MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 4 March 2003
         DOCKET NUMBER: AR2002079037

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Mr. William D. Powers		Member
Ms. Linda M. Barker		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 his Department of the Army (DA) imposed bar to reenlistment under the provisions of the Qualitative Management Program (QMP) be removed from his records.

APPLICANT STATES: In effect, that he was identified under the QMP based
on an unsatisfactory Noncommissioned Officer Evaluation Report (NCOER), which he appealed and won. He claims that he was in the process of appealing the QMP action when he reached his expiration of term of service (ETS) and
he did not extend. In support of his application, he provides copies of awards
he received prior to and subsequent to the negative NCOER, a letter of commendation he received for making the Commandant’s List at the Basic Noncommissioned Officer Course (BNCOC), and his appealed NCOER with the senior rater’s comments removed.

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

In June 2000, the applicant received an annual NCOER covering the period March 1999 through February 2000. He appealed the NCOER and on
28 January 2002, the DA Enlisted Special Review Board (ESRB) granted a partial appeal and modified the report by removing the senior rater portion of the report.

However, the rater portion of the contested report was left as originally submitted. In Part IVa (Values/NCO Responsibilities) the rater gave a “No” response to question number 1 (Places dedication and commitment to the goals and missions of the Army and nation above his own), and supported this response with the bullet comment “usually places personal desires first”.

In Part IV b-f the rater gave the applicant three “Success” ratings and two “Needs Improvement-Some” ratings. The first Needs Improvement-Some rating was in Part IV b (Competence), and it was supported with the following bullet comments: “lack of self-confidence hinders job performance” and “continuously requires supervision and assistance in fundamentals of his job”. The second Needs Improvement-Some rating was in Part IV f (Responsibility & Accountability), and it was supported by the following bullet comments: “overly cautious in assuming additional responsibility” and “not capable of increased responsibility at this time”. Finally, the rater evaluated the applicant as “Marginal” in Part V a (Overall potential for promotion and/or service in positions of greater responsibility).

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On 5 August 2001, the applicant was notified and counseled in regard to the decision to deny him continued service in the Active Guard/Reserve (AGR) program based on his being identified under the DA, United States Army Reserve (USAR,) AGR, QMP. The applicant initially appealed the QMP decision. However, on 27 November 2001, he voluntarily withdrew his appeal and requested discharge.

On 2 March 2002, he was released from active duty (REFRAD) and the USAR AGR program under the provisions of paragraph 16-8, Army Regulation 635-200, by reason of reduction in force. At the time of his separation, he held the rank and pay grade of staff sergeant/E-6 (SSG/E-6), and he had completed a total of
9 years, 6 months, and 19 days of active military service.

In connection with the processing of this case, an advisory opinion was requested of and received from officials of the Army Reserve Personnel Command (ARPERSCOM), Full Time Support Management Directorate. In this opinion, it was stated that the applicant was notified and counseled on the fact that based on information contained in his NCOER covering the period March 1999 through February 2000, he was being denied continued service under the provisions of the DA, USAR, AGR, QMP.

The ARPERSCOM opinion further indicates that the applicant appealed this NCOER, and the DA ESRB approved only a partial modification to the report on 28 January 2002. ARPERSCOM officials opine that this modified version of the NCOER still reflects a substandard report that continued to support the QMP decision. Further, the applicant appealed the QMP action; however, on
27 November 2001, he notified his commander that he no longer desired to continue with the appeal and requested discharge. The final recommendation of ARPERSCOM officials is that the applicant’s request to this Board be disapproved.

On 18 December 2002, the applicant was provided a copy of the ARPERSCOM advisory opinion in order to have the opportunity to respond, which he did on
6 January 2003. He claims that problems in the processing of his appeal resulted in a likelihood that his case would not be considered in a timely manner. As a result, out of frustration, he elected to withdraw his appeal and leave the service instead of waiting around and sorting out the details of the appeal process. He further states that his intention was to have his appeal heard and the QMP overturned before his impending expiration of term of service (ETS), which would have allowed him other career options.

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Army Regulation 635-200 contains the policy and procedures for enlisted separations. Chapter 19 contains policies and procedures for voluntary and involuntary separation, for the convenience of the Government, of Regular Army Noncommissioned Officers (NCOs) and USAR NCOs serving in AGR status, under the QMP. Paragraph 19-11 contains appeal provisions and it 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. Paragraph 16-14 states, in pertinent part, that soldiers with less than 120 days to ETS at the time of notification of QMP selection may have their enlistments extended a sufficient amount of time to permit processing an appeal.

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 Board notes the applicant’s contentions that he was identified under the QMP based on an unsatisfactory NCOER that he successfully appealed and won; and because he reached his ETS while he was in the process of appealing the QMP action. It also carefully considered the supporting documents provided by the applicant. However, it finds these factors are not sufficiently mitigating to warrant the requested relief.

2. The evidence of record confirms that the applicant’s QMP notification and processing were accomplished in accordance with the applicable regulations. It further shows that after submitting an appeal to the QMP decision, the applicant voluntarily withdrew the appeal and requested discharge. The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout his QMP processing.

3. Notwithstanding the successful partial appeal of the NCOER in question, the Board finds that the applicant has failed to satisfy the regulatory burden of proof required to support a successful appeal of the QMP decision. As evidenced by the ARPERSCOM advisory opinion, the modified report on file subsequent to the successful partial appeal still reflects substandard performance and supports the QMP decision made.

4. In the opinion of the Board, the facts outlined in the ARPERSCOM advisory opinion, coupled with the applicant’s decision to voluntarily withdraw his QMP appeal and to request discharge, support a conclusion that he has failed to provide sufficient evidence to show that the QMP decision was in error or unjust. Thus, the Board finds an insufficient evidentiary basis on which to support the requested relief in this case.

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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 this requirement.

6. 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

__RJW__ __WDP _ __ LMB__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002079037
SUFFIX
RECON
DATE BOARDED	2003/03/04
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	2002/03/02
DISCHARGE AUTHORITY	AR 635-200 C16
DISCHARGE REASON	Reduction in Force (QMP)
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 281	126.0400
2.
3.
4.
5.
6.