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MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 25 February 1999
         DOCKET NUMBER: AC97-05848
                                    AR1999022715

         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.	Loren G. Harrell		Director
Ms.	Deyon D. Battle		Analyst

         The following members, a quorum, were present:

Mr.	James M. Alward		Chairperson
Ms.	Jennifer L. Prater		Member
Mr.	Samuel Calderon		Member

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         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)

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APPLICANT REQUESTS: Removal of his Department of the Army (DA) imposed bar to reenlistment by deleting the word “failure” of the physical fitness testing scores in the Enlisted Evaluation Reports (EERs) for the periods covering December 1986 through November 1987 and June 1988 through May 1989. He also requests transfer of a letter of reprimand (LOR) dated 20 December 1993, from his performance fiche to his restricted fiche. He further requests that his separation under the Qualitative Management Program (QMP) be voided, that all references to the QMP be removed from his OMPF, and that he be separated under early retirement provisions, or under an alternate provision which would allow him to be granted benefits under Title 10 United States Code1174a or 1175.

APPLICANT STATES: That he was discharged after he completed 17 years and 9 months of active service because of derogatory information that has been placed in his official record. He states that he submitted an appeal of his bar to the US Army Enlisted Records and Evaluation Center (USAEREC), however his appeal was denied. He states that he also submitted an appeal to the DA Suitability and Evaluation Board (DASEB) to have the LOR removed from his performance fiche and placed on his restricted fiche and his appeal was returned without action taken. He continues by stating that a Standby Advisory Board (STAB) should have reviewed his case de novo and if a STAB had reviewed his case, it would have found that he has overcome any fitness problems that he had during that timeframe. He further states that he requested early retirement, however he was informed by his first sergeant that he should seek a 20-year retirement because he was a very good soldier. He states that he believed it to be good advice so he withdrew his request for early retirement and now he has been deprived of his separation pay. He concludes by stating that one error in judgement should not end his career even in a drawdown as that, under his circumstances, would be unequal treatment.

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

On 17 May 1978, he enlisted in the Army for 4 years in the pay grade of E-1 and he remained on active duty through a series of reenlistments. He successfully completed his training as a radio communications security repairer and as a hawk missile crewmember.

A review of the records reveals that the applicant’s rater indicated on his EER for the period covering December 1986 through November 1987, that he failed in his demonstrated performance of present duty. His rater also indicated that he failed the run portion of his physical fitness test and that this was typical of his past performance. There is no evidence that the applicant submitted an appeal to that EER during that timeframe.
On his Noncommissioned Officer Evaluation (NCOER) for the period covering June 1988 through May 1989, his rater indicated that failed the two mile run and that he was enrolled in a remedial fitness program in order to meet the standard. The record is void of any appeals that he may have submitted regarding this NCOER during that time.

On his NCOER for the period covering August 1993 through March 1994, his rater indicated that he failed to maintain a high standard of personal conduct on and off duty. The rater also cited that an act of poor judgement had occurred while he was off duty. Again, the applicant failed to submit an appeal of that NCOER.

The applicant received a LOR dated 20 December 1993, for driving while under the influence of alcohol. His commanding officer (CO) informed him that his reprehensible behavior could not be tolerated and must be recognized as a serious threat to the health and welfare of the community. His CO further expressed to him that his misconduct was incompatible with the maintenance of high standards of performance, military discipline, and readiness and that his acct could not pass uncensored. The applicant’s CO told him that he was considering both permanent placement of the LOR on his performance fiche and in his local military personnel records jacket. He was informed that any response to the allegation should be submitted with 10 days.

On 7 January 1994, the applicant submitted a response to the LOR requesting that it not be placed on his performance fiche because all of the evidence had not been forwarded and his case was not scheduled to be heard in court until 21 January 1993. He also indicated that the regretted the actions that placed him in his situation and he believed that if the LOR were to be placed on his record his career would soon come to an end.

On 24 March 1994, the applicant’s CO directed that the LOR be filed in his Official Military Personnel File (OMPF).

The applicant was advised of his DA imposed bar to reenlistment under the Qualitative Management Program (QMP) on 12 May 1995. He was also advised of all of his options at that time.

On 1 July 1995, the applicant submitted an appeal to his bar to reenlistment. His appeal was denied after careful review of his case by a STAB and he was informed that he must be separated from the Army no later than 28 February 1996.



Accordingly, on 28 February 1996, the applicant was honorably discharged under the provisions of Army Regulation 635-200, paragraph 16-8, for reduction in force under the QMP. He had completed 17 years, 9 months and 14 days of total active service.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 16 covers discharges caused by changes in service obligations. Paragraph 16-5 applies to personnel denied reenlistment and provides that soldiers who receive DA imposed or locally imposed bars to reenlistment, and who perceive that they will be unable to overcome the bar may apply for immediate discharge. Paragraph 16-8 provides that personnel will be notified of the separation by appropriate commanders and be provided the basis for the separation.

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 privileges for those whose performance, conduct, attitude, and potential for advancement meet Army standards. Centralized enlisted promotion boards select individuals whose records indicate that they are nonprogressive and nonproductive soldiers for bars to reenlistment under the QMP. Thereafter, the Assistant Secretary of the Army directs the separation of the individuals who are selected under the QMP in order to comply with Congressionally mandated budgetary and manpower restriction.

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’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

2. Moreover, he has not shown that the contested evaluation reports do not reflect his demonstrated performance or that they were not prepared in compliance with applicable regulations and policy.

3. The applicant received a LOR for driving while under the influence of alcohol. The LOR was appropriately placed in his official military file as directed by his CO. He has submitted no evidence that the placement of the LOR in his official military file was an injustice or an error. He was properly discharged under the QMP as a result of the LOR and evaluation reports which reflect substandard performance and acts of indicipline. Mere argument is not a basis for granting the relief for which he seeks.

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 the aforementioned 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

___sc ___ __jlp ___ ___ja____ DENY APPLICATION




                                                      Loren G. Harrell
                                                      Director

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INDEX

CASE ID	AC97-05848/AR1999022715
SUFFIX
RECON
DATE BOARDED	1999/02/25
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 100.060
2. 134.010
3. 136.050
4.
5.
6.