MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 10 December 2002
         DOCKET NUMBER: AR2002073694

         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. Celia L. Adolphi		Chairperson
Mr. Ted S. Kanamine		Member
Mr. Conrad V. Meyer		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether 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: That the Qualitative Management Program (QMP) action against him be expunged from his records, that he be reinstated to active duty effective the date of his separation, with entitlement to all back pay and allowances, or as a minimum, that his QMP appeal be reviewed with a view towards overturning it and allowing him the opportunity to continue to serve.

APPLICANT STATES: In effect, that he was unjustly barred from reenlistment under the QMP, based on one adverse action in his Official Military Personnel File (OMPF). He further states that he elected to appeal the QMP and in doing so, his chain of command wrongfully withheld his appeal until such time as the time given him to appeal expired. He also states that his battalion commander, in trying to cover up the improprieties of the brigade commander, caused him to sign a document waiving the appeal. He further states that he wanted to appeal the QMP and had every reason to believe it would be successful, however, despite his strenuous protest, he was required to waive his appeal.

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

After serving 5 years, 10 months and 1 day of service in the New York Army National Guard, he enlisted in the Regular Army with an approved waiver of number of dependents, on 1 September 1993, for a period of 3 years and assignment to Korea. He was promoted to the pay grade of E-5 on 1 August 1994 and to the pay grade of E-6 on 1 February 1999.

On 3 January 2000, while serving as a drill sergeant candidate at Fort Jackson, South Carolina, the applicant’s commander initiated a recommendation to remove him from the Drill Sergeant Program. He cited as the basis for his recommendation, allegations that the applicant had shared a motel room, engaged in consensual foreplay, exchanged personal letters, provided alcoholic beverages, and engaged in a relationship not required of the training mission of a soldier in training (trainee). He was also accused of intentionally signing a false Department of the Army (DA) Form 31 (Request and Authority for Leave) and nonjudicial punishment was imposed against him for violations of Articles 92 (failure to obey order or regulation) and 107 (false statements). The punishment he received is not indicated in the available records.

The commanding general (CG) approved the recommendation for removal and directed that the action be filed in the applicant’s OMPF.

On 6 October 2000, while stationed at Fort Drum, New York, the applicant was notified by his battalion commander that after a review of his OMPF, the Calendar Year 2000 Sergeant First Class Promotion Board had determined that he should be barred from reenlistment under the QMP based on the presence of the documents removing him from the Drill Sergeant Program.

On 11 October 2000, the applicant elected to appeal the bar to reenlistment and was advised to submit his appeal to the battalion commander no later than 20 November 2000.

The applicant submitted his appeal on 6 November 2000. In his appeal he accepted responsibility for his actions that resulted in his removal from the Drill Sergeant Program and clarified that he was not a drill sergeant at the time it occurred, but just an assistant to the drill sergeant. He contended that his performance before and after the event had been excellent and that it was unfair for him to be barred from reenlistment based on one action. The applicant’s chain of command supported his appeal and the battalion commander recommended approval on 15 December 2000. On 4 January 2000, an endorsement was prepared for the brigade commander’s signature. However, for reasons that are not explained in the available records, it was never signed. On 16 January 2001, the applicant signed another option statement in which he elected not to appeal the QMP action. On 17 January 2001, orders were published which directed his separation.

Accordingly, he was honorably discharged on 31 January 2001, under the provisions of Army Regulation 635-200, paragraph 19-12, and the QMP. He had served 10 years, 10 months and 15 days of total active service and was paid one-half separation pay in the amount of $15,362.80.

There is no indication in the available records to show that he ever applied to the Department of the Army Suitability Evaluation Board (DASEB) to have the documents in question transferred to the Restricted Fiche of his OMPF.

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.

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 regulation 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 documents which served as the basis for his selection under the QMP were not sufficient to justify the imposition of the bar, not has sufficient evidence been provided to justify removal of the bar to reenlistment.

3. The applicant’s contention that one incident should not serve to end his career, especially since he was not a drill sergeant at the time, but just an assistant to the drill sergeant, has been noted and appears to be without merit. The issue at the time was not that he was a drill sergeant, but that he was a noncommissioned officer (NCO) that was responsible for the care, welfare and training of soldiers in training. He violated the trust placed in him as an NCO and as a cadre member. As such, it was appropriate that he be removed from such a position and that some sort of punishment be rendered.

4. The applicant’s contention that his battalion commander forced him to sign a new election statement against his will, in order to cover-up the brigade commander’s failure to forward his appeal on time is not supported by either the evidence of record or the evidence submitted with his application. While the available evidence does not explain why he changed his election after he submitted his appeal, it is not reasonable to believe that the chain of command collaborated to prevent his appeal from being processed. In fact, the chain of command supported his appeal and had nothing to gain by such an act. Additionally, it is not reasonable to believe that a senior NCO could be forced to sign a document against his will if he did not want to do so. Therefore, absent evidence to the contrary, the Board must presume that the applicant made a conscious decision to withdraw his appeal.

5. In regards to the applicant’s contention that his appeal should now be considered by the Board with a view towards reinstating him to active duty or allowing him the opportunity to continue to serve, the Board finds that the applicant was properly barred from reenlistment and will not attempt to second-guess the board that had the advantage of comparing his records to those of his peers. Accordingly, the Board finds no basis to grant his appeal at this time.


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

___tsk___ ___cvm _ __cla____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002073694
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/12/10
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 7	100.0600/QMP BAR
2. 192	110.0300/REINSTATEMENT
3.
4.
5.
6.