MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            27 April 2000
	DOCKET NUMBER:   AR2000035159

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. Elizabeth Buchanon		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Mr. Kenneth L. Wright		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 the narrative reason for her discharge be changed to show the she was involuntarily retired and that she be issued a Reentry (RE) code of RE-1.

APPLICANT STATES:  In effect, that a duly constituted bar to reenlistment certificate was never completed and placed in her official records, that her appeal of the bar to reenlistment and her complaints of harassment were never answered, that her request for discharge was unjustly obtained through fraud, threats, and harassment and that her commander selected a separation date of 15 November 1991 without her consent.  She also contends that she wanted to select a date that coincided with the expiration of her contract in June 1996 and that her civil rights were violated.

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

The applicant initially enlisted in Nashville, Tennessee on 27 December 1976 for a period of 3 years and served as a metal worker in military occupational specialty (MOS) 44B until she was honorably released from active duty on 11 December 1979 due to the expiration of her term of service (ETS).

On 10 June 1980 she again enlisted and served through a series of continuous reenlistments as a supply specialist.  She was promoted to the pay grade of E-6 on 5 December 1983. 

In April 1991 the applicant was relieved for cause from her position as a company supply sergeant of a support group at Fort Carson, Colorado.  She received a relief for cause NCO Evaluation Report (NCOER) in which the rater indicates that she argumentatively challenged most assigned missions, that she was a disruptive NCO that often detracted the command’s attention away from critical mission requirements, and that she had no sense of obligation to unit or mission.  The rater also indicated under “Values/NCO Responsibilities” that her rebellious attitude severely limits her proficiency, that she has no initiative, that she complied with only verbatim instructions, that her rebellious attitude adversely influences subordinates by willingly defying most missions, that her leadership ability with subordinates was ineffective, that she refused to comply with established accountability procedures, and that she refused to update company hand receipts in accordance with regulatory guidance.

The senior rater (SR) gave her the lowest ratings in performance and potential for promotion and indicated in her comments that the applicant was a disruptive and disloyal NCO who cannot be depended on in a combat environment, that she had clearly shown that she has no potential for positions of greater responsibility, and that she should not be promoted.  The applicant refused to sign the report and the reviewer concurred with the rater and SR evaluations. 

On 3 April 1991 the applicant’s commander initiated a recommendation to bar the applicant from reenlistment (DA Form 4126-R) based on her (the applicant’s) failure to respond to repeated counseling sessions regarding poor performance and failure to comply with instructions.  The applicant elected to submit a statement in her own behalf but failed to do so.

The group commander (a colonel) approved the bar to reenlistment on 12 April 1991 and the applicant elected to submit an appeal.

On 23 April 1991 the applicant submitted an appeal of the bar to reenlistment to the division Commanding General (CG) requesting that a review of her records be conducted to substantiate her claim that she was a knowledgeable and professional NCO and contended that the bar to reenlistment was based on the commander’s personal bias against her.

On 16 September 1991 the applicant was notified that she would appear before an administrative reduction board on 9 October 1991.  The board was subsequently rescheduled for 18 November 1991.

Inasmuch as the applicant would have over 18 years of service at the time she reached her ETS, it was determined that the bar to reenlistment had to be forwarded to the Department of the Army Enlistment Eligibility Activity (EEA) at St. Louis, Missouri for approval.  The bar to reenlistment was then forwarded to the EEA on 30 September 1991 with a recommendation from the CG that he strongly recommended approval of the bar to reenlistment.  The EEA approved the bar to reenlistment on 25 October 1991.

Meanwhile, on 8 October 1991 the applicant submitted a request to be discharged from the service under the provisions of Army Regulation 635-200, paragraph 16-5b, due to her perceived inability to overcome the circumstances that led to her bar to reenlistment.  The date of requested discharge on her request was written in as 15 November 1991.

The applicant’s request for discharge was approved on 30 October 1991 and the commander directed that she be furnished an Honorable Discharge Certificate.

Accordingly, she was honorably discharged on 25 November 1991, under the provisions of Army Regulation 635-200, paragraph 16-5b, due to a locally imposed bar to reenlistment.  She had served 14 years and 4 months of total active service and was issued a RE Code of RE-3.

The applicant applied to the Army Discharge Review Board (ADRB) on 7 December 1996 contending that she was barred from reenlistment in retaliation for information she provided in connection with an investigation conducted under the provisions of Army Regulation 15-6.  She also asserted the same issues as she has submitted to this Board.  The ADRB found that the bar, once it had been submitted and approved by the EEA was imposed in accordance with the applicable regulations and that there was no evidence of arbitrary or capricious actions by the command.  The ADRB was satisfied that all requirements of law and regulation were met and that the rights of the applicant were protected throughout the separation process.

PERSCOM message number 93-164, dated 20 April 1993, announced the criteria for the Voluntary Early Retirement Program (the first year the program was offered).  It stated, in pertinent part, that soldiers with at least 15 years of active Federal service (AFS) but less than 20 years of AFS, in selected pay grades and military occupational specialties, could apply for early retirement.  Personnel approved for early retirement will receive the same benefits as individuals with 20 years or more service, except that their retired pay will be reduced. 

Army Regulation 601-280, in effect at the time, 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 duty is not warranted.  Examples of rationale 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.

Army Regulation 635-200 sets forth the basis authority for the separation of enlisted personnel.  Chapter 16 covers the discharges caused by changes in service obligations.  Paragraph 16-5 applies to personnel denied reenlistment and provides that soldiers who receive DA imposed or locally imposed bars to reenlistment, and who perceive that they will be unable to overcome the bar may apply for immediate discharge. 

RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  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, 14, and 16 of Army Regulation 635-200. 

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 locally imposed bar to reenlistment as approved by the EEA was imposed in accordance with applicable laws and regulations with no indication of any  procedural errors which would tend to violate her rights.  Accordingly, the approval by the EEA constitutes a valid bar to reenlistment certificate.

3.  The applicant has failed to show through the evidence submitted with her application or the evidence of record, that the documents which served as the basis for her bar to reenlistment were not sufficient to justify the imposition of the bar, nor has sufficient evidence been provided to justify removal of the bar to reenlistment. 

4.  The applicant’s contention that she should be retired for length of service appears to be without merit.  Not only was the Voluntary Early Retirement Program not in effect at the time of her separation, the applicant did not have the minimum number of years of AFS necessary to qualify for that program if in fact her MOS and grade was one of the specialties designated as eligible to apply.  Accordingly, there is no basis to grant that portion of her request.

5.  The applicant’s contention that her complaints of harassment in her appeal were never answered and that she desired to remain on active duty until the expiration of her contract also appears to be without merit.  Had the commander found merit in her arguments/complaints, it is not reasonable to presume that he would have proceeded forward with a strong recommendation in support of the bar.  Therefore, it is reasonable to presume that he was not convinced that the applicant had provided sufficient evidence in support of her argument.  In regards to her contention that she desired to remain on active duty until her ETS, the Board finds that if this were the case she would not have submitted a request for discharge due to her inability to overcome the bar.  Likewise, the Board finds no evidence to suggest that her request for discharge was obtained through fraud, threats or harassment. 

6.  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

___klw __  ___tap __  ___eb___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR2000035159	
SUFFIX		
RECON		
DATE BOARDED		
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1991/11/25	
DISCHARGE AUTHORITY	AR635-200, ch16	
DISCHARGE REASON	7/bar	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  7	100.0600/bar (local)	
2.		
3.		
4.		
5.		
6.