MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           26 September 2002                  
	DOCKET NUMBER:   AR2002070254

	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. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Ms .Karen Y. Fletcher 		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:  Reinstatement to the 1997 pay grade E-7 promotion list and promotion with a date of rank of 1 December 1997.

APPLICANT STATES:  In effect, the punishment received was disproportionate to what others received for the same offense and therefore unjust.  Lack of command support and errors by the Defense and Accounting Service (DFAS) hindered his ability to meet his financial obligations.  

He describes how his pay problems started when his personnel file was lost at Fort Knox, Kentucky in January 1998.  He had to personally see to reconstructing his records and, even then, he had to wait a week before being paid.  In the meantime, his bills and debts were mounting up.  In April 1998 he was, "once again blind-sided by finance."  He had to pay back $1,900.00 in BAQ (basic allowance for quarters) overpayments.  He was only receiving about $300.00 per month.  His command was no help, except to suggest Army Emergency Relief, but they could not help him because all these financial problems had pushed him into Chapter 13 bankruptcy.  He used his "government credit card to provide for my family and pay for legal fees."  He feels that he had used every means available to rectify the situation before he did so.  

At the end of June 1998 he received the funds that had been wrongfully withheld, but that was too late to save him from bankruptcy and his career was already ruined.

The punishment that he received was much more severe than that imposed on two other members of his command who did the same thing.  One charged over $5,000.00 and received nonjudicial punishment NJP under Article 15, Uniform Code of Military Justice (UCMJ), but suffered no reduction in rank and no bar to reenlistment.  The command took no UCMJ action against the other one who was allowed to transfer to Europe with no punishment.

The bar to reenlistment was not handled correctly.  He was never properly counseled on the bar to reenlistment, which is only supposed to be in place for 6 months, but was in his record for 8 months and his name was removed from the promotion list on 1 February 1999.  He was required to repay over $1,000.00 that he had received while drawing pay as a sergeant first class (SFC). 

The most humiliating part of the entire episode was that he had to work under the supervision of a former subordinate.

He summarizes his argument by saying, in effect: that the punishment was inconsistent with that received by other soldiers for the same offense; that falsified documents, and misleading and erroneous dates were used; that Army 

regulations were not followed in the processing of the bar to reenlistment; that his financial problems were caused by the military finance personnel; and his pleas for assistance went unanswered.  

In support of his case he provides 13 enclosures, including, a copy of the DA Form 2126-A (Notification of Suspension of Favorable Personnel Actions), two Leave and Earning Statements (LESs), two pay inquiry forms, seven memoranda and a letter administratively closing his first application because there was no available evidence.  These documents, already part of the record, are presented in chronological order below.

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

The applicant, a Regular Army staff sergeant (SSG) was selected for promotion to SFC and placed on the 7 November 1997 promotion list and promoted with an effective date and a date of rank of 1 December 1997. The promotion was contingent upon successful completion of the Advanced Noncommissioned Officer Course (ANCOC).  He was stationed at a remotely located health clinic at Selfridge, Michigan (a satellite facility of the Army Medical Department Activity, Fort Knox, Kentucky). 

The applicant's LES for the period 1-30 January 1998 shows base pay and allowances of $2991.23, a mid-month payment of $1144.48 and net amount due of $00.00 at the end of the month.  A 30 January 1998 pay inquiry form states the nature of the problem as, "Soldier Req ADV pay.  Pay is in a hold status waiting to be processed.  His 201 and all inprocessing were lost.  A reconstructed 201 will be done to get him inprocessed, but he did not receive any pay for EOM Jan 98."  Finance responded to the inquiry with the following remarks in section III of the form "As of 980203 the SM is in a 'T' status which is no pay for Feb & all following months, unless SM inprocesses ASAP!  Advances can't be paid while in a 'T' statue - - SM might want to speak w/AER."  

A 15 April 1998 pay inquiry form states "Soldier usually gets 600 at MM.  Only rec'd 308. What was deduction for?  In section III Finance indicated "SM is paying back BAQ for being in transit."

His LES for the period 1-30 June 1998 shows he received $1969.41 for "REFUND DEBT."  

The applicant was advised that the Troop Commander was considering whether to impose NJP for using his Government American Express credit card for personal use in the amount of $3,845.76 during April, May and June 1998.  The applicant was afforded an opportunity to consult with counsel and elected not to 

demand trial by court-martial.  He requested an open hearing, waived his right to have another person speak in his behalf and indicated that matters in mitigation and extenuation would not be presented.  On 14 July 1998, the commander imposed punishment consisting of forfeiture of ¼ base pay per month ($588.00) for 2 months (suspended for 6 months).  The commander ordered the record of NJP (DA Form 2627) filed on the restricted portion of the applicant's Official OMPF.  The applicant did not appeal the punishment.

The applicant's unit commander initiated a bar to reenlistment on 21 July 1998.  

A 28 September 1998 letter of support from another SFC stated, in effect, that the applicant's finance problems had been beyond his control, that he had mis-used the Government American Express Credit Card out of a legitimate need to provide for his family and that, although the applicant had gone to the Army Community Services (ACS) on the Troop Commander's orders and had been following the budget laid out by ACS, he was being punished for not paying back the American Express debt.  

The appropriate authority approved the bar to reenlistment on 2 October 1998.

A 19 October 1998 letter from an Army civilian psychologist provided essentially the same information as the 28 September 1998 letter of support and added that the applicant had continued to perform his duties in a professional manner despite his problems.  He recommended, in effect, that the applicant not be forced out of the Army.  

A 30 November 1998 letter from American Express debt collection company states that the American Express account had been repaid in full as of 18 November 1998.

On 11 January 1999, the applicant's officer in charge provided a letter of support in which he observed that the applicant had been complying with the budget plan provided by ACS, but that 3 months later, the command had decided to impose punishment and a bar to reenlistment because the applicant had not repaid the American Express debt.  

The Total Army Personnel Command (PERSCOM) Order No. 27-12 dated 27 January 1999 revoked the applicant's promotion to SFC because he had not attended the ANCOC.  He was granted de-facto status from 1 December 1997 to 2 October 1998.

In an NCO Evaluation Report for the period from May 1998 to April 1999 the applicant's rater assigned "No" to the Part IV Values traits of "Maintains high 

standards of personal conduct on and off duty" and "Has the courage of convictions and ability to overcome fear-stands up and does what's right."  The rater marked the applicant as "Needs Improvement" under Responsibility and Accountability and entered an appropriate remark about the mis-use of the Government credit card.  Notwithstanding the credit card incident, the senior rater marked the applicant in the second block for overall performance and in the third block for potential and entered a bullet comment that "although he made a serious mistake in judgment, he has never let his attitude or his job performance suffer because of it."

The Commanding General, Armor Center and Fort Knox, Kentucky approved the removal of the bar to reenlistment on 1 June 1999. 

On 17 May 2000, the applicant reenlisted as a SSG with 16 years, 5 months and 9 days of active duty service.

On 29 March 2001, the applicant's original application to this Board was administratively closed without action because he had administrative relief available.  

The Commander, Headquarters, Army Medical Department Activity, Fort Knox, in a 7 May 2001 memorandum to the PERSCOM, recommended that the applicant be reinstated to the SFC promotion list.  That request was disapproved on 29 August 2001.

Army Regulation 27-10 provides policy for the administration of military justice.  Chapter 3 provides that nonjudicial punishment is appropriate in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate.  It is a tool available to commanders to correct, educate and reform offenders whom the commander determines cannot benefit from less stringent measures; to preserve a member's record of service from unnecessary stigma by a record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring fewer resources than trial by court-martial.  The imposing commander is not bound by the formal rules of evidence before courts-martial and may consider any matter, including unsworn statements the commander reasonably believed to be relevant to the case.  Furthermore, whether to impose punishment and the nature of the punishment are the sole decisions of the imposing commander.

Army Regulation 601-280 establishes the policies and procedures for local bars to reenlistment.  It states that local bars are intended to deny reenlistment to soldiers whose immediate separation under administrative procedures is not 

warranted, but whose reentry into, or service beyond his scheduled separation date (ETS) with the Active Army is not in the best interest of the military service.  A sixth-month review of a bar to reenlistment and counseling is required. 

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 notes the support the applicant has received from his superiors, including that he had pay problems that were not his fault and beyond his control.  The relatively high senior rater evaluation that he received for the period in question is also noted.

2.  However, there is no supporting evidence to show that the applicant was treated more harshly that other NCOs in his command who committed similar offenses.  There is also no independent documentation to show that the NJP and bar to reenlistment were imposed even after the applicant was complying with the budget provided by ACS.  Assertions of such compliance with the ACS plan appear to be based upon what the applicant related his supporters.

3.  The NJP was imposed in compliance with applicable laws, regulations and policies.  The actions taken and the punishment imposed were neither unjust nor disproportionate to the offense, and there is no evidence of any substantive violation of any of the applicant's rights.  The Board specifically notes that the NJP, itself, deprived the applicant of neither time nor money.

4.  Although there is no available evidence that the bar to reenlistment was reviewed and the applicant counseled at the sixth-month point, the 11 January 1999 letter from the applicant's officer in charge tends to show that the bar was under active review and that the applicant was aware of what he needed to do to get the bar lifted.  Furthermore, the promotion to SFC was rescinded when the bar was only 4 months old and because the applicant had not completed ANCOC and not because of the bar, nothing prejudicial appears to have occurred because of the possible failure to review the bar.
   
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____  __RJW_  ___KYF__  DENY APPLICATION

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

INDEX

CASE ID	AR	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020926	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.