| Mr. Carl W. S. Chun | Director | |
| Mr. Luis Almodova | Analyst |
| Mr. Stanley Kelley | Chairperson | ||
| Mr. Raymond J. Wagner | Member | ||
| Ms. Mae M. Bullock | Member |
APPLICANT REQUESTS: In effect, that the noncommissioned officer evaluation report covering the period 990501 [1 May 1999] thru 000131 [31 January 2000] be removed from her military records; that her removal from active duty pursuant to the QMP (Qualitative Management Program) be set aside; that her RE Code be changed from "4" to RE Code "1" on the grounds that she was fully qualified for reenlistment in the Army; and that she be retired pursuant to the provisions of the Temporary Early Retirement Authority under Public Law 102-484; or alternatively, that she be provided direct payment of full separation pay vice the half separation payment she was paid upon her involuntary separation.
APPLICANT STATES: In effect, that she was asked for a loan by a senior noncommissioned officer (NCO). She made the loan to the NCO and later, this NCO became the senior rater on her Noncommissioned Officer Evaluation Report (NCOER). When she sought repayment of that loan, she was initially "blown off" and she ended up with an adverse NCOER.
In support of her application the applicant submits her personal declaration related to her request for removal of the NCOER as well as clarifying comments about an NCOER she received for the period 9805 [May 1998] thru 9904 [April 1999]; five documents related to the loan, made to, and funds received from, the senior NCO to whom she loaned money; three documents related to the DA Imposed Bar to Reenlistment Under the Qualitative Management Program (QMP); a copy of her personnel qualification record; a copy of a permanent order which awards her the Good Conduct Medal, (5th Award for the period 15 August 1996 to 14 August 1999; three awards certificates (one Army Commendation Medal and two Army Achievement Medals): fourteen documents related to training, achievement, and appreciation; and three Memoranda for Record from individuals alleging to have witnessed her duty performance (a memorandum for record from the First Sergeant, Headquarters and Headquarters Company, 18th Aviation Brigade (Corps)(Airborne), Fort Bragg, North Carolina, dated 23 October 2000; a memorandum for record from an Army Nurse Corps colonel, from the 55th Medical Group (Airborne), Fort Bragg; and a memorandum for record from a Medical Corps lieutenant colonel, dated 1 June 2001.)
COUNSEL CONTENDS: In effect, that the NCOER should be removed from the applicant's military personnel records because it is unfair and biased and the NCOER was punishment for the applicant's actions in seeking repayment of a loan extorted from his client.
Counsel states that the applicant, prior to submitting this request, exhausted all intra-service administrative remedies available to her, including an appeal of the NCOER to the Total US Army Personnel Command (PERSCOM).
Counsel also asks that her removal from active duty pursuant to the QMP be set aside despite the Army's assertions that there were four documents in her records that formed the basis for her bar to reenlistment. Each of the four documents, counsel avers, were NCOERs, which reflected negatively in some way on her performance. None of the reports are identical in their adverse comments and there is no general theme within the reports other than her competence in two separate positions. Counsel adds that no specific information was provided relating to any of these reports, identifying the specific reason that she should be removed from active duty in the Army.
Counsel continues by stating that his client's record reflects honest, faithful, and discipline free service. He notes that the applicant was awarded the Good Conduct Medal, 5th Award, the Army Commendation Medal and two awards of the Army Achievement Medal, and that her performance record, as reflected in her NCOERs, although not perfect, clearly sustained this honest and faithful service to the Army.
EVIDENCE OF RECORD: The applicant's military records show:
The applicant enlisted on 12 June 1984 in the US Army Reserve Delayed Entry Program, and on 15 August 1984 she enlisted in the Regular Army. She remained on active duty in the Army through a series of reenlistments and was honorably discharged in the rank and pay grade, Staff Sergeant, E-6, under the provision of Army Regulation (AR) 635-200, paragraph 19-12, due to non-retention on active duty. She was given a separation code of "JGH" and a reentry Code of "4."
On the date of her discharge, 8 November 2001, the applicant had completed 17 years, 2 months, and 24 days active military service, with no lost time. The applicant's DD Form 214, Certificate of Release or Discharge from Active Duty, shows, in Block 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized (All Periods of Service)) that she was awarded the following: Army Commendation Medal (2nd Award)//Army Achievement Medal//Good Conduct Medal (5th Award)//National Defense Service Medal//NCO Professional Development Ribbon (with Numeral 2)//Army Service Ribbon//Overseas Service Ribbon (with Numeral 3). Block 18 (Remarks) of the DD Form 214 shows that on her discharge, the applicant was paid $24,509.80.
On 22 September 1993, the applicant received the Army Commendation Medal, for meritorious achievement, while at Fort Hood, Texas. At the time this award was received, she was serving in the rank of Sergeant and she quickly responded to an automobile accident and stabilized the casualties until civilian medical assistance arrived.
The applicant’s DA Form 2-1, Personnel Qualification Record, Part II, shows that she served at Fort Hood for the period 6 July 1993 to 1 March 1995, when she was reassigned overseas to Korea.
The applicant received the first of her two awards of the Army Achievement Medal for meritorious achievement when she was serving in the rank and pay grade, Specialist Four, E-4, as a medical specialist in Egypt with the Multinational Forces and Observers, for the period 15 December 1991 to 19 July 1992, a period of just over 7 months.
A review of the applicant's records shows that at approximately this time, the applicant received an NCOER covering the period from 9210 (October 1992) thru 9305 (May 1993), while she was stationed at Fort Bragg, North Carolina, performing the duties of Administration Clerk. In this NCOER, her rater, a sergeant first class, rated her as "successful" and "fully capable." Her senior rater, a captain, rated her overall performance as "Successful, Block 3 of 3 [with '1' being the highest]," and her overall potential for promotion and/or service in positions of greater responsibility as "Superior, Block 3 of 3."
In the NCOER that followed, covering the period from 9306 (June 1993) thru 9405 (May 1994), while she was stationed at Fort Hood, Texas, performing the duties of Aide/Evacuation NCO, her rater, a staff sergeant, rated her as, "successful" and "fully capable." Her senior rater, a second lieutenant, rated her overall performance as "Successful, Block 2 of 3," and her overall potential for promotion and/or service in positions of greater responsibility as, "Superior, Block 3 of 3."
The applicant received her second Army Achievement Medal for the period 1 October to 31 December 1994 for meritorious achievement for being selected NCO of the Quarter for the 15th Forward Support Battalion.
On the date the loan was made (approximately late February 1999), the applicant was over 47 years of age and was serving in the rank and pay grade, Staff Sergeant, E-6, with over two years time in grade and with over 14 years and 8 months time in service.
On 8 December 1999, the Pentagon Federal Credit Union provided the applicant verification that a wire transfer in the amount of $1500 was made, on 1 March 1999, to the account of the senior NCO who is identified as the senior rater on the NCOER covering the period 9905 [May 1999] thru 0001 [January 2000].
The applicant retained counsel and on or about 11 June 2000, he initiated action to have the money borrowed by her [the applicant's] former senior rater repaid without resorting to having Army authorities becoming involved.
On or after 2 August 2000, a Centura Bank "Official Check" in the amount of $600 and two Western Union Money Orders, one in the amount of $500 and the other in the amount of $100, were received by the applicant towards payment of the $1500 loan obligation.
On 30 July 2001, the US Army Enlisted Records Evaluation Records Center (USAEREC) notified the applicant that she was being barred from reenlistment under the Qualitative Management Program (QMP). She was advised that her Official Military Personnel File (OMPF) had been reviewed and during this review, the board considered her record of service, including performance and future potential for retention in the Army. She was given a list of those documents indicating areas of deficiency or weakness, which contributed most to the board's decision to bar her from reenlistment.
The list of those documents indicating areas of deficiency or weakness, which contributed most to the board's decision to bar her from reenlistment was made up of NCOERs for the following periods: 990501 – 000131 [1 May 1999 thru 31 January 2000]; 980501 – 990430 [1 May 1998 thru 30 April 1999]; 951201 – 960430 [1 December 1995 thru 30 April 1996]; and 950401 – 951130 [1 April 1995 thru 30 November 1995].
The applicant was given the option to appeal the board's decision to bar her from reenlistment. If she chose to appeal, the appeal was to be submitted through her chain of command. If the appeal was denied, and if she had less than 18 years on the established discharge date, she would be separated within 90 days of notification of the appeal's denial.
The applicant appealed the DA Denial of Continued Active Duty Service under the QMP, and on 9 April 2001, USAEREC notified her that her appeal had been denied. The board had judged that the past performance and her estimated potential was not in keeping with the standards expected of the NCO Corps.
In the endorsement notifying the applicant of the denial of her appeal of the DA Denial of Continued Active Duty Service under the QMP, it was directed that she would be discharged before the expiration of her term of service in accordance with AR 635-200, paragraph19-12; her service would be characterized as honorable; the narrative reason for her separation would be "Non-retention on Active Duty;" her Reentry Eligibility Code would be "4;" and the SPD would be "JGH."
A review of the applicant's records showed no evidence that she ever applied for, if qualified, for retirement before being identified for QMP separation, under the Army's Temporary Early Retirement Program.
A review of the applicant's records shows that the applicant received an NCOER covering the period from 9504 (April 1995) thru 9511 (November 1995), while she was stationed in Korea, performing the duties of Medical NCO. In this NCOER, the rater, a commissioned officer in the rank of first lieutenant, gave her a, "No," rating in Part IVa., Item 2, (Is committed to and shows a sense of pride in the unit – works as a member of the team.) The supporting comments are as follows: "o needs to devote more time to developing effective working relationships with the section;" and "o does not follow the structure that has been established for solving problems."
In Part IV, Values/NCO Responsibilities, in Item b. the rater stated that she "Needs Some Improvement;" and added the following supporting comments: "o makes no attempt to benefit from opportunities for growth;" and "o displays a below average performance that has become this soldier's normal level of achievement." In Item f, despite giving the applicant a rating of "Success," made the following comment, "o responsible under close supervision."
In Part V, under Overall Performance and Potential, the Rater rated her overall potential for promotion and/or service in positions of greater responsibility as "Marginal." The Senior Rater, a commissioned officer in the rank of captain, gave her "Fair" ratings for overall performance and for overall potential for promotion and/or service in positions of greater responsibility. The Senior Rater comments are as follows: "o unable to handle increased responsibility;" "o do not promote at this present time;" and "o should not be put in a higher position at this time."
The applicant refused to sign the NCO Evaluation Report but there is no indication in her official military personnel file that she took action to appeal the report and seek its removal from her performance record.
In the applicant's next NCO Evaluation Report covering the period from December 1995 thru April 1996, received while in the same unit in Korea, in the Principal Duty Position of Emergency Treatment NCO, under an altogether different rating chain, she received a, "No," rating in Part IVa., Item 2, (Is committed to and shows a sense of pride in the unit – works as a member of the team.) The rater, a commissioned officer in the rank of captain, made the following supporting comment, "o Needs to work as a team player towards mission completion."
In Part IV, Values/NCO Responsibilities, in Item b. (Competence) the rater stated that she "Needs Much Improvement," and added the following supporting comments: "o Unable to organize aid station during February FTX [field training
exercise] in a timely fashion;" "o Unable to file medical records IAW [in accordance with] AR 40-66;" "o Deployed section to field without proper equipment."
In Part IV, Values/NCO Responsibilities, in Item d. (Leadership), the rater gave her a rating of, "Needs Much Improvement," and added the following supporting comment: "o Requires near-constant supervision to ensure mission completion."
In Part IV, Values/NCO Responsibilities, in Item e. (Training), the rater gave her a rating of, "Needs Some Improvement," and added the following supporting comment: "o Took no role in training junior medics."
In Part IV, Values/NCO Responsibilities, in Item f. (Responsibility and Accountability), the rater gave her a rating of, "Needs Some Improvement," and added the following supporting comment: "o Difficulty in assuming responsibility for shortcomings; often sought excuses or blamed others; "o Unresponsive to corrective criticism;" and "o Fails to keep junior medics and section leader informed of schedule/duty changes."
In Part V, a (Overall Performance and Potential) the Rater rated her overall potential for promotion and/or service in positions of greater responsibility as "Marginal." The Senior Rater, a commissioned officer in the rank of captain, gave her "Fair" ratings for overall performance and "superior [Block 3]" for overall potential for promotion and/or service in positions of greater responsibility. The Senior Rater comments are as follows: "o Maintained medical equipment to standard;" "o Displayed adequate MOS technical knowledge in field;" "o Provided post-field exercise medical care to troops;" "o Do not promote at this time."
The reviewing officer, a lieutenant colonel, nonconcurred with the rater's evaluation. In his statement of nonconcurrence, he stated, "As the reviewer during the period in question, I nonconcur with the rater's evaluation of [the applicant]. Due to the low ratings and at the request of the ratee, I interviewed two medical personnel, a former and current First Sergeant of the ratee, and two NCOs that the ratee recommended. I am convinced that [the applicant] needs improvement in taking the initiative to accomplish assigned and implied tasks and in seeking responsibility associated with a junior NCO for mission accomplishment. [The applicant] possesses some good points that the rater did not present. She has good interpersonal traits that allow active interaction with patients, and can accomplish a mission to standards when she sets her mind to do it. I concur with the senior rater's evaluation of [the applicant].
The reviewing official recommended no changes on the front page of the
evaluation report for this period; however, he recommended the assessment of, "Needs Much Improvement" made in Part IV. b. be changed to "Needs Some Improvement." In addition, he suggested that the comments be changed as follows: "o Limited duty proficiency in medical record administration." "o Demonstrated fair technical and tactical field crafts skills." "o Accomplished selected tasks when focus is maintained." He recommended that the rating given in Part IV. d. remain, "Needs Some Improvement;" but that, the comments be changed as follows: "o Requires supervision to ensure mission completion." "o Treats patients with concern and courtesy." He recommended that the rating given in Part IV. e. be changed to, "Success;" and that, the following comments be made as follows: "o Developed and executed battalion level combat lifesaver training." "o Seeks assistance from peers to improve performance." Finally, he recommended that the rating given in Part IV. f. remain as, "Needs Some Improvement;" and that the following comments be shown: "o Delegated responsibilities to subordinates." "o Did not always follow-up on delegated tasks." "o Slow to take corrective actions."
There is no evidence in the applicant's official military personnel file that she took action to appeal the report to the Enlisted Special Review Board (ESRB) seeking the removal of this NCOER from her performance record.
In the applicant's next NCOER covering the period from May 1998 thru April 1999, which she received at Fort Bragg, North Carolina, in the duty position of Schools NCO, she received a "Marginal" rating from her rater. This rating of "Marginal" was based on the ratings given in the Values/NCO Responsibilities in Part IV of the NCOER.
In Part IV, Values/NCO Responsibilities, in Item b. (Competence) the rater stated that she, "Needs Much Improvement," and added the following supporting comments: "o failed to process school paperwork causing eight soldiers to miss scheduled class;" "o failed to use filing system causing confusion due to inability to find information regarding schools;" and "o lacks sound judgment as demonstrated by bringing an alcoholic type bottle into the workplace."
In Part IV, Values/NCO Responsibilities, in Item d. (Leadership), the rater gave her a rating of, "Needs Some Improvement" and added the following supporting comment: "o failed to ensuring soldier was properly informed of duties within section causing confusion and double work."
The Senior Rater, a noncommissioned officer in the rank of Master Sergeant, gave her a rating of, "Fair" for overall performance, and a rating of "Poor" for overall potential for promotion and/or service in positions of greater responsibility.
In part V.e. Overall Performance and Potential (Senior Rater Bullet Comments), the senior rater entered, "o recommend for consideration in QMP program;" "o promotion is not recommended at this time;" "o her assignment should be in a position that requires close supervision;" and "o counseling not IAW AR 623-205 due to rater's deployment to CENTAM."
There is no evidence in the applicant's official military personnel file that she took action to appeal the report to the Enlisted Special Review Board (ESRB) to seek removal of this NCOER from her performance record. In her self-authored declaration, the applicant states that, "During the rated period, [her rater] was deployed for nearly the entire rated period. I was provided with no initial face-to-face counseling as is required by the regulation governing enlisted NCOERs. Further, neither at the start of the rating period nor at any time during the rating period, before receiving the NCOER was I provided any performance counseling. The rater simply had no sensible opportunity to evaluate my performance and when I was presented with the NCOER, as a result of the fact that [the rater] was deployed for nearly the entire rating period, I refused to sign the report certifying the administrative information, because the information indicating that I was counseled in any way, simply was false and the NCOER was prepared clearly in violation of the governing Army Regulation."
In the NCOER that followed, the NCOER in question, in which she was rated in the same duty position but a different set of performance evaluators in her rating chain, the rater, a Sergeant First Class provided a, "Yes," answer to each of the questions in Part IV, Values/NCO Responsibilities. The bullet comments are as follows: "o willingly helps others in accomplishing assigned missions;" "o displays exceptional courage when questioning orders given by superiors;" and "o adamantly support Equal Opportunity."
In Part IV, Values/NCO Responsibilities, in Item a, the rater gave her a rating of, "Needs Some Improvement," and added the following supporting comment: "o failed to maintain filing system causing constant confusion of training; " "o continuously fails to process school requests in a timely manner;" "o fails to disseminate information in a timely manner."
In Item d. (Leadership), the rater gave her a rating of, "Needs Some Improvement," and added the following supporting comment: "o needs to be more assertive in projecting her leadership abilities;" "o potential limited only by her desire to succeed;" and "o inconsistent performer."
In Item e. (Training), the rater gave her a rating of, "Needs Some Improvement," and added the following comments: "o does not provide meaningful information
flow for soldiers attending scheduled schools;" "o unable to stay abreast of events in a fast paced environment;" "o shows concern at time for soldiers development by sharing knowledge and experience."
In Item f. (Responsibility and Accountability), the rater gave her a rating of, "Needs Some Improvement," and added the following comments: "o does not devote attention to all responsibilities;" "o needs to accept the responsibility for keeping the work area organized, clean and free of clutter." The rater rated her overall potential for promotion and/or service in positions of greater responsibility as "Marginal."
The Senior Rater, the noncommissioned officer who borrowed money from the applicant and did not pay until counsel became involved, gave her ratings of, "Poor" for overall performance, and a rating of "Fair" for overall potential for promotion and/or service in positions of greater responsibility.
In part V.e. Overall Performance and Potential (Senior Rater Bullet Comments), the senior rater entered, "o not ready for advancement in rank at this time;" "o recommend further military schooling to develop potential;" "o achieves the standard under intense supervision;" and "o exhibits a short attention span; unable to focus on completing the mission to standard."
AR 635-200, chapter 19, sets forth policy and prescribes procedures for the voluntary and involuntary separation of Regular Army and US Army Reserve NCOs under the QMP. NCOs whose performance, conduct, and/or potential for advancement do not meet Army standards, as determined by the approved recommendations of HQDA centralized selection boards responsible for QMP screening, will be denied continued service. The QMP objective is designed to enhance the quality of the career enlisted force, selectively retain the best qualified soldiers, deny continued service to nonproductive soldiers, and encourage soldiers to maintain their eligibility for further service.
QMP selection criteria include, but are not limited to the moral and ethical conduct incompatible with the values of the NCO Corps and the Army ethic; lack of potential to perform NCO duties in current grade; decline in efficiency and performance over a continuing period, as reflected by NCOER or failure of noncommissioned officer education system courses; recent or continuing problems, as evidenced by conviction by court-martial, nonjudicial punishment, or administrative reprimand; or other discriminators such as imposition of a field commander's bar to reenlistment, inability to meet physical fitness standards, and failure to comply with requirements of the Army body composition program.
AR 635-5 prescribes policies and procedures regarding separation documents. It states, in pertinent part, that AR 635-5-1 provides the separation program designator code for the regulatory authority and reason for separation and that AR 601-210, determines RA and USAR reentry eligibility and provides regulatory guidance on the RE Codes. The Reentry Code will be entered in Block 27 and the Narrative Reason for Separation, which serves as the basis for an individual's separation, will be entered in Block 28 of the DD Form 214.
According to AR 601-210, RE Code-4 applies to persons separated from their last period of service with non-waivable disqualifications. This includes anyone with a DA-imposed bar to reenlistment in effect at the time of separation. RE Code-3 applies to persons considered not fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable. RE Code-1 applies to persons completing their term of active service and who are qualified to reenter the Army if all other criteria are met.
Table B-1, AR 635-5-1 specifies that persons being discharged from the Army for Non-Retention on Active Duty under the provisions of AR 635-200, paragraph 19-12, will be given a SPD Code of "JGH." The Separation Program Designator Code (SPD)/Reentry (RE) Code Cross-Reference Table-March 2001 shows that persons given an SPD Code of "JGH" will be assigned an RE Code of "4."
AR 623-205 sets forth the policies and procedures for the Enlisted Evaluation Reporting System. Paragraph 4-2 states, in pertinent part, that an evaluation report accepted for inclusion in the official record of an NCO is presumed to represent the considered opinion and objective judgment of rating officials at the time of preparation.
Paragraph 3-8 of the above regulation states that, "When counseling dates are omitted, the senior rater will enter a statement in part V.e., explaining why the counseling was not accomplished, and ensure the APFT and height/weight entries are correct (part IVc.)."
This same paragraph places the responsibility for obtaining the rated NCO's signature in part II of the NCO Evaluation Report. He is to ensure that the rated NCO is aware that his or her signature does not constitute agreement or disagreement with the evaluations of the rater and senior rater. The rated NCO's signature means that he or she has seen the completed report (except part II d and e) and verifies that the administrative data (part I) is correct, the rating officials are proper (par II), the duty description is accurate (part III), to include the counseling dates. If an NCO refuses to sign or is not available to sign the completed evaluation report, an appropriate statement will be entered in the rated NCO's signature block.
Paragraph 4-7 of that regulation states, in pertinent part, that when submitting an appeal, the burden of proof rests with the applicant and that he or she must produce evidence that establishes clearly and convincingly that action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.
DA Circular 635-92-1, dated 1 August 1992, consolidates implementing instructions on separation pay. It outlines eligibility criteria for separation pay and provides separation pay formulas. Moreover, this circular illustrates the various types of separation that are either eligible or ineligible for separation pay.
Paragraph 2-2 in this circular states that, "Full separation pay is authorized for soldiers otherwise fully qualified for retention and meeting the criteria in paragraph 2- 1 above [has completed at least 6 years, but fewer than 20 years of active service], but involuntarily separated, through either a denial of reenlistment or continuation on AD (active duty) by the U.S. Army. The soldier's service must be characterized as Honorable.
Paragraph 2-3 in this circular states, "Half payment of separation pay is authorized to soldiers who meet the criteria in paragraph 2-1 above and who are not fully qualified for retention and are involuntarily separated. In extraordinary circumstances, the Secretary of the Army may award full separation pay to soldiers otherwise eligible for half separation pay when the specific reason for separation and the overall quality of the soldier's service have been such that denial of full pay would be clearly unjust. For half separation pay the soldier's service must be characterized as Honorable or Under Honorable Conditions (General). 'a. Soldiers who are denied retention as a result of a DA QMP or local bar to reenlistment and who do not voluntarily separate under the provisions of Paragraph 16-5, AR 635-200.'"
Public Law 102-484, the FY93 Defense Authorization Act, was enacted on 23 October 1992. Section 4403 of that law gives the Military Departments the authority to permit early retirement. Service members who served at least 15 years, but fewer than 20, could qualify for early retirement under a program established by the Temporary Early Retirement Authority. To retire under the provision of this law, an application and its approval were mandatory.
Army Regulation 600-8-22 provides that the Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency and fidelity during a qualifying period of active duty enlisted service. Paragraph 4-3 contains more specific criteria for award of the Good Conduct Medal to the individual soldier. These criteria are as follows:
"Throughout a qualifying period, each enlisted soldier must meet all of the following criteria for an award:
a. The immediate commander [emphasis added] evaluates the soldier's character as above reproach.
b. The record of service indicates that the soldier has—
(1) Willingly complied with the demands of the military environment.
(2) Been loyal and obedient to their superiors.
(3) Faithfully supported the goals of their organization and the Army.
(4) Conducted themselves in such an exemplary manner as to distinguish them from their fellow soldiers.
c. While any record of nonjudicial punishment could be in conflict with recognizing the soldier's service as exemplary, such record should not be viewed as automatically disqualifying. The commander analyzes the record, giving consideration to the nature of the infraction, the circumstances under which it occurred and when. Conviction by court-martial terminates a period of qualifying service; a new period begins following the completion of sentence imposed by court-martial.
d. In terms of job performance, the soldier's efficiency must be evaluated and must meet all requirements and expectations for that soldier's grade, MOS, and experience.
e. Individuals whose retention is not warranted under standards prescribed in AR 604-10 , paragraph 2-1, or for whom a bar to reenlistment has been approved under the provisions of AR 601-280 , chapter 6 (specifically for the reasons enumerated in AR 601-280, paragraphs 6-4a, b, and d), are not eligible for award of the AGCM."
According to AR 600-20, Commanders should seek to prevent inappropriate or unprofessional relationships through proper training and leadership by example. Should inappropriate relationships occur, commanders have available a wide range of responses. These responses may include counseling, reprimand, order to cease, reassignment, or adverse action. Potential adverse action may include official reprimand, adverse evaluation report(s), nonjudicial punishment, separation, bar to reenlistment, promotion denial, demotion, and court martial.
This same regulation states that relationships between soldiers of different rank are prohibited if they: compromise, or appear to compromise, the integrity of supervisory authority or the chain of command; cause actual or perceived partiality or unfairness; involve, or appear to involve, the improper use of rank or position for personal gain; are, or are perceived to be, exploitative or coercive in nature; create an actual or clearly predictable adverse impact on discipline, authority, morale, or the ability of the command to accomplish its mission.
Extortion is defined as, obtaining something from a person by force, intimidation, or undue or illegal power.
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. There is no evidence that the loan made to the senior NCO was extorted from the applicant. While the senior NCO may have asked for the loan more than once, there is no evidence of force, intimidation or undue or illegal power. If the applicant felt like she was being unduly pressured to make the loan, she could have gone to a member of the command structure for assistance in nullifying or eliminating the pressure. As a 47 years old noncommissioned officer in the rank of Staff Sergeant, at the time the loan was made, she had a duty and a responsibility for minimizing the type of activity that she became a party to.
2. The evidence of record shows that the applicant made a loan to the senior NCO but she insured that there would be irrefutable proof that an obligation existed. The Pentagon Federal Credit Union wire transfer in the amount of $1500 was made, on 1 March 1999, to the account of the senior NCO who later became the applicant's Senior Rater on the NCOER covering the period 9905 thru 0001.
3. The Board does not condone an NCO who is senior in grade or date of rank borrowing money from a junior in grade or date of rank. However, when the loan was made, the "ratee/senior rater relationship did not exist. The Board noted that the loan was made on 1 March 1999 and the NCO who borrowed the money did not become a part of the applicant's rating chain as senior rater until some point between May 1999 and January 2000. Neither the applicant nor counsel indicates the date that the relationship (senior rater to ratee) came into being.
4. There is no evidence that the NCOER rating given by the senior NCO was punishment for the applicant's actions in seeking repayment of the loan. The Board noted that the three preceding evaluation reports given the applicant showed that the applicant had established a downward trend in performance.
These assessments were made by others who had not borrowed money from the applicant and whose judgments are considered by the Board to be unbiased.
5. There is no proof that the senior rater acted maliciously in providing the rating that she gave the applicant. The three preceding evaluation reports showed that the applicant had established a pattern of less than fully capable performance. Other rating officials, in different geographical locations and from different vantage points, whose judgments are considered by the Board to be fair and unbiased, made these assessments.
6. The applicant retained counsel and on 11 June 2000. Action was initiated seeking repayment of the borrowed funds without resorting to having Army authorities becoming involved.
7. By on or after 16 August 2000, $1200 of the loan obligation had been remitted, in an official check and in money orders, to the applicant.
8. Neither Counsel nor the applicant submitted a copy of the response to the appeal that was allegedly submitted to the Total US Army Personnel Command pertinent to the NCOER given the applicant for the period 1 May 1999 thru 31 January 2000, the NCOER in which the NCO who borrowed money from the applicant served as the senior rater.
9. The QMP board's decision was made based on the applicant's entire military personnel record. The QMP board provided her those documents that were "most" influential in their decision-making process.
10. While counsel contends that none of the NCOER are identical in their adverse comments and there is no general theme within the reports other than her competence in two separate positions, by his contention, he admits that comments related to the applicant's performance are adverse. Adverse comments, reflects unfavorably on the subject of the comments. The cover letter specifically states that enhancement of the enlisted career force was the reason upon which the QMP was established. Counsel adds that no specific information was provided relating to any of these reports, identifying the specific reason that she should be removed from active duty in the Army. The adverse comments made about the applicant's performance are clear enough that no further elaboration is either considered required or necessary.
11. As indicated by the evidence of record, the applicant's records shows that the applicant received an NCOER covering the period from 9504 (April 1995) thru 9511 (November 1995). The rater assessed her overall potential for
promotion and/or service in positions of greater responsibility as, "Marginal." The senior rater assessed her overall performance as, "Fair" and her overall potential for promotion and/or service in positions of greater responsibility as, "Fair." There is no evidence that this NCOER was appealed despite the fact that the applicant refused to sign the report.
12. The applicant's next NCO Evaluation Report covering the period from December 1995 thru April 1996, shows that the applicant was again rated a "Marginal" performer by her rater and the senior rater assessed her overall performance as, "Fair" and her overall potential for promotion and/or service in positions of greater responsibility as, "(at the lowest level of) Superior." Because of what the reviewer termed low ratings, and at the request of the ratee, clarifying comments were made to the NCOER. No change was made to entries and supporting comments made by either the rater or senior rater in Part V Overall Performance and Potential of the NCOER. There is no evidence that this NCOER was appealed despite the fact that the applicant could have exercised her rights to do so.
13. In the next NCOER cited by the QMP Board as having the most influence on their decision, the report covering the period from May 1998 thru April 1999, which she received at Fort Bragg, North Carolina, in the duty position of Schools NCO, she received a "Marginal" rating from her rater. The senior rater felt that the applicant's performance was such that he recommended that the applicant be considered for QMP action.
14. The applicant has proven that the NCO who later became her senior rater borrowed and later repaid the loan. The loan was made before the NCO who borrowed money became the senior rater in the applicant's rating chain. The evidence of record shown that counsel was not retained in order to seek repayment of the loan until five months after the evaluation report's end date.
15. Neither the applicant nor counsel provided a copy of the denial of her appeal of the NCOER for the Board's review.
16. The Board noted that the applicant was identified for QMP action on the basis of four NCOERs. The decision was not made solely based on the rating given by the senior NCO who borrowed money from the applicant. The Board further noted that the three previous senior raters had rated applicant's performance of duty as "Fair."
17. The Board also noted the memoranda of support submitted by those who allege to have witnessed the applicant's performance of duty; however, these individuals did not, at any time, serve in the applicant's rating chain and they did
not observe the applicant's performance of duty with the same perspective and from the same vantage point as did those who were in the applicant's rating chain. One of the witnesses had no exposure to the applicant until 6 June 2001, a year and a half after the contested NCOER was completed and submitted to her official record. One of the witnesses knew of the applicant primarily because he had the responsibility for the inspection of records maintained by her. One of the witnesses served as the unit first sergeant. Their perceptions and vantage points are expected to be drastically different from those of an operations noncommissioned officer whose exposure and interactions would be greater – closer and more personal.
18. Contrary to the applicant's assertions that she was fully qualified for reenlistment, she had been identified for QMP and on the date of her discharge, she had a DA-imposed Bar to Reenlistment in her records.
19. The Board noted that a previous senior rater, a senior NCO, had already identified the applicant as being a candidate for QMP action. This recommendation was made in the evaluation report rendered for the period, May 1998 through April 1999 (9805 thru 9904).
20. AR 635-5-1 specifies that persons being discharged from the Army for Non-Retention on Active Duty under the provisions of AR 635-200, paragraph 19-12, will be given a SPD Code of "JGH." The applicant was discharged for not meeting retention standards of the Army; hence, the SPD "JGH" was appropriately applied, in this case.
21. RE Code-4 applies to persons separated from their last period of service with non-waivable disqualifications. This includes anyone with a DA-imposed bar to reenlistment in effect at the time of separation. The applicant was under a
DA-imposed bar to reenlistment on her discharge; therefore, the proper RE Code was applied to her separation document at discharge.
22. The Board finds that based on the evidence and circumstances of this case, the applicant was properly discharged in accordance with the applicable regulations in effect at the time and that she was issued the proper RE Code, RE Code 4, on her DD Form 214, on her discharge date. There is no basis upon which a change of the RE Code on the applicant's DD Form 214 can be supported.
23. The Board noted that despite having been cited through award of an Army Commendation Medal for having stabilized the casualties of an automobile accident and having been selected as the NCO of the Quarter (for the quarter ending 31 December 1994), the applicant' service was not recognized through
award of an appropriate award at the end of her tour of duty at Fort Hood and at other locations as is normally customary in the service.
24. The applicant was awarded the Good Conduct Medal (5th Award) for the period 15 August 1996 to 14 August 1999. This award was approved by the unit commander based on his evaluation that the applicant had willingly complied with the demands of the military environment; been loyal and obedient to her superiors; had faithfully supported the goals of the organization and the Army; and conducted herself in such an exemplary manner as to distinguish her from her fellow soldiers. On this late date, it is not known whether the unit commander consulted with members of the rating chain to collect their sentiments about the award.
25. The applicant was not eligible for payment of full separation pay. Soldiers who are denied retention as a result of a DA QMP or local bar to reenlistment are only authorized payment of half separation pay. The applicant had been identified by and had a DA QMP Bar to Reenlistment in effect on the date of her discharge.
26. 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.
27. 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
__mb ___ __sk____ ___rjw __ DENY APPLICATION
| CASE ID | AR2003086524 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 2003/11/06 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. 189 | 110.0000 |
| 2. 192 | 110.0300 |
| 3. 193 | 111.0000 |
| 4. 197 | 111.0100 |
| 5. | |
| 6. |
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