RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           27 September 2005
      DOCKET NUMBER:  AR20050000196


      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. Ronald E. Blakely             |     |Chairperson          |
|     |Mr. Lawrence Foster               |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's discharge be voided; he be
reinstated with retroactive back pay and allowances from the date of his
discharge to retirement date; promotion to Staff Sergeant, E-6; promotion
consideration to Sergeant First Class, E-7; and retroactive retirement
benefits from date of retirement to the present.

2.  Counsel states the applicant was an excellent Soldier.  Before his
discharge, he was recommended for promotion to E-6.  He had taken positive
steps to remain proficient in his military occupational specialty (MOS) and
to develop leadership qualities.  His final two enlisted evaluation reports
(EERs) showed his record of performance was excellent.  His performance and
professionalism earned him the Army Commendation Medal and a number of
Certificates of Achievement, including a Certificate of Achievement dated
12 September 1988.

3.  Counsel states the applicant reenlisted on 11 March 1988.  By
memorandum dated 14 October 1988, he was notified the Army imposed a bar to
his reenlistment under the Qualitative Management Program (QMP).  Since he
had already reenlisted, he was not eligible for consideration for denial of
reenlistment under the QMP.

4.  Counsel states substantial injustice is apparent in the reason given
for the applicant's selection under the QMP.  Two EERs were noted as
identifying specific areas of weaknesses.  However, a careful review of
those EERs shows no ratings that could reasonably be categorized as a
weakness or deficiency serious enough to form the basis for involuntary
separation.

5.  Counsel states the EER for the period ending October 1987 contained
comments by both the rater and the endorser which pointed to the need for
more training in his MOS and ability to train his subordinates more
effectively.  However, neither the rater nor the endorser considered those
areas to be weak since he was rated only one point below the maximum
allowable numerical scores for the two areas.

6.  Counsel states the EER for the period ending October 1986 was
exceptional because it followed the applicant's recent promotion to
Sergeant, E-5.  The rater correctly pointed out that areas needing
improvement were the result of either the applicant's recent promotion or
his absence from working in his primary MOS.
7.  Counsel states that, contrary to the QMP board's determination, the
applicant's military record was competitive enough for him to be
recommended for promotion to E-6.  There was no evidence of any decline in
his performance between May 1988 and the QMP board in July 1988.

8.  Counsel states the applicant was advised of his right to appeal the
involuntary separation.   However, he was advised at the time that any
appeal would be futile.  In his confused state, he accepted the advice.  He
denies ever being counseled by a Lieutenant Colonel (LTC) T__ as is
documented on a DA Form 4856 (General Counseling Form) dated 2 October 1988
and there is no indication, such as his signature or initials on the
document, to acknowledge he was counseled.

9.  Counsel provides a copy of most of the applicant's service personnel
records.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 30 January 1989.  The application submitted in this case is
dated 9 November 2004.

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 limitations 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.  After having had prior service, the applicant enlisted in the Regular
Army on 19 February 1981.  He was promoted to Sergeant, E-5 effective 1
June 1986 in MOS 76P (Materiel Control and Accounting Specialist).

4.  The applicant's EER for the period ending October 1986 was a 5-rated
month change of rater report.  His principal duty title was Materiel
Control and Accounting Specialist, duty MOS 76P20.  His rater commented, in
part, that the applicant was lacking in some technical skills due mainly to
working outside his primary MOS for several months before being assigned to
the Repairable Exchange Section.  He was making great progress in re-
attaining the technical proficiency of his primary MOS.  Since his
promotion to Sergeant, he had at times been unable to communicate
effectively with superiors but his constant willingness to improve his
initiative enabled him to significantly improve his communication skills.

5.  The applicant's EER for the period ending October 1987 was a 12-rated
month annual report.  The rater commented, in part, that the applicant was
not very well informed on all phases of his assigned duties as a 76P.  The
endorser commented, in part, that the applicant lacked the professional
knowledge, personal drive and technical skills to get the job done within
his technical field and the ability to train and develop subordinate
Soldiers under his direct control.

6.  The applicant received two subsequent evaluation reports, a 7-rated
month final EER for the period ending May 1988 (signed on 3 June 1988) and
a 7-rated month change of rater report for the period ending December 1988
under the new Noncommissioned Officer Evaluation Report.  Neither report
contained adverse comments.

7.  In March 1988, the applicant was recommended for promotion to Staff
Sergeant, E-6 in MOS 76P and placed on the promotion standing list in that
MOS.

8.  On 11 March 1988, the applicant reenlisted for 6 years making his
expiration term of services 10 March 1994.

9.  By memorandum dated 14 October 1988, the applicant was notified the
Calendar Year 1988 Master Sergeant/Sergeant QMP Selection Board (which
convened on 12 July 1988) reviewed his Official Military Personnel File
and, after a comprehensive review of his file, determined he was to be
barred from reenlistment.  The applicant's EERs for the periods ending
October 1986 and October 1987 were cited as the documents identifying
specific areas or weakness as the basis for his bar to reenlistment.  This
letter informed him one of his options was to choose to submit an appeal.

10.  On 27 October 1988, the applicant acknowledged he had been personally
interviewed by a commander in the grade of LTC or above who presented him
with the Headquarters, Department of the Army (HQDA) letter and enclosures
pertaining to his DA-imposed Bar to Reenlistment under the QMP.  He
acknowledged receiving the letter on 27 October 1988.  He acknowledged
having been advised of the options open and assistance available in
processing a request for reconsideration, retirement, or discharge
application.

11.  A DA Form 4856-R shows the applicant was counseled by LTC T___ of his
right to appeal the QMP bar to reenlistment and his options on 27 October
1988. The applicant signed the reverse side of the DA Form 4856-R on 27
October 1988 acknowledging he was counseled.

12.  On 27 October 1988, the applicant indicated he would appeal the QMP
bar to reenlistment.

13.  On 31 October 1988, the applicant indicated he would not appeal the
QMP bar to reenlistment.

14.  On 21 November 1988, the applicant confirmed that he originally
elected to appeal the QMP bar to reenlistment but then decided not to
appeal and elected separation.

15.  On 3 January 1989, the applicant's request for separation was approved
under the provisions of Army Regulation 635-200, paragraph 16-8.

16.  On 12 January 1989, the applicant requested to be discharged from the
military on 30 January 1989 because he had a school date set up on 1
February 1989.

17.  On 30 January 1989, the applicant was honorably discharged in the rank
of Sergeant, E-5 under the provisions of Army Regulation 635-200, paragraph
     16-8 after completing a total of 12 years, 10 months, and 15 days of
creditable active service.

18.  Army Regulation 601-280, chapter 10 at the time set forth policy and
prescribed 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 the 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.

19.  Army Regulation 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.

20.  Army Regulation 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.

DISCUSSION AND CONCLUSIONS:

1.  Counsel contended that the applicant reenlisted on 11 March 1988 and
therefore was not eligible for consideration for denial of reenlistment
under the QMP is not based upon regulatory guidance.  The records of all
Soldiers, 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, even if they recently reenlisted, receive a QMP bar to
reenlistment.

2.  Counsel contended that the applicant's EER for the period ending
October 1986 was exceptional because it followed the applicant's recent
promotion to Sergeant, E-5.  He noted the rater pointed out that areas
needing improvement were the result of either the applicant's recent
promotion or his absence from working in his primary MOS.  This contention
may have had some merit had that EER been the only one that commented
unfavorably on the applicant's abilities.  However, his next EER, for the
period ending October 1987 after he had           12 additional months of
working in his primary MOS, also contained unfavorable comments on his
technical and leadership abilities.  It appears his EER for the period
ending May 1988, which was signed on 3 June 1988, was not processed and
filed in his Official Military Personnel File in time for the QMP board to
consider it.  Therefore, it appears the QMP board properly determined the
applicant had developed a trend that contributed to a lessened potential
for continued service.

3.  Counsel contended that, contrary to the QMP board's determination, the
applicant's military record was competitive enough for him to be
recommended for promotion to E-6.  Counsel fails to recognize, in the case
of the applicant being promoted and being allowed to reenlist, that both of
these actions were authorized to be taken at very low levels of Army
command authority.  The company commander is the reenlistment 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.  He may very well have been an outstanding Soldier
compared to his company and battalion peers, the only small group of
Soldiers his company and battalion commanders could have compared him to
when it came to determining his E-6 promotion worthiness or his worthiness
to reenlist.

5.  However, it was the mission of the Calendar Year 1988 Master
Sergeant/Sergeant QMP Selection Board to compare the applicant's past
performance and potential for continued service to his 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 evaluation reports.  It appears the board decided
neither his promotion nor his reenlistment overcame the evidence of his
performance and potential as outlined in the two cited evaluation reports.

6.  Counsel contended that the applicant's last two evaluation reports
showed his record of performance was excellent.  It is acknowledged his
last two evaluation reports contained no adverse comments on his technical
or leadership abilities.  It is acknowledged the applicant received the
Army Commendation Medal and a number of Certificates of Achievement,
including a Certificate of Achievement dated 12 September 1988.  These
factors would have worked in the applicant's favor had he appealed the QMP
bar to reenlistment as he originally indicated he would.

7.  However, the applicant elected to change his option to appeal the bar
to reenlistment and request immediate separation instead.  The applicant
provides no evidence to show he was counseled his appeal would be futile.
To the contrary, it was not reasonable to think an appeal would be futile
when HQDA itself, in the 27 October 1988 notification letter, offered it as
an option.  The applicant provides no evidence to show he was in a
"confused state."

8.  The evidence of record confirms the applicant signed the DA Form 4856
dated 27 October 1988 on the reverse side showing he was counseled by LTC
T__.

9.  The evidence of record shows the applicant, even though his term of
service did not expire until 1994, elected to separate in January 1989.

10.  Given the circumstances in this case, there is no basis for granting
the relief requested.
11.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 January 1989; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on          29 January 1992.  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

__reb___  __lf____  __lmd___  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.




            __Ronald E. Blakely___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050000196                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050927                                |
|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.                      |                                        |


-----------------------
[pic]