RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          9 September 2004
      DOCKET NUMBER:  AR2004101412


      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             |
|     |Ms. Deyon D. Battle               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Mr. James E. Anderholm            |     |Member               |
|     |Ms. Linda D. Simmons              |     |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 correction of appropriate military records to
show a reentry eligibility (RE) code which would allow reenlistment.  In
effect, this constitutes a request for removal or waiver of those
disqualifications, which preclude reenlistment.

2.  The applicant states that he was discharged after completing over 16
years of honorable service, which includes several deployments into hostile
environments. He states that his discharge was based on his being selected
under the Qualitative Management Program (QMP) as a result of one
substandard Noncommissioned Officer Evaluation Report (NCOER) for a period
covering 4 months.  He goes on to state that his senior rater was ordered
to void the NCOER after he initiated a commander’s inquiry; and that he was
one of five NCOs or commissioned officers that received a bad evaluation
report by a new battalion commander.  He states that he believes that he
got a bad report because of the commander’s personal bias.

3.  The applicant provides in support of his application, a personal
statement dated 1 December 2003, and copy of his NCOER from July 1994
through February 1998.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice, which
occurred on 24 February 1998.  The application submitted in this case is
dated 1 December 2003.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  On 2 June 1981, he enlisted in the Army for 3 years in the pay grade of
E-1 and he went on to successfully complete his training as a medical
aidman.  He remained on active duty through a series of continuous
reenlistments.



4.  He was promoted to the pay grade of E-2, on 2 December 1981; to pay
grade E-3 on 1 April 1982; to pay grade E-4 on 1 March 1983; to pay grade E-
5 on 1 August 1984; to pay grade E-6 on 18 December 1986; and to pay grade
E-7 on 1 March 1991.

5.  On 29 November 1995, while assigned to C Company, 101st Support
Battalion, Fort Riley, Kansas, performing the duties of the company first
sergeant, a Commander’s Inquiry was initiated as a result of allegations
being made against the applicant for verbal abuse.  The investigating
officer (IO) stated that it was his finding that the applicant had a
pattern of offending soldiers no matter what gender or race that they
happened to be; that his use of abusive language, whether delivered in a
jocular manner or in moments of frustration, offended soldiers under his
command; that the language used was degrading, unwarranted, and
unprofessional for a soldier; and that his abusive behavior had not been
recently discovered.  During the investigation the IO found that three
soldiers filed equal opportunity complaints against the applicant for
racial comments; gender comments; disrespect to subordinates; and leader
abuse of rank.  The IO stated that on 4 April 1995, an investigation was
initiated and that the applicant was counseled regarding his behavior.  He
further stated that the applicant signed the counseling statement agreeing
to rehabilitation guidelines set forth in the counseling statement and that
he failed to honor the agreement.  The IO stated that the applicant had
another complaint filed against him on 16 November 1995 and that in an
attempt to make sure that the investigation was impartial, he interviewed
forty soldiers within the company (twenty males and twenty females).  The
IO recommended that the applicant be relieved of his position as first
sergeant as it was believed that he could not effectively execute the
duties as first sergeant without further equal opportunity complaints.

6.  On 29 December 1995, the applicant was furnished a relief for cause
NCOER for the period covering August 1995 through November 1995.  According
to the comments made by his rating officials, the applicant was relieved of
his duties based on actions and comments that he directed to soldiers that
reflected a lack of professionalism and due to the fact that he had a
history of inappropriate language references when dealing with females and
minority soldiers.  Within the NCOER his rating officials indicated that he
displayed abusive counseling and corrective leadership style; that his
attitude and actions undermined unit morale and welfare; and that incidents
of demeaning or degrading treatment of soldiers were noted within the
rating period.  His senior rater recommended that he not be selected for
sergeant major; that he not be promoted; and that he be assigned to a non-
troop leading position.  His overall performance was rated as fair and his
overall potential for promotion was rated as poor.

7.  A Commander’s Inquiry was conducted on 5 March 1996, at the request of
the applicant, in regard to the relief for cause NCOER that the applicant
was furnished.  At the conclusion of the investigation the IO determined
that of the seven allegations presented by the applicant in his request for
a Commander’s Inquiry, only one of the allegations had any validity in that
the results of the 29 November 1995, investigation were not referred.  The
IO recommended that the relief for cause NCOER be voided; that the
investigation be referred to the applicant for rebuttal; and that after
consideration of his rebuttal, a new NCOER be prepared.  The IO further
stated that if the rating chain disagreed with his recommendations and the
results of the Commander’s Inquiry, that the procedures outlined in
paragraph 2.15c(3) of Army Regulation 623-205 be followed.

8.  On 1 April 1996, the applicant was promoted to the pay grade of E-8.

9.  On 9 July 1996, the applicant submitted an appeal to the relief for
cause NCOER to the Enlisted Special Review Board (ESRB).  The ESRB
determined that the evidence that he submitted in support of his appeal,
failed to justify altering or withdrawing the report.

10.  On 7 November 1997, the United States Army Enlisted Records and
Evaluation Center (USAEREC) notified the applicant that the Calendar Year
1997 Command Sergeant Major Selection/ Sergeant Major Promotion Board had
reviewed his OMPF and determined that he was to be selected for denial of
continued active service under the Department of the Army (DA) QMP.  The
USAEREC cited the relief for cause NCOER as a basis for the denial of
continued active service.

11.  Accordingly, on 24 February 1998, he was honorably discharged under
the provisions of Army Regulation 635-200, chapter 16-8, as a result of a
reduction in force.  He had completed 16 years, 8 months and 23 days of
total active service and he was assigned an RE-4 code.

12.  Army Regulation 600-200, chapter 4, sets forth policy and prescribes
procedures for denying reenlistment under the QMP.  This program is based
on the premise that reenlistment is a privilege for those whose
performance, conduct, attitude, and potential for advancement meet Army
standards.  It is designed to (1) enhance quality of the career enlisted
force, (2) selectively retain the best qualified soldiers to 30 years of
active duty, (3) deny reenlistment to nonprogressive and nonproductive
soldiers, and (4) encourage soldiers to maintain their eligibility for
further service.  The QMP consists of two major subprograms, the
qualitative retention subprogram and the qualitative screening subprogram.
Under the qualitative screening subprogram, records for grades
E-5 through E-9 are regularly screened by the DA promotion selection
boards.  The appropriate selection boards evaluate past performances and
estimate the potential of each soldier to determine if continued service is
warranted.  Soldiers whose continued service is not warranted receive a QMP
bar to reenlistment and an RE code of RE-4.

DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record the applicant must
show 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.

2.  The applicant’s contentions have been noted.  However, there is no
evidence in the available records that substantiates his contention that
his rater was ordered to void his relief for cause NCOER.  The evidence of
record shows that the IO recommended that the NCOER be voided until such
time as the results of the 29 November 1995, investigation was referred to
the applicant for his comments and that another NCOER be prepared after
consideration was given to his comments.  Nonetheless, the commander, at
his own discretion, chose not to void the NCOER as recommended by the IO
until such time as the applicant could provide evidence that the
information contained in the report of investigation was in error.

3.  A review of the available records fails to show that the applicant
submitted any proof that that the initiation of the investigation and the
information contained within the report of investigation was in error.

4.  The applicant has failed to show through the evidence submitted with
his application that the relief for cause NCOER, which served as the basis
for his selection under the QMP, was not sufficient to justify the
imposition of the bar, nor has sufficient evidence been provided to justify
removal of the bar to reenlistment.

5.  As a result of his bar to reenlistment, the applicant was properly
assigned an RE code that is consistent with his narrative reason for
separation and there is no basis for changing his RE-4 code.



6.  This Board concludes that there is no basis for removal of those
disqualifications on which the code was based and the applicant’s
contentions do not demonstrate error or injustice in the disposition of his
case by his separation from the service.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 24 February 1998; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 23 February 2001.  However, the applicant did not file
within the 3-year statute of limitations and has not provided a compelling
explanation or evidence to show that it would be in the interest of justice
to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__jev___  __jea___  __lds___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.



                                  James E. Vick
            ______________________
                    CHAIRPERSON


                                    INDEX

|CASE ID                 |AR2004101412                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040909                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  1021 |100.0000.0000/ADMIN MATTERS             |
|2.  4                   |100.0300.0000/ CHANGE RE CODE           |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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