MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 12 March 2002
         DOCKET NUMBER: AR2001063357

         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Ms. Irene N. Wheelwright		Chairperson
Mr. Raymond J. Wagner		Member
Ms. Gail J. Wire		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)

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APPLICANT REQUESTS: The removal of a noncommissioned officer evaluation report (NCOER) ending in November 1999, a Department of the Army (DA) bar to reenlistment from his Official Military Personnel File (OMPF) and reinstatement to active duty.

APPLICANT STATES: In effect, that he received a DA bar to reenlistment under the Qualitative Management Program (QMP) based on a NCOER ending in November 1999, which indicated that he did not meet the height/weight standards of Army Regulation (AR) 600-9 and that he was enrolled in the overweight program. He goes on to state that he believes it unjust that he was discharged for that report, because the individual that did the measurements that deemed him overweight, did the measurements by himself, with no assistance, and in contravention with AR 600-9. He further states that the regulation requires two persons to do the measurements and such did not occur. He only recently discovered the two-person provision in the regulation. In support of his application, he submits statements from two individuals who indicate that only one person was present for the weigh-in and provides copies of his Body-Fat Content Worksheets (DA Form 5500-R).

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

He enlisted on 8 August 1984, for a period of 3 years. He successfully completed his training and has remained on active duty through a series of continuous reenlistments. He was promoted to the pay grade of E-6 on 1 January 1999, in the military occupational specialty (MOS) of a personnel service specialist (75H30).

On 31 August 2000, a memorandum was dispatched to the applicant informing him that the Calendar Year (CY) 2000 Sergeant First Class Promotion Board had determined that he should be barred from reenlistment under the QMP, based on the presence of an NCOER ending in November 1999, which indicates deficiencies in fitness.

The applicant submitted an appeal of the bar to reenlistment to the Enlisted Records and Evaluation Center (EREC) on 27 June 2000, contending that the NCOER was inaccurate because only one person conducted the tape test to determine that he was overweight. He submitted essentially the same documents and arguments to that agency as he has to this Board.

On 9 April 2001, a DA Standby Board (STAB) reviewed his appeal, determined that his appeal should be denied and directed his separation.

Accordingly, he was honorably discharged on 24 July 2001, under the provisions of Army Regulation 635-200, paragraph 19-12, due to non-retention on active duty. He had served 16 years, 11 months and 12 days of total active service and was paid one-half separation pay in the amount of $23,627.17.

A review of the NCOER in question shows that the report covered the period from August 1999 to November 1999 and evaluated his performance as an operations sergeant at Fort Benning, Georgia. In Part IVc, under Physical Fitness and Military Bearing, the applicant’s rater gave him a “Needs Improvement” rating. He indicated that the applicant did not meet the height/weight standards of AR 600-9 and that he was enrolled in the Army Weight Control Program. The applicant’s height/weight were listed as 73/259.

A review of the applicant’s NCOER history shows that he received an NCOER in March 1992, at Fort Stewart, Georgia, which indicated that he did not meet height and weight standards of AR 600-9 and that his height/weight was 73/255.

In September 1992, he received an NCOER, which showed that he did not meet the requirements of AR 600-9 and indicated that he was enrolled in the Army Overweight Program. He was the personnel staff noncommissioned officer (NCO) for that unit.

In August 1996, while in Korea, he received an NCOER, which indicated that he did not meet the standards of AR 600-9, that his height/weight were 73/240 and that he was enrolled in the Army Overweight Program. The applicant was the personnel staff NCO of that unit.

In July 1997, while serving as a personnel sergeant at Hunter Army Airfield, Georgia, he received an NCOER indicating that he did not meet the height/weight requirements of AR 600-9, that he was enrolled in the Army Overweight Program, and that his height/weight was 73/254.

He received the November 1999 NCOER (Contested report) indicating that he was enrolled in the overweight program with a height/weight of 73/259. He also received additional reports in November 2000 and July 2001 indicating that he was in the overweight program and was not making progress. His height/weight was listed as 73/291 on both reports.

There is no indication in the available records to show that the applicant ever appealed any of the evaluation reports to the Enlisted Special Review Board (ESRB).

AR 600-9 established policies and procedures for the implementation of the Army Weight Control Program. It provides, in pertinent part, that unit commanders should require that designated personnel have hands-on training and read instructions regarding technique and location, and practice before official determinations are made. Two members of the unit should be utilized in the taking of measurements, one to place the tape measure and determine measurements and the other to assure proper placement and tension of the tape, as well as to record the measurements on the worksheet.

Army Regulation 601-280 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 quality of the career enlisted force, (2) selectively retain the best qualified enlisted soldiers to 30 years of active duty, (3) deny reenlistment to non-progressive and non-productive soldiers, and (4) encourage soldiers to maintain their eligibility for further service. The QMP consists of two major subprograms, the qualitative retention subprogram and the qualitative screening subprogram. Under the qualitative screening subprogram, records for grades E-5 through E-9 are regularly screened by the Department of the Army promotion selection boards. The appropriate 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.

Army Regulation 623-205, sets forth the policies and procedures for the Enlisted Evaluation Reporting System. Paragraph 4-2 states, in pertinent part, that an evaluation report accepted for inclusion in the official record of an NCO is presumed to represent the considered opinion and objective judgment of rating officials at the time of preparation. Paragraph 4-7 of that regulation states, in pertinent part, that when submitting an appeal, the burden of proof rests with the applicant and that he or she must produce evidence that establishes clearly and convincingly that action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

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 Department of the Army bar to reenlistment under the QMP was imposed in compliance with the applicable regulations, with no indication of procedural errors, which would tend to jeopardize his rights.

2. The applicant has failed to show through the evidence submitted with his application or the evidence of record, that the document which served as the basis for his selection under the QMP was not sufficient to justify the imposition of the bar, nor has sufficient evidence been provided to justify removal of the bar to reenlistment.
3. The Board has noted the applicant’s contention that the body fat measurements should be declared null and void because only one person was present to take the measurements and finds them to be without merit. While the applicable regulation suggests that two people should be present, it does not make it a mandatory requirement.

4. Additionally, the Board notes that the applicant has not denied being overweight and given his long history of being overweight and having been enrolled in the overweight program several times throughout his career, the Board finds that in the absence of evidence to show that the measurements taken at the time were incorrect, there is no basis to presume otherwise.

5. Furthermore, given the applicant’s specialty and position of personnel sergeant in the unit, the applicant had a responsibility to be aware of the procedures for administration of the overweight program as well as the procedures for appealing evaluation reports. Therefore, the Board finds that his failure to be aware of the procedures to be without merit.

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 this 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

__inw ___ ___gjw __ __rjw ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001063357
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/03/12
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 193	111.0000/VOID NCOER
2. 7	100.0600/QMP
3.
4.
5.
6.