RECORD OF PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:            02 MARCH 2004                  
	DOCKET NUMBER:   AR2003092645

	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	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Robert Duecaster		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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that his reentry code of "4" on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected, and that a general officer memorandum of reprimand be removed from his Official Military Personnel File (OMPF).

2.  The applicant states that on 14 March 1989 he received a letter of reprimand for being arrested for DWI (driving while intoxicated).  The court dismissed his case, at which time he should have requested that the letter be removed from his OMPF; however, he did not fully understand the consequences of the letter remaining in his OMPF.  He was identified for discharge under the reduction in force program.  When notified that he was to be discharged under the QMP (Qualitative Management Program), he chose not to submit a rebuttal, a decision he now regrets.  At that time his marriage was failing and his attitude was not what it should have been.  However, he has always taken great pride as a Soldier.  His accomplishments were many.  He is currently an instructor with the Pennsylvania Army National Guard, and everyday he tries to give something back to the Army by molding young soldiers.  He has the opportunity now to better his career with the Army National Guard in a full time status, but needs his reentry code upgraded.  

3.  The applicant provides a copy of his 23 October 1992 DD Form 214, a copy of the letter of reprimand and allied papers, a copy of 7 May 1992 court documents, and copies of letters of support dated in March 2003 from members of the Pennsylvania Army National Guard.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error or injustice which occurred on 23 October 1992.  The application submitted in this case is dated 18 June 2003.  

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in the Army for four years on 10 September 1975.  He had continuous service on active duty until his discharge in 1992.  He served in numerous areas throughout the world to include over 10 years of duty in Germany.  He completed numerous courses of instruction, to include the Noncommissioned Officer Advanced Course.  His awards include three awards of the Army Commendation Medal, five awards of the Army Achievement Medal, and four awards of the Army Good Conduct Medal.    

4.  The applicant's evaluation reports have been consistently outstanding, with one exception.  His report for the period June 1988 through December 1988 was a relief for cause report.  That report showed that he was charged with driving while intoxicated.  He was relieved from his position as a platoon sergeant because of his poor judgment.  The applicant's four evaluation reports thereafter up until his discharge mirrored his reports prior to the 1988 report.

5.  Nonetheless, in an undated memorandum, his commanding officer informed the applicant that he intended to disqualify him for award of the Good Conduct Medal for the period 10 September 1987 to 9 September 1990 because of failure to pay child support, bigamy (CID investigation), court ordered bankruptcy, excessive bad checks, DWI charge, and alcohol abuse affecting leadership performance and personal affairs.  The applicant stated that he did not elect to make a statement; however, because he did not elect to make a statement did not mean that he concurred with the allegations.

6.  On 14 March 1989 the Commanding General, 2nd Armored Division, issued the applicant a memorandum of reprimand for driving while intoxicated.  In that memorandum, that officer stated that the applicant on 16 December 1988 operated a motor vehicle while intoxicated, and that his blood alcohol level was .13 percent.  He informed the applicant that he intended to place the letter permanently in his OMPF; however, prior to doing so, would consider any matters the applicant submitted in rebuttal, extenuation, or mitigation.  In response, the applicant stated that his actions were inexcusable; however, at least where his career was concerned, not irreversible.  He appealed for leniency, stating that if the letter was placed in his OMPF all chances of competing for promotion would be eliminated.  On 4 April 1989 the 2nd Armored Division Commanding General informed the applicant that the letter of reprimand would be permanently filed in his OMPF.

7.  On 7 May 1992 the county court of Coryell County, Texas dismissed the charge of DWI, and accepted the applicant's plea of guilty to the offense of speeding.  He was fined $78.00 and court costs.       

8.  On 10 July 1992 the applicant was informed that he was barred from reenlistment under the QMP.  The documents identified as a basis for the bar were the above-mentioned evaluation report and the letter of reprimand.  The applicant chose not to submit an appeal to the bar.

9.  On 3 August 1992 the applicant completed a Personnel Action (DA Form 4187), agreeing to serve in the Army Ready Reserve for three years.  
10.  The applicant was discharged on 23 October 1992 at Fort Knox, Kentucky.  He had over 17 years of active service.  He was awarded half separation pay of $19,993.65.  His reentry code shown on his DD Form 214 is "4."

11.  The applicant was granted a waiver by the Maryland Army National Guard in order to enlist in that organization.  He enlisted on 14 February 1994 for six years.  He was discharged from the Maryland Army National Guard on 12 August 1997 for unsatisfactory participation with a general characterization of service.  He was transferred to the Army Reserve Control Group (Reinforcement) at St. Louis.   

12.  On 15 February 2000 the applicant was discharged from the Army Reserve.
    
13.  Army Regulation 600-37 sets forth the basic authority for the filing of unfavorable information in the OMPF.  Paragraph 3-4 of that regulation provides, in pertinent part, that a nonpunitive letter of reprimand or admonition would be filed in the OMPF only when directed by a general officer senior to the recipient or by direction of the officer having general court-martial jurisdiction over the recipient.

14.  Army Regulation 600-8-104 provides, in pertinent part, that the restricted fiche of an OMPF is used for historical data that that may normally be improper for viewing by selection boards or career managers.  Its release is highly controlled.  The restricted fiche is intended to provide an unbroken historical record of an individual’s service while protecting the interests of both the soldier and the Army.

15.  Army Regulation 601-280, chapter 10, sets forth policy and prescribes procedures for denying reenlistment under the QMP.  This program is based on the premise that reenlistment is a privilege for those whose performance, conduct, attitude, and potential for advancement meet Army standards. It is designed to (1) enhance the quality of the career enlisted force, (2) selectively retain the best qualified soldiers to 30 years of active duty, (3) deny reenlistment to nonprogressive and nonproductive soldiers, and (4) encourage soldiers to maintain their eligibility for further service.  Soldiers whose continued service is not warranted receive a QMP bar to reenlistment.       

16.  Qualitative screening for soldiers in the rank of SSG (pay grade E-6) through 1SG/MSG (pay grade E-8) is accomplished by regularly scheduled HQDA promotion selection boards.  Bars to reenlistment for soldiers identified by the selection boards and approved by the DA Deputy Chief of Staff for Personnel will be imposed as directed by the commander of the Enlisted Records and Evaluation Center (USAEREC).  The soldier is notified and may appeal his bar to reenlistment.  

17.  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.  The code RE-4 applies to persons separated from his last period of service with a non-waivable disqualification.  This includes anyone with a Department of the Army imposed bar to reenlistment in effect at time of separation.  
  
DISCUSSION AND CONCLUSIONS:

1.  The applicant's inference that the letter of reprimand that he received was unfair and should be removed from his OMPF because the offense of DWI was dismissed has no merit.  He received the letter in 1989, did not dispute the accuracy of the offense of DWI, but only requested leniency.  Three years later, in 1992, the charge of the offense of DWI was dismissed by a civil court; however, he again did nothing regarding the letter of reprimand, nor did he appeal the bar to reenlistment, the basis of which was the letter of reprimand and the relief for cause evaluation report generated by the DWI offense.

2.  Nevertheless, the letter of reprimand was issued over 14 years ago.  It has served its purpose.  Therefore, in the interest of justice, it would now be appropriate to remove the letter from the performance section of his OMPF, and  transfer it to the restricted portion of his OMPF.  

3.  By the same token, however, the applicant's discharge, the reasons thereof, and his reentry code as shown on his DD Form 214 are correct, and not unfair or unjust.  The applicant himself chose not to appeal the bar to reenlistment, but opted to end his Army career, and accept the discharge under the QMP.  Notwithstanding his contentions and the letters of support in his behalf, there is no good reason to grant his request, simply to accommodate the applicant - so that he can enter into a full time status [on active duty] with the Army National Guard. 

BOARD VOTE:

__FNE __  __AAO __  ___RD  _  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief and to excuse failure to timely file.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by transferring the 14 March 1989 letter of reprimand from the performance portion of the applicant's OMPF to the restricted portion of his OMPF.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removing the 14 March 1989 letter of reprimand from his OMPF, and changing his reentry code on his              23 October 1992 DD Form 214.  

		____Fred N. Eichorn______
		        CHAIRPERSON

INDEX

CASE ID	AR2003092645	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040302	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	126.03	
3.		
4.		
5.		
6.