PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           6 February 2001                   
	DOCKET NUMBER:   AR2000045829

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

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas Lanyi		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 that his reentry code on his Certificate of Release or Discharge from Active Duty, DD Form 214, be changed from a 3 to a 1.  He also requests that he be recalled to his active guard/reserve (AGR) status, with full pay and allowances, pending his appeal to his bar to reenlistment.

3.  The applicant states that he received an honorable discharge, his separation board action was dropped, and his bar to reenlistment document was only a local bar and was not legally implemented.  He was separated without an expiration term of service (ETS) medical or dental examination.  Even though he requested these exams on several occasions, his unit would never schedule him for them.  The bar to reenlistment was used in lieu of separation action in violation of Army Regulation 140-111, paragraph 1-29c.  He was flagged and counseled by Lieutenant Colonel (LTC) I___, who was not his company commander.  His company commander presented him with a Bar to Reenlistment Certificate, but after it was approved he was never given the chance to appeal it.  The regulation states that a soldier desiring to submit an appeal to a bar to reenlistment will not be involuntarily discharged while an appeal is pending.  He knew his commanders were depriving him of his 1st amendment rights of freedom of religion and 2d amendment rights of freedom of speech.  All he had to do during the separation board was prove it.  His discharge orders initially had the wrong discharge date and the wrong unit on them.  The orders were not corrected until 21 October 1999, by which time his right to a separation board had already been canceled by the government and the illegally-imposed bar to reenlistment barred him from future military service.  He was rushed to attend the Congressionally-mandated ACAP briefing from 24 – 29 October 1999.  His civilian counsel had told the AGR sergeant major that he still had to clear housing, receive a separation physical and dental exam.  Supporting evidence is as listed on the attachment to his DD Form 149.

4.  Counsel makes no additional contention.

5.  The applicant's military records show that after having had prior service in the U. S. Army Reserve (USAR) and Regular Army, he reenlisted in the USAR on  10 March 1995 for 3 years.  He extended on 3 May 1996 for 1 year, 1 month and 20 days, making his ETS 27 April 1999.  He was voluntarily ordered to active duty in an AGR status and assigned to the 341st Military Police (MP) Company, San Jose, CA in an E-5, 63B20, light wheeled vehicle mechanic position.  He was promoted to Staff Sergeant (SSG), E-6 on 1 October 1998.  He extended again on 22 October 1998 for 6 months, making his ETS 27 October 1999.

6.  In accordance with Army Regulation 140-158, paragraph 4-14c, the applicant’s promotion could be made only against a current or projected vacancy to which he was or would be reassigned.  Since the 341st MP Company did not have an E-6 63B position and the Army Reserve Personnel Command           (AR-PERSCOM) could not find an E-6 assignment for him within his location, he was identified for assignment to the 405th Combat Support Hospital, Hartford, CT. He requested postponement of his reassignment until summer 1999 but the 405th Combat Support Hospital was unable to wait that long.  Orders apparently were published with a report date to the 405th Combat Support Hospital of 11 January 1999. 

7.  Around November 1998, the applicant called his personnel management officer (PMO) at AR-PERSCOM and made threatening comments to him.  One comment apparently was “To tell you the truth I really don’t care about this nation or the Army and I can’t wait until we are all destroyed.”  On 28 November 1998, the applicant left a message on his PMO’s answering machine in which he quoted Biblical phrases possibly regarding his waiting for the end of the world.
On 2 December 1998, he left a message stating in part “…You can’t all be like Bill Clinton, lying, cheating, adulterer draft dodging coward…”  On 28 December 1998, his security clearance was suspended as a result of these threatening phone calls.

8.  On 30 December 1998, LTC R___, the Commander, 6045th Garrison Support Unit (GSU) (the 341st MP Company’s next higher level command), documented a counseling session conducted with the applicant in the presence of the security manager.  LTC R___ informed the applicant that his security clearance was being suspended due to the nature of the phone conversations the applicant had with personnel at AR-PERSCOM.  LTC R___ noted that the applicant had stated that he felt he could speak his mind on whatever he wanted regardless of his position as a United States Army soldier.  LTC R___ noted that the applicant stated “The Lord Jesus is the only authority over me and this is a dying doomed world we live in” or words to that effect.

9.  A Report of Mental Status Evaluation, DA Form 3822, dated 16 January 1999 noted that the applicant refused to comply with psychological testing due to his religious beliefs; nonetheless, the applicant’s religious beliefs did not appear to be a product of mental illness.

10.  The Staff Chaplain interviewed the applicant on 27 January 1999.  The Chaplain noted that the applicant’s conduct, though inappropriate from the command’s perspective, was within the scope of the teachings and expectations of his church.  The church believes that the prophesies against Old Testament Israel when it transgressed God’s laws apply equally to the United States in its current moral situation.  His church expected him to take on a prophetic role and he was conscientiously attempting to comply.

11.  On 20 May 1999, LTC I___, the new Commander, 6045th GSU, initiated a Report to Suspend Favorable Personnel Actions (Flag), DA Form 268, on the applicant because of a field-initiated elimination.

12.  On 25 May 1999, the applicant was counseled by LTC I___ about possible elimination from the service for defacing government property, disrespect to a senior noncommissioned officer (NCO), and making verbal objections to authority and disloyalty to the U. S. Army.  

13.  On 25 May 1999, LTC I___ initiated action to separate the applicant under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12(b)(2) (conduct prejudicial to good order and discipline) and recommended the applicant received a general discharge.  The applicant was informed he was entitled to have his case heard before an administrative separation board and that he would be required to undergo a complete medical examination.  He requested a hearing before an administrative board.

14.  On 23 June 1999, the Commander, 341st MP Company formally recommended the applicant be separated under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12(b)(2).  The specific reason cited was the applicant’s personal feelings of intense hatred toward the military and civilian authorities placed over him, most notably, the President of the United States.  He continued to express his personal views in front of soldiers and to post political literature throughout the Reserve Center, while in uniform, despite being instructed to cease that behavior.  He threatened two senior NCOs.  The applicant had been counseled by his chain of command and by professionals in rehabilitation attempts.  He had no prior disciplinary actions and was a good worker.

15.  On 26 June 1999, the applicant’s company commander initiated a bar to reenlistment on the applicant.  The U. S. Army Reserve Bar to Reenlistment Certificate, DA Form 8028-R, item 8 lists as the factual and relevant indicators of unsuitability the same reasons as cited in the company commander’s recommendation for separation.  In addition, the commander noted that because of the applicant’s disobedience to civil and military authority, especially during the last 4 weeks of his tour, and the need to constantly supervise him, there was no choice but to submit a bar to any future reenlistment within the 30-day limit.

16.  On 26 June 1999, the applicant acknowledged receiving the bar to reenlistment and checked that a statement would follow.  On 26 June 1999, the Commander, 6045th GSU recommended the applicant be barred from reenlistment.  On 20 July 1999, the Commander, 63d Regional Support Command approved the bar to reenlistment.  Section V of the DA Form 8028, where the initiating commander would counsel the applicant on the implications of the action and his right to appeal, was not completed.  

17.  A Report of Mental Status Evaluation, DA Form 3822,dated 15 July 1999 noted that the applicant’s beliefs did not appear to be a product of mental illness. He was cleared for any administrative actions deemed appropriate by his command. 

18.  On 2 August 1999, the Acting Command Judge Advocate determined that the applicant’s separation packet was legally sufficient for further processing.

19.  On 13 August 1999, the applicant’s defense counsel withdrew as his counsel.

20.  On 11 September 1999, notification was made that the applicant’s separation board would be held on 3 October 1999.

21.  Three witness questionnaires provided for his separation board all mentioned what a fine character the applicant had but did not directly discuss the incidents that led to the board action.  The one indirect comment was “He is a God fearing man who trys (sic) to live his life as laid down in the Bible and expresses his beliefs freely.”

22.  On 16 September 1999, separation orders were published which incorrectly showed the applicant as being assigned to a unit in Wisconsin and with a separation date of 1 October 1999.  Several amendments were published.  A totally correct order, if one was published, is not available.

23.  On 20 October 1999, the applicant requested a 30 day extension to attend the one week ACAP course, requested adequate time to clear military housing and make transportation appointments, requested 20 days permissive temporary duty to find off-post housing, and adequate time to outprocess his unit.

24.  On 21 October 1999, AR-PERSCOM published orders amending his active duty orders to show his release from active duty date as 29 October 1999.

25.  On 24 October 1999, the applicant made a list, apparently intended to be sent to his company commander, requesting copies of his ETS medical and dental examination.

26.  On 27 October 1999, the applicant’s civilian counsel made a note to request Inspector General assistance with requesting a copy of the applicant’s scheduled ETS medical and dental examination.

27.  On 29 October 1999, the applicant was discharged, with an honorable discharge, upon the completion of his required active service after completing over 15 years of total federal service.  He was given a reentry code of 3, ineligible for reenlistment but the disqualification is waivable.  His separation code was LBK, involuntarily released from active duty or transferred, to be used for a soldier ineligible for, barred from, or otherwise denied reenlistment who is separated on completion of enlistment.  (Since he no longer had a military service obligation, he should have been give a separation code of JBK, involuntary discharge, to be used for a soldier ineligible for, barred from, or otherwise denied reenlistment who is separated on completion of enlistment.)  Item 17 of his DD Form 214 is checked that he was not provided a complete dental examination and all appropriate dental services and treatment within 90 days prior to separation.

28.  On 22 November 1999, the U. S. Army Reserve Command (USARC) responded to a Congressional inquiry on behalf of the applicant.  USARC noted that due to an administrative error AR-PERSCOM issued orders discharging the applicant from the USAR effective 1 October 1999.  He had been scheduled to appear before an administrative separation board on 3 October 1999.  However, when the 63d Regional Support Command (RSC) received a copy of the discharge order with an effective date of 1 October 1999, they cancelled the separation board as it was after the applicant’s discharge date.  In the meantime, AR-PERSCOM discovered the error in the applicant’s ETS and amended his discharge orders.  Due to another administrative error, these amendments were incorrectly addressed and the 63d RSC was unaware of the extension; therefore, they did not reschedule the separation board.  Consequently, the applicant was discharged when his ETS was reached.  In accordance with Army regulatory guidance, retention beyond a soldier’s ETS to process administrative separation is not authorized.  Therefore, the applicant was not allowed to extend his enlistment.

29.  On 6 December 1999, a captain with the legal assistance office (installation/unit unknown) informed the applicant that she had spoken with a Master Sergeant (MSG) B___.  MSG B___ had informed her that he had been primarily responsible for processing the applicant’s bar to reenlistment paperwork.  MSG B___ agreed that he had no documentation to show that the applicant was ever notified about the bar actually being imposed or the opportunity to appeal it.  However, he informed the captain that despite this administrative flaw, he was sure that the bar would have been imposed anyway and that any appeal would be denied.

30.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 1-17 states that when deciding retention or separation in a case the following factors, among others, should be considered:  the seriousness of the events or conditions that form the basis for initiation of separation proceedings and the effect of the soldier’s continued retention on military discipline, good order, and morale; the likelihood that the events or conditions which led to separation proceedings will continue or recur; and the likelihood that the soldier will be a disruptive or undesirable influence in present or future duty assignments.  Paragraph 1-28 states that retention beyond a soldier’s ETS to process administrative separation proceedings pursuant to this regulation is not authorized.  Paragraph 1-34 states that medical examinations are required for soldiers being separated per paragraph 5-3, chapters 8, 9, 12, 13, 14 (section III, acts or patterns of misconduct only), 15 and certain other soldiers as required by Army Regulation 40-501, paragraph 8-23 and table 8-2. Medical examinations under other provisions of this regulation are not required but may be requested by soldiers in writing.  Paragraph 3-7 states that only the honorable characterization may be awarded a soldier upon completion of his or her period of enlistment or period for which called or ordered to active duty.  Paragraph 14-12b(2) states that a soldier is subject to separation for a pattern of misconduct consisting of conduct prejudicial to good order and discipline.  Discreditable conduct and conduct prejudicial to good order and discipline include conduct violative of the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army regulations, the civil law, and time-honored customs and traditions of the Army.

31.  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 USAR.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  Soldiers denied reenlistment through a locally-imposed bar to reenlistment fall into this category. 

32.  Army Regulation 40-501 governs medical fitness standards for enlistment and separation.  Table 8-2 states that a separation medical examination upon ETS is not required but may be requested by the soldier in writing.  A separation medical examination when an enlisted soldier is being processed for separation under the provisions of Army Regulation 635-200, chapter 14, section III only is required.

33.  Army Regulation 40-3 establishes policy pertaining to selected Army Medical Department programs and initiatives.  Paragraph 6.4.A states that a dental examination is required each year for active duty Army personnel.  There is no regulatory requirement for a separation dental examination.

34.  Department of Veterans Affairs booklet Federal Benefits for Veterans and Dependents, 1998 edition states that service-connected dental conditions that are not compensable may receive one-time treatment if the conditions can be shown to have existed at discharge or within 180 days of release from active service.  Veterans must apply to VA for dental care within 90 days following separation.

35.  Army Regulation 140-111 prescribes policies and procedures for the USAR Reenlistment Program.  Section VII prescribes the procedures for denying reenlistment to persons whose reentry into, or continued service with, the USAR is deemed not in the best interest of the service.  Paragraph 1.28 states that Headquarters, Department of the Army policy extends the privilege of reenlisting only to personnel of high moral character, professional competence, and demonstrated adaptability to the requirements of the professional soldier’s moral code.  Paragraph 1.29 states that a bar will not be used in lieu of separation action under proper regulations.  When it seems appropriate, a bar should be initiated even if the commander is aware that an honorable or general discharge will be issued for the current period of service or that the soldier served honorably for a number of years.  Normally, a bar should not be initiated against an individual during the last 90 days (30 days for an AGR soldier) before the soldier is discharged or transferred from the command.  If initiated during this period, the commander must provide a complete explanation why the action was not taken earlier.  This explanation will be entered on the Bar to Reenlistment Certificate.  Bars should be considered for soldiers who may be unsuitable in that they may exhibit their unsuitability through interest or habits detrimental to the maintenance of good order and discipline.  Paragraph 1-31.2 states that a soldier who desires to submit an appeal, who is otherwise qualified for reenlistment, will not be involuntarily discharged while an appeal is pending.  A soldier serving on AGR status will be allowed 7 days to submit an appeal.

36.  Army Regulation 600-20 prescribes the policies and responsibilities of command, which include military discipline and conduct.  Paragraph 1.5.B states that the key elements of command are authority and responsibility.  Chain of command is defined as the sequence of commanders in an organization who have direct authority and primary responsibility for accomplishing the assigned unit mission while caring for personnel and property in their charge.  Paragraph 4.1 states that military discipline is founded upon self-discipline and respect for properly constituted authority.  Military discipline will be developed by individual and group training to create a mental attitude resulting in proper conduct and prompt obedience to lawful military authority.  Paragraph 4.2 states that all persons in the military service are required to strictly obey and promptly execute the legal orders of their lawful seniors.  Paragraph 4.12.C states that commanders have the authority to prohibit military personnel from engaging in any activity that the commander determines will adversely affect good order and discipline or morale within the command.  This includes but is not limited to the authority to order the removal of posters or other displays from barracks, to place areas or activities off limits or to order soldiers not to participate in those activities that are contrary to good order and discipline.  Paragraph 4.12.D states that commander options for dealing with a soldier’s violations of these prohibitions include involuntary separation for misconduct or for conduct deemed prejudicial to good order and discipline and bar to reenlistment action.  Paragraph 5.6 states that the Army places a high value on the rights of its soldiers to observe the tenets of their respective religious faiths.  The Army will approve requests for accommodation of religious practices unless accommodation will have an adverse impact on unit readiness, morale or discipline.

CONCLUSIONS:

1.  The evidence provided shows that LTC I___ was in the applicant’s chain of command and had the authority to flag, counsel, and initiate the action to separate the applicant.

2.  The Board concludes that the bar to reenlistment was not used in lieu of separation action.  The reasons cited by the company commander on DA Form 8028-R were valid reasons for barring the applicant from reenlisting for unsuitability.  The Board concludes that the reason cited for submitting the bar within the 30-day window was also valid and serious enough for submitting it.  

3.  The Board concludes that the administrative errors surrounding the applicant’s ETS date and discharge orders as related to his administrative separation board were harmless.  The evidence provided, which the applicant does not deny, leads the Board to conclude that he did commit the misconduct for which he was cited.  Had the separation board been held the Board concludes that, since the applicant did not deny the conduct and gave the impression that he would continue the conduct, it would have recommended his separation and that the approval authority would have approved his separation.  His claims to 1st and 2d amendment rights would not have protected him against such administrative separation.

4.  The Board notes that the applicant’s command did not follow the bar to reenlistment procedures through to completion in that the approved bar was never presented to the applicant for possible appeal.  The applicant has provided no evidence to the Board which would lead the Board to conclude that his command would have approved his appeal and lifted the bar had the bar been properly referred to him.  However, the failure to follow the bar to reenlistment procedures deprived the applicant of his administrative due process and invalidates the bar to reenlistment.  Thus the bar to reenlistment should be removed from the applicant’s records and his discharge and reentry code amended accordingly.

5.  There is no evidence to show that the applicant requested an ETS physical.  He submits three pieces of evidence that he contends shows that he requested an ETS physical.  However, his 20 October 1999 request for a 30-day extension does not list a request for an ETS physical as a reason.  His 24 October 1999 list requested a copy of his ETS medical examination but since he did not request an examination there was no such copy.  His civilian counsel’s 27 October 1999 note requested assistance with requesting a copy of the applicant’s scheduled ETS medical examination but again, since he did not request one, there was no such copy.

6.  An ETS dental examination is not a regulatory requirement nor is there provision for requesting an ETS dental examination.  The applicant’s DD Form 214 notes that no dental examination was performed within 90 days of his ETS. This entry is for the purpose of assisting him in obtaining VA dental services after separation.

7.  The Board concludes that the applicant’s misconduct, which he does not deny, precludes granting his requested recall to active duty.

8.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

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

     a.  removing all documents relating to the applicant’s bar to reenlistment from his records; and

     b.  amending his DD Form 214 to show he was discharged from active duty with a reentry code of 1 and a separation code of KBK.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__rvo___  __wtm___  __tl____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Raymond V. O’Connor, Jr.
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000045829	
SUFFIX		
RECON		
DATE BOARDED	20010206	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	110.03	
2.	100.03	
3.	100.06	
4.		
5.		
6.