| Mr. Carl W. S. Chun | Director | |
| Ms. Beverly A. Young | Analyst |
| Mr. Fred N. Eichorn | Chairperson | |
| Mr. Hubert O. Fry | Member | |
| Ms. Marla J. Troup | Member |
APPLICANT REQUESTS: That the Qualitative Management Program (QMP) action imposed on 25 June 2001, be revoked and that he be retained on active duty. He also requests that his commission in the Medical Service Corps be made effective.
APPLICANT STATES: In effect, that the QMP action imposed on 25 June 2001 be revoked and that he be retained on active duty.
On 28 April 2003, the applicant submitted an addendum to his application. He states he has recently completed a physical evaluation that diagnosed his medical condition as exercise-induced asthma and fibromyalgia (chronic diffuse joint pain). As a result of this diagnosis, he was given a permanent physical profile. He contends that deficiencies in his records were not related to shortcomings in his performance or his character, but they were medically related.
He contends that exercise-induced asthma is the single reason he failed two APFTs reflected in the four evaluations. He states that the evaluation for the period November 1997 through January 1998 reported a prior APFT failure even though it did not occur in the rated period. He states that a second evaluation for the period January 1995 through October 1995 covered a period of one month and indicated that he took no APFT during the rated period. He claims that this evaluation was reported as an APFT deficiency in his QMP action. He contends that, at the time of his APFT failures, his exercise-induced asthma was undiagnosed.
The applicant states that if his inability to serve stems from a medical condition, then the proper process is the Medical Evaluation Board (MEB) and the Physical Evaluation Board (PEB). He states that the error was unintentional and that no one involved knew that it was a medical condition at the time. He again requests that the QMP action be rescinded.
The applicant submitted the following documents in support of his application:
(1) QMP Notification Memorandum from the U.S. Army Reserve Personnel Command (AR-PERSCOM), dated 6 June 2001 with list of documents;
(2) DA Form 4941-R (Statement of Options, QMP), dated 25 June 2001;
(3) QMP Appeal Memorandum, dated 14 August 2001;
(4) Four DA Forms 2166-7 (Noncommissioned Officer Evaluation Report) covering the periods January 1995 through January 1998;
(5) Eight Character References;
(6) Commander’s Appeal to QMP, dated 11 September 2001;
(7) Battalion Commander’s Appeal to QMP, dated 7 September 2001;
(8) QMP Bar Appeal, dated 14 December 2001;
(9) Three Appeals to Noncommissioned Officer Evaluation Reports (NCOER) covering the periods January 1995 through January 1998;
(10) Memorandum, dated 18 April 2002, from AR-PERSCOM in Response to Appeals of NCOERs;
(11) DA Form 71 (Oath of Office – Military Personnel);
(12) Letter of Appointment in the Medical Service Corps from U.S. Army Recruiting Command, dated 31 October 2000;
(13) Two DD Forms 4/1 (Enlistment/Reenlistment Document);
(14) Two Discharge Orders from the USAR and the Army National Guard;
(15) Reassignment Orders, dated 20 April 1995;
(16) DA Form 638 (Recommendation for Award), dated 24 May 2001;
(17) Award Certificate for the Meritorious Service Medal, dated 12 July 2001;
(18) Award Certificate for the Army Achievement Medal, dated 28 August 2001;
(19) Certificate of Commendation, dated 26 February 2002;
(20) Six Memorandums for Announcement of the Recruiter Incentive Award;
(21) Bachelor of Arts Diploma, dated 9 May 1998;
(22) Degree of Master of Public Administration dated 8 February 2000;
(23) Two DA Forms 3349 (Physical Profile);
(24) An Excerpt Regarding Physical Profiles;
(25) Three DA Forms 705 (Army Physical Fitness Test Scorecard);
(26) Two Letters from the Department of Veterans Affairs;
(27) Five E-Mails;
(28) DFAS Form 702 (Military Leave and Earnings Statement);
(29) Two ARPC Forms 249-2-R (Chronological Statement of Retirement Points);
(30) Two DA Forms 2-1 (Personnel Qualification Record) prepared on 22 December 1997;
(31) DA Form 2A (Personnel Qualification Record) from the USAR, prepared on 12 February 1997;
(32) DA Form 1A (Personnel Qualification Record) from the U.S. Army Reserve (USAR)/Active Guard Reserve (AGR), prepared on 28 February 2002; and
(33) Memorandum for Record, dated 20 March 2002.
On 28 April 2003, the applicant submitted the following additional documents in support of his application:
(1) Three DD Forms 3349 (Physical Profile), dated 14 August 2002, 3 December 2002, and 18 March 2003;
(2) Two DA Forms 3947 (MEB Proceedings), dated 3 October 2002 and 28 March 2003; and
(3) Two DA Forms 199 (PEB Proceedings), dated 12 November 2002 and 10 April 2003.
EVIDENCE OF RECORD: The applicant's military records show:
The applicant served in the Regular Army from 16 February 1984 to 1 November 1994. After a break in service, he served in the Army National Guard from 31 January 1995 to 31 July 1995. On 1 August 1995, the applicant was transferred to the USAR Control Group (Reinforcement) to complete his military service obligation.
On 29 June 1997, the applicant was given a temporary physical profile with an expiration date of 29 August 1997. The medical condition listed in Block 1 on his DA Form 3349 is illegible. He was given numerical designators of "121111" for the physical profile.
The applicant was given a temporary physical profile on 14 November 1997 for neck and lower back pain with an expiration date of 14 December 1997. The numerical designators are not shown in Block 2 on his DA Form 3349.
The applicant was discharged from the USAR Control Group on 30 March 1998.
The applicant enlisted in the Army National Guard again on 8 June 1998 for a period of two years.
He transferred to the USAR on 29 July 1999 and was ordered to active duty in the USAR AGR program on 16 February 2000.
The applicant was considered by a Department of the Army QMP Board on 12 March 2001. 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.
In a 6 June 2001 memorandum, the applicant was notified of the decision of the QMP Board and his options by AR-PERSCOM. This memorandum identified the documents in the applicant's OMPF which served as a basis for imposing the bar to reenlistment. Specifically those documents were four NCOERs covering the periods January 1995 through October 1995; May 1996 through October 1996; November 1996 through October 1997; and November 1997 through January 1998.
The applicant's NCOER covering the period January 1995 through October 1995 [hereafter referred to as the first NCOER] shows that the rating official was the Gunnery Sergeant in the rank of sergeant first class, the senior rater (SR) was the Battery Fire Direction Officer in the rank of second lieutenant (2LT), and the reviewer was the Battery Commander in the rank of captain (CPT). The applicant was not available to sign Part II(c) (Authentication) of this NCOER.
Part III (Duty Description) of this NCOER shows the applicant's principal duty title was "Ammunition Section Chief" and he was counseled on 8 February 1995 and 11 June 1995.
The rating official marked "Yes" under each item in Part IV(a) (Values/NCO Responsibilities). Under "Physical Fitness and Military Bearing", the rater placed an "X" under "needs some improvement" with the following comments: "no APFT [Army Physical Fitness Test] taken for this rating period; no height/weight recorded for this rating period."
Under Part V (Overall Performance and Potential), the rater evaluated the applicant's overall potential for promotion and/or service in positions of greater responsibility as "Fully Capable." The rater listed three positions in which the applicant could best serve the Army at his current or next higher grade: (1) Motor Sergeant; (2) Ammunition Team Chief; and (3) Ammunition Sergeant.
The SR evaluated the applicant's overall performance as "Successful" and placed an "X" in Block 3. The SR evaluated the applicant's overall potential for promotion and/or service in positions of greater responsibility as "Superior" and placed an "X" in Block 3. The SR also provided the comments: "should attend NCOES [Noncommissioned Officer Education System] courses to further education; needs to attend MOS [military occupational specialty] producing course."
The applicant's NCOER covering the period of service from May 1996 through October 1996 [hereafter referred to as the second NCOER] shows that the rating official was an Engineer Repairer Technician in the rank of Chief Warrant Officer Two (CW2), the SR was the Platoon Leader in the rank of first lieutenant (1LT) and the reviewer was the Company Commander in the rank of 1LT.
A copy of this NCOER was forwarded to the applicant on 21 January 1997 and he authenticated Part IIc on the same date. In so doing, the applicant acknowledged that his signature did not constitute agreement or disagreement with the evaluations of the rater and SR. His signature did acknowledge that height/weight and APFT are verified; that he has seen the NCOER completed through Part V; and that he is aware of the appeals process contained in Army Regulation 635-205 (Noncommissioned Officers Evaluation Reporting System (NCOERS)).
Part III of this NCOER shows the applicant's principal duty title was "Senior Equipment Repairer" and he was counseled on 28 June 1996 and 7 September 1996.
The rating official marked "Yes" for each item under Part IV(a) with the comment: "is willing to accept responsibility."
Part IV(c) (Physical Fitness and Military Bearing) shows the entry "APFT FAIL/9609" and HEIGHT/WEIGHT "71/175 YES." The rater placed an "X" under needs some improvement with the following comments: "needs to improve physical fitness and APFT score"; "Scored 45 pts on 2-mile run, however, is making gradual progression."
Under Part Va, the rater evaluated the applicant's overall potential for promotion and/or service in positions of greater responsibility as "Fully Capable." The rater listed three positions in which the applicant could best serve the Army at his current or next higher grade: (1) Platoon Sergeant; (2) Motor Sergeant; and (3) Instructor 62B [Engineer Equipment Repairman].
The SR evaluated the applicant's overall performance as "Successful" with a "2" rating. The SR evaluated the applicant's overall potential for promotion and/or service in positions of greater responsibility as "Superior" with a "2" rating.
The SR also provided the comments: "reacts well with increasing responsibility."
The applicant's NCOER covering the period November 1996 through October 1997 [hereafter referred to as the third NCOER] shows the same rating officials. A copy of this NCOER was forwarded to the applicant on 3 November 1997 and he authenticated Part II(c) on 30 November 1997. The applicant served in the same duty position and was counseled on 15 December 1996, 27 February 1997 and 7 June 1997.
The rating official marked "Yes" under each item under Part IV(a) with the comment: "is willing to accept responsibility" and "supervises firmly and effectively."
Part IV(c) shows the entry "APFT FAIL/9710" and "HEIGHT/WEIGHT 72/220 YES." The rater placed an "X" under needs some improvement with the following comments: "participates in a regular exercise program."; "failed the
2-mile event with a score of 20 pts, but is making progress."; "Within the body fat standards of AR 600-9 [The Army Weight Control Program]."
Under Part V, the rater evaluated the applicant's overall potential for promotion and/or service in positions of greater responsibility as "Fully Capable" and listed the same three positions in which the applicant could best serve the Army at his current or next higher grade. The SR evaluated the applicant's overall performance as "Successful" with a "2" rating.
The SR evaluated the applicant's overall potential for promotion and/or service in positions of greater responsibility as "Superior" with a "2" rating. The SR also provided the comments: "establishes credible standards for himself and his men"; "he constantly produces more than expected from his troops and himself, should be promoted when possible"; and "reacts well with increasing responsibility."
The applicant's NCOER covering the period November 1997 through January 1998 [hereafter referred to as the fourth NCOER] shows the same rating official and reviewer. However, this NCOER shows a different SR. A copy of this NCOER was forwarded to the applicant on 20 July 1998 and he was not available to authenticate Part II(c). The applicant served in the same duty position and was counseled on 14 December 1997.
The rating official marked "Yes" under each item under Part IV(a), with the comment: "is willing to accept responsibility" and "supervises firmly and effectively."
Part IV(c) shows the entry "APFT FAIL/9710" and "HEIGHT/WEIGHT 72/220 YES." The rater placed an "X" under needs some improvement with the following comments: "participates in a regular exercise program"; "failed the run on APFT"; and "lack of progress, transferred to IRR [Individual Ready Reserve]."
Under Part V, the rater evaluated the applicant's overall potential for promotion and/or service in positions of greater responsibility as "Fully Capable." The rater listed three positions in which the applicant could best serve the Army at his current or next higher grade: (1) Platoon Sergeant; (2) Motor Sergeant; and (3) Instructor 62B. The SR evaluated the applicant's overall performance as "Successful" with a "3" rating.
The SR evaluated the applicant's overall potential for promotion and/or service in positions of greater responsibility as "Superior" with a "3" rating. The SR also provided the comments: "he constantly produces more than expected from his troops and himself, should be promoted as soon as possible"; reacts well with increasing responsibility; good reputation for getting job done" and "outstanding intellectual potential."
Subsequent to receipt of the 6 June 2001 QMP notification, records show that the applicant was counseled by his battalion commander on his options.
The applicant's personnel records contain a DA Form 71 (Oath of Office) which shows he accepted an appointment as a Reserve commissioned officer on 18 June 2001.
The applicant completed a DA Form 4941-R (Statement of Options) on 25 June 2001 wherein he indicated that he would submit an appeal not later than 90 days after notification. The battalion commander indicated that he had presented the bar to reenlistment to the applicant on 25 June 2001 and had counseled him on the same date. The battalion commander also indicated that he would submit an appeal based on his determination that the applicant merits retention because his current performance and potential.
The applicant submitted an appeal to the QMP action on 14 August 2001. He contends that there was material error in his record when reviewed by the selection board. He claims that the QMP action was not effective because he had accepted his commission as a Reserve Component Officer before the QMP notification was read to him by his battalion commander.
He contends that it was material error for the QMP Board to consider any NCOERs prior to his most recent separation from the service. He states that the DA Form 2A and DA Form 2-1 submitted to the QMP Board shows he was last separated from active duty in the Regular Army on 1 November 1994. He states that he was last honorably separated from the service on 31 March 1998.
He also contends that he should not have been considered for the Sergeant First Class Promotion Board in accordance with Army Regulation 600-8-104 (Military Personnel Information/Records) because he had a favorable personnel action pending, which was a direct commission in the Medical Service Corps.
The applicant further contends that his NCOERs were submitted before the board in error. He claims that the first NCOER covered a period in which he had a break in service and he was in the National Guard. He states that he was not supposed to be rated because he was laterally appointed to Cadet and was later transferred to the IRR Control Group.
The applicant contends that the second NCOER is incomplete and misleading because he passed an APFT on August 1996.
He also contends that the third NCOER shows that he failed the APFT in October 1997. He states that he was on profile for two months due to abdominal surgery that impeded his running ability and was not given two months recovery time as required. He states that he was later put on profile for neck and lower back pain.
The applicant further contends that the fourth NCOER shows that he failed the APFT in October 1997. He states that during the time in question he did not attend drill because he was carrying an excessive load of college courses that interfered with his unit participation. He also states that the APFT referred to is the same 9710 APFT reported on his previous NCOER. The applicant contends that this NCOER was done because the senior rater changed and that there is no provision in Army Regulation 623-205 that allows for a NCOER to be produced for a senior rater change.
The applicant claims that without the errors in the selection process, the effective date of his commissioning and the NCOERs, the board would not have decided to separate him.
In conclusion, the applicant states that his APFT performance has improved and that he has excelled in many other ways. He cited several of his accomplishments since the poor NCOERs to include his commission in the Medical Service Corps; a Bachelor's of Art in Public Justice; a Master's Degree in Public Administration; his graduation from the U.S. Army Recruiting School; his award of the Gold Recruiting Badge; his award of the Meritorious Service Medal; his selection to lead a test pilot program; and his selection for an On Campus Recruiter position.
In a 5 September 2001 letter from the Headquarters U.S. Army Recruiting Command in Fort Knox, Kentucky, the applicant was informed that his direct commission in the USAR as a Health Services Administrator could not be completed due to the QMP action pending against him. This memorandum also informed the applicant that he had until 27 April 2002 to accept his commission contingent upon a favorable outcome of his QMP appeal and that a negative QMP outcome would make him ineligible for a direct commission.
In a 7 September 2001 memorandum, the applicant's battalion commander recommended that the Board overturn the current QMP and that the applicant be allowed to continue further military service. The battalion commander stated that the applicant "is the most productive AGR recruiter in my Battalion." The battalion commander also stated that the applicant "is a winner that consistently outperforms his peers and sets the standard for others to emulate within the command."
In a 11 September 2001 memorandum, the Commander of the U.S. Army 2nd Recruiting Brigade strongly recommended approval for the applicant to be retained on active duty. The brigade commander stated concurred with the battalion commander's comments and indicated that, "his physical abilities does not interfere with his professional duties as a leader and being a strong catalyst for recruiting young men and women into our nation's Army. "
In a 17 September 2001 memorandum, the Director for Personnel of the U.S. Army Recruiting Command, recommended approval of the applicant's appeal and recommended that the applicant be allowed to continue his military service.
In a 14 December 2001 memorandum from AR-PERSCOM, the applicant was informed that a Standby Advisory Board (SAB) had convened on 2 October 2001, to consider the USAR AGR/Reserve QMP appeals. This memorandum states that the SAB recessed on 2 November 2001 and that the applicant's appeal was disapproved.
Orders published by the AR-PERSCOM on 28 March 2002 reassigned the applicant to the U.S. Army Transition Point at Fort Stewart, Georgia with a reporting date of 29 May 2002.
Orders published by the AR-PERSCOM on 28 March 2002 discharged the applicant from the USAR AGR program effective 29 May 2002.
On 14 August 2002, the applicant was given a permanent physical profile for exercise-induced asthma with a physical profile of 311111. His DA Form 3349 shows the applicant was given a profile code of "D" [Limitations in any type of strenuous physical activity]. The examining physician indicated in item 9 (Other) that, "MEB initiated secondary to inability to meet APFT standards for 2-mile run secondary to the diagnosis of exercise-induced asthma, per AR 40-501, Chapter 3-27, paragraph a."
On 3 October 2002, the applicant was evaluated by a MEB. He was diagnosed as having exercise-induced asthma and he was referred to a PEB. The MEB Proceedings show that the approximate date of origin as "1991." These proceedings show that the condition incurred while the applicant was entitled to base pay and existed prior to service.
The PEB convened on 12 November 2002 at Fort Sam Houston, Texas, and determined that the applicant was fit for active duty. As a result, AR-PERSCOM published orders on 25 February 2003 which amended the applicant's separation date to 31 May 2003.
On 3 December 2002, the applicant was given a permanent physical profile for fibromyalgia (chronic diffuse joint pain), chronic neck and low back pain, exercise-induced asthma with a physical profile of 333111. His DA Form 3349 shows that the applicant was given profile codes of "D" [Limitations in any type of strenuous physical activity] and "G" [Limitations prohibiting wearing Kevlar, LBE, lifting heaving materials required of the MOS, overhead work].
On 18 March 2003, the applicant was given a permanent physical profile for the same medical condition as indicated on 3 December 2002.
The applicant was evaluated by a MEB on 28 March 2003 and diagnosed as having fibromyalgia (chronic diffuse joint pain), exercise induced asthma, and depressive disorder. The MEB recommended that the applicant be referred to a PEB.
The PEB convened on 10 April 2003, at Fort Sam Houston, Texas. The PEB determined that the applicant was unfit for active duty and recommended a combined rating of ten percent. The PEB also recommended that the applicant be separated with severance pay, if qualified.
Army Regulation 635-200 (Personnel Separations) 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.
Paragraph 19-11 of the same regulation 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.
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. A Department of the Army promotion selection board considered the applicant's OMPF and determined that he should be barred from further reenlistment in the USAR AGR program.
2. The applicant was properly notified of the QMP action by his battalion commander and he elected to submit an appeal.
3. The evidence of record shows that the applicant submitted an appeal to the DA bar to reenlistment to his commander on 14 August 2001.
4. The evidence of record shows the applicant's appeal was denied by a Standby Advisory Board and orders were published to release the applicant from active duty effective 29 May 2002.
5. Evidence available to the Board shows that a PEB, which convened on 12 November 2002, determined that the applicant was fit for active duty. As a result, his separation date was extended to 31 May 2003.
6. In the interim, the applicant was presented to a second PEB which convened on 10 April 2003, found him physically unfit, and recommended separation with disability rating of ten percent. Further, this second PEB recommended the applicant be separated with severance pay, if eligible.
7. The Board noted that now the applicant has been found unfit by a PEB and apparently is being processed for separation based on physical unfitness, not for a bar to reenlistment imposed under the QMP.
8. The Board carefully reviewed the applicant's contentions regarding his appeal to the QMP action. However, the Board determined that the applicant has not presented sufficient evidence which warrants overturning the current Department of the Army imposed bar to reenlistment. Therefore, there is no basis for granting that portion of the applicant's request.
9. However, in view of the facts, this Board found no basis to overturn the applicant's QMP and that a PEB has found the applicant unfit for further service, there is no basis to make his commission "effective" at this time.
10. 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.
11. 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
FNE_____ HOF_____ MJT_____ DENY APPLICATION
| CASE ID | AR2002075728 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 200030617 |
| 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. | 100.0000 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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