PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:            29 June 2000                  
	DOCKET NUMBER:    AR1999029806

	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. Walter Avery, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. John N. Slone		Member	
	Mr. Melvin H. Meyer		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)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his discharge be revoked and that he be allowed to qualify for a 20-year active service retirement.

3.  The applicant states that he was denied the opportunity to reenlist or extend until he reached retirement eligibility and he was forced to leave the Army on the expiration of his term of service.  A bar to reenlistment was imposed that caused his separation from the Regular Army (RA) with 18 years, 11 months, and 11 days of service.  This action denied him retirement income and benefits.  The offenses he was charged with were investigated over a five year period by several investigative bodies at installation and Department of the Army level resulting in a letter of reprimand only.  Lastly, he asserts that it was the personal desire of one colonel that caused the bar to reenlistment to be imposed.

4.  In support of his request, he has provided a copy of a Criminal Investigation Division (CID) entry that indicates there were two names listed with the applicant’s social security number.  It appears this document is being presented to offer a possible explanation for some of the erroneous entries in his personnel file, but he does not fully explain its presence.

5.  On 31 May 1984, a CID agent conducted a telephone interview with a military Judge Advocate General (JAG) officer regarding the investigation of the applicant’s case.  The JAG officer stated that in his opinion, the applicant should be titled for the offenses of signing a false official statement pertaining to his (the applicant’s) personnel file (DA Form 20) which bore false combat tour information, a false high school diploma, false awards and decorations, and for signing a DA Form 3286 (Statement of Enlistment) giving false information concerning his arrest record.  He contended that the applicant should also be titled for the offense of Fraudulent Enlistment as he omitted two days absent without leave (AWOL) time from his enlistment contract, which would have been a disqualifying factor for enlistment.  The question of titling the applicant for fraud/larceny regarding his promotion to E-7, which the applicant received using a false high school diploma, and the issue of a possible reduction in grade and recoupment of any monies he had received as a result of that promotion, was also examined.  Since it could not be substantiated that the applicant intentionally placed the diploma in his personnel records, he could not be titled for fraud/larceny.  Therefore, any reduction in grade or forfeiture of unauthorized payments he may have received as a result of the promotion would have to be handled as an administrative matter by the applicant’s commander.  The JAG officer noted that although the investigation was legally sufficient, the case was not prosecutable because the applicant removed any criminal intent by submitting a letter to the Enlisted Records and Evaluation Center to have the erroneous entries in his record corrected.  It was decided that there was no 

further need to continue the investigation as all necessary evidence had been gathered and was legally sufficient for whatever action the applicant’s commander deemed appropriate.  

6.  Thereafter, the investigation was closed in accordance with Criminal Investigation Command regulations.  The CID agent’s report does not indicate whether or not the CID would title the applicant.

7.  On 6 July 1984, while a student at the United States Army Sergeants Major Academy, Fort Bliss, Texas, the applicant was given a Letter of Reprimand.  The reprimand was for failing to disclose a driving under the influence (DUI) conviction when applying for a 1983 reenlistment.

8.  On 21 October 1988 a board of officers was convened to consider the applicant’s separation from the service.  The board found that he was responsible for altering or allowing his military file to be altered by the insertion of a Florida General Equivalency Education Certificate, the insertion of false awards and decorations, and making a false official statement when he signed his 1983 reenlistment contract without mentioning a driving under the influence conviction. The board recommended the applicant be retained on active duty and that his military file be updated and corrected to reflect his current service.  The board also recommended that in an effort to end this matter, no further action be taken against the applicant.

9.  The garrison commander approved the board’s findings with exceptions.  He did not agree that the applicant should be retained in the service nor did he agree that the matter should be ended.  He wrote that he was aware the applicant would be one year shy of retirement eligibility but chose to process a bar to reenlistment against him anyhow.

10.  Since the applicant had over 18 years service at the time of the bar to reenlistment, it had to be forwarded to Department of the Army where it was approved.

11.  On 14 February 1989 the applicant was discharged (over his objection).  He had completed 18 years, 11 months, and 11 days of active federal service and    4 years, 10 months, and 1 day of inactive service.

12.  The applicant has requested placement on excess leave if necessary to qualify for retirement.

13.  Army Regulation 601-280 prescribes the eligibility criteria and options
available in the Army Reenlistment Program.  Chapter 8 of this regulation provides for barring from reenlistment individuals whose continued active duty is not in the best interest of the military service. This chapter specifies that bars will be used when immediate administrative discharge from active service is not warranted.  Only soldiers of high moral character, personal competence and demonstrated adaptability to the requirements of the professional soldier’s moral code will be reenlisted.  The bar to reenlistment is not a punitive action but is designed for use as a rehabilitative tool.

14.  The same regulation provides that commanders do not have the authority to prevent a soldier’s retirement by barring the solider from reenlistment once the soldier attains 18 years or more of active duty to preclude the soldier from attaining retirement eligibility.  A bar initiated by any commander above company level must be approved by the first general officer in the chain of command, the general court martial convening authority, or at Headquarters Department of the Army.

15.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the 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 reenlistment codes (RE), including Regular Army RE codes.  RE-4 applies to a person separated from 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, or separated for any reason (except length of service retirement) with 18 or more years of service.  RE-4R applies to soldiers who retire for length of service with more than 15 years active federal service.

16.  Title 10, USC, section 1176 provides that a regular enlisted member, who is within two years of qualifying for regular retirement, and is denied reenlistment, shall be retained on active duty until the member is qualified for retirement unless he is discharged under other provisions of law.

CONCLUSIONS:

1.  The allegations against the applicant were investigated over a five-year period and resulted in no courts-martial charges.  The CID found that there were two different soldiers listed under the applicant’s social security number, which may explain why there were incorrect entries in the applicant’s records.  The applicant contends that early in his career he noticed errors in his records and brought them to the attention of the personnel office.  At one point, he signed a blank
DA Form 20 with the understanding that the blank form would be used to make a correct DA Form 20.  Afterwards, he simply did not pay close enough attention to see that the corrections were made.  When he subsequently found that the corrections hadn’t been made, he again brought the matter to the attention of the personnel office.  The applicant’s explanation is supported by the comments of the JAG officer in his discussion of the case with the CID agent.  The agent asked the JAG officer if the applicant could he titled for including a false general equivalency diploma (GED) in his records?  The JAG replied that it could not be shown that the applicant intentionally placed a false document in his personnel file and since the applicant had specifically asked, in writing, that the erroneous entries be corrected, he had removed any hint of criminal intent.

2.  It is also noted the JAG officer made mention of the applicant omitting two days AWOL from his 1965 enlistment contract.  There was no regulatory reason for the applicant to listed the AWOL information on any reenlistment contracts subsequent to 1965.  The AWOL information from 1965 was properly annotated in his records, therefore, it must be presumed that that the JAG officer was unaware of this fact when he proposed titling the applicant for the two day AWOL omission.

3.  The applicant did not disclose his off-post DUI conviction when he reenlisted in 1983.  While the omission of a DUI conviction is an integrity issue, even if he had listed the conviction, it would not have prevented his reenlistment.

4.  The Board concludes that the applicant is entitled to relief for several reasons. First, the garrison commander's imposition of a bar to enlistment in 1989, some six years after the fact, for incorrect GED and award information and failure to disclose an off-post DUI offense, appears to be disproportionate and untimely punishment.  Second, the 5 – 6 years it took to investigate him appears to have been excessive, particularly, when no judicial or non-judicial actions ever resulted from the investigation.  It is also significant to note that several commanders over the course of the applicant’s career knowingly made the determination that he could remain in the military despite these same offenses.  Therefore, he was permitted to reenlist and was accepted for assignments that he obviously carried out successfully since he rose to pay grade E-9 in the process.  Under the circumstances, for his commander to decline to accept the recommendation of the separation board to retain him after almost 19 years of service while at the same time denying him further service through a bar to reenlistment, appears inequitable at least and possibly vindictive.

5.  Finally, the bar to reenlistment though not punitive by definition has the real-world impact of severe punishment. It ended the career of a senior noncommissioned officer who had served the Army for almost 19 years and whose service was recognized by his selection for the highest enlisted rank - E-9. 

When considered in its totality, the imposition of the bar to reenlistment at that late stage in the applicant’s military career appears to be unduly harsh, unfair and inequitable.

6.  While the Board believes that the applicant is entitled to active duty credit for retirement purposes for the period 14 February 1989 through 31 March 1990, he did not perform duty during this time, therefore, that period of time should be accounted for as excess leave.  The applicant would have reached 20 years active service on 4 March 1990, however, since nondisability retirements must be effective as of the first day of the month, he should be carried in an excess leave status until 31 March 1990 and placed on the retired list effective 1 April 1990.

7.  The appropriate RE code for any member who retires with 20 years active service is RE-4R.  Since the applicant will be retired rather than discharged, it would be appropriate to have the RE code changed on his DD Form 214 based on this Board ‘s action. 

8.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by:

a.  revoking the 14 February 1989 order discharging the individual concerned; 

b.  showing that he was placed in an excess leave status from                   14 February 1989 through 31 March 1990, the period necessary to qualify for a length of service retirement; 

c.  showing that he was retired in pay grade E-9 for length of service on     1 April 1990; 

d.  paying to him all back pay and allowances that may be due as a result of this correction; and

e.  issuing him a new DD Form 214 that correctly reflects the changes directed by these proceedings to include the appropriate RE code.

2.  The Army has an established program to counsel retiring soldiers on the rights, benefits, and privileges afforded as a result of military retirement. Retirement Services Officers are available at most major Army installations to provide a retirement briefing, which includes information on the Survivor Benefit Plan.  The applicant is advised to contact his nearest Retirement Services Office to facilitate his transition to retired status. 
	
BOARD VOTE:

__jhl____  ___jns___  ___mhm_  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

					________JoAnn H. Langston_____
						CHAIRPERSON

INDEX

CASE ID	AR1999029806	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000629	
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.  102.02		
2.   		
3.   		
4.   		
5.		
6.