MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 15 February 2001
         DOCKET NUMBER: AR2001052830


         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. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Margaret K. Patterson		Member
Mr. Melvin H. Meyer		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 the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

         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: In effect, the applicant requests that her discharge because of a DA imposed bar to reenlistment under the DA Qualitative Management Program (QPM) be revoked, so that her DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects a more favorable reason for her discharge.

She states that her daughter had serious medical problems and was under the exceptional family member program. She was being harassed by her supervisors because of her continued absence from duty because of medical appointments for her daughter. She states that her supervisors placed undue pressure on her and attempted to separate her from the Army. She states that her enlisted evaluation report for the nine month period ending in March 1991 was unfair, in that four months of the rated period should have been nonrated because of the time she spent with her daughter, and because she was not rated by her rater, but in fact, rated by her reviewer. She says that she met the cutoff score for promotion and should have been promoted to pay grade E-6.

The applicant states that the information that was to be used to initiate elimination action against her were determined by the Judge Advocate General to be illegal; consequently, the action was dropped. However, that information was erroneously used by the QMP board.

She states that because of her daughter’s medical problems, she was on extensive temporary duty during the rating period, but never received support from her supervisors.

She states that the information concerning her bad checks was not entirely true, in that the credit union made an error and had admitted doing so. Also, she was not counseled concerning all the bad checks, and in fact, was not aware of them.

She states that she received letters of support from her former supervisors and her company commander concerning her performance of duty. She states that the captain who relieved her was out to ruin her career, and that he had previously been brought up on harassment charges. She states that she did attempt to further her education, but during the time of her daughter’s illness, it was impossible to do so.

PURPOSE: To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.



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

Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's consideration of her case on 28 September 1994 (AC94-05485), in which she requested that her NCO evaluation report for the period ending in March 1991 be removed from her official military personnel file (OMPF).

The applicant’s record shows that on 2 June 1977 she received nonjudicial punishment under Article 15, UCMJ, for using obscene language toward an individual. She received nonjudicial punishment on 2 May 1979 for willfully disobeying a lawful order and for disrespect to an NCO. In 1992 she requested the records of her nonjudicial punishment be transferred from the performance portion of her OMPF to the restricted portion. Her request was denied.

On 17 November 1988 the applicant completed the basic NCO course (BNCOC) at Fort Benjamin Harrison, Indiana. Her academic evaluation report shows that she marginally achieved course standards. It also shows that she served in two leadership positions satisfactorily, but demonstrated a fundamental weakness on specific tasks, and only met minimal course requirements after repeated remediation and retesting. She appealed that report, implying that her daughter’s serious health problems affected her performance. Her appeal was denied.

The information on her DA bar to reenlistment is contained in the Board’s memorandum of 28 September 1994 concerning her appeal of her NCO evaluation report.

She was discharged on 28 February 1993 in the grade of E-5. She had over 17 years of service and received separation pay of $15,850.80. She was discharged because of a reduction in authorized strength – qualitative early transition program. Her DD Form 214 shows a reentry (RE) code of 4.

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. Soldiers whose continued service is not warranted receive a QMP bar to reenlistment.

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. Those codes are used for administrative purposes only and used for identification of an enlistment processing procedure. The code RE-4 applies to persons separated from his last period of service with a non-waivable disqualification. This includes anyone with a Department of the Army imposed bar to reenlistment in effect at time of separation.

Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 28 February 1993, the date of her discharge. The time for the applicant to file a request for correction of any error or injustice expired on 28 February 1996.

The application is dated 8 August 2000 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION: The subject application was not submitted within the time required. The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

________ ________ ________ EXCUSE FAILURE TO TIMELY FILE

________ ________ ________ GRANT FORMAL HEARING

___fne___ ___mkp__ ___mhm_ CONCUR WITH DETERMINATION

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

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INDEX

CASE ID	AR2001051830
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20010215
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. 7	142.00
2.	110.00
3.
4.
5.
6.