 1998.  

Army Regulation 601-280 prescribes the eligibility criteria and options available in the Army Reenlistment Program.  It provides for barring from reenlistment individuals whose continued active duty is not in the best interest of the military service.  This regulation specifies that bars will be used when immediate administrative discharge from active service is not warranted.  Examples of rationale for reenlistment disqualification are, but not limited to, AWOL, indebtedness, slow promotion progression, no demonstrated potential for future service, and substandard performance.

That same regulation also states that the bar to reenlistment is not a punitive action and that imposition of a bar to reenlistment does not preclude administrative separation at a later date.  Normally, however, the bar to reenlistment should be initiated prior to separation, nonjudicial or judicial action because it is intended to put the soldier on notice that he or she is not a candidate for reenlistment and that they may be a candidate for separation if circumstances that led to the bar to reenlistment are not overcome.

Army Regulation 600-8-19 serves as the authority for enlisted promotions.  It states, in pertinent part, that soldiers will be notified and will be removed from a promotion standing list when a local bar to reenlistment is approved after attaining recommended list status.  Once a soldier is removed from the recommended list, the action is final unless the soldier is later exonerated and action is initiated to reinstate the soldier to the recommended list.  

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 local bar to reenlistment was imposed in compliance with the applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.  Likewise, he was properly removed from the promotion standing list.

3.  The Board notes that the bar to reenlistment appears to have served the purpose for which it was intended because a subsequent commander later indicated that his performance had improved and the bar was removed.  However, given the applicant’s documented conduct and performance prior to and immediately after the imposition of the bar, the Board is not convinced that the bar was unjustly imposed.  Therefore, there is no basis to reinstate him to the promotion standing list.

4.  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

___fe ___  __lem ___  __mvt___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999027932	
SUFFIX		
RECON		
DATE BOARDED	1999/07/28	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  7 	100.0600/bar	
2.  312 	131.0200/rem from rec list	
3.		
4.		
5.		
6.