MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           12 April 2001                 
	DOCKET NUMBER:   AR2000048947

	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	
	Ms. Beverly A. Young		Analyst	

  The following members, a quorum, were present:

	Mr. Roger W. Able		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Mr. Donald P. Hupman		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 first endorsement to his DA Form 4187 (Personnel Action), dated 12 August 1996, be removed from his Official Military Personnel File (OMPF).

APPLICANT STATES:  That the content of the endorsement is false.  He contends that his performance through his expiration term of service was above and beyond expectations.  He states that he did not allow his personal life to interrupt his duties.  He also states that his mother was never in poor health, he did not continue to harbor any guilty feelings surrounding the circumstances of his brother’s death, and his divorce or visitation of his children was never an issue.  He further contends that he did not inappropriately respond to the “C-4” incident mentioned, as claimed in the endorsement, and that it was the normal procedure to give the duty agent of the day the complaint, and was subsequently handled appropriately.  In support of his application, he submits five letters of support, a warrant officer recommendation letter, a DA Form 4187 (Personnel Action), two endorsements, and a DA Form 4991-R (Declination of Continue Service Statement).

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

The applicant entered active duty on 28 December 1989 and completed training as a Criminal Investigation Division (CID) special agent.  He served in Southwest Asia from 27 December 1990 through 17 May 1991 and was honorably released from active duty on 28 December 1996.  The applicant is currently serving in the U.S. Army Reserve in the rank of sergeant first class.

Evidence of record shows the applicant was levied for assignment in Germany, but did not have sufficient service remaining.  He submitted a DA Form 4991-R (Declination of Continued Service Statement) and was counseled by the appropriate military personnel.

The applicant was advised that refusal to comply with the requirement to extend his service agreement would result in denial of reenlistment.  He was further advised that he would be placed in a nonpromotable status; prohibited from enlisting for at least 93 days after separation; awarded a reenlistment eligibility code of 3A at separation which requires a waiver by Department of the Army before enlistment; prohibited from extension of enlistment; and prohibited from applying for Commissioned or Warrant Officer Programs.

On 12 August 1996, the applicant submitted a DA Form 4187 (Personnel Action), to request separation from the service under the provisions of Army Regulation 635-200, chapter 16-5c, for voluntary separation of a soldier denied reenlistment. 

The applicant’s request was approved by the commander of the 31st Military Police (MP) Detachment and was forwarded to the Commander of the Fort Campbell District, 3d MP Group.  

The Commander of the Fort Campbell District recommended approval of the request for separation and placed an endorsement on the applicant’s DA Form 4187 explaining the reasons for his decision to include the applicant’s recent marginal duty performance and family problems.

The Commander of the 3d MP Group also recommended approval of the applicant’s request.  As a result, orders were published by the 101st Airborne Division (Air Assault) and Fort Campbell, which released the applicant from active duty on 28 December 1996, under the provisions of Army Regulation 
635-200, chapter 16, paragraph 16-5c, for non-retention on active duty.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 16 covers 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.  Incident to the request the member must state that he understands that recoupment of unearned portions of any enlistment or reenlistment bonus is required and that later reenlistment is not permitted.

Army Regulation 600-8-104 (Military Personnel Information Management and Records) prescribes the policies governing the Official Military Personnel File, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records.  Paragraph 2-4 of this regulation states that once a document is placed in the Official Military Personnel File it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by:  the Army Board for Correction of Military Records, the Department of the Army Suitability Evaluation Board, Army appeals board, Chief of Appeals and Corrections Branch of the Total Army Personnel Command, the Official Military Personnel File custodian when documents have been improperly filed, Total Army Personnel Command (TAPC-PDO-PO) as an exception, Chief of the Appeals Branch of the Army Reserve Personnel Center and Chief of the Appeals Branch of the National Guard Personnel Center.

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.  Based on Army Regulation 600-8-104, documents filed in the Official Military Personnel File become a permanent part of that file and will not be removed from that file unless directed by the appropriate agency or when the documents have been improperly filed.  There is no evidence of record which shows the first endorsement to the applicant’s DA Form 4187 was improperly filed in his Official Military Personnel File in accordance with the governing regulation.

2.  The Board considered the applicant’s contentions that his personal and family situations did not interfere with his job performance, that his mother was never in poor health, that he did not harbor any guilty feelings regarding his brother’s death, that his divorce and visitation of his children were never an issue and that he did appropriately handle the incident involving the C-4 explosives.  

3.  The Board determined that the endorsement by the Commander of the Fort Campbell District of the 3rd Military Police Group represented his professional views of the applicant’s performance at that time and the reasons for his recommendation to approve the applicant’s request for separation.

4.  While several co-workers and associates have provided letters of support on behalf of the applicant, none of them viewed the applicant from the same vantage point as the Commander of the Fort Campbell District or were in command of that unit.

5.  The Board noted the letters of support from the applicant’s co-workers and associates; however, their opinions are not sufficient to warrant removal of the commander’s assessment in this case, particularly in view of Army regulation which precludes removal of properly filed information in an Official Military Personnel File.

6.  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 this requirement.

7.  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____  RTD____  DPH_____  DENY APPLICATION

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

INDEX

CASE ID	AR2000048947	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010412	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19961228	
DISCHARGE AUTHORITY	AR635-200,chapter 16-5c	
DISCHARGE REASON	Non-Retention on Active Duty	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	134.0000	
2.		
3.		
4.		
5.		
6.