PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 1 October 2002
         DOCKET NUMBER: AR2002068472


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Beverly A. Young		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor		Chairperson
Ms. Margaret K. Patterson		Member
Mr. Arthur A. Omartian		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests reinstatement in the U.S. Army Reserve (USAR) Active Guard/Reserve (AGR) program as a staff sergeant (SSG)/pay grade E-6.

3. The applicant states, in effect, that he be reinstated in the USAR AGR program in the rank of SSG. In support of his application, the applicant submits a supplemental letter, two DA Forms 4856 (General Counseling Form), two DA Forms 200 (Transmittal Record), six memorandums, two congressional letters, five DA Forms 2166-7 (Noncommissioned Officer Evaluation Report), three endorsements, two DA Forms 8029-R (Statement of Options), a DA Form 2823 (Sworn Statement) and a copy of a message from a military physician.

4. The applicant’s military records show that he initially served in the Navy from July 1964 through March 1966. He enlisted in the USAR on 4 August 1975 and was ordered to active duty in the USAR AGR program on 25 September 1988. The applicant was discharged from the USAR AGR program on 27 February 2001 in the rank of sergeant.

5. Evidence of record shows that the applicant's records were considered by a Department of the Army Qualitative Management Program (QMP) Board which convened on 14 May 1999. After review of the applicant's Official Military Personnel File (OMPF), the QMP Board barred the applicant from further reenlistment in the USAR AGR program.

6. The applicant was notified of the decision of the QMP Board and his options by U.S. Army Reserve Personnel Command (AR-PERSCOM) memorandum, dated 5 August 1999. This memorandum also identified the documents in the applicant's OMPF which served as a basis for imposing the bar to reenlistment. Specifically those documents were two Noncommissioned Officer Evaluation Reports (NCOER) covering his USAR AGR service during the periods May 1995 through December 1995 and January 1996 through December 1996.

7. Subsequent to receipt of the 5 August 1999 QMP notification, records show the applicant was counseled by his battalion commander of his options. The applicant's battalion commander indicated that he had presented the bar to reenlistment to the applicant on 13 September 1999 and had counseled him. The battalion commander indicated that he would not submit an appeal. The applicant completed a DA Form 8029-R (Statement of Options) on 19 September 1999 wherein he indicated that he would submit an appeal not later than 90 days after notification.

8. Records show the applicant submitted an appeal to the bar to reenlistment to his company commander on 17 December 1999. In conjunction with his appeal, the applicant submitted a Transmittal Record (DA Form 200) which indicates that the appeal was shipped to the company commander on 17 December 1999.

9. In an endorsement dated 17 August 2000, the Chief of the Enlisted Management Division at AR-PERSCOM notified the applicant's commander that the appeal was denied and returned without action. The endorsement indicated that AR-PERSCOM did not receive the applicant's appeal until 31 July 2000 and should have reached that office no later than 19 December 1999. The endorsement further indicated that, "Since SGT [applicant's name] appeal was not received within the 90 days after his notification, his option changed to option 2."

10. In an undated memorandum submitted by the applicant to his commander, he requested an exception to policy for his appeal to the bar to reenlistment. There is no record of action taken by the commander in response to the applicant's request for an exception to policy.

11. Army Regulation 635-200 (Enlisted Personnel) 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 (RA) NCOs and USAR NCOs serving in an AGR status, under the QMP. The 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 RA NCOs in the grades of SSG through CSM/SGM and USAR NCOs in the grades of SGT through CSM/SGM. The QMP does not apply to soldiers who (1) if RA, hold the grade of SGT and below; if USAR AGR, hold the grade of CPL/SPC 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 produced by SIDPERS), 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.

12. 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. It also states that a soldier may submit only one appeal, 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.

CONCLUSIONS:

1. The Board considered the applicant's request for reinstatement in the USAR AGR program in the rank of SSG/pay grade E-6.

2. Records show that a Department of the Army QMP Board considered the applicant's OMPF and determined that he should be barred from further reenlistment in the USAR AGR program.

3. Records show that the applicant submitted an appeal to the DA bar to reenlistment to his unit commander on 17 December 1999. This appeal was submitted as required by regulation and within the regulatory suspense.

4. Records show the applicant's appeal was denied and returned without action
by AR-PERSCOM on 31 July 2000 because the applicant's appeal of the bar to reenlistment was not forwarded by the chain of command to AR-PERSCOM in a timely manner. Accordingly, he was separated from the USAR AGR program in the rank of sergeant/pay grade E-5.

5. After review of all the evidence of this case, the Board determined that the applicant has not presented sufficient evidence which warrants overturning the current Department of the Army imposed bar to reenlistment or reinstatement in the USAR AGR program.

6. However, the Board determined that the applicant was substantially disadvantaged when his appeal was not considered by the QMP Appeals Board.

7. Therefore, the Board determined that the applicant's records along with his appeal should be reconsidered by the AR-PERSCOM QMP Appeals Board.

8. In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records, but only as recommended below.



RECOMMENDATION:

1. That the individual concerned appeal of the bar to reenlistment imposed by the Department of the Army QMP Board which convened on 14 May 1999 be reconsidered by the appropriate QMP appeal board.

2. That, if the appeal of the bar to reenlistment by the individual concerned is approved:

         a. he be reinstated in the USAR AGR program in the rank of sergeant/pay grade E-5 effective 28 February 2001;

         b. he be paid all appropriate back pay and allowances from 28 February 2001 to the date of reinstatement;

         c. he receive promotion consideration to the next higher enlisted grade, if eligible.

3. That, if the appeal of the bar to reenlistment by the individual concerned is disapproved, he be so notified.

4. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

RVO____ MKP____ AAO_____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  Raymond V. O'Connor___
                  CHAIRPERSON

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INDEX

CASE ID	AR2002068472
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20021001
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	GRANT IN PART
REVIEW AUTHORITY	Mr. Schneider
ISSUES 1.	110.0300
2.
3.
4.
5.
6.