RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           3 February 2004                  
	DOCKET NUMBER:   AR2003088145

	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. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Ms. Regan K. Smith		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 restoration to the rank of sergeant major (SGM), as of 1 April 1999, with restoration of full pay and allowances including monies recouped, and retirement in that rank as of 31 August 2001.  

2.  The applicant states that he believes that his command improperly imposed and used his bar to reenlistment to get around formal administrative discharge regulations.  He defers further comment to his counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 

1.  Counsel requests that the applicant be restored to SGM as of his original date of rank, that his retirement orders be amended to show he was retired as a SGM, and that he receive all pay and allowances due him at the higher rank, including $1668.00 which was recouped as a result of his reduction.

2.  Counsel provides an eight-page brief outlining the circumstances that led to the applicant’s bar to reenlistment and the regulations counsel contends were violated or not properly applied.

3.  Counsel states, in effect, that the Army was partially at fault in the creation of the applicant’s financial problem due to transferring him four times in seven years.  Further, following the Army Regulation 15-6 investigation, the Army failed to give him the necessary time to comply with provisions of the Memorandum of Reprimand (MOR) to correct his financial problems.

4.  Counsel provides copies of the military documents surrounding the actions that led to the applicant’s situation and a 7-page summation of the facts and circumstances.

CONSIDERATION OF EVIDENCE: 

1.  On 1 April 1999 the applicant was conditionally promoted to sergeant major contingent on successful completion of the United States Army Sergeants Major Course (USASMC).  He commenced the nonresident phase at that time.

2.  In June 1999 he received permanent change of station (PCS) orders and was transferred from Fort Benning, Georgia to Phoenix, Arizona.

3.  On 3 August 1999, he received his initial counseling session with his new commander.  The DA Form 4856 (Developmental Counseling Form) specifically noted that the applicant was to resolve his personal and financial problems.  The notation indicates that the plan he had laid out looked good but that he was to keep his commander fully apprised of his efforts and progress in meeting his financial obligations.

4.  A 28 September 1999 counseling statement indicates that his command had been notified that the applicant’s government credit card account had been revoked for being 270 days past due and delinquent approximately $2,500.00.  This counseling statement also indicates that the applicant had not notified his commander of these facts as directed in his initial counseling session.

5.  On 5 October 2000 an Army Regulation (AR) 15-6 investigation was commenced to review the applicant's use of his government credit card.  A hearing was held on 2 November 2000.  The investigating officer found that the applicant had improperly used his government credit card 25 times for local purchase of gas, had improperly obtained cash advances in the amount of $960.50 for personal housing or rent expenses, and had paid for a rental car while his personal vehicle was being repaired.  Evidence also showed that the applicant had other major financial indebtedness and several delinquent accounts.  The documentation used in determining his financial situation is not contained in the available records.

6.  During the investigation the applicant admitted using his governmental credit card to cover personal expenses.  He submitted a copy of a 23 August 1999 letter to Transportation Customer Services showing a complaint of problems with the movers and a claim for extensive damage incurred in the applicant’s PCS transfer from Fort Benning.  The applicant set the unofficial estimate of damage and loss at $36,000.00.  No documentation of either this unofficial or any official estimate of the actual damage is of record.  There is no indication of the outcome of the claim.

7.  The investigating officer recommended that the applicant be given the choice of receiving a bar to reenlistment and face nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) followed by administrative elimination proceeding under AR 635-200, chapter 14 for misconduct, Or (emphasis indicated on the form) a bar to reenlistment and a letter of reprimand (LOR) for misuse of a government sponsored travel card and permit him to retire.

8.  The applicant submitted a personal statement on 23 October 2000, admitting that he had misused the government card due to financial hardships.  He indicated that his attempts to obtain assistance through the Consumer Credit Counseling Services had in fact made matters worse since most of his creditors did not agree to the program.

9.  On 19 November 2000 he received a Memorandum of Reprimand (MOR) for misuse of his governmental sponsored travel credit card, failure to make payment toward on this account from 6 April 2000 through the date of the MOR, and failure to maintain his personal finances to the point that several institutions had contacted his command for assistance in obtaining payment.

10.  On 4 January 2001 a Report to Suspend Favorable Actions (“FLAG”) (DA Form 268) was initiated.

11.  On 16 January 2001 his command was notified that the applicant had completed the nonresident portion of the USASMC, and that he met the requirements for attendance at the two-week resident phase to commence on 2 June 2001.

12.  On 13 February 2001 the applicant contacted the Office of the Staff Judge Advocate (OSJA) with several concerns, specifically:

•	Was his “flagging” action, dated 4 January 2001, appropriate?

•	Why was the “FLAG” still in the system?

•	Is there a time limit to when a “flagging” action becomes invalid?

•	He stated that he had been punished with the MOR and felt the “FLAG” and bar were additional punishments that should not have occurred, and asked if these actions were appropriate?

•	When would someone officially contact him about his status of the SGM Course 2 week resident phase scheduled for May - June 2001?

•	Was it appropriate for the Company Commander to request a copy of his credit report as part of his ongoing counseling to ensure his debts are being paid off? 

13.  The Office of the Inspector General responded to the applicant’s inquiry as follows: 

•	The 4 January 2001 “FLAG”, based on the 19 November 2000 MOR, should not have been initiated until after the Commanding General's (CG) 27 December 2000 decision to put the MOR in his Official Military Personnel File (OMPF) and imposed the bar.  However, although the bar was not initiated until 24 January 2001, the “flagging” action dated 4 January 2001 meets the intent of AR 601-280, paragraph 8-5 b., "The soldier will be “flagged” in-accordance-with (IAW) applicable provisions of AR 600-8-2 upon initiation of the bar".  

•	CPT B_____, on assuming command, properly initiated the 9 February 2001 “FLAG” based on the MOR but he should not have removed this “FLAG” on 26 March 2001 as regulations state a soldier will continue to be “flagged” upon initiation of a bar, upon approval of the bar, and thru the appeal process.  In his case the bar was not removed on 26 March 2001 and the “flagging” action should have remained in place. 

•	There is not a specific time period when a “flagging” action becomes invalid. 

•	The MOR was proper and the bar and “FLAG” were appropriate IAW AR 601-280, paragraph 8-3, d.  CPT B____ had reviewed the applicant’s situation and determined his indebtedness did meet the intent of AR 601-280, paragraph 8-4d(6) and initiated the bar.  Accordingly a “flagging” action was a required response to the bar and not additional punishment. 

•	The SGM Academy was to contact him on his status in the nonresident phase of the course, and CPT B____ was to contact him on 16 May 2001 to provide him official notification of his resident phase status.

•	It was appropriate for his commander to ask for the credit report to verify that he was complying with the requirements as outlined 11 April 2001 DA Form 4856. 

14.  An 11 April 2001 counseling form states that the applicant had been barred from reenlistment due to the misuse of his government credit card and indebtedness.  It states that the bar would be lifted if he met the following conditions; that he had a zero balance on his government credit card, that he had paid off all outstanding overdue debts, and was able to show he was making regular scheduled payments to his creditors.  It also states that this counseling form was a reiteration of the information provided the applicant in a 22 February 2001 telephone conversation.

15.  An 8 May 2001 memorandum indicated that, due to the bar to reenlistment, he was not eligible for attendance in the resident portion of the USASMC and his reservation for attendance in June resident class was cancelled.  As a result of this action he was officially removed from the USASMC and that paperwork for revoking his promotion to SGM had been initiated.

16.  The Sergeants Major Academy forwarded a 10 May 2001 memorandum to the applicant advising him of his disenrollment and advising him he had 30 days to appeal.  The second page of the memorandum indicates that he was counseled on these actions and his rights on 7 June 2001.  It indicates that he intended to appeal the disenrollment.

17.  On 15 May 2001 the applicant submitted an appeal of his bar to reenlistment.  In his appeal he stated that the “flagging” action was improperly initiated prior to the imposition of the bar and that he did not receive any counseling on these items until 11 April 2001.  He stated that he believed that the bar was being used as a punishment not as a rehabilitative measure.  He further cited AR 600-15, which states that soldiers are required to manage their personal affairs satisfactorily and pay their debts promptly, however that the Army has no legal authority to force a soldier to pay their debts. 

18.  He further stated that he was not properly counseled on the debt complaints and that he believed that the bar was an attempt to improperly force him to pay those debts.  He submitted a letter showing that he had paid off his government credit card and stated that he was in the process of paying off the outstanding overdue debt but would be unable to complete this action prior to the completion of his current enlistment.

19.  On 11 June 2001 the applicant was officially removed from the SGM promotion list and reduced to master sergeant (MSG) but was granted a defacto status as a SGM for the period of 1 April 1999 through 26 March 2001.

20.  As a result of the above decision and the effective date of his reduction, an overpayment of $1,668.00 had been created after 26 March 2001.  It was withheld from his pay during the months of July and August 2001.

21.  An undated memorandum from the Commanding General Fort Bliss, Texas informed the applicant that his appeal of his disenrollment from the USASMC was denied.

22.  A 26 June 2001 counseling statement indicated that the applicant had made good progress toward meeting the requirements to have his bar lifted.  

23.  In the applicant’s response to the counseling statement he indicated that due to the reduction and the overpayment it created, he would not be able to overcome the financial situation prior to the end of his current enlistment.

24.  On 3 July 2001 the Chief of Staff, 5th Army notified the applicant that in May he had initiated an AR 15-6 investigation surrounding the imposition of the Bar to Reenlistment and subsequent actions.  It was the Chief of Staff’s opinion that while some improprieties had occurred in the processing of the case, the applicant’s rights and due process had not been violated.  He further indicated that since Lieutenant General F___ M_____ had administered an MOR, the second recommendation of the earlier (October 2000) AR 15-6 investigation had been effectively adopted.

25.  The Chief of Staff indicated, that since the applicant was retirement eligible and the expiration of his term of service (ETS) was 22 August 2001, he was being given two options for further action.  First, elect to retire upon completion of his current enlistment, and if the conditions for lifting the bar were not met, his request for retirement would be processed effective 31 July 2001. 

26.  The second option was to request that his ETS be extended until 26 September 2001 to allow him additional time to satisfy the conditions for overcoming the bar to reenlistment.  If the request for an extension was not approved he was to submit a request for retirement with an effective date of retirement of 31 August 2001.

27.  The applicant elected the first option.  A 19 July 2001 counseling statement indicates that the bar to reenlistment was to be left in place.  The applicant was ultimately retired as a MSG (E8) effective 31 August 2001.  He had 23 years, 10 months, and 2 days of creditable service.

28.  Army Regulation 635-200 provides for the placement of enlisted soldiers on the retired list.  Paragraph 12-3 requires that the retirement of a soldier be in the pay grade he or she holds on the date of retirement.  Further, in pertinent part, it states that to retire in pay grade E-9, the service member must have successfully served in that pay grade for three years.  

29.  Army Regulation 601-280, paragraph 8-5 b, states, in pertinent part that a soldier will be “flagged” upon initiation of the bar to reenlistment and the “FLAG” will continue upon approval of the BAR, thru any appeal process, until the BAR is lifted.

DISCUSSION AND CONCLUSIONS:

1.  The documentation shows that, for whatever reason, the applicant was in difficult financial straits before his last transfer and that the financial problems got worse after the transfer.  The applicant knew of his problem well before his command was made aware of it.  Further, when his command became aware of a problem, the applicant was not forthcoming as to the severity of the situation, and he did not keep his command informed of subsequent developments. 

2.  The applicant’s bar to reenlistment, “flagging” action, and disenrollment from the USASMC, were proper and there is no documentation that the applicant’s rights or due process was denied him.

3.  Further, by his own admission, he would not have been able to meet the conditions for removal of the bar and “FLAG” prior to his ETS date much less the date of commencement of the resident portion of the USASMC.

4.  Barring a reinstatement to and completion of the USASMC, the applicant is not entitled to any of the actions he requests.  He did not serve the required period of time to be retired in the rank and pay grade of MSG E-9.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___SAC_  ___CLG_  ___RKS__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

				______________________
				        CHAIRPERSON

INDEX

CASE ID	AR2003088145	
SUFFIX		
RECON		
DATE BOARDED	20040203	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION		
REVIEW AUTHORITY		
ISSUES         1.	110.03  Reinstatement 	
2.		
3.		
4.		
5.		
6.