IN THE CASE OF:	  

		BOARD DATE:	        28 August 2008

		DOCKET NUMBER:  AR20080008711


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, the results of the 2005 Illinois Army National Guard (ILARNG) Qualitative Retention Board (QRB) be voided and he be returned to active duty status with the ILARNG.

2.  The applicant states, in effect, that the ILARNG QRB is an unjust, self-serving board designed to free up noncommissioned officer billets so that Soldiers in favor with The Adjutant General (TAG) and his cronies may be promoted.  He surmises that his QRB non-selection was, in effect, the result of personal animus on the part of TAG and the Command Sergeant Major (CSM) for the ILARNG.  He was detailed as a board member for the 2004 QRB.  He alleges the State CSM told board members that he and TAG wanted four E-9 positions, so the board would vote not to retain four Sergeants Major.  The applicant continues that he refused to arbitrarily non-retain four E-9 Soldiers without justification and when the 2004 QRB adjourned, all E-9's were retained.  In retribution for his insolence, he was non-retained by the 2005 QRB.  He feels there is no other explanation.

3.  The applicant provides a binder with Tabs A-K, as follows:

	a.  Tab A – A 2-page self-authored letter, dated 16 April 2008.


	b.  Tab B

* A 23 February 2005 memorandum from the applicant's commander to the President of the Qualitative Retention Board supporting retention of the applicant.
* An undated memorandum wherein the applicant elects discharge from the ILARNG and as a reserve of the Army should he be selected for non-retention.
* A 9 February 2005 memorandum from the applicant to the ILARNG QRB requesting retention.

	c.  Tab C – A 3 May 2005 memorandum from TAG, ILARNG notifying the applicant of his non-selection for retention.

	d.  Tab D
* A 2-page, 24 May 2005 memorandum from the applicant to TAG requesting a 1-year deferral of the QRB findings.  This memorandum has four memorandums/letters of support.
* A 2-page, 26 June 2005 Decision Memorandum for TAG recommending the applicant be given a 1-year deferral of the QRB findings.

	e.  Tab E
* A 24 April 2007 letter of support from a retired ILARNG CSM.  The retired CSM states there are "hundreds of Senior Officers and Senior NCO's that are still in [the ILARNG], that can not meet the criteria [of the QRB for retention]."
* A 21 May 2007 letter of support from the ILARNG Command Chief Warrant Officer.
* A 24 April 2007 letter of support from a Master Sergeant.
* A 28 March 2007 letter of support from the CSM who replaced the applicant in the counterdrug program.
* A 20 March 2007 letter of support from a Lieutenant Colonel.
* A 2-page, 31 May 2005 memorandum of recommendation from a Colonel, Director, J3, ILARNG to TAG.

	f.  Tab F
* A 29 July 2005 memorandum from TAG to the applicant denying his request for deferral.  The applicant points out the memorandum addresses his rank as Sergeant Major (SGM), his correct rank, and points out the recapitulation of the 2005 QRB shows no Sergeants major were non-selected.
* 
Orders 221-137, Department of Military Affairs, State of Illinois, dated 9 August 2005, relieving the applicant from his assignment, discharging him from the ILARNG, and assigning him to the US Army Reserve Control Group (Reinforcement).

	g.  Tab G
* DA Form 2166-8 (NCO Evaluation Report) for the period 2002/09 – 2003/08. (5'9" 216).
* DA Form 2166-8 (NCO Evaluation Report) for the period 2003/09 – 2004/08. (5'8" 230).
* DA Form 2166-8 (NCO Evaluation Report) for the period 2002/01 – 2002/09. (5'8" 217).
* DA Form 2166-8 (NCO Evaluation Report) for the period 2000/09 – 2001/08. (5'9" 216).
* DA Form 2166-8 (NCO Evaluation Report) for the period 1999/09 – 2000/08. (5'9" 208).

	h.  Tab H
* DA Form 1059 (Service School Academic Evaluation Report), dated 15 September 1998, showing successful completion of the non-resident USA Sergeants Major Course, (failed APFT, passed on retest).
* Diploma, dated 15 September 1998, USA Sergeants Major Academy.
* DA Form 5500-R (Body Fat Content Worksheet-Male), dated 12 December 2004, showing the applicant is 5'8" tall and weighed 235 pounds at age 54, and was within allowable body fat by 0.48 percent.
* DA Form 705 (Army Physical Fitness Test Scorecard) showing he was overweight for 3 straight years, but within body fat limits, and that he only had to complete the alternative 2 1/2 mile walk event.
* 3-page Personnel Qualification Record, prepared date of 050310.
* Clearance Certificate, dated 9 August 2005, showing he was not responsible for any property.

	i.  Tab I
* A sheet of paper titled "Documentation Error" indicating that TAG, ILARNG reported on 25 March 2005 the 2005 QRB considered 4 white male SGM’s and retained 4 white male SGM, yet he was a white male SGM.
* A letter from the ILARNG to the applicant, dated 27 April 2007, responding to his Freedom of Information Act (FOIA) request. 
* Copy of a 17 March 2005 memorandum for 2005 QRB, subject:  Letter of Instruction (LOI).
* 
22 March 2005 memorandum appointing QRB board members.
* 25 March 2005 memorandum for TAG, ILARNG with QRB results.  This document shows 4 white male SGM’s were considered and retained.  It also shows 9 white male CSM considered, but only 8 retained.

	j.  Tab J – NGB Form 22 (Report of Separation and Record of Service), multiple DA Forms 214 (Certificate of Release or Discharge From Active Duty), ARNG Retirement Points History Statement prepared on 29 April 2008.

	k.  Tab K – 16 April 2008 letter from the applicant to the Army Board for Correction of Military Records.

CONSIDERATION OF EVIDENCE:

1.  The applicant is a retired E-9 with active duty in the ILARNG since 1991.  In April 1997, he was promoted to the rank of SGM with a lateral appointment to the rank of CSM.  The record shows he served as a CSM until his discharge from the ILARNG on 14 August 2005.

2.  The applicant's records went before the 2005 QRB for routine screening as required by Army Regulation 135-205.  The proper notifications were provided to the applicant stating that he was subject to screening, and he acknowledged notification and provided acknowledgment and supporting documentation for his retention.

3.  The LOI to the President and Members of the QRB charged the board to view the "total person" in choosing the "best qualified" NCO personnel for retention.  The board was specifically charged with reviewing:

	a.  The degree of efficiency demonstrated by the Soldier in assignments held.

	b.  The demonstrated level of performance as attested by evaluation reports, letters of commendation, and other evaluations.

	c.  The general physical condition and medical fitness of the Soldier, to include height and weight standards and APFT scores.

	d.  The military and civilian educational levels for performance of assigned duties.


4.  The QRB met and considered the records of 17 E-9's in the ranks of SGM (6 records) and CSM (11 records).  The board recommended all of the SGM's for retention, but recommended that two CSM's not be retained.  The applicant was one of those not recommended for retention.  On 3 May 2005, by memorandum, he was notified on his non-retention and the requirement that he be discharged.

5.  On 24 May 2005, the applicant requested a 1-year deferral of the QRB findings.  On 29 July 2005, the TAG denied his request and directed immediate discharge.  On 13 August 2005, the applicant was discharged with 14 years, 7 months, and 30 days of creditable active Federal service and more than 30 years of creditable service for non-regular retired pay purposes.  His DD Form 214 shows his rank as SGM; however, his discharge order shows his rank as CSM and his military occupational specialty (MOS) is shown as 00Z (Command Sergeant Major) on a number of documents.

6.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Division, National Guard Bureau, Arlington, VA.  The advisory opinion addresses the issue of a 1-year deferral of the findings of the 2005 QRB and recommends denial.  It states the applicant may only appeal the results of a QRB to deny retention if he was ineligible for consideration by that board.  The applicant met all qualifications to appear before the 2005 QRB.

7.  The applicant was provided an opportunity to respond to the advisory opinion and stated that, upon further review, he discovered he was ineligible to appear before the 2005 QRB because of certain medical conditions.  In January 2005, he was sent on temporary duty to Fort Knox, KY for medical evaluation.  The evaluation found he was 5'8'' tall and weighed 243 pounds, with a body mass index of 40 (obese).  He had a medical history of severe obstructive sleep apnea and Meniere's disease, a disorder of the inner ear that can affect hearing and balance and is characterized by episodes of dizziness and tinnitus, and progressive hearing loss, usually in one ear.  The medical assessment was that the applicant was fit for duty and that he met retention requirements; however, he should be re-evaluated for his sleep apnea after 1 year and if still requiring a continuous positive air pressure (CPAP) device, he should be referred to a medical board.

8.  Army Regulation 135-205 (Army National Guard and Army Reserve Enlisted Personnel Management) prescribes policies and responsibilities for the Qualitative Retention Program (QRP).  The QRP is designed to:  ensure only the best qualified Soldiers are retained beyond 20 years of qualifying service for non-regular retired pay.  These Soldiers will be retained for continuing assignment to 

the comparatively few senior noncommissioned officer (NCO) positions; provide career incentives; ensure an opportunity for advancement to the higher grades during the peak years of a Soldier's effectiveness; satisfy the continuing requirement for senior NCOs by the appropriate commands; and provide the command with a tool to control enlisted personnel inventory and manage career progression.  The QRP is not to be used in lieu of separation or removal procedures authorized by other regulations, for reasons such as unsatisfactory performance, unsatisfactory participation, and failure to meet body fat standards. 

9.  The regulation provides for the business of qualitative retention to be accomplished by means of a QRB.  The QRB will consider all unit Soldiers with at least 20 years of qualifying service for non-regular retired pay no more than once every 2 years.  The QRB will not consider a Soldier:  who has not completed 20 qualifying years of service for non-regular retired pay by the day before the date the board convenes; is within 9 months of reaching age 60 on the date the board convenes; is under suspension of favorable personnel actions, unless the suspension action was initiated for failure to meet the body fat standards, or for failure to pass the Army Physical Fitness Test (APFT); was promoted to his/her current grade less than 1 year prior to the convening date of the board; is a CSM serving in the position of State Command Sergeant Major or Senior Enlisted Advisor in the ARNGUS; is a USAR or ARNGUS military technician previously not selected by a QRP board, but who was retained to serve in the current military technician assignment; or is eligible for sanctuary by virtue of being on active duty (other than for training) and having more than 18, but less than 20 years of active Federal Service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request is not clearly stated and may only be surmised as voiding the results of the 2005 Qualitative Retention Board (QRB) and returning him to active duty status with the ILARNG.

2.  The QRP, as established by AR 135-205, requires biennial reviews for retention of USAR and ARNG Soldiers with 20 or more years of service for non-regular retired pay purposes.  The applicant was reviewed and not selected for retention.

3.  The applicant argues that he was a SGM and the recapitulation of the 2005 QRB revealed all SGM's were selected for retention; therefore, by extension, he was selected for retention.  The applicant was a CSM since 1 April 1997; he held MOS 00Z and, although it cannot be verified, he most likely was counted among the CSM's reviewed for retention by the 2005 QRB.  Two CSM's were not selected for retention, one of whom was the applicant.
4.  The applicant suggests his non-selection for retention was retaliation for his having refused to comply with the desires of the TAG and the ILARNG CSM to non-select 4 E-9's from the 2004 QRB, on which he sat as a board member.  More likely, the applicant was non-selected for retention because he was obese and could not participate in a normal APFT, having to do the 2 1/2 mile walk in place of all other normal events.

5.  Upon reviewing the NGB advisory opinion, the applicant seized upon another issue to dispute his non-selection by the 2005 QRB; he never should have been considered by that board because of his medical condition.  However, the applicant was evaluated at Fort Knox in January 2005 and found fit for duty with sleep apnea and Meniere's disease.  He was not entered into the Army's Physical Disability Evaluation System (PDES) and his conditions did not exempt him from QRB consideration.

6.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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 for correction of the records of the individual concerned.



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      _______ _   _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080008711



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ABCMR Record of Proceedings (cont)                                         AR20080008711



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