MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           15 September 1999                   
	DOCKET NUMBER:   AR1999029403

	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. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. James M. Alward		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Ms. Kathleen A. Newman		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 bar to reenlistment and Article 15 be removed from his official military personnel file (OMPF) and that his rank be restored.

APPLICANT STATES:  That he was never properly assigned to the commanders who imposed the bar and Article 15 for administrative or Uniform Code of Military Justice (UCMJ) action.  Army Regulation (AR) 140-30, paragraph 5-8h(1) states that only the commander, Army Reserve Personnel Center (ARPERCEN) may further attach an active guard/reserve (AGR) soldier from one duty position to another through the publishing of official orders.  Commands may not further amend or endorse these attachment orders to move a soldier from his or her duty position to another duty position.  ARPERCEN issued orders 28 April retroactively assigning him; however, AR 310-10, paragraph 1-13a and AR 600-8-105, paragraph 2-16a stated that orders can have a retroactive date only in very limited circumstances and none of the listed exceptions applied in his case.  AR 601-280, paragraph 8-5(d) and AR 140-111, paragraph 1-31.1(d) state that soldiers may not be retained involuntarily past their normal separation to approve a bar to reenlistment.  Despite this, he was retained so the bar could be imposed. AR 601-280, paragraph 8-2(b) and AR 140-111, paragraph 1-28(c) state that a bar should be initiated prior to a separation or judicial/non-judicial action but his Article 15 was issued before the Bar.  AR 140-111, paragraph 1-29(b) states that an individual will be counseled prior to imposition of the bar, but not only was he not counseled but the imposing commander did not even know who he was.  AR 601-280, paragraph 8-5(a)(1) and AR 140-111, paragraph 1-29(e) state a bar should not normally be imposed if a soldier has been in the command less than 90 days.  He was not in the command for 90 days and he was assigned only long enough for them to give him the bar and discharge him.  AR 601-280, paragraph 8-5(d) and AR 140-111, paragraph 1-31.1(d)(1) state a bar may not be entered into a soldier’s records after he has been discharged but he suspects the bar was entered into his OMPF after his separation.

COUNSEL CONTENDS:  Counsel makes no contention.

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

He enlisted in the Regular Army on 16 August 1983 and was discharged under the provisions of AR 635-200, Chapter 11, entry level status performance and conduct, on 16 September 1983.

The applicant enlisted in the U. S. Army Reserve (USAR) on 24 October 1989.  On 9 April 1993, ARPERCEN published orders voluntarily ordering him to active duty for 3 years in an active guard/reserve (AGR) status as a supply sergeant on 2 May 1993.  He was assigned to Headquarters and Headquarters Company, 360th Civil Affairs (CA) Brigade, Columbia, SC.

On 7 February 1996, ARPERCEN published orders amending the 9 April 1993 orders to reflect an active duty commitment of 4 years, 5 months and 22 days, making his release from active duty (REFRAD) date 23 October 1997.

In July 1997, the Criminal Investigation Command (CID) began a review of the purchasing/requisition practices within the 360th CA Brigade.  Between January 1994 and June 1997 the Brigade obtained non-expendable property valued at $145,000.00 that was not recorded on the property book.  The preliminary investigation determined that the applicant stole over $80,000.00 in property belonging to the U. S. Government.

On 3 October 1997, ARPERCEN published orders amending the 9 April 1993 orders assigning UCMJ responsibility to the Commander, U. S. Army Training Center (USATC) and Fort Jackson, Fort Jackson, SC.

On 16 October 1997, the Commanding General, USATC and Fort Jackson, authorized his involuntary extension on active duty pending the completion of the CID investigation which, if the alleged offenses were substantiated, could warrant prosecution by courts-martial.

The CID Report of Investigation (ROI) entry for 25 November 1997 states “… between 28 Apr 97 – 10 Jun 97, (the applicant) ordered almost $75,000 in property, none of which was annotated in the document register.  Additionally, the non-expendable property (the applicant) ordered was not entered into the document register.”  

The CID ROI entry for 19 March 1998 states “…had received a requisition from his unit for two Rolex watches…______asked (the applicant) if he knew anything about the requisition and (the applicant) said no.  About fourty (sic) minute later, (the applicant) came into ______’s office and identified his signiture (sic) on the requisition…”

The CID ROI entry for 24 March 1998 states “She (a Staff Judge Advocate officer) opined that (the applicant) committed the offense of False Official Statement when he lied to ______ about the watches and Dereliction of Duty, when he knowlingly (sic) ordered items that the unit did not need and were not authorized, such as the non US Military Night Vision Devices and the Global Posistioning(sic) System.”

On 10 April 1998, USATC and Fort Jackson published orders attaching the applicant to Headquarters Company, Training Center Command (TCC), Fort Jackson, SC for rations, quarters, administration and UCMJ.

On 21 April 1998, the Commander, Headquarters Company, TCC initiated action under Article 15, UCMJ on the applicant.
On 22 April 1998, the Commander, Headquarters Company, TCC initiated a bar to reenlistment against the applicant for his failure to follow procedures and lack of integrity as outlined in the CID investigation. 

On 23 April 1998, the applicant accepted non-judicial punishment under Article 15, UCMJ for making a false official statement with intent to deceive.  His punishment was a reduction to grade Specialist E-4 and a forfeiture of $723.00 pay for 2 months.  The commander directed the Article 15 be filed in the applicant’s OMPF.  The applicant appealed the Article 15.  

On 28 April 1998, the Army Reserve Personnel Command (AR-PERSCOM) (as ARPERCEN was re-named), published orders further attaching the applicant to Headquarters Company, TCC, Fort Jackson, SC effective 9 April 1998, for the purpose of UCMJ/court martial proceedings, for administration, quarters, rations and UCMJ actions.  

The applicant’s Article 15 appeal was denied on 29 April 1998.

On 4 May 1998, the Commander, TCC approved the bar to reenlistment.  The applicant appealed the bar, stating he “did not do either of the things alleged. The supply and requisition system throughout the 360th CA Brigade was, to say the least, disorganized.”  The Commanding General, USATC and Fort Jackson, SC denied his appeal on 13 May 1998.

On 28 May 1998, the applicant was released from active duty upon completion of his required active service.  He was discharged from the U. S. Army Reserve/Active Guard Reserve effective this date, also.

AR 27-10 prescribes policies and procedures pertaining to the administration of military justice.  Chapter 21 provides that reserve component soldiers serving on active duty in a Title 10 duty status may be extended on active duty involuntarily so long as action with a view toward prosecution is taken before the expiration of the active duty period.

AR 135-200 prescribes policies and procedures for ordering USAR soldiers to active duty.  Chapter 7 provides that reserve component soldiers may be retained involuntarily on active duty for the purpose of completing an investigation initiated with a view to trial by court-martial up to the date of completion of the disciplinary action.  On receipt of notification of intent to retain a soldier, the order issuing authority will issue an amendatory order extending the expiration date of the original order.

AR 140-30 prescribes policy and procedures for selecting, assigning, attaching, managing, and administering USAR soldiers on active duty in the AGR program.
Paragraph 5-5 states that the Commander, ARPERCEN will identify in the attachment orders the command responsible for providing soldiers services support, the servicing installation personnel service company (PSC) and UCMJ authority.  Paragraph 5-8h(2) states that the PSC is authorized to publish orders to attach soldiers for certain specific actions only, including attachment for courts-martial jurisdiction/UCMJ processing.

AR 600-8-105, which superseded AR 310-10, prescribes the policies for the orders program of the Military Personnel System.  Paragraph 2-16a states that the effective date of an order is the date of the order unless one of several conditions, including that the order confirms orders previously issued verbally, applies.

AR 140-111 prescribes policies, responsibilities and procedures for the USAR Reenlistment Program.  Paragraph 1-31.1d states a soldier may not be retained involuntarily past his normal REFRAD or expiration term of service date while awaiting approval of a bar to reenlistment.  A bar to reenlistment for continuing service in the USAR may neither be approved nor entered in the soldier’s records after the soldier has been discharged.  Paragraph 1-28c states that normally, a bar to reenlistment should be initiated prior to a separation or judicial/non-judicial action because it is intended to put the soldier on notice that he is not a candidate for reenlistment.  Paragraph 1-29(b) states that a bar to reenlistment should be not based on generalities or vague places and times.  It should be specific and substantiated by official remarks made at the time of the occurrence. Counseling should be provided on each occurrence and all instances made a matter of official record.  Paragraph 1-29(e) states that normally a bar to reenlistment should not be initiated against an individual who has been assigned to a command for less than 90 days. 

AR 601-280 prescribes criteria for the Total Army Retention Program.  It outlines procedures for immediate reenlistment of those soldiers serving in the Active Army.  In pertinent parts, it provides the same guidance as that given in AR 140-111.

Black’s Law Dictionary, 6th edition defines “enter” as “To place…upon or among the records, in a formal and regular manner, and usually in writing…In this sense the word is nearly equivalent to setting down formally in writing.”

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.  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 the aforementioned requirement.

2.  The Board concludes the applicant was properly assigned to the commanders who imposed the bar to reenlistment and the Article 15. 

3.  The Board agrees with the applicant’s contention that only ARPERCEN/AR-PERSCOM can further attach an AGR soldier from one duty position to another duty position.  However, he was not attached to another duty position.  By regulation, the Fort Jackson, SC PSC was authorized to publish the orders dated 9 April 1997 attaching him to another unit for UCMJ.  The orders ARPERCEN published 28 April 1997 “retroactively” attaching him effective 9 April 1997, while not required, were not incorrect either, in that the effective date was based on a previously issued order.

4.  The applicant was not involuntarily extended to approve the bar.  He was involuntarily extended awaiting completion of the CID investigation with a view to prosecution by court-martial.  The fact that the outcome of the investigation led to a lesser, non-judicial punishment does not negate the valid reason for the extension.  It appears ARPERCEN did not issue an amendatory order extending the expiration date of his original order when he was extended.  However, the Board concludes this was a minor administrative error that did not affect either the actual involuntary extension or any other administrative/non-judicial actions leading from it.

5. The Board notes that the regulation states that normally, a bar to reenlistment should be initiated prior to non-judicial action.  In this case, the bar and Article 15 were processed contemporaneously and the Board concludes the intent of the regulation was not violated.

6.  The Board notes that the regulation states that counseling should be provided on each occurrence (of misconduct/disciplinary infraction).  The Board concludes that counseling could not have been given because the occurrence (of misconduct/disciplinary infraction) was not discovered until after initiation of the CID investigation.  

7.  The Board notes that the applicant had been attached to the major subordinate command (USATC and Fort Jackson, SC) for over 90 days.  However, even considering only the lower-level commands involved, the regulation states that normally a bar to reenlistment should not be initiated against an individual who has been assigned to a command for less than 90 days.  The Board concludes the circumstances of this case were not “normal” and the intent of the regulation was not violated.

8.  The Board notes the regulatory authority which states a bar to reenlistment for continuing service in the USAR may neither be approved nor entered in the soldier’s records after the soldier has been discharged.  However, considering the legal definition of “enter” the Board concludes the bar to reenlistment was entered into the soldier’s records on 4 May 1998, the date it was approved and prior to his separation date.  “Entering” it into his OMPF was merely a matter of administratively filing it.

9.  Because of the conclusions noted above, the Board further concludes that it would not be appropriate to restore the applicant’s rank.

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

__jma___  __tsk___  __kan___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999029403	
SUFFIX		
RECON		
DATE BOARDED	19990915	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	126.00	
2.		
3.		
4.		
5.		
6.