IN THE CASE OF:	  

		BOARD DATE:	        26 August 2008

		DOCKET NUMBER:  AR20080009860 


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 makes his request through counsel.

2.  The applicant defers his statement to counsel.

3.  The applicant submits further documentary evidence through counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests:

	a.  the applicant’s reinstatement into the Illinois Army National Guard (ILARNG); 

	b.  restoration of all back pay and allowances effective 2 July 2003, the date he was separated from the ILARNG; 

	c.  removal and/or correction of all improper and/or illegal records; and  

	d.  correction of his records to show no break in service between 2 July 2003, and the date of his reinstatement.

2.  Counsel states that: 

	a.  the applicant submitted a request to the Army Board for Correction of Military Records (ABCMR) on 6 May 2006, to correct his records as indicated above.  He further submitted details of the circumstances surrounding his Qualitative Retention Board’s (QRB) refusal to retain him as a member of the ILARNG.  As part of the analysis, the ABCMR received a favorable advisory opinion from the National Guard Bureau (NGB).  Despite the favorable opinion, the ABCMR returned the applicant’s request without action since he did not exhaust his administrative remedies.  The applicant petitioned the State of Illinois Adjutant General who approved his petition to reenlist in the ILARNG at his previous rank and in his previous specialty.  In return, the applicant agreed to dismiss his petition to the ABCMR.  The NGB concurred with the State Adjutant General.  However, the relief offered by the ILARNG differed from that the applicant requested from the ABCMR.  As such, the applicant requested full relief; however, the State Adjutant General denied full relief.  The applicant is now resubmitting his request to the ABCMR; 

	b.  in February 2003, the applicant’s records were considered by the ARNG 20-year Qualitative Retention Program (QRP) Board.  The Board elected not to retain him and he was accordingly discharged, three years shy of his eligibility for retirement.  The QRP Board did not inform the applicant of the specific reasons of his non-retention; however, the applicant had been placed on the weight control program for failing two consecutive Army physical fitness tests (APFT’s).  His unit violated APFT protocols and the QRP Board reviewed inaccurate and often false weight control documentation.  In several cases, the applicant’s unit selectively applied standards against him, but not others who failed the APFT.  The applicant subsequently filed a complaint with the Office of the Inspector General (IG), whose findings substantiated some of the applicant’s allegations;

	c.  the applicant served in the ILARNG and the Active Guard Reserve (AGR) program.  He was promoted to staff sergeant (SSG)/E-6 in May 1989 and was assigned to D Company, 129th Infantry, Pontiac, Illinois, as a supply sergeant.  He held several key positions, was awarded several awards and decorations, had excellent evaluation reports throughout his military career, and his promotion potential was superior;

	d.  on 4 August 2000, the applicant failed his APFT and was placed in a weight control program; yet, he was marked “success” on his physical fitness and military bearing portion of his evaluation report.  He also continued to make progress by losing weight.  On 20 May 2002, he failed another APFT that he assumed was a diagnostic test.  He was not counseled and his evaluation report, again, showed he was making progress and that his overall performance was successful, while his overall potential continued to be superior;


	e.  on 23 February 2003, the QRP Board elected not to retain the applicant.  The applicant assumed his non-retention was due to his weight control issue.  He subsequently filed a complaint with the IG regarding the unit’s inconsistencies, failure to document his weigh ins, submitting false body fat percentages, and selectively enforcing standards.  The IG substantiated most of the applicant’s claims of materiel error, yet found that the applicant should have been discharged 2 years and 6 months earlier for failing his APFT in 2001; 

	f.  the applicant’s Enlisted Qualitative Retention Personnel Summary contained incomplete and inaccurate information.  It showed the applicant had a 30.81 percent body fat and that he weighed at 220 pounds in June 2002 and 221 pounds in July 2002, but there was no documentation to substantiate such entries.  Furthermore, he was never counseled and had no knowledge of his diagnostic APFT results.  Had he been counseled, he would have made the necessary adjustments.  The QRP Board reviewed inaccurate information; 

	g.  the applicant was not weighed a month after he was placed on the weight control program and he was not informed of the regulatory monthly weight loss of 3 to 8 pounds per month.  The QRP Board had no visibility of any progress made by the applicant.  The IG report substantiated this finding and stated that the applicant could not have been separated for failure to make adequate weight progress;

	h.  the unit did not enforce standards across the board.  Some Soldiers who failed their APFT did not have their favorable personnel actions suspended as required by regulatory guidance.  Additionally, some who failed their APFT were even promoted.  Other Soldiers who also went before the QRP Board were retained despite their APFT failures.  The IG report pointed out the unit’s gross non-compliance with physical fitness standards, and stated that the applicant should have been separated 2 years and 6 months earlier, which is yet another example of the unit’s failure to adhere to regulations.  Doing so, unfairly negated the fact that the applicant’s file contained material errors when it was considered by the QRP Board; and

	i.  the claim that the QRP Board’s decision was based on the applicant’s entire service record, lack of military schooling, mediocre evaluations, and low potential, is inconsistent with his outstanding record.  Counsel concludes that the Enlisted Qualitative Retention Personnel Summary contained inaccurate information.




3.  Counsel provides the following additional documentary evidence in support of the applicant’s request: 

	a.  NGB Form 22 (Report of Separation and Record of Service), dated 3 July 2003;   

	b.  the applicant’s DA Forms 2166-7 [Noncommissioned Officer (NCO) Evaluation Report] for the periods 8905 to 9004; 9005 to 9104; 9205 to 9304; 9305 to 9404; 9405 to 9410; 9411 to 9510; 9511 to 9610; 9611 to 9710; 9711 to 9810; 9911 to 0010; and 0011 to 0110;

	c.  DA Form 2166-8 [Noncommissioned Officer (NCO) Evaluation Report] for the periods 200103 to 200210; 200501 to 200510; 200511 to 200603; and 20060401 to 20070228;

	d.  Promotion Orders to SSG/E-6, dated 22 March 1991;  

	e.  DA Form 1059 (Service School Academic Evaluation Report), dated 11 October 1991 (Basic NCO Course);  

	f.  Orders, dated 8 December 1989, awarding the applicant the Army Achievement Medal, and orders, dated 31 January 1991, awarding the applicant the Good Conduct Medal;

	g.  State of Illinois Military Attendance Ribbon, dated 14 January 1991 and 17 September 1996;

	h.  memoranda, dated 6 October 1992 and 2 July 2001, awarding the applicant the Army Reserve Component Overseas Training Ribbon; 1 October 1994, awarding the applicant the Humanitarian Service Medal; 29 September 1995, awarding the applicant the Armed Forces Reserve Medal; and 29 September 1995, awarding the applicant the Reserve Component Achievement Medal; 

	i.  Standard Form 93 (Report of Medical History), dated 20 December 2001;  

	j.  memorandum, Notification of Qualitative Retention Review, undated;

	k.  Departments of the Army and Air Force, ILARNG, Memorandum, dated 10 April 203, Non-selection for Continued Unit Participation;  

	l.  Enlisted Qualitative Retention Personnel Summary;

	m.  DA Form 2-1 (Personnel Qualification Record); 

	n.  DA Form 705 (Army Physical Fitness Test Scorecard), dated 22 May 2002;  

	o.  two character reference letters, dated 24 December 2003 and 7 July 2003;

	p.  ABCMR letter, dated 7 March 2008, furnishing the applicant a copy of an NGB advisory opinion;

	q.  ABCMR letter, dated 5 April 2007, notifying the applicant of his failure to exhaust administrative remedies;

	r.  State of Illinois Adjutant General letter, dated 13 February 2008, option to reenlist in the ILARNG;

	s.  An NGB letter, dated 19 March 2008, concurring with the State of Illinois Adjutant General letter;

	t.  applicant’s counsel letter, dated 12 March 2008, responding to the State of Illinois Adjutant General letter; and 

	u.  State of Illinois Adjutant General letter, dated 8 April 2008, rejecting the applicant’s counsel’s letter. 

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he enlisted in ILARNG for a period of 6 years on 11 August 1981.  He subsequently entered active duty for training (ADT) on 14 June 1982, completed basic combat and advanced individual training, and was awarded military occupational specialty (MOS) 62B (Construction Equipment Repairer).  He was honorably released from ADT to the control of the ILARNG on 9 October 1982.  

2.  On 14 June 1989, the applicant was ordered to full time National Guard duty in an AGR status from 2 September 1989 to 10 August 1993 in the rank of sergeant (SGT).  He was assigned to Company D, 2nd Battalion, 129th Infantry, Pontiac, Illinois.  He was subsequently promoted to SSG/E-6 on 1 April 1991 and was awarded MOS 76Y (Supply Specialist) on 13 March 1992.  

3.  On 21 October 1996, the applicant was reassigned to Headquarters and Headquarters Company, 1st Battalion, 131st Infantry, ILARNG, Joliet, Illinois, effective 15 November 1996.
4.  The applicant’s awards and decorations include the Good Conduct Medal (3rd Award), the National Defense Service Medal (2nd Award), the Noncommissioned Officer’s Professional Development Ribbon with numeral 2, the Army Service Ribbon, the Army Achievement Medal, the Army Commendation Medal, the Army Reserve Component Overseas Training Ribbon (2nd Award), the Army Reserve Components Achievement Medal, the Humanitarian Service Medal, the Armed Forces Reserve Medal, and several other State medals and ribbons.    

5.  On 5 September 2001, Departments of the Army and Air Force, ILARNG, issued the FSM a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This letter notified the FSM that he had completed the required years of service and would be eligible for retired pay upon application at age 60.

6.  On or about 14 December 2002, by memorandum, the Commander, Headquarters and Headquarters Company, 1st Battalion, 131st Infantry, ILARNG, notified the applicant that his military personnel records jacket (MPRJ) was scheduled for review by the QRB on 25 February 2003, in accordance with Army Regulation 135-205 (Enlisted Personnel Management).  He was also notified that the Board would select the best qualified personnel for continued service.  Furthermore, the applicant was also notified to review the Enlisted Qualitative Retention Personnel Summary which was prepared for the QRB and he was encouraged to review the commander’s recommendation and submit comments for inclusion in the MPRJ.  The applicant was also reminded that he had the right to correspond with the President of the Board and invite attention to any matters in his record that he felt should be addressed and that The Adjutant General’s decision on the Board’s recommendation was final (emphasis added).

7.  The applicant’s Enlisted Qualitative Retention Personnel Summary clearly showed the applicant weighed at 221 pounds, had a 30.81 per cent body fat, and that he failed his APFT.  The applicant’s immediate commander further remarked that the applicant was one of the most knowledgeable Soldiers in the supply arena and that he displayed skills in assisting the battalion mess and transportation sections in the successful accomplishment of their missions.  The immediate commander recommended the applicant’s retention and authenticated this summary by placing his signature and date in the appropriate block.

8.  The applicant entered in the Enlisted Qualitative Retention Personnel Summary: “I am currently flagged for overweight and PT.  I am currently under a doctor’s care for a planter’s wart on my left foot and have a profile not to run.  When the planter’s wart is done being treated and has healed, I will be able to start working on physical fitness training, which will allow me to meet both the physical fitness standards and weight standards.”  The applicant authenticated this form by placing his signature and date in the appropriate block. 
9.  On 10 April 2003, the Departments of the Army and Air Force, ILARNG, notified the applicant by memorandum that he was a qualified Soldier in the ILARNG and was considered for retention by the QRB; however, he was not selected.  In accordance with Army Regulation 135-205, he would be discharged no later than 9 June 2003.  The applicant was also notified that in determining personnel best qualified for continued unit participation, the Board discharged its duties in a thorough and impartial manner. 

10.  On 7 June 2003, Department of Military Affairs, ILARG, published Orders 158-005, releasing the applicant from the AGR, effective 3 July 2003, with entitlement to full separation pay, at 10 percent, based on 17 years, 3 months, and 22 days total active federal service.

11.  On 5 August 2004, the applicant petitioned the ABCMR to correct his records as follows: reinstatement into the ILARNG as an AGR member; receipt of his Federal Active Status; receipt of all back pay and allowances due; removal and/or correction of all military records to show no break in service.  The ABCMR notified him, by letter, that he had not exhausted his administrative remedies.  There was no evidence which showed he had requested The Adjutant General of the State of Illinois or The Chief, Army National Guard to revoke his separation from the ILARNG or reinstate him into the ARNG.

12. On 8 May 2007, the applicant, again, petitioned the ABCMR as follows:   reinstatement back into the ILARNG, Federal Active Status; receipt of all back pay and allowances due; removal and/or correction of all military records shown to be improper/illegal; and correction of his record to show no break in service.  Again, he was notified by letter that there was no evidence which showed he had requested The Adjutant General of the State of Illinois or The Chief, Army National Guard to revoke his separation from the Illinois Army National Guard or reinstate him into the Army National Guard.  In view of the foregoing, his application was returned without prejudice and without action being taken by the Board.  Furthermore, he was advised that should his case not be resolved to his satisfaction, and he still felt that an error or injustice exists; he could resubmit his application to the ABCMR, including evidence of the denial of his request for administrative correction of his records.

13.  On 21 June 2007, the applicant petitioned The Adjutant General, ILARNG, for reinstatement into the ILARNG.  

14.  On 13 February 2008, The Adjutant General offered to settle the applicant’s matter by affording him the opportunity to reenlist in the ILARNG at his previous rank/grade and he was offered an AGR position in his previous career specialty similar to the one he previously held, contingent upon him agreeing to dismiss with prejudice his petition before the ABCMR and meeting all reenlistment qualifications, including height and weight.  

15.  On 12 March 2008, through counsel, the applicant agreed to settle the matter contingent on reinstatement into the ILARNG and federal active status, restoration of back pay and allowances due from the date of separation (2 July 2003) to the date of reinstatement; removal of all improper/illegal records; correction of records to show no break in service; retirement on the date he would be reinstated, revocation of all separation documents and transfer to the USAR Retired Reserve, effective 3 July 2006.  In exchange, he would agree to have his ABCMR petition dismissed.

16.  On 19 March 2008, the ARNG, concurred with the State of Illinois Adjutant General letter, dated 13 February 2008 to afford the applicant the opportunity to reenlist in the ILARNG at his previous grade and rank.  The NGB further concurred with offering the applicant and AGR position in his previous career specialty similar to the one he held before. 

17.  On 8 April 2008, The Adjutant General notified the applicant’s counsel that he could not agree to the settlement terms offered in his 12 March 2008 letter.  He stated that the offer made on 13 February 2008 comprised all the relief that the ILARNG was authorized to provide the applicant.  The Adjutant General further requested that the applicant and/or counsel advise his office if they intended to accept the terms of his 13 February 2008 offer or if other avenues of relief would be pursued.  There is no record that the applicant and/or his counsel responded to The Adjutant General.

18.  The applicant submitted a copy of the IG Report which included several documents and/or statements concerning material errors which he felt were improperly included in his Retention Board.  The IG report stated that the applicant had a history of APFT failures and exceeding weight standards and that the unit was also delinquent in their administration of both programs.  The IG report concluded that the root cause of the applicant's allegations was the commander/responsible individuals not enforcing the standards.  However, with regard to the Board's decision not to retain the applicant, the IG report concluded that the Board's decision was clearly justifiable.  

19.  The applicant submitted copies of his NCOERs and awards.  The applicant had a history of successful ratings throughout most of his career with some instances of "need improvement" ratings due to weight.


20.  Army Regulation 135-205 prescribes policies and responsibilities for the Qualitative Retention Program (QRP).  It states, in pertinent part, that the purpose of the QRP is to determine retention potential and acceptability for reenlistment or extension of enlistment.  In general, the QRP provides for a review every two years of Reserve Component Soldiers serving in ARNGUS units and Army Reserve Troop Program Units (TPU) who have 20 or more years of qualifying service for non-regular retired pay and who are within the prescribed zones of consideration. 

21.  The QRP is a continuing qualitative retention program essential to provide for career progression of qualified enlisted personnel at proper intervals in their careers.  The QRP ensures 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.  The QRP provides career incentives; ensures an opportunity for advancement to the higher grades during the peak years of a Soldier's effectiveness; satisfies the continuing requirement for senior NCOs by the appropriate commands; and provides 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, failure to meet body fat standards, and so on.  Paragraph 4-16a(4) of Army Regulation states that the convening authority “will require board reconsideration of any individual case in which material error in the record as reviewed by the board is established.” The language is mandatory, not permissive.  The regulation states that this may be done “at any time during 90 days following adjournment of the board.”

22.  The QRP evaluates the future benefits that can be expected to accrue to the ARNGUS or USAR (as appropriate) from the continued service of each person. The board considers the Soldier's performance as demonstrated by evaluation reports, review of the Soldier's military personnel file, and other evidence contained in the official record presented to the Board; medical condition and physical fitness are such that there are no significant assignment limitations; and any other factor having a bearing on a Soldier's future performance and contribution to a unit. 

23.  Soldiers who were not selected for retention in ARNGUS units or USAR TPUs are considered fully qualified for continued participation in the USAR as assigned IRR Soldiers if they have not reached 60 years of age.  However, Soldiers not selected for retention will be processed for transfer (ARNGUS), or reassignment (USAR), according to the option selected and indicated by endorsement to response memorandum.  The convening authority will issue selection or non-selection letters within 30 days after approval of the board report.  Transfer or reassignment must be completed within 90 days of the date of the non-selection letter for both ARNGUS and USAR Soldiers. 

DISCUSSION AND CONCLUSIONS:

1.  The rules on “qualitative retention” are set forth in AR 135-205.  All ARNG Soldiers with 20 years of qualifying service towards non-regular retirement must be considered by a board for retention or non-retention, with certain exceptions that do not apply to the applicant.  The evidence of record shows that the applicant was notified by his commander of his upcoming QRB.  He was provided an opportunity to review his records and submit matters that he felt should have been addressed.  He reviewed the Enlisted Qualitative Retention Personnel Summary and authenticated this form by placing his signature in the appropriate place.

2.  The evidence of record further shows that the QRP found the applicant a fully qualified Soldier of the ILARNG and considered him for retention, but did not select him.  In making this decision, the QRP reviewed the applicant's entire service record, including his evaluation reports, awards and decorations, and other factors having a bearing on a Soldier's future performance and contribution to a unit.  The "other factors" may have included the APFT failures and weight issues; but, there is no evidence that the applicant's APFT failures and weight issues were the only reasons the applicant was not selected for retention.

3.  The evidence of record also shows that, subsequent to his petition to The Adjutant General, the applicant was provided with an opportunity to reenlist, provided he met the reenlistment requirements; however, he rejected the offer.  He was, again, offered to reenlist a second time, but did not respond.  It appears that the applicant has no desire to reenter the ILARNG and serve.

4.  With respect to counsel's arguments:

	a.  the IG report substantiated some of the applicant's allegations and confirmed that the unit leadership was faulty in administering some of its programs; however, the issue at hand is not the unit's poor leadership or other unit Soldiers as counsel argues.  The issue is that the applicant's entire service record was considered by the QRP.  It is very reasonable to presume that had all those unit issues raised by the applicant and/or his counsel been right, the end result would have been no different;


	b.  the applicant's NCOERs reflect that he mostly met the standards required of him as an NCO and leader.  In the 15 NCOERs submitted by the applicant, he was rated "Excellent" 7 times, “Successful” 51 times, and "Needs Improvement" 2 times;

	c.  the IG report clearly shows the applicant had a history of APFT failures and weight control issues, and faulted the unit's poor leadership as a contributing factor.  However, the IG report also clearly showed the QRB's decision not to retain the applicant was justifiable;  

	d. implicit in the Army's promotion, retention, or any personnel management system, is the universally accepted and frequently discussed principle that NCOs have a responsibility for their own careers.  It is further noted that the applicant knew or should have known that he had a history of APFT failures and exceeding weight standards.  The general requirements to meet standards and workings of the system processes are widely known and specific details such as QRP dates, promotion board dates, and promotion zones are widely published in official, quasi-official and unofficial publications, and in official communications; 

	e.  it is not within this Board's purview to investigate the applicant's unit leadership or determine why selected Soldiers of that unit were promoted, retained, or favored.  Counsel is reminded that the IG report already addressed these issues and the ABCMR is not an investigative agency; and 

	f.  there is no evidence that the applicant reenlisted and/or served in the Regular Army, the ARNG, or the USAR since his separation on 2 July 2003.  He should not be allowed to benefit financially from service he did not perform.  He is thus neither entitled to restoration of pay and allowances nor adjustment of his record to show he had no break in service.  Likewise, he should not be credited with service he did not perform for the purpose of regular or non-regular retirement.

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 this requirement.  In view of the foregoing, the applicant is not entitled to any of the requested relief.






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.



															XXX
      _______ _   _______   ___
               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)                                         AR20080009860



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ABCMR Record of Proceedings (cont)                                         AR20080009860



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