MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 29 November 2001
         DOCKET NUMBER: AR2001053139

         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. Hubert S. Shaw, Jr.		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Mr. John P. Infante		Member
Mr. William D. Powers		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: Through counsel, that “This appeal to my DA [Department of the Army] Imposed Bar to Reenlistment Under the Qualitative Management Program (QMP) be expunged from my record” and “I be early retired as of the date of my separation.”

APPLICANT STATES: In effect, that his contentions will be presented by his counsel.

COUNSEL CONTENDS: In a six-page supplemental statement with Tabs A through H to the DD Form 149 (Application for Correction of Military Record) that the applicant served 16 years, 10 months, and 24 days and that he was ostensibly separated due to QMP action which is merely a superficial reason.

In his supplemental statement, counsel initially provided his principal argument and the factual basis behind the applicant’s QMP action. He provided the applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) at Tab A and contends that in fact the applicant was “driven out of the Army by relentless harassment from his immediate command” and that “When no one would help, Applicant opted to take QMP separation.”

At Tab B, counsel provided a DA Form 4941-R (Statement of Option) which is used in cases involving the Enlisted Qualitative Early Separation Program. Counsel states that this document, dated 2 December 1999, shows that the applicant opted not to appeal the QMP action which was initiated on 30 August 1999.

At Tab C, counsel also provided Camp Casey Transition Center Orders 343-006, dated 9 December 1999, which provided for the applicant’s separation effective 5 February 2000.

At Tabs D and E, counsel provided a copy of the notice of the Department of the Army Imposed Bar to Reenlistment Under the Qualitative Management Program from the U.S. Army Enlisted Records and Evaluation Center (EREC) to the applicant, dated 30 August 1999. An enclosure to this notice listed the three noncommissioned officer evaluation reports (NCOERs) which were the bases for the QMP action. Counsel noted that the sole basis for the QMP action was the applicant’s historical noncompliance with the weight control program which is confirmed by a review of his NCOERs from 1988 to the present.

Counsel contends that, during the period August 1999 though November 1999, while the applicant was subject to QMP action for weight control, he was in fact within standards. Tabs F and G are purported to confirm this fact with the following data provided in chart form by counsel for the applicant:


TAB               DATE                                BODY FAT                  COMPLIANCE

F        18 August 1999                     24                                  YES

F        27 August 1999                     24                                  YES

F        12 October 1999                    24                                  YES

G        18 November 1999                           23.51                               YES

Counsel also asserts that the applicant’s NCOER for that same period (August 1999 through November 1999) is superior and leaves no hint the applicant was an “under performer.” Further, the applicant’s final counseling statement of 18 November 1999 is laudatory and revealing, and it begins:

         [Applicant’s name omitted], in light of your situation, you still have a drive on attitude and have not complained in front of others. See, TAB I”

Counsel then presents his contentions in this case. He opens with a rhetorical question: “Why would a 17 year soldier not appeal a QMP action, particularly one where neither performance nor discipline were a problem?” Counsel states that it will take some time to describe, but that the reason the applicant did not appeal the QMP action was “duress”.

Counsel then describes the situation related to the applicant’s Permanent Change of Station (PCS) assignment to Korea in July 1999 and points out that the applicant had prior difficulties with weight control. His contentions are that the applicant’s company commander [an Army captain] in Korea instituted his own set of standards for physical fitness and weight and that, in spite of meeting Department of the Army standards, the applicant failed to met the company commander’s standards. Counsel then cites Army Regulation 350-41, paragraph 9-6b: “Personnel who meet Army minimum standards but fail to meet unit standards may not be punished or disciplined” and argues that the company commander “knowingly and willfully violated that regulation by placing the Applicant on restriction for 56 days.” Counsel concludes: “If that was not punishment, it was certainly discipline.”

Counsel states that the applicant discussed this matter with the company commander which resulted in “revocation of off post privileges.” It is further stated that the applicant tried to take leave off post for Christmas shopping, but that both requests were denied. Counsel states that the lieutenant colonel next in the chain of command [the battalion commander] backed the “illegal acts of the company commander.”


Counsel then describes a series of events. While the applicant was on restriction on or about 1 November 1999, he received the QMP action. After discussing the matter with the brigade command sergeant major, the applicant then decided to appeal the bar to reenlistment. On 30 November 1999, the applicant, with the advice and support of a Judge Advocate General’s Corps (JAGC) officer, “initiated an Article 138 complaint against [company commander’s name omitted].” Counsel states that the company commander, “contrary to law, refused to respond to the ART 138” and instead “launched an immediate campaign of harassment and humiliation against Applicant, both privately and publicly and in front of lower ranking personnel.”

Counsel continues that finally the company commander “threw the applicant out of the barracks and told him to find another unit” which counsel states is the reason why the applicant’s NCOER at Tab H is a change of rater report. Counsel concludes that now the Army Board for Correction of Military Records (ABCMR) also has some idea of the situation described in the counseling statement at Tab I.

Counsel states that the applicant sought mental health counseling to no avail, that he slipped into a sense of hopelessness, and that, without support or guidance waived the appeal of the bar to reenlistment just to get out of Korea. Counsel contends that this was not the most prudent course of action, but there is now an opportunity to correct the wrong done to the applicant. He argues that an appeal of the QMP action would have been then and is now quite straight forward as follows:

         “a. Yes, there was a time when Applicant was outside weight standards, but that has been corrected and there was no evidence that it would recur.

         b. The weight control program itself is suspect. The Navy has suspended its application. Standards are constantly shifting and the empirical tape test is not accurate in all cases.

         c. Unlike substandard performance and disciplinary actions, weight control failure does not suggest incompetence or moral turpitude. It should not be the sole basis for a QMP action, particularly where, as here, the command had not chosen to initiate separation action because of weight control failure.”

Counsel concludes his supplementary statement by stating: “Relief is appropriate in this case. We ask that it be granted.”

By an 11 April 2001 memorandum, the counsel for the applicant provided to the ABCMR a copy of a 12 February 2001 letter from the Chief of the Assistance Division of the Department of the Army Inspector General (DAIG) to a Member of Congress, an 8 March 2001 letter from the Member of Congress to the Chief of Army Legislative Liaison requesting to know the actions taken as a result of the DAIG investigation and the response from Army Legislative Liaison to the Member of Congress.

Counsel states in his 11 April 2001 memorandum to the ABCMR that the harassment allegations in the applicant’s complaint were substantiated and he requested that the ABCMR “obtain the full IG investigation and make it a part of the application.” Counsel also states in this memorandum that the IG investigation substantiates the applicant’s claim for relief and he requests expedited treatment.

In a 25 June 2001 memorandum to the ABCMR, counsel for the applicant provided additional information regarding the Article 138 complaint allegedly initiated by the applicant in Korea. Counsel provided a “DECLARATION” from the JAGC officer purported to have assisted the applicant in filing an Article 138 complaint.

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

The applicant’s date of birth is 19 November 1963. The applicant entered active duty on 24 February 1982, served as an ammunition specialist, and was honorably separated on 13 February 1985. He reentered active duty on 2 March 1986 and served as a Bradley Fighting Vehicle Systems Mechanic. The applicant was reassigned from Fort Knox, Kentucky, to Korea in July 1999. He arrived in Korea on 21 July 1999 and was assigned to 1st Battalion, 9th Infantry, in the 2nd Infantry Division.

EREC Memorandum, dated 30 August 1999, notified the applicant of a bar to reenlistment imposed by Department of the Army under QMP. The letter stated that the CY [calendar year] 1999 Sergeant First Class/ANCOC [Advanced Noncommissioned Officer Course] Promotion/Selection Board, which convened on 2 June 1999 and adjourned on 2 July 1999, reviewed his Official Military Personnel File and determined that the applicant was to be barred from reenlistment. Enclosure 2 to this letter listed the documents reviewed by the promotion/selection board indicating areas of deficiency or weakness which contributed most to the board’s decision to bar the applicant from reenlistment.

Enclosure 1 to this letter was a DA Form 4941-R (Statement of Option). The applicant indicated his selection with his initials at option number 2: “I will not submit an appeal. I understand that I will be separated within 90 days of the date of this option statement UP [under provisions] of AR [Army Regulation] 635-200, para [paragraph] 16-8.” The applicant authenticated this document on 2 December 1999 and the applicant’s battalion commander authenticated this document on the same date.

Camp Casey Transition Center Orders 343-006, dated 9 December 1999, shows the applicant’s unit of assignment as Headquarters and Headquarters Company of the 1st Battalion 9th Infantry and that Permissive Temporary Duty from 24 December 1999 to 12 January 2000 and Transition Leave from 13 January to 5 February 2000 had been approved for the applicant.

The applicant was honorably discharged on 5 February 2000 under the provisions of paragraph 16-8 of Army Regulation 635-200 with entitlement to $21616.02 of separation pay.

The applicant’s Official Military Personnel File (OMPF) contains the applicant’s NCOERs covering his service from January 1987 through November 1999.

The applicant’s NCOER covering the applicant’s period of service from January 1987 through December 1987 shows the entry “70/197 NO” [height 70 inches, weight 190 pounds, did not meet the Army height/weight standard] and states in Part IIIc (Rater’s Evaluation): [Applicant’s name omitted] “is overweight and should continue to try to meet the standards of AR 600-9.”

The applicant’s NCOER covering the period of service from January 1988 through August 1988 shows the entry “69/200 YES [height 69 inches, weight 200 pounds, met the Army height/weight standard] and states in Part IIIc (Rater’s Evaluation): [Applicant’s name omitted] “is on the overweight program, but always passes his APRT [Army Physical Readiness Test], and has shown good progress in his weight loss.” Further, this NCOER states: [Applicant’s name omitted] “has taken the body fat test and is within the limitations of AR 600-9.”

The applicant’s NCOER covering the period of service from September 1988 through August 1989 shows the entry “67/190 YES” [height 67 inches, weight 190 pounds, met the Army height/weight standard] and states: “meets the Body Fat Standards IAW [in accordance with] AR 600-9”.

The applicant’s NCOER covering the period of service from August 1989 through January 1990 shows the entry “69/196 NO” [height 69 inches, weight 196 pounds, does not meet the Army height/weight standard] and states: “EXCEEDS BODY WEIGHT STANDARDS BY 1% BODY FAT NONCOMPLIANCE WITH PROVISIONS OF AR 600-9” and “SOLDIER IS MAKING PROGRESS IN THE WEIGHT CONTROL PROGRAM.”

The applicant’s NCOER covering the period of service from February 1990 through January 1991 shows the entry “70/199 YES” [height 70 inches, weight 199 pounds, met the Army height/weight standard] and states: “meets the body fat standards of AR 600-9”.

The applicant’s NCOER covering the period of service from February 1991 through January 1992 shows the entry “70/205 YES” [height 70 inches, weight 205 pounds, met the Army height/weight standard] and states: “meets body fat standards of AR 600-9”.

The applicant’s NCOER covering the period of service from February 1992 through October 1992 shows the entry “70/205 YES” [height 70 inches, weight 205 pounds, met the Army height/weight standard] and states: “meets body fat standards of AR 600-9”.

The applicant’s NCOER covering the period of service from November 1992 through September 1993 shows the entry “70/205 YES” [height 70 inches, weight 205 pounds, met the Army height/weight standard] and states: “within body fat standards of AR 600-9.”

The applicant’s NCOER covering the period of service from October 1993 through February 1994 shows the entry “70/206 YES” [height 70 inches, weight 206 pounds, met the Army height/weight standard] and states: “soldier is in accordance with AR 600-9 body fat.”

The applicant’s NCOER covering the period of service from March 1994 through November 1994 shows the entry “70/214 YES” [height 70 inches, weight 214 pounds, met the Army height/weight standard] and states: “within body fat standards of AR 600-9.”

The applicant’s NCOER covering the period of service from December 1994 through April 1995 shows the entry “70/215 YES” [height 70 inches, weight 215 pounds, met the Army height/weight standard] and states: “within body fat standards of AR 600-9.”

The applicant’s NCOER covering the period of service from May 1995 through February 1996 shows the entry “70/228 NO” [height 70 inches, weight 228 pounds, did not meet the Army height/weight standard] and states: “enrolled in overweight program and is making progress.”

The applicant’s NCOER covering the period of service from March 1996 through February 1997 shows the entry “70/222 YES” [height 70 inches, weight 222 pounds, met the Army height/weight standard] and states: “within body fat standards of AR 600-9.”

The applicant’s NCOER covering the period of service from March 1997 through January 1998 shows the entry “70/238 NO” [height 70 inches, weight 238 pounds, does not meet the Army height/weight standard]. This NCOER also shows that the applicant failed the Army Physical Fitness Test (APFT) administered in November 1997. The NCOER also states: “enrolled in Army weight control program and physical fitness program and has failed to make progress” and “scored 157 on the Army physical fitness test; has repeatedly failed to pass the run.”

The applicant’s NCOER covering the period of service from February 1998 through January 1999 shows the entry “70/229 NO” [height 70 inches, weight 229 pounds, does not meet the Army height/weight standard]. This NCOER also shows that the applicant passed the APFT administered in December 1998. The NCOER also states: “has shown vast improvement from 30.6% to 24.8% [percent of body fat] in the weight control program.”

The applicant’s NCOER covering the period of service from February 1999 through July 1999 shows the entry “70/229 NO” [height 70 inches, weight 229 pounds, does not meet the Army height/weight standard]. This NCOER also shows that the applicant passed the APFT administered in March 1999. The NCOER also states: “has shown vast improvement from 30.6% to 24.65% [percent of body fat] in the weight control program.”

The applicant’s NCOER covering the period of service from August 1999 through November 1999 shows the entry “70/231 YES” [height 70 inches, weight 231 pounds, met the Army height/weight standard]. This NCOER also shows that the applicant passed the APFT administered in October 1999, but contains no comment about body fat standards or the weight program.

On 4 August 2000, a Member of Congress inquired into the treatment the applicant received from his chain of command. By letter, dated 12 February 2001, the Chief of the Assistance Division of the Department of the Army Inspector General (DAIG) responded to the Member of Congress. In summary, the Chief of the Assistance Division stated that the battalion commander of the unit to which the applicant had been assigned had improperly condoned hazing in that he allowed the unit “fire ceremony”, which he considered a “rite of passage”, to be conducted as a “method of passing the unit heritage to current members.”

The Chief of the Assistance Division also stated that the applicant’s company commander improperly withdrew the applicant’s Liberty Pass for failing to meet unit fitness standards. The Inspector General inquiry determined that the company commander violated Army regulation by enforcing a company standard that was not in compliance with the Army regulation.

The Chief of the Assistance Division also reported the allegation that the company commander improperly ignored an Article 138 investigation initiated by the applicant was not substantiated. The Inspector General inquiry determined: “No evidence existed that [applicant’s name omitted] actually filed an Article 138 complaint against his Company Commander. Nevertheless, the Company Commander obtained legal advice and chose not to respond to [applicant’s name omitted] concerning the Article 138 complaint.”

The Chief of the Assistance Division also reported the allegation that the Company Commander disapproved the [the applicant’s] leave requests due to substandard performance in violation of AR [Army Regulation] 600-8-1, Leaves and Passes, was not substantiated. The Inspector General inquiry determined no evidence existed that the command disapproved a leave request by the applicant in November or December 1999. The Inspector General did confirm that the applicant was granted terminal leave that began on 24 December 1999.

The Chief of the Assistance Division also responded to the applicant’s allegation that he did not receive an award when he was separated from the military. The Chief of the Assistance Division quoted from Army Regulation 600-8-22, Military Awards, that the decision to award a decoration is the subjective decision of the commander having award approval authority. The Chief of the Assistance Division also stated the applicant’s supervisor did not recommend him for an award and that decision was supported by the chain of command.

The Chief of the Assistance Division also responded to the issue raised by the applicant that he did not receive a “complete the record” NCOER. The Chief of the Assistance Division reported that the applicant did not qualify for a complete the record NCOER and was not eligible for any other type of NCOER because he had received one in November 1999.

The Chief of the Assistance Division also responded to the issue raised by the applicant that he was not allowed to attend Army Career and Alumni Program (ACAP) once the QMP process had been initiated. The Inspector General inquiry revealed that applicant was directed to go to ACAP and that he attended the separation briefing portion of the ACAP Workshop, but did not return to ACAP.

On 5 September 2001, The DAIG provided to the ABCMR a redacted copy of the report of inquiry prepared by the 2nd Infantry Division Inspector General into allegations raised by the applicant. A copy of that redacted report was forwarded to the applicant’s counsel by letter, dated 3 October 2001.

This report of inquiry addressed two substantiated and two unsubstantiated allegations and other complaints as summarized:

         1. The inquiry substantiated the allegation that hazing was improperly condoned. Investigation revealed that an initiation ceremony periodically occurred for all newly arrived officers and NCOs. The initiation involved being placed in front of other officers and NCOs while drinking a concoction of various substances that can induce vomiting and cause possible injury. Although it was stated that drinking the concoction was completely voluntary, the applicant alleges that he was made to drink the mixture four times without explanation.

         2. The inquiry substantiated the allegation that the applicant’s Liberty Pass Privileges were improperly withdrawn in excess of 50 days for failing to meet unit fitness standards. Investigation revealed that the applicant was deficient in meeting weight standards and fitness standards on several occasions. The inquiry also concluded that denial of pass privileges would have been justified as a remedy to correct substandard performance; however, the length of time pass privileges were denied considered in conjunction with the QMP action appears to shift from corrective action to a punitive action and indicates that the action was not directly related to correcting the applicant’s inability to meet the unit run standard. In essence, the company commander had instituted a physical fitness standard that was not in compliance with applicable Army regulations. His policy essentially stated that soldiers who fail to meet the company APFT goal will not be eligible for “Warrior Pass Privileges”. The report of inquiry determined that this policy was in violation of Army Regulation 350-41 (Training in Units) which states that Army personnel who meet minimum Army standards, but fail to meet unit standards, may not be punished or disciplined and was in violation of the intent of 2d Infantry Division Policy Statement #20 by basing pass privileges on performance in physical training.

         3. The inquiry did not substantiate the allegation that the unit commander improperly ignored an Article 138 complaint initiated by the applicant. Investigation revealed that the unit commander chose not to respond to the applicant’s notice indicating his intention to file an Article 138 complaint. The report of inquiry also states that no record exists at the 2d Infantry Division legal office showing that the applicant filed an Article 138 investigation.

         4. The inquiry did not substantiate the allegation that the applicant was improperly denied leave requests for substandard performance. Investigation revealed no preponderance of evidence exists that a leave request would be denied to anyone failing the APFT or falling out of unit runs. The report of inquiry states that a leave request may have been denied if the unit had reached its maximum of 10 percent on leave which is a restriction based on unit readiness considerations. Further, the inquiry indicated that the unit commander did not recall denying any leave requests for the applicant.

         5. Paragraph 5 of the report of inquiry discussed other complaints made by the applicant, specifically that he did not receive an end of tour award, that he did not receive a close out NCOER, and that he was not allowed to attend ACAP. The report of inquiry concluded that these matters were not the result of “any retaliation or lack of concern from the command.” The report of inquiry stated that no individual is entitled to an award per Army regulations, that he did not qualify for a NCOER, and that nothing presented confirmed that the command prevented the applicant from attending ACAP.

By memorandum, dated 25 June 2001, the applicant’s counsel stated that he located the Judge Advocate General’s Corps (JAGC) captain who was the applicant’s military attorney in Korea and that this officer confirms that an Article 138 investigation was filed by the applicant “based on circumstantial evidence.” Counsel identifies this circumstantial evidence as the fact the unit commander sought legal advice to respond to an Article 138 and the fact that the 2d Infantry Division Inspector General sent E-mails to the JAGC captain referencing an Article 138 complaint. Counsel also states the JAGC captain confirms the egregious treatment of the applicant.

Attached to the 25 June 2001 memorandum from counsel to the ABCMR is a reproduced copy of an undated “DECLARATION” by the JAGC captain who was the applicant’s military lawyer in Korea in late 1999. In this declaration, the JAGC officer described the events surrounding revocation of the applicant’s Liberty Pass which he considered an “extra-judicial restriction to post” and stated:

         “I advised [the applicant] to file an Article 138 complaint against [company commander’s name omitted]. [The applicant] agreed with my recommendation, and I then explained what an Article 138 was and how to file one. I did not assist [the applicant] in actually drafting his request for redress under Article 138, so I cannot say that it was filed; however, I did thoroughly explain the steps [the applicant] needed to take to file the complaint and what the complaint should contain. Given [the applicant’s] strong interest in filling the a complaint and his level of intelligence, I have no doubt that the complaint was filed. I have subsequently learned that [the unit commander] sought legal advice in order to respond to an Article 138 complaint, and I received E-mails from the 2nd Infantry Division Inspector General, [rank and name omitted], which reference the Article 138 complaint.”

In concluding his declaration, the JAGC captain stated that the applicant could have successfully appealed his selection for elimination were it not for the fact that he was frustrated and dissatisfied with his treatment by the unit commander. Further, he stated that, with even minimal encouragement from the chain of command, the applicant would have filed the appeal and would still be serving in the Army today.

Chapter 10 of Army Regulation 601-280 (Army Retention Program), dated 29 September 1995, set forth the policy and prescribed procedures for denying reenlistment under the Qualitative Management Program (QMP). The objectives of the QMP are listed in paragraph 10-2 and state that QMP 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 soldiers who do not meet the Army standards for performance, conduct attitude, and potential for advancement; and (4) Encourage soldiers to maintain their eligibility for further service. This paragraph also states that reenlistment is a privilege for those who meet Army standards and that QMP is not intended to be rehabilitative in nature.

Paragraph 10-4 of Army Regulation 601-280 provides selection guidance and criteria. Specifically it directs the selection of soldiers who: (a) Have exhibited moral or ethical conduct incompatible with the values of the NCO Corps and the Army ethic; (b) Do not exhibit potential to perform NCO duties in their current grade; (c) Decline in efficiency and performance over a continuing period to a clearly substandard level as reflected by NCO-ER or related reports; (d) Have had recent or continuing disciplinary problems as evidenced by Article 15(s), Courts-Martials, or memoranda of reprimand; (e) Decline in appearance of duty performance over a period of time as demonstrated by the inability to meet physical fitness and weight standards; and (f) In the collective judgment of the board, clearly possess indications of substandard performance.

Paragraph 10-5 of Army Regulation 601-280 governs screening procedures and states, in pertinent part, that appropriate Department of the Army Selection Boards will review the performance portion of the Official Military Personnel File, the DA Form 2A (Personnel Qualification Record Part-I) and DA Form 2-1 (Personnel Qualification Record Part-II), and other authorized documents. From these documents, the board will evaluate past performance and estimate the potential of each service to determine if continued service is warranted.
Paragraph 10-8 of Army Regulation 601-280 provides that a soldier may appeal the bar to reenlistment imposed under QMP based on improved performance and/or material error in the soldier’s record when reviewed by the selection board. The appeal must be submitted within 45 days of completion of the Statement of Option and will include substantive comments on the soldier’s performance and potential by each member of the chain of command. Paragraph 10-10 provides that the appeal is considered by the QMP Appeals Board normally conducted in conjunction with Centralized Enlisted Selection Boards. The QMP Appeals Board will consider the soldier’s potential for future service and promotion; review the soldier’s complete record “de novo”; and notify the soldier’s commander (lieutenant colonel or above) of the results of the appeal.

Deputy Chief of Staff for Personnel Memorandum, Subject: Memorandum of Instruction (MOI) for the CY99 Sergeant First Class (SFC)/Advanced Noncommissioned officer Course (ANCOC) Selection Board, dated 2 June 1999, in pertinent part governed the Qualitative Management Program selection process for the board which considered the applicant for promotion to SFC. Paragraph 3b of this memorandum states that the board’s mission includes:

         “Qualitatively screen soldiers in the zone of consideration to identify those failing to meet Army standards for performance, conduct, attitude, and potential for advancement. Guidance is provided by a separate MOI.”

Attached the 2 June 1999 MOI for the SFC/ANCOC selection board was a 14 page document entitled “GUIDANCE FOR THE CY99 SFC SELECTION BOARD. Parts of this document specifically address the QMP process as follows:

         Paragraph 1b: “All NCOs who are recommended as “best qualified” for selection must first be considered “fully qualified” for promotion to SFC. In determining whether an NCO under consideration is fully qualified for selection, the board should satisfy itself that the NCO is qualified professionally and morally, has demonstrated integrity, is physically fit, and is capable of performing duties expected of an NCO with his or her qualifications in the next higher grade or position. Selection is not intended as a reward for past service.”

         Paragraph 1c: “If the board determines that an NCO is not fully qualified for promotion, then it must decide if the NCO is qualified for retention in his/her current grade or whether the NCO should be referred for screening by the QMP board to consider a HQDA bar to reenlistment denying continued service.”

         Paragraph 1c(2): “Soldiers referred for consideration by the QMP board are those whose past performance and potential for continued service do not warrant retention.”

         Paragraph 7 Physical Fitness and Weight Control: “Army policy requires that every soldier be physically fit regardless of age or duty assignment. Weight control and physical appearance are important indicators of an NCO’s potential. Accordingly, general physical condition and compliance with the weight control policies of AR 40-501 and AR 600-9 will be considered by the panel in evaluating the individual’s potential for further service.”

         Paragraph 18d: “Refer those soldiers for consideration by the QMP board whose past performance and potential for continued service do not warrant retention. Criteria to be considered, but which do not mandate referral for QMP, may include, but are not limited to, the following:

         (4) Weight Control. Current failure to make satisfactory progress in the weight control program after a six month period, absent medical justification for failure, or failure to meet body fat standards within 12 months after removal from the weight control program, absent medical justification for failure.

         (5) Army Physical Fitness Test (APFT). Two or more current failures of APFT, without subsequently passing the APFT, absent medical justification for one or both failures.”

Army Regulation 635-200 (Personnel Separations), currently in effect, sets forth the basic authority for the separation of enlisted personnel. Chapter 19 pertains to policy and procedures for voluntary and involuntary separation for the convenience of the Government of Regular Army NCOs and U.S. Army Reserve (USAR) NCOs serving in an Active Guard/Reserve (AGR) status, under the QMP. This regulation states that QMP is designed to (1) enhance the quality of the career enlisted force, (2) selectively retain the best qualified soldiers, (3) deny continued service to nonproductive soldiers, and (4) encourage soldiers to maintain their eligibility for further service. The QMP applies to Regular Army NCOs in the grades of staff sergeant/pay grade E-6 through command sergeant major or sergeant major/pay grade E-9 and USAR NCOs in the grades of sergeant/pay grade E-5 through command sergeant major or sergeant major/pay grade E-9. The QMP does not apply to soldiers who (1) if Regular Army, hold the grade of sergeant/pay grade E-5 and below; if USAR AGR, hold the grade of corporal or specialist/pay grade E-4 and below, (2) have an approved retirement application, and (3) have been selected for QMP by a previous board and retained on active duty, provided no new bases for QMP were documented since the earlier retention determination. The appropriate selection boards review the performance portion (P-fiche) of the OMPF, Personnel Qualification Record (DA Form 2A and 2-1 or Enlisted Record Brief) official photograph, and other authorized documents pertaining to soldiers in the QMP zone of consideration. This material forms the basis for the board’s evaluation of the soldier’s past performance and potential for continued service, leading to a determination of whether the soldier does or does not warrant retention.

Paragraph 19-11 of Army Regulation 635-200 states that a soldier denied continued service under the QMP may appeal the determination and request retention on active duty on the basis of improved performance and/or presence of material error in the soldier’s record when reviewed by the selection board. The regulation also states that a soldier may submit only one appeal, that requests for reconsideration of denied appeals are not authorized, and that the soldier may submit relevant material in support of the appeal. USAR AGR soldiers are granted a maximum of 90 days from completion of DA Form 4914-R (Statement of Option) to submit their appeals to their commander. Appeals are considered by QMP appeals boards normally conducted in conjunction with HQDA centralized promotion selection boards and will consider all information considered by the QMP board and all information included in the appeal. The mere fact that a soldier’s performance has improved or that the soldier’s file contains material error is not necessarily sufficient to overcome the reason for QMP selection. The appeal board may determine that the reason for QMP selection still applies even in the light of the improved performance or correction of an error. Successful appeals result in removal of the denial of continued service determination.

Army Regulation 600-9 (The Army Weight Control Program), effective 10 June 1987, implements the guidance in DOD Directive 1308.1 which establishes a weight control program in all the Services. This regulation applies to all members of the Active Army, the Army National Guard (ARNG) and the U.S. Army Reserve (USAR) to include those ARNG and USAR personnel in Active Guard/Reserve (AGR) status. This regulation requires that the body fat composition will be determined for personnel whose body weight exceeds the screening table weight in Table 1 in Paragraph 21 or when the unit commander or supervisor determines the individual’s appearance suggests that body fat is excessive.

Page 7 of Army Regulation 600-9 contains a chart which shows the Weight for Height Table (Screening Table Weight). This chart shows that the Screening Table Weight for a male, who is between 28 and 39 years of age and who is 70 inches tall, is 185 pounds.

Paragraph 20c of Army Regulation 600-9 contains a chart which shows the maximum allowable body fat standards. This chart shows that the maximum allowable body fat standards for males in age group 28 and 39 is 24 percent.

Army Regulation 623-205 establishes policy and procedures governing the Noncommissioned Officers Evaluation Reporting System (NCOERS). Paragraph 3-6 of Army Regulation 623-205 prescribes the responsibilities of the rating official and states that he or she will enter the Army Physical Fitness Test (APFT) and height and weight result entries on part IVc of the NCOER.

Paragraph 3-8 of Army Regulation 623-205 prescribes the responsibilities of the senior rating official and states that he or she will ensure the APFT and height/weight entries are correct in part IVc.

Paragraph 6-13 of Army Regulation 623-205 specifies the administrative instructions for completion of the entries for height and weight in item part IV c of the NCOER. Those instructions require the rating official to enter the rated NCO's verified height and weight (in inches and pounds) as of the rater's signature date and an entry of "YES" or "NO" to indicate compliance or noncompliance with the provisions of AR 600-9. The data will be typed in part IVc. Example entries are "72/180 YES" or "68/205 NO". The rater enters "YES" and the bullet "Within body fat standards of AR 600- 9" for those NCOs who exceed the weight for height screening table, AR 600-9, only after a body fat measurement has been completed and the NCO is found to be within the body fat standard for his/her age group. This provision of the regulation also requires that rater specific bullet entries are mandatory in part IVc for the following: (1) To explain the absence of the height and weight data; (2) To explain an entry of "NO", indicating noncompliance with AR 600-9, specifically the reason for noncompliance, notation of any medical waivers to weight standards, and indication of progress or lack of progress in a weight control program; (3) To explain the basis for a "yes" entry when an individual exceeds the weight for height screening table limit but through a body fat determination is in compliance with the body fat standards of AR 600-9.

Paragraph 6-14 of Army Regulation 623-205 specifies the administrative instructions for completion of the entries for the Army Physical Fitness Test (APFT). The regulation requires that the rater enter one of the following APFT entries: "PASS" or "FAIL" and the year and month of the APFT results or "PROFILE" and year and month the profile was awarded. These entries will reflect the NCO's status on the date of the most recent APFT administered by the unit within the 12 month period prior to the last day of supervision. APFT refers to both the PT Test for NCOs without profiles consisting of push-ups, sit-ups, and the two mile run and the alternate PT Test as prescribed by health care personnel for NCOs with permanent profiles. The APFT entries for both are the same. Sample entries are "PASS 8601”, "FAIL 8602" or "PROFILE 8603." APFT numerical scores will be entered as bullet comments to justify "Excellence" or "Needs improvement" ratings based solely on the APFT. It is optional to enter the APFT score for success ratings. The regulation also requires that specific bullet entries by the rater are mandatory in part IVc for the following: (1) The rater will explain an APFT entry of "FAIL" or "PROFILE." Comments on "FAIL" entries will address reasons for failure and note any progress toward meeting physical fitness standards (AR 350-15). Comments on "PROFILE" entries will describe the rated NCO's ability to perform assigned duties. (2) If the APFT has not been taken within 12 months of "THRU" date of the report the APFT data entry will be left blank. The rater will explain the absence of an APFT entry in part IVc.

Article 138 (Complaints of Wrongs) of the Uniform Code of Military Justice provides that any member of the Armed Forces who believes himself wronged by his commanding officer, and who, upon due application to that commanding officer, is refused redress may complain to any superior commissioned officer. This Article requires further that the superior officer shall forward the complaint to the officer exercising general court-martial jurisdiction over the officer against whom the complaint is made. The officer exercising general court-martial jurisdiction will then “examine into the complaint” and take proper measures for redressing the wrong complained of. The general court-martial authority will forward to the Service Secretary involved a true statement of the complaint with the proceedings regarding the complaint.

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. NCOERs show the applicant failed to meet height/ weight and physical standards and/or was in The Army Weight Control Program during the periods from January 1987 through December 1987, January 1988 through August 1988, August 1989 through January 1990, May 1995 through February 1996, March 1997 through January 1998, February 1998 through January 1999, and February 1999 through July 1999.

2. Evidence of record shows that a QMP board reviewed the applicant’s OMPF under the Army’s Qualitative Management Program and determined that the applicant was to be barred from reenlistment. The applicant was notified by memorandum dated 30 August 1999 of his right to appeal.

3. Records show the decision to bar the applicant from reenlistment was based primarily on the applicant’s NCOERs covering the 33 months of his service during the periods May 1995 through February 1996, March 1997 through January 1998, and February 1998 through January 1999. These NCOERs show that the applicant failed to meet Army weight standards and in one case failed to meet both height/weight and physical fitness standards.

4. The applicant and his counsel have presented no evidence that the decision of the QMP board was procedurally flawed or otherwise unjust or inequitable based on procedures in effect at that time or procedures currently in effect.

5. The applicant’s counsel contends that the “sole basis for this QMP action was the Applicant’s historical non-compliance with the weight control program.” However, the Board determined that in addition to weight control the applicant’s APFT failure was also a factor in the decision to bar him from reenlistment.

6. The applicant’s counsel asserts that during August 1999 through November 1999, “the very time that Applicant was subject to QMP for noncompliance with weight control, he was in fact within standards.” The Board reviewed the records covering this period of service and found sufficient inaccuracy and omission to cast doubt on this assertion. The 2nd Infantry Division Inspector General stated that the applicant was deficient in his requirement to meet Army APFT and weight standards and unit fitness standards on several occasions. The Board reviewed the DA Form 5500 (Body Fat Content Worksheet (Male)), dated 18 November 1999, presented by the applicant’s counsel. This form shows the applicant’s height is “71.00” inches; yet, NCOERs covering the applicant’s service from February 1992 through November 1999 show the applicant’s height as “70” inches. Also, the DA Form 705 (Army Physical Fitness Test Scorecard) submitted by counsel shows the applicant’s height on 18 August 1999 as “70” inches, on 27 August 1999 as “70” inches and on 12 October 1999 as “69” inches. This scorecard also shows that the applicant was a “NO-GO” for weight on the APFTs conducted on 18 and 27 August 1999. Further the applicant’s NCOER covering the period of service from August 1999 to November 1999 shows the entry “70/231 YES” [height 70 inches, weight 231 pounds, met the Army standard for height/weight]. The weight data on this NCOER shows the applicant does not meet the Screening Table Weight of 185 pounds, but contains no comment about body fat standards or the weight program or that the rater or senior rater verified the height/weight entry as required by regulation. Further, the Board noted that the applicant repeatedly failed to meet Army weight standards at 228 and 229 pounds with a height of 70 inches; yet, the NCOER covering August to November 1999 indicated that he met Army weight standards at 231 pounds with a height of 70 inches.

7. Counsel states that the NCOER for the period August 1999 to November 1999 “is superior and leaves no hint that Applicant was an under performer” and that the applicant’s “final counseling statement of 18 Nov 99 is laudatory and revealing.” The Board does not question the applicant’s manner of performance of military duties. However, the Board determined that the applicant’s NCOERs clearly identify his repeated failures to meet Army height/weight standards and a failure to meet APFT standards which ultimately led to consideration under the provisions of the QMP and to a bar to reenlistment.

8. The Board reviewed counsel’s discussion of the actions by the unit commander in regard to hazing, unit physical training standards, the applicant’s restriction to post, denial of leave, and the matter of the Article 138 complaint. The Board also reviewed the 2nd Infantry Division Inspector General report of inquiry into these matters.

9. The Board considered counsel’s contention that the applicant was “driven out of the Army by relentless harassment from his immediate command” and that “When no one would help, Applicant opted to take QMP separation.” In this matter, the Board noted that the 2nd Infantry Division Inspector General report of inquiry substantiated the allegation that hazing was improperly condoned. Specifically, the chain of command condoned hazing in the form of the “fire ceremony” which was considered by the battalion commander to be a “rite of passage”, but under Army regulation was considered hazing. This report by the Inspector General shows that all newly assigned officers and NCOs were subjected to this form of hazing. Thus, the Board concluded that the hazing embodied in the “fire ceremony” was not directed solely against the applicant, it was not part of a “harassment campaign”, and it did not preclude or otherwise interfere with his appeal of the bar to reenlistment imposed under the QMP.

10. The Board further noted that the 2nd Infantry Division Inspector General report of inquiry substantiated the allegation that the applicant’s Liberty Pass Privileges were improperly withdrawn in excess of 50 days for failing to meet unit fitness standards. The Board does not condone violation of regulations and harassment of solders; however, in this case, the Inspector General report of inquiry does not indicate that a “campaign of harassment” occurred and there is no evidence that the withdrawal of pass privileges prevented the applicant from filing an appeal, consulting with counsel, or filing for redress under Article 138.

11. Contrary to the contention that the company commander also denied the applicant’s leave for off post Christmas shopping, the 2nd Infantry Division Inspector General found no evidence that the applicant had been denied leave.

12. The Board considered counsel’s contention that “contrary to law” the applicant’s company commander refused to respond to an Article 138 complaint. The applicant’s former military counsel in Korea submitted an undated “DECLARATION” wherein he stated that, in late 1999, the applicant discussed with him filing a complaint under Article 138 regarding revocation of his Liberty Pass Privileges. The applicant’s former military counsel wrote in his declaration that he advised the applicant to file a complaint under Article 138 regarding revocation of his Liberty Pass Privileges, but the military lawyer admits that he did not see or receive the Article 138 complaint.

13. Further, the contention by counsel that this “DECLARATION” contains circumstantial evidence which confirms that an Article 138 was filed is without merit. The argument that because the company commander sought legal advice regarding Article 138 and because the 2d Infantry Division Inspector General inquired into whether or not a complaint under Article 138 was filed does not confirm that the applicant filed a complaint under Article 138. The facts in this case show that the company commander sought legal advice in response to the applicant’s notice that an Article 138 complaint would be filed in the future and that the Inspector General merely inquired into this action by the company commander.

14. Regarding the matter of an Article 138 complaint, the Board also noted that the applicant’s former military counsel stated to the 2nd Infantry Division Inspector General that he was limited on the information he could give due to “attorney-client privileges”, but he could say that he did not file an Article 138 on the applicant’s behalf and the applicant would have to give permission for any further release of information. The 2nd Infantry Division Inspector General determined that the there was no evidence that an Article 138 complaint was filed. Further, the 2nd Infantry Division Inspector General stated that the applicant’s failure to respond to an Inspector General request to allow his former military counsel to release information on the Article 138 complaint “dismisses any credibility to his allegation.”

15. The Board noted that, in concluding his “DECLARATION”, the applicant’s former military lawyer stated that the applicant could have successfully appealed his selection for elimination were it not for the fact that he was frustrated and dissatisfied with his treatment by the unit commander. Further, he stated that, with even minimal encouragement from the chain of command, the applicant would have filed the appeal and would still be serving in the Army today. However, the applicant’s former military lawyer did not provide evidence to support his assertion that the applicant could have successfully appealed the bar to reenlistment or that maltreatment by the chain of command was the reason the applicant did not request redress under Article 138 and did not appeal the bar to reenlistment.

16. Additionally, evidence of record shows that the applicant consulted with military counsel regarding appeal of the Department of the Army Bar to Reenlistment imposed under the QMP. The applicant’s counsel also states that the applicant discussed the appeal of the bar to reenlistment with the brigade command sergeant major. Notwithstanding the recommendations by these personnel to proceed with his appeal, evidence of record confirms the applicant indicated in his own hand that he chose to not appeal the bar to reenlistment.

17. The Board reviewed the allegation by the applicant’s counsel that the company commander initiated a “harassment campaign” based on information regarding initiation of an Article 138 complaint. The 2nd Infantry Division Inspector General stated several witnesses testified that the company commander did not retaliate against the applicant. The 2nd Infantry Division Inspector General found the allegation that the company commander initiated a “harassment campaign” against the applicant “has no merit or basis of proof.”

18. The Board also noted the contention by the applicant’s counsel that the company commander “threw the applicant out of the barracks and told him to find another unit.” Counsel states that this action by the company commander is the reason why the applicant’s NCOER for the period August 1999 to November 1999 is a change of rater report. However, the Board notes that the applicant’s separation orders, dated 9 December 1999, show he was separated from the same unit to which he was originally assigned in August 1999. Further, the Board noted that the Inspector General report of inquiry made no reference to the applicant’s reassignment and confirmed that the unit commander did not initiate a “campaign of harassment” against the applicant.

19. The Board also considered the argument by counsel that an “appeal of the QMP action would have been then and is now quite straight forward”:

         “a. Yes, there was time when Applicant was outside weight standards, but that has been corrected and there was no evidence that it would recur.

         b. The weight control program itself is suspect. The Navy has suspended its application. Standards are constantly shifting and the empirical tape test is not accurate in all cases.

         c. Unlike substandard performance and disciplinary actions, weight control failure does not suggest incompetence or moral turpitude. It should not be the sole basis for a QMP action, particularly where, as here, the command had not chosen to initiate a separation action because of weight control failure.”

20. Contrary to counsel’s contention that the applicant’s weight problem has been corrected and would not recur, there is evidence that the applicant was not within standards at times during the period August 1999 through November 1999. Further, the applicant has had a recurring weight control problem which is confirmed by a review of his NCOERs from 1988 through 1999. While the QMP board found only the three NCOERs (May 1995 through February 1996, March 1997 through January 1998, and February 1998 through January 1999) as a basis for imposing a bar to reenlistment, the applicant’s NCOER covering the period February 1999 through July 1999, which was not considered by that QMP board, also shows that he again failed to meet Army height/weight standards.

21. The Board noted counsel’s statement that the weight control program is suspect and the Navy has suspended its application. However, these arguments are not relevant to this case which is governed by Army regulation. Further, the current Army weight control program has been in effect since 10 June 1987 and throughout the most of the applicant’s Army service.

22. The Board agrees with counsel that weight control failure is not a matter of misconduct or incompetence. However, the Board does not agree with counsel that weight control failure should not be a basis for QMP action. The applicant demonstrated lack of self discipline by repeatedly failing to control his weight in accordance with longstanding and known Army-wide weight standards and by failing the APFT. In spite of counseling and participation in weight control programs, the applicant repeatedly failed to meet Army standards. Clearly, he demonstrated by his failure to meet Army standards that he was not among the “best qualified” NCOs and his potential to perform in positions of increasing responsibility was questionable in the opinion of the Board. Therefore, this Board concluded that repeated failure to meet Army academic, performance, weight, AFPT, or any other standard is properly a basis for QMP action and that removal from service for these reasons has been the purpose of this qualitative management program since its inception.

23. After considering all of the foregoing, the Board determined that the hazing in the form of the “fire ceremony” was not directed personally at the applicant since other officers and NCO’s also participated. Therefore, it is not a basis to grant the relief requested.

24. After considering all of the foregoing, the Board finds counsel’s argument that the applicant did not file an appeal to the bar to reenlistment because he “slipped into a sense of hopelessness and without support or guidance waived the QMP appeal just to get out of Korea” is without merit. The applicant was advised by military counsel to appeal the bar to reenlistment and to file an Article 138 complaint and he did not do either. Based on a statement by counsel for the applicant, the brigade command sergeant major also advised the applicant to appeal the bar to reenlistment. Therefore, it is apparent that the applicant received legal and professional support and guidance, but he personally chose to not appeal the bar to reenlistment and chose to not submit a complaint under Article 138.

25. After considering all of the foregoing, the Board found that the applicant was properly barred from reenlistment under the Army’s QMP for repeated failure to meet Army standards over an extended period of time. The applicant was entitled to appeal this action and was advised to do so by military counsel and the brigade command sergeant major. Evidence of record shows that he chose to not appeal the QMP decision and request retention on active duty on the basis of improved performance based on the argument that he met Army standards from August through November 1999 as now set forth by counsel. In view of these facts and the determination of the 2nd Infantry Division Inspector General that the applicant was not subjected to a “harassment campaign”, the Board finds the argument that treatment by the chain of command caused the applicant not to file an appeal is not sufficiently compelling to warrant relief in this case.

26. After considering the foregoing, the Board determined that the only action in violation of regulation by the chain of command which was directed solely at the applicant was revocation of his “Warrior Liberty Pass” privileges for failure to meet unit physical fitness standards. While the 2nd Infantry Division Inspector General found that the company commander could properly restrict the applicant’s pass privileges for failure to meet weight or physical standards, it was the length of the revocation which resulted in the determination that the unit commander’s policy violated Army Regulation 350-41, was excessive and became punitive over a long period of time. The applicant was entitled to file a complaint for redress under Article 138 in regard this treatment; however, there is no evidence the applicant filed such a complaint. Since the applicant elected to not file a complaint under Article 138, the Board determined that this violation of regulation was not sufficiently egregious to warrant relief in this case.

27. 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.

28. 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

__RVO__ __WDP__ ___JPI__ DENY APPLICATION

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

---

INDEX

CASE ID	AR2001053139
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20011129
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	MR CHUN
ISSUES 1.	136.0000.0000
2.
3.
4.
5.
6.