MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           27 March 2001                   
	DOCKET NUMBER:   AR2000039145

	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	
	Mr. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Mr. Roger W. Able 		Chairperson	
	Mr. Allen L. Raub 		Member	
	Ms. Gail J. Wire 		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, correction of his military records to show a reentry eligibility (RE) code which would allow reenlistment, with or without waiver.  In effect, this constitutes a request for removal of the disqualification which precludes his reenlistment.

APPLICANT STATES:  In essence, that the circumstances which caused his separation in 1995 arose during his first 10 years of service.  He took a break in service and reenlisted in Special Forces.  He did well and conducted himself in an exemplary manner.  He submits many references from current Army Reserve (USAR) officers and he submits a recent USAR Noncommissioned Officer Evaluation Report (NCOER).  He believes that he can be an asset to the Army, especially due to manpower requirements in Special Forces.

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

The applicant’s military records show that he initially enlisted in the Regular Army (RA) on 2 January 1980.  He trained as an Infantryman and served in a number of Infantry assignments at Fort Benning, Georgia, at Fort Bragg, North Carolina and at Fort Leonard Wood, Missouri.  He was parachute and jump master qualified, drill sergeant qualified and qualified in a number of Infantry weapons to include the TOW Dragon.  He advanced rapidly and was promoted to the rank of staff sergeant on 20 May 1986.  He also served as a battalion reenlistment NCO. 

After completion of a drill instructor course, he was assigned to Fort Leonard Wood as a drill sergeant for a basic training company on 4 January 1989.  His NCOER for the rating period January-June 1989 was successful, although the senior rater indicated only fair potential, reasons unknown.  He continued in the same assignment until he was relieved for cause on 26 September 1989 for calling his first sergeant a racial name on 23 September 1989.  

He received a local Memorandum of Reprimand (MOR), dated 26 September 1989, which was to be filed in his local military records for 3 years or until reassignment to another general court-martial jurisdiction.  The applicant acknowledged receipt of the MOR, but made no statement.  The battalion commander indicated that the level of trust between the applicant and his chain of command had been broken.

He also received a Relief for Cause NCOER for the rating period July-September 
1989 for the racial comment.  The rater indicated his overall potential was marginal.  The senior rater indicated his performance was superior, but at the lowest ranking (numeral 3 out of a possible 5 ratings) with bullet comments to the effect that he was a dynamic leader, he strove for successful mission accomplishment, and had the potential to develop into an outstanding NCO.  However, the comments went on to note that he had been relieved (for cause) for a racial comment.  He did not appeal this report.  
The applicant was then reassigned to another training battalion at Fort Leonard Wood to duties as a drill sergeant for an Initial Entry Training (IET) platoon.  He  received a second award of the Army Achievement Medal for meritorious achievement on 15 December 1989.  His next two NCOERs, for the rating period October 1989-May 1990 and June 1990-September 1990 were also successful, although the senior rater, his first sergeant, commented on the need to focus on improvement of his career (advanced Noncommissioned Officer Education System (NCOES) courses).  It should be noted that he began a Basic NCO Course (BNCOC) in March 1990, but had to drop out without prejudice due to an emergency leave situation.  Both reports showed fair performance (second out of five blocks) but superior potential (third block out of five blocks).  There is no indication that he considered these reports to be adverse or that he appealed the reports.  

On 1 November 1990, the applicant was voluntarily discharged under the provisions chapter 16, Army Regulation 635-200, for the convenience of the Army by reason of the 1990 Early Transition Program.  He was credited with 
10 years, 10 months and 1 day active duty and 2 months and 13 days additional inactive duty.  His awards and decorations included the Army Commendation Medal (two awards), the Army Achievement Medal (three awards), the Good Conduct Medal (three awards), the Army Service Ribbon, the NCO Professional Development Ribbon, the Armed Forces Expeditionary Medal (Grenada), and the Multinational Force and Observers Medal.  His badges included the Combat Infantryman Badge, the Expert Infantryman Badge, the Parachutist Badge, the Drill Sergeant Identification Badge and the Sharpshooter Qualification Badge 
(M-16 Rifle).  He had attended many military schools beside basic MOS/weapons qualification schools to include a 1-week Army Maintenance Management System course; a 3-week and then a 5-week Supervisor Management course; a 1-week Drivers Education course at a local college; a 6-week small engine repair course; a 7-week Law Enforcement course; a 2-week Machinegun Leader course; a 3-week Jungle Warfare Training School course; a 4-week Primary Leadership Development course;  a 2-week Jumpmaster course; and an 8-week Drill Sergeant School course.  His RE code assigned at the time of his discharge was RE-2B (reenlistment qualified, but chose to be voluntarily separated under an early release program).   

On 19 November 1992, the applicant reenlisted in the RA for 3 years in pay grade E-5, with a waiver for a nonjudicial punishment (NJP) imposed under the provisions of Article 15, Uniform Code of Military Justice in 1982 during his first enlistment.  In fact, this NJP is no longer on file in his records.  His reenlistment option was for the Special Forces Prior Service Enlistment Option.  After completion of a 3-week Special Forces Course; a 24-week Special Forces Weapons course, to include a Basic NCO Course; and a 23-week language course (Tagalog), he was assigned to Fort Lewis, Washington, in June 1993 as a Special Forces Weapons sergeant.  He had again been promoted to the rank of staff sergeant, pay grade E-6, while in training on 23 October 1992, and extended his enlistment for 8 months on 1 December 1992 to complete his training and an initial Special Forces assignment.  On 22 April 1995, he reenlisted for 5 years for any assignment needed by the Army.  

The applicant's four NCOERs for the rating period from June 1993 to May 
1995 were highly complimentary, with almost all maximum ratings.  His potential was shown as outstanding (either a 4 block or a 5 block rating out of a maximum of a 5 block rating).  His official military personnel file shows that he was considered by a Department of the Army promotion selection board for promotion to the next higher pay grade in 1994 and in 1995.  

However, after the second promotion selection board adjourned, he was notified by the Department of the Army (DA) on 8 September 1995 that a DA Bar to Reenlistment under the Qualitative Management Program (QMP)  had been imposed. The cited bases for the bar were the three NCOERs, to include the Relief for Cause NCOER, issued at Fort Leonard Wood from July 
1989-September 1990, which were determined to show poor performance 
and/or efficiency.  

The applicant was advised that he could appeal the bar or he would otherwise be separated within 90 days of his notification of the bar (26 September 1995). He elected not to appeal the bar and to be separated within 90 days. 

Accordingly, on 29 December 1995, the applicant was honorably discharged under the provisions of chapter 16, Army Regulation 635-200, by reason of reduction in force.  He was credited with 4 years, 1 month and 11 days additional active duty.  At this time then he had 14 years, 11 months and 12 days active duty and 4 months inactive service.  He had received one additional award each of the Army Achievement Medal and the Good Conduct Medal, an additional numeral (2) for wear on his NCO Professional Development Ribbon and the Ranger Tab.  He was assigned an RE code of RE-4 and he received "half separation pay" in the amount of $16,518.12.  His NCOER for the final rating period from May-December 1995 was outstanding.  

The applicant's subsequent service records are somewhat incomplete, but from information provided by the applicant and from the Texas Army National Guard (TXARNG) Retired Point Accounting System records, he served in the TXARNG for 1 day from 22-23 August 1996.  He then served in the USAR Control Group (Reinforcement) from 24 August 1996-1 October 1997.  On 2 October 1997 he began service as a staff sergeant with the 3rd Battalion, 144th Infantry, TXARNG in Kilgore, Texas.  He was honorably discharged on 22 February 1998 in accordance with National Guard Regulation 600-200, paragraph 8-26a(2), by reason of discharge for enlistment, reenlistment, or immediate reenlistment, in any component of the Armed Forces.  His RE code would have been RE-1.  
Currently, the applicant is serving as a senior drill instructor with a Basic Combat Training brigade of a USAR Training Division, stationed in Louisiana.  His NCOER for the rating period August 1998 through July 1999 is a maximum report.  He also includes two letters of recommendation, one from an S-3 (Plans and Operations) officer (captain) in his Brigade and the second from an active duty lieutenant colonel with whom he served under as a Reserve Component drill sergeant.  Both letters are highly complimentary.  He also has submitted other "unofficial" ratings and assessments from his peers and neighbors who have Reserve component experience which highly recommend favorable action in the applicant's case and note his outstanding accomplishment during an approximately 2-year association from 1998 until late 1999.  These ratings and his application indicate that he now holds the rank of sergeant first class, pay grade E-7 in the USAR.  

Army Regulation 601-280, chapter 10, sets forth policy and prescribes procedures for denying reenlistment under the QMP. This program is based on the premise that reenlistment is a privilege for those whose performance, conduct, attitude, and potential for advancement meet Army standards.  It is designed to (1) enhance the quality of the career enlisted force, (2) selectively retain the best qualified soldiers to 30 years of active duty, (3) deny reenlistment to nonprogressive and nonproductive soldiers, and (4) encourage soldiers to maintain their eligibility for further service. The QMP consists of two major subprograms, the qualitative retention subprogram and the qualitative screening subprogram. Under the qualitative screening subprogram, records for grades 
E-5 through E-9 are regularly screened by the DA promotion selection boards. The appropriate selection boards evaluate past performances and estimate the potential of each soldier to determine if continued service is warranted. Soldiers whose continued service is not warranted receive a QMP bar to reenlistment.

Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.

Reentry codes 1 and 2 essentially indicate a soldier is eligible to reenlist, in some cases after a break in service.  Reentry code RE-3 indicates a soldier may be eligible to reenlist with a waiver as granted by recruiting officials.  Reentry code RE-4 indicates that a soldier is not eligible to reenlist.  

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, in this case, has failed to submit evidence that would satisfy this requirement.

2.  The Board is satisfied that the applicant made an improper racial remark concerning his first sergeant while serving as a drill instructor at Fort Leonard Wood in the fall of 1989.  He was properly relieved for cause at that time and this information was properly recorded on his NCOER rendered and in a MOR which was directed to be filed only in his local personnel management file.  

3.  The Board also notes that the applicant was assigned to new duties at Fort Leonard Wood and served until November 1990, when he was voluntarily separated from active duty.  During this last 14 month period of service, he received at least two more NCOERs which tended to show that he was lacking in some leadership traits and needed to concentrate on self improvement.  

4.  Notwithstanding the applicant's 2-year break in service from November 
1990 to November 1992, and his subsequent highly satisfactory record of service in Special Forces assignments, a DA Bar to Reenlistment under the QMP was imposed on the applicant for the inappropriate racial comments and less than fully satisfactory record of service at Fort Leonard Wood.  The applicant has not provided any evidence that this action was improper or inappropriate.

5.  Further, the Board notes that the applicant did not take action to appeal any of the adverse actions in his case.  He never appealed any of the NCOERs and, more significantly, he never appealed the DA imposed bar to reenlistment.  Therefore, the Board must conclude that he was not too concerned about his career at that point and essentially waived his rights to appeal the bar and the subsequent separation action.

6.  The RE code of RE-4 imposed at the time of his discharge from active duty in December 1995 was therefore appropriate.  It is fully supported by the reason for the discharge and the applicant has provided no evidence of error or injustice in the separation process or the basis for the assigned RE code.  

7.  The Board notes the applicant's subsequent record of service in the Reserve components and commends him for his success.  However, this in no way changes the facts in the case and does not provide any basis to change the 
RE code assigned in 1995 for the bar to reenlistment imposed under the QMP.  It was the intent of the DA to bar him from further service, and even though he has been granted a waiver to serve in the National Guard and the USAR, these actions do not change the fact that he is still barred from returning to active duty. 

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

__rwa___  __alr____  __gjw____  DENY APPLICATION

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

INDEX

CASE ID	AR2000039145	
SUFFIX		
RECON		
DATE BOARDED	20010327	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19951229	
DISCHARGE AUTHORITY	AR635-200, CH 16	
DISCHARGE REASON	A07.20	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	100.03	
2.	110.03	
3.	A01.13	
4.	A92.17	
5.	A92.41	
6.