APPLICANT REQUESTS:  That two evaluation reports (9008-9105 and 9106-9109) be expunged from his Official Military Personnel File (OMPF), that a HQDA bar to reenlistment, imposed under the Army’s Qualitative Management Program (QMP), be removed, and that he be restored to active duty.

APPLICANT STATES:  Via counsel, that the 9008-9105 evaluation report did not “fairly, objectively and comprehensively evaluate” either his duty performance or his potential.  He states the 9106-9109 relief-for-cause evaluation report “was improperly completed and filed“ in his OMPF in violation of the governing regulations and his organization’s policy.  The applicant contends that had the evaluation reports not been in his file he would not have been identified for a HQDA imposed bar to reenlistment.

COUNSEL CONTENDS:  In effect, that the applicant was not afforded the safeguards established by Army Regulations to insure that his performance evaluation reports were properly executed.  He notes that such regulations require that the applicant be notified in writing regarding any “proposed adverse” actions resulting from an Army Regulation 15-6 investigation, that relief-for-cause evaluation reports must be referred to the soldier and that written policies published by the 7th Infantry Division, Fort Ord, California required that the applicant’s relief-for-cause be approved by the division commanding general.  Counsel maintains that the applicant was not provided a copy of the findings and recommendations of the AR 15-6 investigation nor provided an opportunity to respond to the proposed adverse action.  He also notes that the applicant’s relief for cause evaluation was “not preceded by written performance counseling and sufficient time elapsed to allow...[him]...to demonstrate improved performance” as required by his organization’s written policy.  He notes the applicant “was totally unaware of the existence of the relief-for-cause NCOER until he received the QMP notification.”  Counsel also contends the Enlisted Special Review Board (ESRB), which denied the applicant’s NCOER appeals, “totally ignored the obvious violations of petitioner’s rights UP of AR 623-205 and AR 15-6....”

Counsel concludes as a consequence of the “erroneous inclusion” of the two evaluation reports in the applicant’s OMPF he was unjustly “identified and selected for elimination under the QMP program and was subsequently eliminated” from the Army.

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

He entered active duty in May 1975 and performed duties in the infantry field throughout his career.  He was promoted to pay grade E-7 in March 1991.  His average performance evaluation score, prior to the new NCOER system implemented in 1988, was 123 out of a possible 125.  Between June 1988 and July 1990 he received three performance reports.  On two reports his raters indicated his overall potential for promotion was at the “fully capable” level while one rater noted his potential was “marginal.”  His senior raters placed him in the third block for both overall performance and potential.

In May 1991, while serving with the 27th Infantry Battalion, 7th Infantry Division at Fort Ord, the applicant received a change of rater evaluation report for the period August 1990 through May 1991.  The report noted his responsibility and accountability was excellent, that he met the standards for competence, physical fitness/military bearing, and training, but that his leader skills needed some improvement.  His senior rater rated his overall performance and potential for promotion as “fair” by placing him in the fourth block.  The applicant authenticated the report on 31 May 1991 certifying he had seen the report and was aware of the appeal process.

On 13 August 1991 an officer was appointed under the provisions of AR 15-6 to investigate “the impact of an 81mm mortar round outside of the Camp Roberts Impact Area on 
7 August 1991.”  The investigating officer concluded on 
27 August 1991 that the applicant, who was performing duties as the mortar range OIC (officer in charge), failed “to adequately supervise the conduct of his platoon; and, enforce standard range safety measures.”  The investigating officer recommended the applicant be relieved “of all leadership responsibilities within the Mortar (81mm) platoon....”
The applicant’s request to this Board includes an undated, but signed, memorandum from his battalion commander notifying him of his intention to relieve him for cause based on the recommendation of the AR 15-6 investigation.  The commander noted in his memorandum that his decision was based “on all the evidence, including [the applicant’s] own statements...” that he (the applicant) “failed to adequately supervise the conduct of the 81mm mortar platoon while in the position of Range 19 OIC; and that [he] failed to enforce standard range safety measures.”

According to entries on the applicant’s personnel qualification record he was transferred from the 27th Infantry Battalion to A company, US Army Garrison at Fort Ord effective 23 October 1991.

The relief-for-cause evaluation report, which covered the period June 1991 through September 1991, was finalized on 
12 November 1991 and notes that the applicant was “not available for signature.”  The report does note in Part Vc that the “rated NCO has been notified of the reason for relief.”

On 20 July 1992 the applicant acknowledged receipt of a 
10 July 1992 letter notifying him of his selection under the QMP for a DA imposed bar to reenlistment.  The notification letter indicated that the two NCOERs in question (9808-9105 and 9106-9109) “contributed most to the board’s decision to bar [him] from reenlistment....”  The applicant indicated he intended to appeal the bar.

The applicant initiated his appeal on 25 August 1992 noting that the 9008-9105 report did not accurately reflect his leadership performance and that the relief-for-cause report “was hidden from [him] at the time of its completion,” in spite of the fact that he was available to sign the report. He also notes that it was his understanding that an individual could not be relieved for cause based on “an informal AR 15-6 investigation...until such time as the allegations have been proved in a formal manner (UCMJ, administrative actions).  He also admits in the QMP appeal that after the AR 15-6 investigation was completed “the findings were presented to [him].”
Prior to initiating his QMP appeal the applicant also submitted appeals to the Enlisted Special Review Board noting that both reports were substantively inaccurate.  While the original appeal is not included in the applicant’s file, a summary of his appeal from the ESRB indicates the applicant maintained he received the low rating on the 9008-9105 report essentially because of disagreements with his rater.  The summary indicates he based his appeal of the relief-for-cause evaluation report on the fact that he never received any counseling statements regarding the report and was not given an opportunity to review the report prior to its submission.

The applicant’s NCOER and QMP appeals were both denied and on 30 June 1993 he was involuntarily released from active duty.  At the time of his release from active duty he had slightly more than 17 years of active Federal service and received $20,937.00 in separation pay.

In addition to several service decorations, the applicant was awarded two Army Commendation Medals and a Combat Infantryman Badge (Operation Just Cause-Panama December 1989-January 1990) during his 17 years of service.

Army Regulation 623-205 states that the NCOER appeals system protects the Army's interest and ensures fairness to the NCO.  At the same time, it avoids impugning the integrity or judgment of the rating officials without sufficient cause.  An evaluation report accepted for inclusion in the official record of an NCO is presumed to be administratively correct, has been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.  Appeals alleging bias, prejudice, inaccurate or unjust ratings, incorrect APFT or height/weight data, or any matter other than administrative error are substantive in nature and will be adjudicated by the Enlisted Special Review Board.  The burden of proof rests with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and action is warranted to correct a material error, inaccuracy or injustice.

Relief-for-cause reports are defined as the removal of a NCO from a ratable assignment based on a decision by a member of the NCO’s chain of command or supervisory chain that the NCO’s personal or professional characteristics, conduct, behavior, or performance of duty warrant removal in the best interest of the Army.  If relief for cause is contemplated on the basis of an informal AR 15-6 investigation, the findings and recommendations of the investigation must be referred to the individual concerned for comment before the act of initiating or directing the relief.

7th Infantry Division & Fort Ord memorandum of instruction for relief-for cause evaluation reports (MOI 91-33), dated 16 April 1991, states that “a contemplated relief-for-cause of a Commander, Field Grade Officer, Command Sergeant Major or First Sergeant will not take place without the written approval of the Commanding General.”  It also notes that soldiers relieved for cause as a result of unsatisfactory performance should be counseled and given a reasonable amount of time to improve performance.  

Army Regulation 601-280, chapter 10, sets forth policy and prescribes procedures for denying reenlistment under the QMP.  This program is based on the premise that reenlistment is a privilege for those whose performance, conduct, attitude, and potential for advancement meet Army standards. It is designed to (1) enhance the quality of the career enlisted force, (2) selectively retain the best qualified soldiers to 30 years of active duty, (3) deny reenlistment to nonprogressive and nonproductive soldiers, and (4) encourage soldiers to maintain their eligibility for further service.  The appropriate promotion selection boards evaluate past performances and estimate the potential of each soldier to determine if continued service is warranted. Soldiers whose continued service is not warranted receive a QMP bar to reenlistment.

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 shown, to the satisfaction of the Board, that the 9008-9105 change of rater report or his relief-for-cause evaluation report were in error or unjust.

2.  It is unreasonable to believe that the applicant, as counsel maintains, was “totally unaware of the existence of the relief for cause NCOER until he received the QMP notification....”  Contrary to counsel’s contentions, the applicant admits he received a copy of the AR 15-6 investigation recommending his relief and was subsequently reassigned to duties in another organization.  With that information, the applicant, as a senior NCO, knew, or should have known, the basis for his removal from the mortar platoon sergeant position with the 27th Infantry Battalion to a headquarters activity.  His argument to the contrary is not credible.

3.  While regulatory requirements state that an individual be provided a copy of the AR 15-6 investigation, which recommends an adverse action, there is no requirement to also refer the relief-for-cause evaluation report to the soldier.  The fact that the findings and recommendations of the AR 15-6 investigation are provided meets the referral requirements, and insures “minimum safequards” are met.  

4.  The Board notes that the 7th Infantry MOI required written approval from the division commander when relief-for-cause was contemplated of a “Commander, Field Grade Officer, Command Sergeant Major, Sergeant Major or First Sergeant....”  The applicant was a sergeant first class and as such his relief-for-cause did not require written approval from the commanding general.  Additionally, the Board believes that the circumstance under which the applicant was relieved related to a safety issue which would not have lent itself to the usual practice of counseling and allowing “a reasonable amount of time to improve performance.”

5.  The QMP is a tool used by the Army to ensure a quality force and as such was designed to deny continued service to those soldiers whose past performance or future potential does not meet the stringent requirements for continued service.  The applicant has provided no evidence to support that his case is so extraordinary or that his overall service was so outstanding that removal of the bar and reinstatement is warranted.  

6.  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.

7.  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

                       DENY APPLICATION




						Karl F. Schneider
						Acting Director