IN THE CASE OF:	  

		BOARD DATE:	  30 December 2008

		DOCKET NUMBER:  AR20080015837 


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, that the Letter of Reprimand (LOR), dated 13 June 1983, be removed from his Official Military Personnel File (OMPF) and that the reason for his discharge be changed. 

2.  The applicant states, in effect, that he would not have been discharged under the Qualitative Management Program (QMP) had the LOR in question not been filed in his OMPF.

3.  The applicant provides his separation document (DD Form 214); a Department of the Army (DA), Office of the Deputy Chief of Staff for Personnel (DCSPER) letter; and the LOR in support of his application.  

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, 

has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records shows he enlisted in to the Regular Army (RA) and entered active duty on 7 January 1975.  It further shows he held and served in military occupational specialty (MOS) 66U (Medium Helicopter Technical Inspector) and MOS 67Y (AH-1 Attack Helicopter Repairer).  

3.  The applicant's Personnel Qualification Record (DA Form 2-1) shows, in Item 9 (Decorations, Awards and Campaigns), that he earned the following awards during his active duty tenure:  Army Service Ribbon, Army Achievement Medal, Aircraft Crewman Badge, Noncommissioned Officer Professional Development Ribbon, Army Good Conduct Medal, Overseas Service Ribbon 2nd Award), and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  His record documents no other acts of valor, significant achievement, or service warranting special recognition.  

4.  On 19 November 1975,  the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully having in his possession 7 ounces more or less of marijuana.  His punishment for this offense was a reduction from private first class (PFC) to private/E-1 (PV1), a forfeiture $180.00 per month for two months, and 45 days extra duty.

5.  On 20 May 1976, the applicant accepted NJP for wrongfully having in his possession an undetermined amount of marijuana.  His punishment for this offense was a reduction from PFC to private/E-2 (PV2), which was suspended for 3 months, a forfeiture of $150.00 and 15 days of extra duty.

6.  On 31 May 1983, while assigned to the 3rd Platoon, 242nd Aviation Company, 210th Combat Aviation Battalion, APO Miami 34006, the applicant received a Change of Rater Enlisted Evaluation Report (EER) for the period February through April 1983.  This report showed, in Part IIa (Principal Duty Title), that the applicant was evaluated as a Helicopter Repairer.  Part IIIc (Demonstrated Performance of Present Duty) showed that the rater provided generally favorable comments in Item 1 (Rater Evaluation); however, the rater did include the comment that indicated that despite the applicant's outstanding 

performance, "recent problems with drugs has removed him from Technical Inspector Duties."  The rater finally recommended that the applicant be promoted with his peers.  

7.  Item 2 (Indorser's Evaluation) of the EER contained generally favorable comments from the Indorser.  However, the Indorser also commented that the applicant's positive urinalysis for drugs affected his duty performance.  The Indorser finally recommended that the applicant be retained on active duty and promoted with his peers but trained for a different MOS.
8.  On 13 June 1983, the applicant received an LOR from his battalion commander based on his positive urinalysis for marijuana.  On 22 June 1983, the applicant's brigade commander directed the LOR be filed in his OMPF.

9.  On 11 February 1986, the applicant was notified by the Enlisted Records and Evaluation Center (EREC) that he had been barred from reenlistment by DA under the provisions of the QMP.  The EREC QMP notification confirmed his QMP selection was the result of a determination made by the 2 December 1985 Sergeant First Class Promotion Board, subsequent to their comprehensive review of his file.  It further indicated that the board’s decision was based on the following documents, which were identified in an enclosure to the EREC QMP notification:  EER covering the period February through April 1983; 2 DA Forms 2627 (Record of Proceedings Under Article 15, UCMJ), dated 19 November 1975 and 20 May 1976; and the LOR, dated 13 June 1983.  

10.  An option election form was also provided to the applicant with the EREC QMP notification correspondence that gave the applicant the option to appeal the QMP selection, or to elect immediate discharge.  On 2 April 1986, the applicant completed this form and indicated that he intended to request immediate discharge.  

11.  On 1 May 1986, the applicant submitted a request for separation based on his inability to overcome the Bar to Reenlistment.  

12.  On 7 May 1986, the separation approval authority approved the applicant's request for separation and on 1 September 1986, the applicant was honorably separated accordingly.  The DD Form 214 he was issued shows he was separated under the provisions of chapter 16-5a, Army Regulation 635-200, by reason of DA Imposed Bar to Reenlistment.  It also confirms he completed a total of 11 years, 7 months, and 25 days of active military service and that he held the rank of staff sergeant upon his discharge.  


13.  Army Regulation 600-200, in effect at the time, prescribed the policies of the management of enlisted personnel.  Chapter 4, set forth the policy and prescribed the procedures for denying reenlistment under the QMP.  It stated, in pertinent part, that the QMP was based on the premise that reenlistment is a privilege for those whose performance, conduct, attitude, and potential for advancement met Army standards, and was designed to enhance the quality of the career enlisted force, selectively retain the best qualified Soldiers to 30 years of active duty, and deny reenlistment to non-progressive and nonproductive Soldiers, and encourage Soldiers to maintain their eligibility for further service.     

14.  The QMP consists of two major subprograms, the qualitative retention subprogram and the qualitative screening subprogram.  Under the qualitative screening subprogram, records for members in pay 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.  

15.  Army Regulation 635-200 sets forth the policies and procedures for the administrative separation of enlisted personnel of the Army.  Paragraph 16-5, in effect at the time, provided the authority for Soldiers who are denied or ineligible for continued active duty service to be separated upon their request.  It allowed Soldiers who perceived that they could not overcome a HQDA or locally imposed bar to reenlistment to request early separation.  

16.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures on the authorization for placement of unfavorable information about Army members in individual official personnel files.  It also contains the policy for appealing/petitioning for removal from or transfer of documents in the OMPF.  Paragraph 7-2, states in pertinent part, that the burden of proof to support removal of a document filed in the OMPF rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.  The regulation provides provisions that allow the transfer of a letter of reprimand from the performance (P) portion of the OMPF to the R portion of the OMPF.  However, the transfer of administrative letters of reprimand to the restricted portion of the OMPF will not normally serve as the sole basis for promotion reconsideration by a special board, unless approved by the Director of Military Personnel Management as a justified exception to policy.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he would not have been discharged under the provisions of QMP had his letter of reprimand, dated 13 June 1983, not been placed in his OMPF was carefully considered.  However, there is insufficient evidence to support this claim.

2.  By regulation, there must be clear and compelling evidence to support the transfer or removal of a LOR from a Soldier’s record.  The applicant has failed to satisfy the clear and compelling evidence regulatory standard that would support setting aside or the removal of the LOR in question from his OMPF.  Therefore, absent any evidence meeting this regulatory standard, there is an insufficient evidentiary basis to support removing the document in question from the applicant’s OMPF.

3.  The evidence of record ALSO confirms that EREC properly notified the applicant that he had been selected for the QMP by the December 1985 Sergeant First Class Promotion Board and that this decision was based on not only the LOR in question, but also on his EER covering the period February through April 1983, and two records of NJP on file.  It further shows that after being properly counseled on the effects of the QMP selection and of his options, the applicant elected not to appeal the QMP selection, and requested immediate discharge.  His separation processing based on the DA Imposed Bar to Reenlistment was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  As a result, there is also an insufficient evidentiary basis to change the reason for the applicant's discharge.  

4.  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

___x____  ___x____  ___x____  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.




      _______ _x   _______   ___
               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)                                         AR20080015837



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ABCMR Record of Proceedings (cont)	                                         AR20080015837



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