RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            03 August 2006
      DOCKET NUMBER:   AR20060000900


      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. Jessie B. Strickland          |     |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 that his discharge be voided and that he be
retired by reason of physical disability.

2.  The applicant states, in effect, that he was unjustly discharged in
1999 due to being selected for a bar to reenlistment under the Qualitative
Management Program (QMP).  He goes on to state that his problem stemmed
from one commander who disliked him and gave him two bad evaluation reports
and imposed nonjudicial punishment against him.  He continues by stating
that with all of the injuries he incurred during his 12 years in Special
Forces and the problems he was having with his back, he should have been
medically discharged instead of being discharged.  He also states that he
immediately received a 50% disability rating from the Department of
Veterans Affairs (VA) after leaving the Army.


3.  The applicant provides a copy of his report of separation (DD Form
214), a letter to his member of congress, and a claim for workers
compensation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 27 August 1999.  The application submitted in this case is
dated 10 November 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 was born on 10 November 1969 and enlisted with a moral
waiver in the United States Army Reserve (USAR) under the delayed entry
program (DEP) on 10 December 1984 for a period of 8 years.  At the time of
his enlistment, a request for a report of employee was obtained from the
applicant’s previous employers and one employer stated that the applicant
had a back problem and that he left that company under unfavorable
circumstances.

4.  He enlisted in the Regular Army on 8 January 1985 for a period of 3
years, airborne training and training as a medical specialist.   He
completed his basic combat training at Fort Knox, Kentucky, his advanced
individual training at Fort Sam Houston, Texas, and his airborne training
at Fort Benning, Georgia, before being transferred to Fort Campbell,
Kentucky.

5.  He was promoted to the pay grade of E-5 on 1 November 1989 and on
19 December 1989, he reenlisted under the Bonus Extension and Retraining
(BEAR) Program for a period of 6 years for training in military
occupational specialty 18D (Special Forces Medic) and a selective
reenlistment bonus (SRB).

6.  Upon completion of his training at Fort Bragg, North Carolina and Fort
Sam Houston, he was transferred to Germany on 1 March 1990.  He was
promoted to the pay grade of E-6 on 1 November 1990.

7.  He completed his with dependents tour in Germany in December 1992 and
was transferred to Fort Bragg.  He was promoted to the pay grade of E-7 on
1 January 1994 and he remained at Fort Bragg until he was transferred to
Fort Campbell on 18 March 1996.

8.  On 15 December 1997, he received a change of rater noncommissioned
officer (NCO) evaluation report (NCOER) covering the period from January
1997 to November 1997.  In Part IVa, under Values/NCO Responsibilities, his
rater gave him “NO” ratings under “Is disciplined and obedient to the
spirit of a lawful order” and “Is honest and truthful in word and deed”.
The supporting comments indicate that the applicant lacked judgment in
handling controlled medications, that he continues to compromise his
integrity and that he fails to maintain mission focus.

9.  In Part IVb under “Competence” his rater gave him a “Needs Improvement”
rating and the supporting comments indicate that he was undependable due to
inability to stay focused on the mission and that he had received two
letters of indebtedness during the rating period.

10.  In Part IVf under “Responsibility and Accountability, his rater gave
him a “Needs Improvement” rating and the supporting comments indicate that
he violated the Narcotic Substance Control Standard Operating Procedures.

11.  In Part V under Overall Performance and Potential, his rater gave him
a “Marginal” rating.  In the same area his senior rater (SR) gave him
“Fair” ratings and the supporting comments indicate that personal control
of his actions are not consistent with those of a senior NCO.  The
applicant refused to sign the NCOER.

12.  On 11 February 1998, the applicant received a Memorandum of Reprimand
(MOR) for failure to secure his weapon, for being late and unprepared for
movement and appearing to be intoxicated, for wrongfully using his
government credit card at a local restaurant and 11 other times while on
leave in North Carolina, and for failure to follow orders during a field
training exercise.  The applicant submitted an appeal of the MOR on 16
February 1998 and on 18 March 1998, the commanding general directed that
the MOR be filed in the applicant’s Official Military Personnel File
(OMPF).

13.  On 29 April 1998, he received a relief for cause NCOER from a
different rater and SR than the previous NCOER.  In Part IVa under “Values
and NCO Responsibilities” he received “No” ratings under “Is disciplined
and obedient to the spirit and letter of a lawful order” and “Is honest and
truthful in word and deed”.  The supporting comments indicate that he
failed to display the mental discipline required of a senior NCO and that
he lacks personal credibility and believability.

14.  In part IVd, under “Leadership”, his rater gave him a “Needs
Improvement” rating and the supporting comments indicate that he
continually failed to maintain the leadership qualities expected of a
senior Special Forces NCO, that he was reluctant to make decisions within
the scope of his duty position or take corrective measures directed in his
counseling and that his failure to follow instructions resulted in the
compromise of Operation Pecos Thunder.

15.  In Part IVf, under “Responsibility and Accountability”, his rater gave
him a “Needs Improvement” rating and the supporting comments indicate that
the applicant violated Department of Defense Directive 5500.7, Standards of
Conduct indebtedness and Special Operations Command American Express card
policies concerning personal usage twice.

16.  In part IV under “Overall Performance and Potential”, his rater gave
him a “Marginal” rating and his SR gave him “Fair” ratings.  The supporting
comments  from the SR indicate that he was not recommended for promotion
until his performance levels increased, that his potential was limited,
that he needed to develop leadership capabilities, that he requires
remedial leadership schooling to better him for future assignments, and
that his current performance does not warrant assignment within Special
Operations.  The applicant refused to sign the NCOER.

17.  On 8 June 1998, he was transferred to Fort Bragg and was assigned to a
Civil Affairs battalion.  On 2 April 1999, a memorandum was dispatched to
the applicant from the Enlisted Records and Evaluation Center in
Indianapolis, Indiana informing the applicant that the Calendar Year 1999
Master Sergeant Promotion Selection Board had determined that he should be
barred from reenlistment under the QMP based on the presence of two NCOERs
ending in October 1997 and February 1998 and a Memorandum of Reprimand
dated 11 February 1998.  He was advised that he had 60 days in which to
submit an appeal and that if his appeal was denied, he would be separated
within 90 days.

18.  On 16 June 1999, the applicant’s battalion commander issued him a
letter of reprimand (LOR) for failure to maintain accountability of Class
VIII Narcotics issued to him at Fort Bragg and Camp Doha, Kuwait.  The
applicant elected not to submit a statement in his own behalf and the
commanding general directed that the LOR be filed in his OMPF on 16 July
1999.

19.  There is no indication in the available records that the applicant
ever appealed the bar to reenlistment under the QMP or that he ever
appealed the evaluation reports or the LOR that served as the basis for the
bar to reenlistment.

20.  Accordingly, he was honorably discharged on 27 August 1999, under the
provisions of Army Regulation 635-200, paragraph 16-8, due to reduction in
force.  He had served 14 years, 7 months and 20 days of total active
service and received one-half separation pay in the amount of $20,154.42.

21.  A review of the applicant’s evaluation history reveals that in 1992,
he developed an individual physical training program to enable him to
recover quickly from a broken femur.  In 1994, he competed in the Southeast
Regional Surfing Competition advancing to the United States Eastern
Competition.  In 1995 he passed his Army Physical Fitness Test (APFT) short
of the 90-day recuperation period following major lumbar surgery.  In 1996,
he successfully completed a 10-mile open sea klepper kayak movement under
task standards.  His evaluation reports for 1998 and 1999 indicate that he
scored 294 and 291, respectively, on his APFT, that he eagerly participates
in all company sporting events, and that he was a first time go in all
certification events.

22.  Army Regulation 601-280 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 enlisted soldiers to 30 years of
active duty, (3) deny reenlistment to                non-progressive and
non-productive 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 Department of
the Army 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.

23.  Army Regulation 635-40, in pertinent part, provides that when a member
is being separated by reasons other than physical disability, his continued
performance of duty creates a presumption of fitness which can be overcome
only by clear and convincing evidence that he was unable to perform his
duties or that acute grave illness or injury or other deterioration of
physical condition, occurring prior to or coincident with separation,
rendered the member unfit.

24.  There is a difference between the VA and the Army disability systems.
While both the VA and the Army use the VA Schedule for Rating Disabilities
(VASRD) to determine percentage ratings, not all of the general policies
set forth in the VASRD apply to the Army; thus there are sometimes
differences in ratings. The Army's determination of a soldier's fitness or
unfitness is a factual finding based on the individual's ability to perform
the duties of his grade, rank, or rating. If the soldier is found to be
physically unfit, a disability rating is awarded by the Army and is
permanent in nature.  The Army system requires that the soldier only be
rated as the condition(s) exist(s) at the time of the physical evaluation
board hearing.  The VA may find a soldier unfit by reason of service
connected disability and may even initially assign a higher rating.  The
VA's ratings are based on an individual's ability to gain employment as a
civilian and may fluctuate within a period of time depending upon the
changes in the disability.

DISCUSSION AND CONCLUSIONS:

1. The Department of the Army bar to reenlistment under the QMP was imposed
in compliance with the applicable regulation with no indication of
procedural errors which would tend to jeopardize his rights.

2.  The applicant has failed to show through the evidence submitted with
his application or the evidence of record, that the documents which served
as the basis for his selection under the QMP were not sufficient to justify
the imposition of the bar, nor has sufficient evidence been provided to
justify removal of the bar to reenlistment.

3.  The applicant has also failed to show through the evidence submitted or
the evidence of record that he was medically/physically unfit at the time
of separation and should have been processed for separation due to physical
disability.
Accordingly, he was properly discharged under the provisions of Army
Regulation 635-200, paragraph 16-8, due to reduction in force.

4.  The fact that the VA in its discretion, has awarded the applicant a
disability rating does not establish physical unfitness, of any degree
thereof for Department of the Army purposes.  Each agency/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 a
lesser, equal or more enhanced award by the other agency.

5.  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 the aforementioned requirement.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 27 August 1999; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 26 August 2002.  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                 |AR20060000900                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |200608003                               |
|TYPE OF DISCHARGE       |(HD)                                    |
|DATE OF DISCHARGE       |19990827                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |QMP                                     |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |                                        |
|1.108.0000/177/dis ret  |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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