RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           16 August 2005
      DOCKET NUMBER:  AR20040009761


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

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. James B. Gunlicks             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of her earlier request to set
aside her  6 November 2001 discharge under the Qualitative Management
Program (QMP), constructively reinstate her, grant her a voluntary
retirement with all due back pay and allowances, and issue her a new DD
Form 214 (Certificate of Release or Discharge from Active Duty) showing she
separated for the purpose of retirement with consistent separation
authority and codes.

2.  The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel states that when the Army promoted the applicant to Staff
Sergeant (SSG), E-6 on 22 January 1997 and allowed her to reenlist on 19
August 1998 for six years, the Army effectively waived any prior
noncommissioned officer evaluation reports (NCOERs) as a source to later
involuntarily discharge her.  The Army QMP board rummaged through her
Official Military Personnel File (OMPF) and used two NCOERs from 1995 to
1996 as a basis, in part, to impose a QMP bar to reenlistment.  Because the
Army promoted her and reenlisted her based on those NCOERs, they alone
cannot support a QMP action.

2.  Counsel states the applicant received an Army Good Conduct Medal (AGCM)
for the period 15 August 1996 through 14 August 1999.  The regulation
states the award will be based upon the commander's personal knowledge and
the Soldier's official records.  The Soldiers must have conducted
themselves in such exemplary (emphasis in the original) manner as to
distinguish themselves from their fellow Soldiers.  The Soldier's
efficiency must be evaluated and must meet (emphasis added) all the
requirements and expectations for that Soldier's grade and experience.

3.  Counsel states it follows that once a period of service is approved for
the AGCM, or later qualifying service remains unbroken, it becomes immune
from later attempts to discredit or portray the Soldier's prior service as
below minimum standards or a decline in efficiency.  The QMP board in 2000
is presumed to have seen, and then ignored, the applicant's DA Form 2-1
(Personnel Qualification Record) containing her AGCM in August 1999.

4.  Counsel states it is irrelevant whether any one else second-guesses the
applicant's performance as declining.  The Army, through her promotion,
reenlistment, AGCM, and subsequent qualifying periods, already established
that she met the minimum standards of retention.  The 1990 edition of Army
Regulation (AR) 635-200 (sic, apparently counsel means AR 601-280 as 1990
was the date of Enlisted Ranks Personnel Update Number 16, which contained
both these regulations) did state that a missing AGCM from a Soldier's
appeal is generally not material error.  This provision, however, was
omitted in the 1997 and current 2004 editions (counsel is now apparently
referring to AR 635-200 as 1997 is approximately the time frame when the
policy and procedures for the QMP were moved from chapter 10, AR 601-280 to
chapter 19, AR 635-200).  The removal of this provision suggests that the
1990 version was referring to a missing AGCM as non-material error when it
is from a time period outside (emphasis in the original) that cited by the
QMP board as deficient.  Secondly, the 1997 revision deleting reference to
the AGCM strongly suggests timing is relevant to the QMP decision.

5.  Counsel states the Board in 2003 did not appreciate the interaction
between the regulatory standards for the AGCM and the NCOER appeals.  The
basis for the AGCM award in 1999 flowed up from the raters directly.  It
was not created in a vacuum, as the Board suggested.  The Board turned the
AGCM regulatory presumption upside down on its head by stating it was not
known, at that late date, whether the unit commander consulted with members
of the rating chain to collect their sentiments about the award.  The Board
wanted the system to work to believe the adverse NCOERs but did not want
the system to work so it could disbelieve the AGCM derived only from the
raters' recommendations through the first sergeant with personal
verification by the commander.  That was a clearly arbitrary Board action.


6.  Counsel states the Board left the door open for the applicant to obtain
her former commanders' recollections.  Her former first sergeant (now a
retired command sergeant major) was contacted and confirmed that the unit
policy and the commander's personal practice was to "check through the
Soldier's rating chain to see if there was any reason to disqualify the
Soldier" for an AGCM.  The commander did check with the applicant's chain
of command and her former first sergeant specifically recalls the
applicant's raters said her duty performance was satisfactory with words to
the effect, "there is nothing of sufficient magnitude to deny her the
award."

7.  Counsel states the applicant was never provided any counseling packet
to substantiate the adverse report she later received.  The April 1999
NCOER was not finished until the applicant was reassigned in February 2000,
which explains why the report was not available for Lieutenant Colonel G___
to see for himself in June 1999.  It makes no sense that the commander
awarded the AGCM in June 1999 if an alleged disastrous April 1999 NCOER was
available as purported. Moreover, because the commander did (emphasis in
the original) consult with the rating chain in June 1999, who soundly
endorsed the applicant for the AGCM, that discredits the senior rater's
comment that she should be involuntarily discharged under the QMP.  The
medal constitutes the presumed de facto duty evaluation.  The Army cannot
lawfully or factually use the report as a basis for her QMP and discharge
in order to effectively revoke her AGCM.

8.  Counsel also states that the reviewer wrote a supporting statement in
October 2000 that he believed the report was too harsh and an "injustice."
The applicant was screened as acceptable in late December 2000 to go before
the E-7 promotion board.  If the alleged disastrous NCOER ending April 1999
was in her file, and the current rating chain truly believed she was "not
ready for advancement in rank at this time," she would have been flagged as
ineligible for the board and the next AGCM period.

9.  In addition to several documents provided with the original
application, counsel provides an account of his 23 January 2005 telephone
interview with the applicant's former first sergeant; a DA Form 4856
(General Counseling Form) date of counseling 19 March 1999; a letter dated
17 October 2000 from the applicant's company commander and reviewer of the
April 1999 NCOER; the     31 August 2000 QMP notification letter; the
January 2000 NCOER; the April 1999 NCOER; the original Memorandum of
Consideration; her DD Form         214 (Certificate of Release or Discharge
from Active Duty); and 3 pages of a        5 November 1999 inspection
outbrief.

10.  Counsel also provides Army Board for Correction of Military Records
(ABCMR) Proceedings, Docket Number AC98-09329/AR1999016304 dated      14
January 1999, in which the ABCMR awarded the applicant in that case the
AGCM because he had never been disqualified for the award by his chain of
command.  Counsel states it is pertinent to this case because the decision
in that case pointed to that applicant's "promotion" as supporting an
implied finding that he met the standards for the AGCM for the prior
period.  As was set forth in this applicant's first case, her QMP bar was
imposed, in part, for two NCOERs issued from 1995 through 1996.  However,
those two NCOERs did not stop her E-6 promotion in 1997 or her reenlistment
in 1998.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
ABCMR in Docket Number AR2003086524 on 6 November 2003.

2.  The applicant enlisted in the Regular Army on 15 August 1984.  She was
promoted to SSG on 22 January 1997.  The latest available reenlistment
contract is dated 18 August 1995 for 4 years; however, that is consistent
with a last reenlistment date of sometime in 1999.  She was awarded the
fifth award of the AGCM for the period 15 August 1996 through 14 August
1999 on orders dated 14 June 1999.

3.  By memorandum dated 31 August 2000, the U. S. Army Enlisted Records and
Evaluation Center notified the applicant the Calendar Year 2000 Sergeant
First Class promotion board, after a comprehensive review of her OMPF,
determined she was to be barred from reenlistment under the QMP.  The
memorandum identified four NCOERs as the basis for her bar to reenlistment
– NCOERs for the period 1 April 1995 through 30 November 1995, for the
period 1 December 1995 through 30 April 1996, for the period 1 May 1998
through 30 April 1999, and for the period 1 May 1999 through 31 January
2000.

      In the NCOER for the period ending November 1995, her rater gave her
a "No" rating in Part IVa2 with negative supporting comments.  In Part IVb,
her rater gave her a "Needs some improvement" rating with related negative
comments.  Part IVf also had a somewhat negative comment.  The rater rated
her overall potential as "marginal."  Her senior rater rated her overall
performance and overall potential as "fair" with three negative comments.

      In the NCOER for the period ending April 1996, her rater gave her a
"No" rating in Part IVa2 with one negative supporting comment.  In Parts
IVb, IVd, IVe, and IVf, her rater gave her ratings of "Needs much
improvement," "Needs some improvement," "Needs some improvement," and
"Needs some improvement," respectively, with related negative comments.  In
Part Va, her rater rated her overall potential as "marginal."  Her senior
rater rated her overall performance as "fair" and her overall potential as
"Superior" (with a numerical rating of "3" out of a possible highest
"superior" rating of "1").  Her senior rater made four comments, one of
which was negative ("Do not promote at this time").

      In the NCOER for the period ending April 1999, her rater gave her
ratings of "Needs much improvement" in Part IVb with three negative
comments and a rating of "Needs some improvement in Part IVd with a
negative comment.  Her rater rated her overall potential as "marginal."
Her senior rater rated her overall performance as "fair" and her overall
potential as "poor" with negative comments.

      In the NCOER for the period ending January 2000, her rater gave her
ratings of "Needs some improvement" in Part IVb with negative comments,
"Needs some improvement" in Part IVd with negative comments, "Needs some
improvement" in Part IVe with negative comments, and "Needs some
improvement" in Part IVf with negative comments.  Her rater rated her
overall potential as "marginal."  Her senior rater rated her overall
performance as "poor" and her overall potential as "fair" with negative
comments.

4.  The applicant appealed the QMP bar to reenlistment.  Her appeal packet
included a letter from the reviewer of her NCOER for the period ending
April 1999.  He stated the applicant established herself as a worthy NCO
while serving as the Schools and Training NCO for the battalion and had the
traits expected from an NCO in today's Army.  He stated he felt the NCOER
she received for the rating period ending April 1999 should not be the sole
basis for determining her fate.  At the time he served as the reviewer he
had issues with the harshness of the NCOER, yet he was assured by the rater
and senior rater that it was an accurate assessment of her performance.
Now, serving as a company commander, he saw where he should have taken a
"harsher stance" for her and not allowed an injustice.

5.  There is no evidence the applicant appealed any of the four NCOERS.
However, the applicant's counsel for her initial application to the Board
stated she unsuccessfully appealed the May 1999 to January 2000 NCOER.  He
did not provide a copy of the denial of this appeal.

6.  The applicant's appeal of the QMP bar to reenlistment was denied.  On
       8 November 2001, she was honorably discharged in the rank of SSG
under the provisions of AR 635-200, paragraph 19-12, due to non-retention
on active duty, after completing 17 years, 2 months, and 24 days of
creditable active service.

7.  AR 635-200 (Enlisted Personnel), chapter 19, in effect at the time and
currently, contains policy and procedures for voluntary and involuntary
separation, for the convenience of the Government, of Regular Army NCOs and
U. S. Army Reserve NCOs serving on Active Guard/Reserve status, under the
QMP.  NCOs whose performance, conduct, and/or potential for advancement do
not meet Army standards as determined by the appropriate recommendation of
Headquarters, Department of the Army (HQDA) centralized selection boards
responsible for QMP screening will be denied continued service.  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 does not apply to Soldiers who
hold the grade of Sergeant and below.

8.  AR 635-200, chapter 19 states screening for QMP is accomplished by HQDA
boards that may be convened for other purposes as well.  The appropriate
board reviews the performance fiche of the OMPF, Personnel Qualification
Record (DA Forms 2A and 2-1 or Enlisted Record Brief), 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.  QMP selection criteria include, but are not limited to, lack of
potential to perform NCO duties in current grade and a decline in
efficiency and performance over a continued period as reflected by NCOERs.


9.  AR 600-8-19 (Enlisted Promotions and Reductions) states field grade
commanders in units authorized a commander in the grade of lieutenant
colonel or higher have promotion authority to the grades of sergeant and
staff sergeant.

10.  AR 601-280 (Army Retention Program) prescribes criteria for the Army
Retention Program and sets forth polices and command responsibilities for
the immediate reenlistment or extension of enlistment of Soldiers currently
serving in the Active Army.  In pertinent part, it states a Soldier
currently serving in the Active Army who wishes to reenlist or extend his
or her current enlistment will submit a DA Form 3340-R (Request for
Reenlistment or Extension in the Regular Army) to his or her immediate
commander.  The commander will then determine whether the Soldier is
eligible for continued Active Army service.

11.  AR 600-8-22 (Military Awards) states the AGCM is awarded for exemplary
behavior, efficiency, and fidelity in active Federal military service.  It
is awarded on a selective basis to each Soldier who distinguishes himself
or herself from among his or her fellow Soldiers by their exemplary
conduct, efficiency, and fidelity throughout a specified period of
continuous enlisted active Federal military service.  Unit commanders are
authorized to award the AGCM to enlisted personnel serving under their
command jurisdiction who meet the established criteria.

DISCUSSION AND CONCLUSIONS:

1.  Counsel contends the fact the "Army" promoted the applicant to SSG in
1997, allowed her to reenlist in 1998, and awarded her the AGCM in 1999
effectively waived any prior NCOERs as a source to later involuntarily
discharge her.

2.  Counsel places great weight upon the applicant receiving the fifth
award of the AGCM for the period 15 August 1996 through 14 August 1999.

3.  Counsel fails to recognize, in the case of the applicant being awarded
the AGCM as also in the case of her being promoted and being allowed to
reenlist, that all three of these actions were authorized to be taken at
very low levels of Army command authority.  The company commander is the
reenlistment authority.  The company commander is the AGCM award authority.
 The battalion commander is the E- 6 promotion authority.
4.  The decision to bar the applicant from reenlistment under the QMP was
made at the HQDA level.  She may very well have been an outstanding Soldier
compared to her company and battalion peers, the only small group of
Soldiers her company and battalion commanders could have compared her to
when it came to determining her E-6 promotion worthiness or her worthiness
to reenlist or be awarded the AGCM.

5.  However, it was the mission of the Calendar Year 2000 Sergeant First
Class promotion board to compare the applicant's past performance and
potential for continued service to her peers Army-wide.  QMP selection
criteria include lack of potential to perform NCO duties in current grade
and a decline in efficiency and performance over a continued period as
reflected by NCOERs.  It appears the promotion board decided neither the
award of the AGCM nor her promotion and reenlistment overcame the evidence
of her performance and potential as outlined in the four cited NCOERs.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__mhm___  __jtm___  __jbg___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis to amend the decision of
the ABCMR set forth in Docket Number AR2003086524 dated 6 November 2003.




            ___Melvin H. Meyer____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040009761                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050816                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.03                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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