MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            27 September 2001
	DOCKET NUMBER:   AR2001051903

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Eric N. Andersen		Member	
	Mr. Thomas E. O’Shaughnessy, Jr.		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, reconsideration of the issues of his previous application to the Board in which he requested expungement of a record of nonjudicial punishment (NJP) and bar to reenlistment, revocation of his discharge, reinstatement to active duty, promotion to the pay grade of E-7 with all back pay and allowances with no offsets applied, and permanent disability retirement paid at a 70% rate. 

APPLICANT STATES:  In effect, that the Board acted in an arbitrary and capricious manner when it denied his claim.  He goes on to state that the Board erred when it relied on the Department of the Army Inspector General (DAIG) report of inquiry that was blatantly incorrect and amounted to a true travesty of justice.  He further states that the report quoted incorrect regulatory guidance, dates were changed and evidence supporting the allegation were disregarded in order to fabricate a fictitious response and the Board should either disregard that report or address the errors in detail.  He also states that he should have received a Transitional Training and Evaluation (TTE) board to determine his fitness as a recruiter and was unjustly denied this due process.  Additionally he was unjustly barred from reenlistment and was denied the opportunity to appeal his bar to reenlistment.  Furthermore, he was reprised against for contacting his congressional representative, was illegally required to take a physical fitness test after a doctor had directed that he not operate a government vehicle while on medication, had NJP imposed against him for conduct that was the resultant cause of his mental condition and was subsequently unjustly discharged.  He continues by stating that he should have been separated by reason of physical disability, which is evidenced by the disability rating he received from the Veterans Administration (VA).  He also contends that he should have been processed under the procedures established in United States Army Recruiting Command (USAREC) Regulation 350-2 for new (TTE) recruiters and should have been afforded due process under that regulation (which he provides).  He also provides a detailed analysis/rebuttal of the Board’s Memorandum of Consideration dated 9 June 1999 and the DAIG Report of Inquiry, as well as numerous other documents bound to his application.

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

After serving 10 years, 10 months and 26 days of total active service, the applicant was honorably discharged in the pay grade of E-6 on 28 July 1992 under the provisions of Army Regulation 635-200, paragraph 16-8 and the Fiscal Year 1992 Enlisted Voluntary Transition Program.  He was paid a special separation benefit payment of $30,519.45 and was transferred to the United States Army Reserve Control Group (USAR) (Individual Ready Reserve).

While in the USAR he volunteered for an Active Guard/Reserve (AGR) position on active duty as a recruiter.  His request was approved and he was ordered to active duty on 20 October 1993.  He completed the Army Recruiter Course and was transferred to York, Pennsylvania as a USAR Recruiter. 

It appears that after approximately 7 months as a recruiter, the applicant began experiencing stress from the rigors of recruiting duty and was referred to mental health officials for diagnosis and treatment.  The specifics of his diagnoses and treatment are delineated in the Board’s previous Memorandum of Proceedings (AR1999016953) dated 9 June 1999.

On 14 November 1994, NJP was imposed against him for disobeying a lawful order from his battalion commander to return to his place of duty and continue to prospect for recruits.  He elected not to demand trial by court-martial and his punishment consisted of a forfeiture of pay.  The applicant appealed the punishment and asserted that he disobeyed his commander because he cracked under the pressure of stress being placed on him to produce.  He contended, in effect, that given his mental condition, his conduct was to be expected and that he should not be punished but instead be relieved of recruiting duties.  The commander (a major general) denied his appeal.

On 18 November 1994, the applicant’s first sergeant prepared a memorandum for record in which he documented that the applicant’s TTE evaluation was not completed because of the applicant’s lack of desire to be in recruiting, his being on medication since 14 July 1994 that caused him to act abnormal, a profile against driving, and his failure to show any potential to do his job.   The first sergeant opined that the applicant should leave recruiting duty because of the negative influence he was having on the recruiting station. 

On 21 November 1994 the commander submitted a request to extend the applicant for 3 months in order to complete a 9-month TTE because he was unable to be evaluated properly under the circumstances.  He also indicated that previously the applicant had been a top performer, which indicated that he possessed the ability to be a great recruiter; however, his work ethic had dropped off.

On 29 December 1994, the applicant’s commander initiated action to bar the applicant from reenlistment based on the NJP that was imposed against him.  The applicant elected to submit a statement in his own behalf whereas he asserted that it was unjust to impose the bar to reenlistment against him for one record of NJP that was the result of his medical condition.  He also presented medical documentation to support his contention that he had a medical condition and contended that the only problem he had was being a recruiter because he would never adjust to the job.

The appropriate commander (a brigadier general) approved the bar to reenlistment on 23 March 1995 and the applicant signed the bar on 3 April 1995, indicating that he would not appeal the bar.

However, before the applicant indicated that he would not appeal the bar to reenlistment, he submitted a request for separation under the provisions of Army Regulation 635-200, paragraph 15-5b(1)(2) due to his inability to overcome the locally imposed bar to reenlistment.

On 26 April 1995, his request for discharge was finally approved by the appropriate commander who directed that he be issued an Honorable Discharge Certificate and that he not be transferred to the USAR.

The applicant underwent a medical/physical examination on 24 May 1995 which indicates that the applicant was being treated for adjustment disorders and depression, that he was on medication and that he had situational stress that was job related.  He was cleared for separation.

Accordingly, he was honorably discharged on 9 June 1995.  However, his separation document (DD Form 214) indicates that he was discharged under the provisions of Army Regulation 635-200, chapter 5 for voluntary release in the best interest of the government.  This was subsequently changed by the Board to reflect that he was discharged under the provisions of Army Regulation 635-200, paragraph 16-5 (b) for Non-retention on Active Duty.

On 14 April 1999, a report of inquiry was prepared as a result of a DAIG investigation that was initiated as a result of a congressional inquiry.  The investigation was conducted to investigate the applicant’s allegations that he was prohibited from seeking additional medical assistance in order to seek additional time off/convalescent leave, that he was ordered back to duty when he was not pronounced fit for duty, that members lied to Members of Congress, that he was given a physical fitness test in violation of the applicable regulations, that he was coerced into signing a request for discharge, that he was discharged under the wrong provisions of the regulation, that he was not afforded the opportunity to be evaluated by either a medical or physical evaluation board (MEB) (PEB) and that he was given NJP and a bar to reenlistment as a result of prejudice in violation of the applicable regulations.  The only allegation that was substantiated was that he was discharged under the wrong provision of the regulation (this has been subsequently corrected by the Board).  A review of the report of inquiry shows that the applicant was interviewed and refused to have his testimony taped even after he was informed that he could have a copy of the tape.  

The Board considered the applicant’s initial application on 9 June 1999 and determined that of all of his contentions, the only one that had any merit was the fact that the provision of the regulation indicated on his DD Form 214 as the authority for his discharge was incorrect.  The Board directed the correction to be made to reflect the correct discharge authority under which he was processed and approved.  The Board also directed that the record of NJP (DA Form 2627) and the bar to reenlistment be placed on the applicant’s restricted fiche of his Official Military Personnel File (OMPF).

The analysis/rebuttal of the Board’s Memorandum of Proceedings provided by the applicant with his application consists of his contentions that, in effect, the Board incorrectly stated in paragraph 3 that he had declined to take a physical fitness test.  In paragraph 5, the Board failed to note that he had a short active duty for special work assignment.  Paragraph 10 is incorrect and paragraph 11 failed to note that depression was diagnosed.  In paragraph 14 he offers his explanation of what the doctor meant.  Between paragraphs 14 and 15, he contends that a paragraph should have been added to reflect that he was due and never received a TTE board.  Paragraph 16 should have addressed the fact that the NJP imposed against him was an injustice and that he should have been referred to a MEB.  

He also contends that paragraph 18 fails to indicate that he was denied a TTE board that would have determined that he could no longer perform his duties and would have resulted in his being relieved as an unqualified recruiter instead of being discharged.  Paragraph 19 fails to recognize that the bar to reenlistment was back-dated to December 1994 in reprisal for his having contacted his congressional representative and that he was denied his right to 7 days to prepare a response and that he did not receive it until 25 January 1995.  In addition, it should have noted that he was denied a TTE board that could have allowed him to continue his military career in another capacity rather than to destroy it.  Also the battalion commander was the endorsing official and not the brigade commander.  Paragraph 21 leaves out the fact that he was recommended for additional convalescent leave by competent medical authorities and was ordered back to duty without being pronounced fit for duty.  Paragraph 21 should have indicated that the response from USAREC officials to a Member of Congress was a fraudulent response.  It should also note that given the statement that his actions detracted from good order and discipline, he should have been referred to an MEB.  Paragraph 23 should indicate that he declined to appeal the bar on 3 April 1995 vice 3 March 1995 and contends that he was denied due process and was told to sign a request for discharge.  Once he had signed the bar he was informed that he had no basis to appeal the bar. Paragraph 25 should state that the discharge was approved on 3 April 1995 instead of 25 April 1995.  Paragraph 26 states that he was qualified for separation but does not address the fact that the doctor could not make such a determination.  Paragraph 29 incorrectly addresses his VA disability rating that was granted retroactive to his discharge in June 1995.  Paragraph 31 incorrectly states that he believed he should be sent to Walter Reed when in fact it was the recommendation of officials at Carlisle Barracks.  Paragraph 33 should indicate that the DAIG Report of Inquiry is fraudulent and should not be used in the adjudication of the case.  Paragraph 34 references the incorrect paragraph dealing with his contention that he was entitled to be considered by a MEB and does not address the fact that he was granted VA medical compensation for his major depression immediately after his discharge.  Paragraph 35 incorrectly cites the requirements of an adjustment disorder when he has always been diagnosed with major depression.  Paragraph 36 incorrectly cites a discharge that is not germane to his case.

In the applicant’s analysis of the Board’s conclusions in his case he contends that in paragraph 1 of conclusions, the Board incorrectly states that his illness was an adjustment disorder when in fact it was depression.  The Board did not consider any of the doctor’s evidence past September nor did it address his convalescent leave in February and March.  In paragraph 3 the Board indicates that he could first do the job and then became unable to do the job.  Yet, the Board does not address the fact that MEBs are conducted for just that reason.  In paragraph 4 the Board failed to indicate that the NJP and bar to reenlistment were the results of prejudice and denial of due process and the Board failed to remove it from the record in its entirety.  In paragraph 5 the Board failed to recognize that the statements from his commander and first sergeant were proof that he was unfit for duty and should have been referred to an MEB and misinterpreted comments regarding his refusal to cooperate and his lack of desire.  Additionally, commanders are not in a position to determine fitness for duty and therefore he should have been referred to an MEB for such a determination.  Paragraph 6 is incorrect and should have indicated that a MEB is warranted when the evidence is properly taken into consideration.  Paragraph 8 incorrectly indicates that he said he should be sent to Walter Reed when in fact it was the officials at Carlisle Barracks.

In the analysis/rebuttal of the DAIG Report of Inquiry the applicant contends that the timeframe used for his fitness for duty is incorrect, that the wrong paragraph of the applicable regulation was used, that the regulation was incorrectly quoted and that he was never cleared to return to duty.  He also contends that he was prohibited from seeking additional medical assistance in order to seek additional time off/convalescent leave.  He goes on to state that USAREC officials did lie to Congressional representatives and presents his argument in that regard.  He further contends that the report incorrectly reports the status of his physical fitness testing and profile, does not address the validity of his NJP or the timeframes involved in the imposition of NJP, suspension of his special duty assignment pay, the bar to reenlistment or the illegal acts committed by his chain of command.  He also alleges that the report creates a smoke screen regarding his profile issues, fails to address the fact that his reports of harassment and abuse were not investigated, fails to address his being reprised against for contacting a Member of Congress and the fact that he was denied due process.

Army Regulation 635-200, paragraph 16-5 serves as the authority for voluntary separation of soldiers denied reenlistment.  It provides, in pertinent part, that soldiers who perceive that they will be unable to overcome a locally imposed bar to reenlistment may request immediate separation.

Army Regulation 27-10 provides the policies and procedures pertaining to the administration of military justice within the Army.  It provides, in pertinent part, that NJP may not be imposed for offenses which were committed more than 2 years before the date of imposition.  Soldiers will be advised that they have a right to refuse NJP and to demand a trial by court-martial at any time before punishment is imposed.

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.  The Board has very closely reviewed the extensive documentation and has considered the arguments submitted by the applicant.  However, the Board finds that he has failed to show through the evidence submitted or the evidence of record that he was improperly discharged.  Furthermore, the Board has elected not to address the applicant’s numerous issues of contentions separately as they are all tied to the events that led to his discharge and he has failed to provide sufficient evidence to support his contentions and to overcome the previous decision of the Board.

2.  While he has submitted extensive arguments regarding his contention that he should have been processed for medical disability separation, he has failed to convince the Board that he was eligible for processing through the disability system.  He was cleared by competent authority for separation and a subsequent review of his case by competent medical authorities has confirmed that he was fit for separation at the time.  While the VA has deemed that he is entitled to disability under their guidelines, it has no bearing on the fact that he was deemed fit for duty at the time of separation and that it was done on the applicant’s request.  The Board has no jurisdiction over the VA and as such they operate under their own separate guidelines. 

3.  The applicant’s contention that NJP was unjustly imposed against him appears to be without merit.  The applicant admitted that he committed the offense for which he was charged; however, if he believed that he was innocent at the time or that he should not be punished, he could have demanded trial by court-martial whereas he could have asserted his innocence and offered evidence and extenuating circumstances in his behalf, with the assistance of counsel.  While he may now believe that he made the wrong choice in accepting NJP, he should not be allowed to change his mind at this time.

4.  In regards to the bar to reenlistment, the Board finds that the bar to reenlistment was imposed in accordance with the applicable regulations with no violations of the applicant’s rights.  Accordingly, the bar to reenlistment will remain valid.

5.  The Board also finds the applicant’s contention that his discharge is invalid because he was coerced into requesting it and because he was denied due process in appealing his bar to reenlistment to be without merit.  He has submitted no evidence to support either contention and the Board finds that as a senior NCO with his years of service, it is reasonable to presume that he was aware of his rights in such matters and could not be forced to do something that he did not believe was right.   

6.  The Board finds that the applicant’s contention that he was denied due process by being denied a TTE board to be without merit.  The chain of command clearly documented that he could not be evaluated under the circumstances and requested a 3-month extension in order to do so.  However, it appears that the applicant was not receptive to improving his performance or work ethic.  The applicant went on leave for 41 days at approximately the time he would have been reviewed by a TTE board.  Given that the applicant received NJP due to his own misconduct, the commander had the authority to initiate a bar to reenlistment against the applicant if he deemed it appropriate.   

7.  The evidence of record clearly shows that the chain of command made every effort to assist him in becoming a successful recruiter, a job that he voluntarily sought and the sole reason for which he was ordered to active duty to perform.  However, once he requested discharge, rather than to try and overcome his bar to reenlistment, there was no basis to conduct a TTE board.

8.  While the applicant has gone to great lengths to dispute the DAIG’s Report of Inquiry and the Board’s Memorandum of Consideration, both in facts and administrative errors he believes are incorrect, the Board finds no substantive evidence sufficient to overcome the bottom line in this case, that the applicant was discharged in accordance with the applicable regulation with no violations of his rights.  While he may not agree with the outcome, it was the resultant cause of his own conduct and subsequent voluntary request for discharge.  

9.  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.

10.  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

____rvo _  __teo ___  __ena ___  DENY APPLICATION

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

INDEX

CASE ID	AR2001051903	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/09/27	
TYPE OF DISCHARGE	(HD)	
DATE OF DISCHARGE	1995/06/09	
DISCHARGE AUTHORITY	AR635-200, para 16-5	
DISCHARGE REASON	471/Bar/conv of govt	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  471	144.0720/fto bar	
2.  538	144.3100/a31.00	
3.		
4.		
5.		
6.