RECORD OF PROCEEDINGS


      IN THE CASE OF:

      BOARD DATE:            03 AUGUST 2006
      DOCKET NUMBER:   AR20050016942


      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             |
|     |Mr. Richard J. Eisenbart          |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret Patterson            |     |Chairperson          |
|     |Mr. Michael Flynn                 |     |Member               |
|     |Mr. Gerald Purcell                |     |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, in effect, that his discharge be changed from
an honorable discharge to a medical retirement.

2.  The applicant states, in effect, that he was honorably discharged
without being afforded the opportunity to undergo evaluation by a medical
board.  He goes on to state that he requested a medical evaluation board
(MEB) prior to discharge.  The applicant also states that he was separated
on an early out due to his medical condition.  He also states that
throughout his medical records it is noted that he was suffering from
depression.  He indicates he has a wife and three children to support and
needs the benefits that go along with retirement.  The applicant states
that he served fifteen plus years in the U.S. Army and did not want to get
out, but got hurt and his medical condition prevented him from serving the
four plus years he had left to retire.

3.  In a self authored letter to the President, the applicant’s spouse
solicits assistance in resolution of issues with the Department of Veterans
Affairs (DVA), to wit; (1) entitlement to an effective date earlier than 9
July 1999, for increased service connection (SC) for a major depressive
disorder, (2) an increased rating in excess of 20 percent for low back
disability, (3) an increase in rating in excess of 10 percent for
respiratory disorder, (4) and be compensated for being house bound.

4.  The applicant provides a self authored letter to the President, a
letter to the President from his wife, a document from a Veterans Affairs
physician, and several OMPF documents to support his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 19 February 1992.  The application submitted in this case is
dated
25 October 2005.

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.  The applicant enlisted at Fort Hamilton, New York on 27 October 1976
for a period of three years and training as an airframe repairman (68G).
He attended his Basic Combat Training (BCT) at Fort Dix, New Jersey and his
Advanced Individual Training (AIT) at Fort Eustis, Virginia.  He was
transferred to Fort Campbell, Kentucky with assignment as an airframe
repairman, reporting for duty on 11 April 1977.  The applicant was promoted
to pay grade E2 on 27 April 1977, and to pay grade E3 on 22 August 1977.

4.  On 27 October 1977, the applicant received Non-Judicial Punishment
(NJP) for failure to report to his appointed place of duty at the
prescribed time (AWOL – Absent Without Leave).  His punishment was 20 days
confinement to Correctional Custody at the Correctional Custody Facility.
The applicant was promoted to pay grade E4 on 27 April 1978.  On 6 August
1979 he re-enlisted for a four year period, under the Overseas Area Re-
enlistment Option (Korea) and a lump sum Selective Re-enlistment Bonus
(SRB) in Military Occupational Specialty (MOS) 68G – Aircraft Structural
Repairman.


 5.  The applicant was transferred to Korea on 21 February 1980 for a 12
month unaccompanied assignment, returning to the Continental United States
(CONUS) with assignment to Fort Campbell, Kentucky on 27 April 1981.

6.  The available records indicate that on 2 July 1984, at Fort Campbell,
Kentucky, that the applicant was tried by Summary Court-Martial Order
Number 18 (dated 5 July 1984), for violation of Article 92 of the Uniform
Code of Military Justice (UCMJ), violation of a lawful general regulation,
to wit:  by not registering a non-government owned handgun or having it
stored in the unit arms room pending registration.  He plead not guilty,
was found guilty and sentenced to forfeiture of $ 250.00 for one month. The
sentence was properly adjudged and imposed on 3 July 1984.

7.  On 18 January 1985, the applicant was transferred to Germany.  While
assigned to Germany, by self admission in his application, the applicant
began to experience some medical difficulties.  The available records
indicate he requested an MEB review of his medical fitness.  The record
indicates that the attending health care provider informed him that he did
not have enough time left in country to accomplish an MEB prior to his
scheduled transfer back to the United States.  The record also indicates
that the applicant requested to be transferred to an Army Medical Center in
lieu of his pending transfer to Fort Carson, Colorado.  He was informed by
the attending health care provider of Fort Carson’s close proximity to
Fitzsimmons Army Medical Center.  The provided documentation indicates that
he was examined by a psychiatrist but refused follow-up treatment as he
felt it would hurt him more than it would help him.  Additionally the
record indicates that he declined to follow-up on recommended
dermatological treatments.  The provided records do not indicate any
further medical issues being addressed by the applicant or Army health care
providers.

8.  While assigned to Germany the applicant was selected for, attended, and
satisfactorily completed the Primary Leadership Development Course (PLDC).
Although his PLDC Service School Academic Evaluation Report (DA Form 1059)
indicates satisfactory performance evaluations, the comments section (block
16) reflects quite derogatory and sub-standard basic soldiering and
leadership skills performance by the applicant.  Contrary to the derogatory
comments on this service school evaluation, the evaluator (squad trainer)
indicated that he had achieved the course standards, and recommended the
applicant for attendance to the next higher Non-Commissioned Officer
Education System (NCOES) course.

9.  On 27 June 1986 he re-enlisted for a three year period, and was
transferred to Fort Carson, Colorado on 6 March 1987.  On 6 September 1988
he received a lateral appointment from Specialist 4th Class (pay grade E4)
to Corporal (pay grade E4).

10.  The applicant requested and was granted approval for a four month
extension of his current enlistment extending him to the retention control
point (RCP) for his pay grade on 10 March 1989.  This enlistment extension
established a new expiration term of service (ETS) date of 26 October 1989
for the applicant.

11.  On 1 April 1989 he was promoted to pay grade E5.  On 21 September 1989
he re-enlisted for a six year period, in pay grade E5, under the Current
Station Stabilization Option, to wit Fort Carson, Colorado.  Due to the
applicant’s previous Summary Court-Martial conviction, a Request for Waiver
of Disqualification for Enlistment / Re-enlistment was required, submitted
and approved enabling him to re-enlist.

12.  During the applicant’s assignment at Fort Carson, Colorado, he was
selected for and attended the Basic Non-Commissioned Officer Course (BNCOC)
for his MOS (98G – Aircraft Structural Repairer), reporting for training on
26 June 1990. In reviewing the applicant’s BNCOC Service School Academic
Evaluation Report (DA Form 1059), it appears that the applicant was
administratively released from this NCOES course.  The course duration
period of 26 June 1990 through
30 August 1990 (66 days), and the resident attendance period, or period of
report of 26 June 1990 through 31 July 1990 (36 days), reflect an early
release from the course.  Block 13 (Performance Summary) reflects the
student’s failure to achieve course standards; block 14 (Demonstrated
Abilities) indicates unsatisfactory performance in the student’s research
ability; and block 15 recommends the student not be selected for a higher
level of training.  Block 16 of the DA Form 1059 expressly documents the
applicant’s course curriculum failure and regulatory non-compliance.  The
completion date of the DA Form 1059 in question is 2 August 1990.

13.  The applicant was notified on 1 November 1991 that the calendar year
(CY) 1991 Master Sergeant Selection Board/E-5 Qualitative Management
Program (QMP) Board, after a comprehensive review of his Official Military
Personnel File (OMPF), had determined that he should be barred from re-
enlistment.

14.  The Board identified two Non-Commissioned Officer Evaluation Reports
(DA Form 2166-8) (NCOER) covering the periods from July 1977 to October
1978 and February 1990 to August 1990; one Record of Proceedings under
Article 15, Uniform Code of Military Justice (UCMJ) (DA Form 2627), dated
27 October 1977, Special Court-Martial Order # 18, dated 5 July 1984; and
one Service School Academic Evaluation Report (DA Form 1059), dated 2
August 1990 as the basis for his bar to re-enlistment.

15.  The applicant did indicate on United States Army Enlisted Records and
Evaluation Center (USAEREC) Form 51 that he would submit an appeal to the
Enlisted Records and Evaluation Center (EREC) within 60 days of
notification. This appeal, if submitted by the applicant, is not included
in the available records in review.  His commander also indicated on
USAEREC Form 51 that he would not submit a separate appeal on behalf of the
soldier.

16.  The available records provide no documentation of any action, or
actions being initiated by the applicant to appeal the bar to re-
enlistment, therefore acknowledging that he understood that he would be
separated within 90 days of notification.

17.  The record does indicate that at the time of separation from active
federal service that the applicant had not filed an application for
compensation with the DVA.  The applicant did indicate on DA Form 664
(Service Member’s Statement Concerning Compensation from the Veterans
Administration) that he understood that he could file for compensation with
the DVA after separation from the Army.

18.  Additionally, on 6 February 1992, the applicant was determined to be
ineligible to enlistment into the Reserve Component (RC) in accordance with
Army Regulation (AR) 601-280, Chapter 11, Paragraph 11-1, in effect at the
time.

19.  Accordingly, he was honorably discharged from the United States Army
on 19 February 1992, with a Separation Code of JCC (Reduction in Force),
and a Re-Entry (RE) Code of RE-4, in accordance with the provisions of AR
635-200, Paragraph 16-8, under the Qualitative Management Program.  He had
served
15 years, 3 months, and 23 days of total active service and was entitled to
be paid one-half separation pay in accordance with Title 10 United States
Code (USC) 1174.  The applicant’s DD Form 214 (Certificate of Release or
Discharge from Active Duty), does not indicate the amount of separation pay
authorized, or that it was dispersed to the applicant at the time of his
discharge. He was authorized additional transition assistance, to wit;
continued military health system medical coverage with an expiration date
of 19 June 1992.

20.  There is no evidence in the available records to show that the
applicant ever appealed the aforementioned NCOERs, or the Service School
Academic Evaluation Report’s used by the (CY) 1991 QMP Board to determine
the applicant’s bar to re-enlistment and separation under the Qualitative
Management Program.  Additionally, there is no evidence of the applicant
undergoing a separation medical examination at the time of his discharge.

21.  AR 601-280, Chapter 10, in effect at the time, set forth the policy
and prescribed the procedures for denying re-enlistment under the QMP.  The
program was based on the premise that re-enlistment was a privilege for
those whose performance, conduct, attitude and potential for advancement
met the Army’s standards existing at the time.  It was designed to (1)
enhance the quality of the enlisted career force, (2) selectively retain
the best qualified Soldiers to potentially serve 30 years of active duty,
(3) deny re-enlistment to non-progressive and non-productive Soldiers, and
(4) encourage Soldiers to maintain their eligibility for continued career
service.  The QMP consisted of two major sub-programs, the qualitative
retention sub-program and the qualitative screening sub-program.  Under the
qualitative screening sub-program, the enlisted records of Soldiers in pay
grades E-5 through E-9 were regularly screened by the Department of the
Army centralized promotion selection boards. The appropriate selection
boards would evaluate past performance and estimate the potential of each
Soldier to determine if continued service was warranted.  Soldiers whose
continued service was determined to not be warranted would receive a QMP
Bar to Re-enlistment.

22.  In reference to the spouse of the applicant requesting assistance in
resolution of DAV issues, the following is provided.  Title 38, United
States Code, Sections 310 and 331, permits the DVA to award compensation
for a medical condition which was incurred in or aggravated by active
military service.  An award of a DVA disability compensation rating does
not establish error or injustice on the part of the Department of the Army
or its separation processes.  An Army disability rating is intended to
compensate an individual for the interruption of a military career after it
has been determined that the individual suffers from an impairment that
disqualifies him or her from further military service.  The DVA has neither
the authority nor the responsibility for determining physical fitness for
military service, but has the authority to award disability ratings to
veterans for conditions that it determines were incurred during military
service and subsequently affect the individual's employability.  In turn
the Department of the Army has neither the authority nor the responsibility
for determining or awarding DVA disability compensation ratings to
veterans.


DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The applicant’s contentions that he should have been medically retired
are duly noted, but he has not provided sufficient documentation to support
the allegation that he pursued and/or was denied evaluation by a Medical
Evaluation Board prior to separation under QMP.

3.  The applicant was properly authorized to receive one-half separation
pay based on his selection for separation under the QMP and was properly
issued an RE Code of RE-4.

4.  The Department of the Army Bar to Re-enlistment under the QMP was
imposed in compliance with the applicable regulations in effect at the
time, with no indication of procedural errors which would have jeopardized
his rights.

5.  Disability ratings assigned by the DVA are based upon the establishment
of service-connection of the diagnoses.  These ratings may fluctuate from
zero to 100 percent based on the former service member's physical condition
at the time of each physical examination.  The fact that the DVA, in its
discretion, has awarded the applicant a disability rating is a prerogative
exercised within the policies of that agency.  The fact that the DVA has
awarded the applicant a disability rating, in itself, does not establish
any entitlement to additional disability compensation or a medical
retirement from the Department of the Army.  Each agency and/or department
is bound to operate within its own rules, regulations and policies.  The
granting of a compensable award by one agency is not tantamount to an award
by the other agency.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 19 February 1992; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
18 February 1995.  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

__MP  __  ___ MF__  __GP     _  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.



                                  _____Margaret Patterson_____
                                            CHAIRPERSON
                                                    INDEX

|CASE ID                 |AR20050016942                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060817                                |
|TYPE OF DISCHARGE       |(HD)                                    |
|DATE OF DISCHARGE       |19920219                                |
|DISCHARGE AUTHORITY     |AR 635-200, Para 16-8                   |
|DISCHARGE REASON        |QMP-RIF (Bar to Re-enlistment)          |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |831 A 92.41 / QMP                       |
|1.144.9241              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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