MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 23 JULY 2002
         DOCKET NUMBER: AR2001064801

         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
Ms. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Ms. Jennifer L. Prater		Chairperson
Mr. Hubert O. Fry, Jr.		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: In effect, that following relief granted by this Board in October 2001, and his submission of an appeal of his Department of the Army (DA) imposed bar to reenlistment and performance evaluation reports for the period February 1998 through October 1998 and November 1998 through October 1999, that he be allowed to remain on active duty following his
30 November 2001 scheduled separation date. His request was submitted on
14 November 2001. Information available to the Board indicates that the applicant was not separated on 30 November 2001, and on 9 May 2002 he was permitted to reenlist for an indefinite period. As such, the Board need not address that portion of his request.

However, on 9 April 2002 the applicant amended his November 2001 request to this Board to include "consideration for promotion to Sergeant First Class." He amended his application again on 9 May 2002 to request consideration for promotion by a Standby Advisory Board, and on 15 July 2002 he amended his original application a third time. In his July 2002 amendment he requested, in effect, reconsideration of a previous request to have his performance evaluation report for the period November 1998 through October 1999 removed from his OMPF (Official Military Personnel File).

APPLICANT STATES: The applicant made no statements in support of his original November 2001 application, or in any of the subsequent amendments. He did, however, refer the Board to his QMP (Qualitative Management Program)/NCOER (Noncommissioned Officer Evaluation Report) appeal and case summary, a letter from his attorney, the results of his October 2001 ABCMR action, and his "micro fiche." He submitted those documents as attachments to his November 2001 application to this Board.

The QMP appeal documents appear to be a QMP appeal initiated in December 2000, and nine additional letters, dated in August 2001, supporting the applicant's subsequent QMP appeal. None of the nine additional letters duplicated any of the letters included with the applicant's December 2000 QMP appeal action.

The NCOER appeal appears to include documents that were submitted when the applicant initially appealed the two NCOERs in question (9802-9810 and 9811-9910) to this Board in August 2001, and which the Board adjudicated in October 2001. However, attached to those documents is a new appeal letter, dated
14 September 2001, from an attorney, to the U.S. Army Enlisted Records and Evaluation Center, on behalf of the applicant. The attorney's letter addresses the exact same issues raised in the applicant's original NCOER appeal action to this Board and in an earlier appeal action to the Enlisted Special Review Board. The "case summary" is the summary of the Enlisted Special Review Board's review of the applicant's appeal action to that agency.

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

He received a less than favorable evaluation report for the period February 1998 through October 1998. That report, rendered while the applicant was serving in pay grade E-6 as a medical NCO at Redstone Arsenal in Alabama, showed that the applicant received "needs some improvement" ratings in the area of competence and physical fitness/military bearing. The report also included less than complimentary comments in those two areas, as well as a "marginal" rating for his overall potential for promotion. His senior rater rated the applicant's overall performance in the bottom of three successful ratings and rated his overall potential as "poor." The second evaluation report, for the period November 1998 through October 1999, was rendered while the applicant was serving in pay grade E-6 as a treatment squad leader in Europe. That report contained several "no" ratings in the area of "Values/NCO Responsibilities," as well as "needs some improvement" ratings in the areas competence and responsibility/accountability, and a "needs much improvement" rating in the area of training. He also received a "marginal" rating from his rater for his overall potential for promotion and "poor" ratings from his senior rater.

In August 2000 the applicant was notified that he had been identified under the Qualitative Management Program for a DA imposed bar to reenlistment by the CY (calendar year) 2000 Sergeant First Class Promotion Board. The Board cited the 9802-9810 and 9811-9910 evaluation reports as the "documents indicating areas of deficiency or weakness which contributed most to the board's decision…." As a result of the QMP action, the applicant was placed in a "non-promotable status" precluding consideration by subsequent promotion selection boards. He was, therefore, not considered for promotion by the CY2001 Sergeant First Class Promotion Board.

On 17 October 2000 the applicant initiated an appeal of the QMP action. The appeal was denied, and the applicant was so notified in July 2001.

In December 2000 the applicant initiated an appeal of the two evaluation reports in question. The Enlisted Special Review Board voted to change the applicant's "needs some improvement" rating to "success" in the physical fitness/military bearing area, as well as adding information regarding the applicant's physical profile and deleting the negative comment about his lack of initiative. They denied the remainder of the applicant's petition. A copy of the appeal and a copy of the Enlisted Special Review Board's summary were included with the applicant's original (August 2001) application to the Board. Copies of the Enlisted Special Review Board's case summary, as well as copies of several of his letters of support from that appeal, were submitted with his original (August 2001) application to this Board, as well as his current (November 2001) application.

When the Enlisted Special Review Board acted on the applicant's December 2000 NCOER appeal, they concluded that the change to the applicant's 9802-9810 evaluation report did not warrant promotion reconsideration (by the CY2000 E-7 promotion board) because they were "not convinced there would have been a reasonable chance for selection had the change been made before the applicant was considered [for promotion]."

In August 2001 the applicant submitted his initial application to this Board. In that application he requested that the two unfavorable evaluation (9802-9801 and 9811-9910) reports be expunged from his OMPF. In that request he raised essentially the same issues he had raised in his December 2000 appeal to the Enlisted Special Review Board, minus the physical fitness/military bearing issues, which were previously resolved by the Enlisted Special Review Board. As noted previously, the applicant included a copy of his QMP and NCOER appeals in support of his request to this Board. This Board, on 30 October 2001, voted to change the "needs some improvement" rating to a "success" rating in the competence area and to delete a negative comment concerning the applicant's failure to retake a medical licensure exam. The Board denied the remaining portions of the applicant's request. Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's 30 October 2001 consideration of the case (AR2001060935).

Army Regulation 600-8-19 states, in pertinent part, that an individual's records may be referred to a Standby Advisory Board for promotion consideration "upon determining that a material error existed" in a soldier's OMPF when the file was reviewed by a promotion board. An error is "considered material when there is a reasonable chance that had the error not existed, the soldier may have been selected." Generally, when a promotion board reviews an adverse NCOER, and that evaluation report is subsequently declared invalid, in whole or in part, the Enlisted Special Review Board renders a determination if the change constituted "material error." In the event this Board acts favorably on a request to expunge or change an NCOER, this Board should render the determination if a Standby Advisory Board is warranted. However, the 30 October 2001 Board did not render such a decision. Hence, that determination is now being rendered as part of the applicant's most recent request to the Board.

At some point the applicant apparently appealed his QMP action a second time. While the applicant submits copies of letters of support (those letters dated in August 2001) with his current application to the Board, a complete copy of that request was not provided by the applicant, and is not contained in records available to the Board. However, the applicant did provide a copy of an 18 April 2002 memorandum from the U.S. Army Enlisted Records and Evaluation Center which informed him that his appeal, "after a careful review by a recent DA Standby Advisory Board, was approved."

Notwithstanding the applicant's 9802-9810 amended performance evaluation report, at the time of his promotion consideration in May 2000, by the CY2000 Sergeant First Class Promotion Board, the applicant's records contained an evaluation report for the period October 1997 through January 1998 which showed that he "needs some improvement" in the area of competence and a comment that he had "failed Licensed Practical Nurse Licensure Board." That same report noted that he was rated "fully capable" in his "potential for promotion and/or service in positions of greater responsibility." His senior rater rated the applicant's "overall performance" and "potential for promotion" in the center of the three "successful" rating. His records would also have included the November 1998 through October 1999 evaluation report the applicant is still attempting to have expunged from his records. Hence, the applicant would have had three consecutive reports (9710-8901, 9802-9810, 9811-9910) that were clearly less than outstanding reports, two of which included "needs improvement" ratings and two which included "marginal" or "poor" ratings for promotion potential.

Subsequent to the applicant's selection by the CY2000 (May 2000) Sergeant First Class Promotion Board for a DA imposed bar to reenlistment, he received performance evaluation reports in July 2000, December 2000 and August 2001. Those reports are all complimentary of the applicant and his raters rated his potential for promotion as among the best. His senior raters placed him the first block of the three successful blocks.

Army Regulation 635-200 sets forth policy and prescribes procedures for the Qualitative Management Program. It is designed to (1) enhance the quality of the career enlisted force, (2) selectively retain the best qualified soldiers, (3) deny reenlistment to nonprogressive and nonproductive soldiers, and (4) encourage soldiers to maintain their eligibility for further service. Soldiers whose performance, conduct, and/or potential for advancement do not meet Army standards, as determined by the approved recommendation of Department of the Army centralized selection boards responsible for QMP screening, will be denied continued service. A soldier denied continued service under the QMP may appeal the determination and request retention on active on the basis of improved performance and/or presence of material error in the soldier's record when reviewed by the selection board. Successful appeals result in removal of the denial of continued service determination.

As part of the applicant's current application (November 2001) to this Board, he requested again that the November 1998 through October 1999 evaluation report be expunged from his records.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR. It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration.

The applicant's only new evidence, in support of his request to expunge the 9811-9910 evaluation report, was a letter submitted by his attorney, dated
14 September 2001, and nine additional letters supporting the applicant's QMP appeal. While the letter was not in the applicant's records at the time of the Board's October 2001 deliberation, the letter addresses the identical issues which were previously considered by the Board. The nine new letters merely support the applicant's QMP appeal and do not attest to the validity of the evaluation report.

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. Based on available evidence, this Board concludes that even with the changes made by the 30 October 2001 Board, to the applicant's February 1998 through October 1998 evaluation report, the changes were not so significant that there was a "reasonable" chance the applicant would have been selected for promotion by the CY2000 Sergeant First Class Promotion Board. Hence, this Board has determined that a "material error" did not exist following the Board October 2001 action and as such, there is no basis to refer the applicant's records to a Standby Advisory Board for consideration for promotion under the CY2000 selection criteria.

2. Additionally, this Board concludes that the fact that the applicant's QMP appeal was successful does not, in and of itself, justify promotion, or referral to a Standby Advisory Board. The applicant's DA imposed bar to reenlistment was a valid action which placed the applicant in a "non-promotable" status, precluding consideration for promotion by the CY2001 Sergeant First Class Selection Board. While the applicant's amended evaluation report may have helped support his QMP appeal action, it is also likely that the numerous letters of support, as well as his three subsequent evaluation reports (0007, 0012, and 0108), convinced the QMP appeal board that the applicant showed improved performance which warranted his continued retention on active duty. It does not mean the original bar was imposed erroneously.

3. The applicant has not shown that his QMP action was erroneous and as such, this Board concludes there is no basis to promote him to pay grade E-7, or refer his records to a Standby Advisory Board for consideration for promotion under the CY2001 selection criteria.

4. The Board notes the overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision regarding the removal of the November 1998 through October 1999 evaluation report from the applicant's OMPF.

5. 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 that requirement.

6. The actions by the Army in this case were proper, and there is no doubt to be resolved in favor of the applicant.

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

__JLP __ __HOF __ __GJW__ DENY APPLICATION

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

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INDEX

CASE ID	AR2001064801
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020723
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.	111.00
2.	131.00
3.
4.
5.
6.