MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           13 August 2002                  
	DOCKET NUMBER:   AR2001065115

	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. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Ms. Lana E. McGlynn 		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 records be corrected to remove nonjudicial punishment (NJP) dated 5 February 1996, and a Noncommissioned Officer Evaluation Report (NCOER), dated 9 March 1996 from his record, and immediate reinstatement onto active duty.  In addition, he requests promotion to pay grade E-7, with consideration for promotion to pay grade E-8 and all back pay, allowances, bonuses, and leave.

APPLICANT STATES: That his battalion commander and First Sergeant (1SG) perpetrated an egregious wrong upon him.  Their actions were entirely personally motivated and had no basis on material discretion, sound leadership principles, the practices of the United States Army and its traditions, the Uniform Code of Military Justice or Federal Statute Law.

In a statement, he alludes that his 1SG, in 1982, was then a young sergeant who took basic trainees to “the strip” outside of Fort Sill, Oklahoma.  In one instance, the military police carded the group and determined that two were underage.  According to the applicant, this spoiled the 1SG’s chances of becoming a Drill Sergeant at the time.

After reporting for duty, he was directed to report to the Oxnard Recruiting Company.  Upon arrival, on 9 September 1995, he alleges the 1SG told him he “was going to personally make sure that me and my family will spend the rest of our days living out of a shopping cart because my days as a soldier in the United States Army are numbered.”  

On 17 January 1996, he started experiencing a psychological breakdown and related his medical appointments and treatment.  He indicates he attempted suicide in late October 1995.  He indicates a Navy captain treated him.

On the date he accepted NJP, he was not allowed to contact the Navy captain to speak for him.  He was forced to initial and sign the NJP documentation against his will.  He further indicates that a Judge Advocate refused to sign off on the NJP for procedural and legal errors, but was forced to sign off by the brigade commander.

He indicates he was attached to Fort Carson, Colorado, and in July 1996, he was presented with a battalion coin and recommended for the Army Achievement Medal.  The award was subsequently disapproved.

Further, he indicates the battalion commander attempted to have him discharged under chapters 14, 5 and 13 of Army Regulation 635-200.  In each case, the recommendations were returned for insufficient grounds or evidence and the last one as unwarranted.

The applicant states that if he does not receive a favorable decision from this department by 21 December 2001, he will have no choice but to file suit in the United States Court of Federal Claims through the Law Offices of Chilivis, Cochran, Larkins & Bever, LLP, Atlanta, GA, and let the judges decide.

He indicates his remedy for this situation, if the Board decides in his favor, is:   (1) immediate reinstatement onto active duty,  (2) promotion to pay grade E-7 in accordance with his peers, i.e. mid 1998 and any considerations or promotions to master sergeant given to the top 7% of his Artillery Fire Support Specialist military occupational specialty (since mid 1998 for year group 1984), (3) all back pay, allowances, bonuses, and leave in accordance with Defense Finance and Accounting Service and Department of the Army regulations. 

He provides copies of his (1) DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 13 February 1997; (2) Report of Proceedings under Article 15, UCMJ, dated 5 February 1996; (3) separation orders; (4) NCO Evaluation Reports for April 1993 through June 1995 and September 1995 through February 1996; and (5) copies of his award certificates, letters of appreciation and commendation, certificates of achievement, copies of his “unit coins” and certificates for his civilian education. 

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

In his previous application to this Board for removal of the contested documents (AR2001061996), the staff of the Board advised him on 26 September 2001 of his available administrative remedy, and he was advised to appeal to the Total Army Personnel Command (PERSCOM) for this purpose.  On 13 November 2001, the Chief, Retirements and Separations Branch, PERSCOM denied his appeal for reinstatement to active duty.  The applicant then reapplied to this Board for this purpose.

The applicant served in the Army National Guard for 1 year, 3 months and        15 days, during an undetermined period, of which 4 months and 12 days were on active duty for training.

On 16 January 1984, he enlisted in the Regular Army.

On 1 March 1990, he was promoted to pay grade E-6.  That promotion was revoked on 6 March 1990.  The reason for this action is not provided.

On 1 March 1993, he was promoted to pay grade E-6.

On 30 January 1996, he was offered NJP under Article 15, UCMJ.  He was afforded the opportunity to consult with counsel and elected not to demand trial by court-martial.  He requested a closed hearing and indicated that a person to speak in his behalf was not requested.  He did submit matters in defense, mitigation, and/or extenuation.  On 5 February 1996 he was found guilty of failing to go to his appointed place of duty on 25 January 1996; absenting himself from his place of duty on 19 January 1996, remaining absent until 23 January 1996; and, absenting himself from his place of duty on 17 January 1996, remaining absent until 18 January 1996.  The punishment included a reduction to pay grade E-5 and a forfeiture of $806 pay.  His appeal of the punishment was denied on    8 March 1996.

A Relief for Cause NCO Evaluation Report for the period September 1995 through February 1996 was completed.  His appeal to the Army Enlisted Records and Evaluation Center was denied.  The applicant’s NCOERs for the 27 months prior to this assignment showed him as a successful soldier.  The reports dating back to 1991 show him as being fair in overall performance and potential. 

On 13 February 1997, the applicant was honorably separated under Army Regulation 635-200, chapter 4, based on completion of his required service and he was transferred to a reserve unit in Colorado Springs, Colorado, in pay grade E-5.  His separation document indicates he had 13 years, 5 months and 10 days of total active service.  He received full involuntary separation pay of $31,096.65. He was assigned reentry eligibility (RE) code RE-3, not entitled to enlist, but the disqualification may be waived.

Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge. Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (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 RE codes, including RA RE codes.

The reason for assignment of RE-3 was not shown in this case, however, it applies to persons who have completed more than 4 months service who do not meet the basic eligibility pay grade requirements of chapter 2, Army Regulation 601-280, or who have been denied reenlistment under the Qualitative Retention Process according to chapter 10, Army Regulation 601-280.

Army Regulation 623-205 (Personnel Evaluations) provides, in pertinent part, the guidelines for appeals based on substantive inaccuracy.  A personality conflict between the appellant and the rating official does not constitute grounds for receiving redress; it must be shown conclusively that the conflict resulted in an inaccurate or unjust evaluation.
Army Regulation 600-37 (Unfavorable Information) provides, in pertinent part, the guidelines for appealing for removal of official military personnel file (OMPF) entries.  Once an official document such as an Article 15, has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.  The regulation permits individuals to appeal to the Department of the Army Suitability Evaluation Board for removal of Article 15’s from their record. 

Army Regulation 15-185 establishes procedures for making application, and the consideration of applications, for the correction of military records by the Secretary of the Army acting through this Board.  Paragraph 8 of this regulation specifies that no application will be considered until the applicant has exhausted all effective administrative remedies afforded him/her by existing law or regulations, and such legal remedies as appropriately available to the applicant.

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 applicant has not sufficiently shown error or injustice to have his NJP and NCOER removed from his record nor entitled to immediate reinstatement onto active duty or to be promoted to pay grade E-7, with consideration for promotion to pay grade E-8 and all back pay, allowances, bonuses, and leave.  

2.  As its name indicates, nonjudicial punishment is different from a trial by court-martial.  A nonjudicial punishment hearing is a more informal proceeding where the rules of evidence need not be strictly applied.  Before he elected to accept nonjudicial punishment, the applicant was made aware of these differences and of his right to demand court-martial where he would receive the protection of the rules of evidence.  Instead he chose to have the matter settled at nonjudicial punishment.  

3.  The NJP was imposed in compliance with applicable laws, regulations and policies.  The punishment imposed was neither unjust nor disproportionate to the offense, and there is no evidence of any substantive violation of any of the applicant's rights.  It is properly filed in his record.  He has not shown otherwise.

4.  While it is noted the applicant did not exhaust his available administrative remedy by appeal to the DASEB for removal of the contested Article 15, the Board has considered his request in the interest of time since it was received in 1996.
5.  The contested evaluation report appears to represent a fair, objective and valid appraisal of his demonstrated performance and potential during the period in question.  Therefore, there is no basis for removing it from his OMPF.

6.  The applicant has submitted no evidence of substantive inaccuracy of the contested report from anyone in a vantage point equivalent to that of members of the rating chain.

7.  There is nothing in the available records of the applicant ever having been recommended or considered for or promoted to the pay grade of E-7.

8.  There is nothing in the available records to substantiate his allegation of underage drinking arranged by his 1SG (then Battery Training NCO) in 1982.

9.  There is nothing in the available records to substantiate his allegation of his battalion commander attempting to affect his discharge by chapters 14, 5 or 13, Army Regulation 635-200.

10.  Apart from the memorandum of referral to a Navy psychiatrist, there are no medical records available to validate the applicant’s alleged medical problems.

11.  The Board concludes the applicant was properly discharged upon completion of his required service, and he is not entitled to reinstatement.  He has not shown otherwise.

12.  There is no basis for removal of the RE code from the applicant's record. The disqualification upon which the code was based, however, can be waived for reenlistment purposes.  The applicant may visit his nearest recruiting office for this purpose.

13.  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.

14.  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

__LEM___  _TSK___  _FNE___ DENY APPLICATION

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

INDEX

CASE ID	AR2001065115	
SUFFIX		
RECON		
DATE BOARDED	20020813	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	126	
2.		
3.		
4.		
5.		
6.