PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           1 September 1999                  
	DOCKET NUMBER:   AR1999030240

	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. Loren G. Harrell		Director	
	Ms. Juanita I. Williams		Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Kenneth L. Wright		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 correction of the narrative reason for his discharge because the current reason hinders him from receiving veterans benefits.  

3.  The applicant states that the narrative reason for his discharge is unfair because he never requested early release from the Army.  He contends that he was informed by his commanding officer that his discharge would not hurt his veterans benefits, as long as he received an honorable discharge.  But, in actuality, he was 20 (sic) days short of being eligible for veterans benefits.  

4.  The applicant’s military records show that he enlisted in the Regular Army for a period of 3 years on 11 June 1987.  He was 18 years old.  He completed basic training and advanced individual training as an administrative specialist.  On 22 November 1989 he was honorably discharged by reason of a locally imposed bar to reenlistment under the provisions of Army Regulation 635-200, paragraph 16-5b.  He had completed 2 years, 5 months and 12 days of his 3-year active duty commitment.  The highest grade he attained was private E-2.

5.  On 26 September 1988, as a private (E-2), the applicant was tried and convicted, contrary to his plea of not guilty, before a general court-martial convened at Kaiserslautern, Germany, of a violation of Article 134, in that he unlawfully by “negligence, negligently” kill another soldier by diving off of and rocking the boat in which he, the soldier who was killed, and another soldier were passengers, causing the boat to take on water and sink.  (The applicant was found not guilty of manslaughter by culpable negligence).  The sentence, as adjudged, consisted of a bad conduct discharge (BCD), confinement for 6 months, forfeiture of $447.00 pay per month for 6 months, and reduction to the grade of private E-1.  The court-martial convening authority approved the sentence but suspended, for 1 year, that portion of the sentence extending to a BCD and confinement in excess of three months, at which time, unless sooner suspended or vacated, the suspended portion of the sentence would be remitted without further action. The applicant remained in Germany.  The record is silent concerning the length of confinement actually served.  His separation document shows no lost time.    

6.  On 1 March 1989 the applicant was reassigned from the 115th Postal Detachment to the 381st Personnel Servicing Company in Germany.  Thereafter, he began receiving a series of counseling statements for having an unkempt room.  On 12 October 1989 a locally imposed bar to reenlistment was approved against the applicant.  The bar does not mention the counseling statements but refers to his 26 September 1989 court-martial conviction.  His commander commented that the applicant would not be able to recover from his suspended court-martial sentence, which would not allow him enough time in service to be promoted to a grade that would qualify him for reenlistment. 

7.  The commander further stated that the applicant’s date of return to the States from his overseas tour was involuntarily adjusted to coincide with the expiration of his term of service (ETS), causing him not to be able to join his family until June 1990.  The commander also stated that although the applicant had not been a disciplinary problem for the unit, his duty performance had been average at best. 

8.  On 26 October 1989 the applicant requested immediate discharge from the Army under the provisions of paragraph 16-5b, Army Regulation 635-200, stating “I do not believe I will be able to overcome the bar to reenlistment before my normal ETS.”  Further, he stated, in essence, that because of his reduction in rank as a result of his court- martial conviction, he would not be eligible for promotion to pay grade E-4, even with waivers, until 26 July 1990, 6 weeks past his ETS; and that current Army regulations prohibited reenlistment of “first term” soldiers who had not progressed beyond pay grade E-3.  The separation authority subsequently approved his request for discharge, and the applicant was discharged on 22 November 1989 with a bar to reenlistment in effect.  

9.  On 14 January 1998 the Army Discharge Review Board (ADRB) denied his request for a change in the narrative reason for his discharge, concluding that his discharge was proper and equitable.   

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 16, paragraph 16-5 provides that soldiers who receive a bar to reenlistment and who perceive that they will be unable to overcome the bar may apply for immediate discharge. 

11.  The Montgomery GI Bill (set forth in Title 38, United States Code, chapter 30), the current educational program administered by the Department of Veterans Affairs (VA) covers soldiers entering active duty after 30 June 1985.   VA regulations specify, pertinently, that if a soldier is separated prior to his normal ETS, the separation must be (1) for a service-connected disability; (2) a hardship discharge; (3) a discharge for a pre-existing medical condition; or (4) an involuntary separation due to a reduction in force.  Additionally, an individual separated under one of these four conditions must have served in excess of 
20 months of an enlistment of less than 3 years and 30 months of an enlistment of 3 years or more.  In all cases, the soldier’s service must be characterized as fully honorable.  

CONCLUSIONS:

1.  These are the facts of this case in a nutshell.  The applicant enlisted in the Army at 18 years of age for a period of 3 years.  While on active duty he was convicted by a general court-martial of negligently causing the death of another soldier.  The approved sentence of the court included a suspended BCD. Because of the suspension he was ineligible to return to the States until his scheduled ETS, although his overseas tour would have ended earlier.  Although he was not a disciplinary problem, he began to keep an unkempt room. He was later barred from reenlistment based upon the suspended sentence of the court which, although lenient and judicious, placed him in a non-promotable status for a whole year.  Because he couldn’t be promoted he was ineligible to reenlist. He requested discharge because he felt he could not overcome the bar.  He was honorably discharged but is now ineligible for VA benefits because he did not complete his enlistment

2.  The evidence in this case indicates that the applicant’s administrative discharge was accomplished in compliance with the applicable regulation.

3.  Contrary to his contention, the records show that he requested “early” discharge when he submitted his request for immediate discharge on 26 October 1989 under the provisions of paragraph 16-5b, Army Regulation 635-200, stating that he did not believe he would be able to overcome the bar to reenlistment prior to his normal ETS.

4.  Notwithstanding the foregoing conclusions, however, the Board notes that the applicant was not barred from reenlistment because of his court-martial conviction or for having  an unkempt room.  Instead, he was barred because of the suspension of a portion of his sentence, which precluded any favorable personnel actions from  being initiated for him when, in fact, the suspended sentence, in and of itself, effectively barred the applicant from reenlisting.       

5.  It is quite possible that imposing the bar to reenlistment was the commander’s attempt to extricate the applicant from a catch 22 situation that precluded any further career progression, and that the commander truly believed that as long as the applicant received an honorable discharge he would be eligible for VA benefits.  The fact of the matter is that unless he was discharged for one of the reasons enumerated in paragraph 11, above, and had completed at least 30 months of his enlistment, he was ineligible for VA benefits.  

6.  Had the applicant’s commander not barred him from reenlisting, the applicant could have continued on active duty until his ETS, thereby attaining eligibility  for VA educational benefits, since his suspended sentence to a BCD would have been remitted after one year.  

7.  The Board empathizes with the applicant, a young soldier at the time, who was convicted by a court-martial in the tragic death of another soldier.  After considering all the facts and circumstances of the case, the Board is of the opinion that the interests of justice would best be served by correcting the  applicant’s records in such a manner that, if otherwise qualified as determined by the VA, he is eligible for VA educational benefits.  This would include changing the reason and authority for his discharge and showing he served on active duty for an additional 9 days.  

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

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by voiding the discharge on 22 November 1989 of the individual concerned and by showing that he was retained on active duty for the convenience of the Government for an additional 9 days or until 1 December 1989, and that he was honorably discharged on that date for the convenience of the Government –Secretarial Authority.   

BOARD VOTE:  

___X____  ____X___  ____X___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Stanley Kelley____
		        CHAIRPERSON

INDEX
Cccccccvxcxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxc
CASE ID	AR1999030240	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990902	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19891122	
DISCHARGE AUTHORITY	AR635-200 . . . . .  	
DISCHARGE REASON	LOCAL BAR 	
BOARD DECISION	GRANT 	
REVIEW AUTHORITY	DASA	
ISSUES         1.	471	
2.	33	
3.	191	
4.		
5.		
6.