MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            27 September 2001
	DOCKET NUMBER:   AR2001053500

	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. Deyon D. Battle		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:  That his reentry eligibility (RE) code be changed from RE-3 to one which will allow him to reenlist in the Army.  He also requests removal of a record of nonjudicial punishment (NJP) dated 8 December 1998, from his Official Military Personnel File (OMPF).

APPLICANT STATES:  That after 10 years of service his career took a drastic turn of events.  He states that he got an Article 15 for failure to show up at the right time but he did not lie to anyone.  He states that he was told to sign at the middle portion of the paper next to the 2 December 1998 date and that he was never afforded any opportunity to consult with counsel or to appeal the decision.  He states that he never signed the Article 15, next to the 8 December 1998 date.

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

On 28 October 1986, he enlisted in the Army for 3 years in the pay grade of E-1 and he successfully completed his training as a combat signaler.  He remained on active duty through a series of continuous reenlistments.  He was promoted to the pay grade of E-6 on 1 February 1997 and was serving as a special forces commo sergeant.

On 12 November 1998, the applicant was counseled for failure to show up for an out-processing brief.  The counseling statement indicates that four attempts were made to locate him to find out why he was not at the out-processing brief.  Once he was located, his senior noncommissioned officer (NCO) questioned him regarding his failure to be at formation.  The applicant stated that no one told him that he had to be at formation.  His senior NCO also told the applicant that he and the first sergeant had been made aware of his failure to show up at the weapons pool to clean his weapon the day prior to this incident.  He was informed that his behavior was inconsistent with the mission and duty and that his conduct was inconsistent with Army values.  He was reminded of the importance of integrity and honesty to a well functioning Army.

The applicant was counseled on 17 November 1998, for showing up for graduation 2 hours late.  When asked why he was late, the applicant proceeded to create a story involving the death of his brother to justify his absence.  His story differed by the person to whom the story was told.  A visit was made to the applicant’s father to confirm or deny the story and his father stated that the applicant was a liar.  However, the applicant repeatedly lied to the first sergeant and his senior NCO despite the differences in the story.  He was told again that his behavior was inconsistent with the mission and duty and that his conduct was inconsistent with Army values.  He was also told that he was being recommended for disciplinary action under the Uniformed Code of Military Justice (UCMJ) as a result of his actions.

Accordingly, on 8 December 1998, NJP was imposed against the applicant for failure to go to his appointed place of duty and for intending to deceive by making a false official statement on 13 November 1998.  His punishment consisted of a reduction in pay grade, a forfeiture of pay, restriction and extra duty.  A review of the record shows that the applicant signed the record of NJP on 2 December 1998, and he indicated that he did not demand trial by court-martial and that matters in defense, mitigation, and/or extenuation were not being presented.  It appears that he signed the record of NJP again on 8 December 1998.  However, he failed to initial the appropriate block to indicate whether or not intended to submit an appeal.  The commander directed that the record of NJP be filed on the applicant’s performance fiche.

On 9 March 1999, the applicant received a General Officer Memorandum of Reprimand (GOMOR).  He was apprehended by civil authorities on 8 March 1999 for driving while intoxicated.  He was told that he had flagrantly disregarded the law and the safety of his fellow NCOs and the general public and that the operation of a motor vehicle while under the influence of alcohol demonstrated a complete lack of responsibility.  He was also told that his act of misconduct constituted a serious departure from the high standards expected of an NCO and his misconduct cannot and will not be tolerated.  The commander indicated that the GOMOR was being imposed as an administrative measure and not as punishment under the UCMJ.  The applicant was informed that he had 7 days to submit matters in his own behalf through his chain of command to be considered prior to determining where the GOMOR would be filed.  

In an undated statement, the applicant stated that he was pulled over for driving under the influence.  He stated that he passed two field sobriety tests and was charged because he failed the chemical analysis test.  He concluded by stating that he was later released because he had no tickets or any other offenses.  The commander considered the applicant’s statement and he directed that the GOMOR be filed in his OMPF.

On 21 April 1999, the applicant was counseled for driving while impaired.  He was told that he could receive a dishonorable discharge, forfeiture of all pay and allowances, confinement or separation from the Army under the provisions of Army Regulation 635-200, chapter 14 for misconduct.

On 22 April 1999, he was counseled for dereliction of duty and for failure to obey an order or regulation.  His appointed place of duty was Charge of Quarters (CQ) and the senior NCO stated that the applicant abandoned his post to get some sleep.  His senior NCO further stated that the applicant had been asleep for 

1 hour and he was in such a deep sleep that when he was wakened and asked questions, he was giving answers that had absolutely nothing to do with the questions being asked.  He was informed of the maximum punishment for his actions and he was told that his conduct and attitude was not that expected of an NCO.  He was also informed that any further violations would be directed to the command for further review.

The applicant acknowledged receipt of the counseling statement and he wrote a statement indicating that to be in violation of dereliction of duty one has to have been told what the duties include when the commander is not clear on some of the orders.  He stated that what he did was wrong, but not dereliction of duty.  He went on to state that he went up to his room to take an aspirin for his headache and he sat down and later fell asleep.  He stated that he fell asleep because he had been driving for almost 3 hours and because he had a headache.  He further stated that he had been in the Army for over 12 years and to be derelict in duty one would have to blatantly disregard his duty to the point that the duty is never pulled.  He stated that after he fell asleep, he was incoherent from being tired from driving and not because he was in a deep sleep.

On 25 May 1999 the applicant was counseled for being missing from accountability formation.  His first sergeant stated that this was not his first incident and that his continuous dereliction of his duties and lack of professionalism were not traits that are expected from an NCO.  He further stated that the applicant had constantly violated instructions and policies that he knew as a soldier, he was bound to uphold.  The first sergeant went on to state that he had been given constant changes and had taken it upon himself to do not what was required of him, but rather what he felt like doing, as if nothing more could be done to punish him for his violations.  He was told that his actions warranted notification of his chain of command for further review regarding his habitual problem.

The applicant was notified that action to eliminate him from the Army under the provisions of Army Regulation 635-200, chapter 14 for misconduct had been initiated.  He acknowledged receipt of the notification, and after consulting with counsel, he waived his rights on the condition that he receive an honorable discharge.

The appropriate authority approved the request for discharge.  Accordingly, on 20 December 1999, the applicant was honorably discharged under the provisions of Army Regulation 635-200, chapter 14 for misconduct based on frequent involvement of a discreditable nature.  He had completed 12 years, 10 months and 26 days of total active service and he was assigned an RE code of RE-3.

There is no indication in the available records to show that the applicant ever applied to the Department of the Army Suitability Evaluation Board to have the record of NJP transferred to the restricted fiche of his OMPF or removed in its entirety.

Army Regulation 27-10, in effect at the time, stated in pertinent part, that the decision to file a record of NJP on the performance fiche or the restricted fiche of the OMPF would be determined by the imposing commander at the time punishment was imposed.  The filing decision of the imposing commander was final and was to be indicated in item 5, on the record of NJP.

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.

RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable. Certain persons who have received NJP are so disqualified, as are persons with bars to reenlistment, and those discharged under the provisions of chapters 9, 10, 13, and 14 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.  The NJP was imposed in compliance with applicable laws, regulations, and policies.  The punishment imposed was neither unjust nor disproportionate to the offense, and there is no evidence of any violation of any of the applicant’s rights.

2. The applicant was separated and assigned a reentry code in accordance with the applicable regulation.

3.  The Board has noted the applicant’s contentions.  However, he has submitted neither probative evidence nor a convincing argument in support of the request.  Although he now contends that the signature reflected at the 8 December 1998 date is not his, the evidence of record clearly shows that he signed the record of NJP on 2 December 1998.  He was clearly given the opportunity to demanded trial by a court-martial at that time if he did not agree with reasons for the imposition of punishment.

4.  The record of NJP was properly filed in accordance with the applicable regulations and there appears to be no basis for its removal.

5.  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.

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

__rvo ___  ___teo __  __ena___  DENY APPLICATION

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

INDEX

CASE ID	AR2001052500	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/09/27	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  277	126.0000	
2.  281	126.0000	
3.		
4.		
5.		
6.