MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           19 March 2002
	DOCKET NUMBER:   AR2001064723

	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. Carl W. S. Chun		Director	
	Mr. William Blakely		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Elzey J. Arledge, Jr.		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:  In effect, that his bar to reenlistment be removed from his record and that his rank be restored.

APPLICANT STATES:  In effect, that the locally imposed bar to reenlistment imposed on him and his reduction to the rank and pay grade of specialist/E-4 (SPC/E-4) were unjust.  In support of his application, he submits a copy of an Army Discharge Review Board (ADRB) case summary (OSA Form 172) and his separation document (DD Form 214).

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

On 19 January 1988, the applicant reenlisted in the Army for 4 years.  At that time he had already completed 9 years, 1 month, 19 days of prior honorable active duty service.  He was serving in military occupational specialty (MOS) 
16S (Air Defense System/Pedestal Mounted Stinger Crewman) and he held the rank and pay grade of sergeant/E-5 (SGT/E-5).  

The record shows that during his active duty tenure, the applicant earned the Army Good Conduct Medal (2nd Award), the Army Service Ribbon, Noncommissioned Officer (NCO) Professional Development Ribbon with numeral 2, and the Driver Badge.  However, his record contains no evidence of any acts of valor, significant achievement, or service warranting special recognition.  

The record does include a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) on 17 March 1990, for disobeying the lawful order of a superior NCO.  The NJP record of proceedings (DA Form 2627) on file confirms that he elected not to demand trial by court-martial and that he requested an open hearing.  The resultant punishment was a reduction to SPC/E-4, a forfeiture of $300.00 per month for two months, and 45 days of extra duty.  

On 30 March 1990, a member of the Office of the Staff Judge Advocate (OSJA) opined that the 17 March 1990 NJP action was conducted in accordance with law and regulation and that the punishment imposed was not unjust or disproportionate to the offense committed.

On 10 July 1990, the applicant’s commander initiated a Bar to Reenlistment Certificate (DA Form 4126-R), citing the applicant’s marginal performance, his disciplinary record, and his inability to control his personnel.  The unit commander further cited the applicant’s lack of accountability for his actions and the fact he demonstrated no desire to overcome his reduction.  The applicant was counseled and elected not to appeal the bar to reenlistment and on 
30 August 1990, the bar to reenlistment was approved by the appropriate authority. 

On 11 November 1990, the applicant was honorably discharged in the rank and pay grade of SPC/E-4 under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  At the time of his separation, he had completed 2 years, 10 months, and 1 day of his current enlistment and a total of 11 years, 11 months, and 20 days of active military service. 

The applicant requested a change to the narrative reason for his discharge from the ADRB.  On 26 September 2001, the ADRB determined that the narrative reason for the applicant’s discharge was inequitable and it recommended that it be changed to Secretarial Authority.

Army Regulation 601-280 prescribes the eligibility criteria and options available in the Army Reenlistment Program.  Chapter 6 of that 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.  Examples of rational for reenlistment disqualification include, but are not limited to, AWOL, indebtedness, recurrent nonjudicial punishment, slow promotion progression, no demonstrated potential for future service, and substandard performance of duties.

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.  The Board notes the applicant’s contentions that his locally imposed bar to reenlistment and his reduction to pay grade E-4 were unjust; however, it finds insufficient evidence to support this claim.

2.  The evidence of record confirms that the applicant’s locally imposed bar to reenlistment was accomplished in compliance with applicable regulations.  In addition, the applicant has failed to provide sufficient independent evidence to show that the bar to reenlistment was in error or unjust.  Thus, the Board concludes there is no evidentiary basis for removing the bar to reenlistment at this time. 

3.  In addition, the evidence of record confirms that the NJP accepted by the applicant, which resulted in his reduction to SPC/E-4, was imposed in compliance with applicable laws, regulations, and policies.  Also, a legal review of the NJP action conducted by the OSJA found that the punishment imposed was neither unjust nor disproportionate to the offense, and that there was no evidence of any substantive violation of the applicant’s rights.  Therefore, lacking independent evidence to the contrary, the Board concludes that the applicant ‘s request to have his rank restored to SGT/E-5 is not warranted in this case.

4.  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 this requirement.

5.  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

__SLP__  __SK __  __EJA___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2001064723	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/03/19	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	100.06	
2.	126.02	
3.		
4.		
5.		
6.