IN THE CASE OF:	

		BOARD DATE:	  13 April 2010

		DOCKET NUMBER:  AR20090009327 


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 his reentry eligibility (RE) code be changed to a more favorable code.

2.  The applicant's argument and supporting documents are provided by counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the following relief be provided to the applicant:

	a.  set aside of his 2 June 1992 discharge;

	b.  constructive reinstatement of service;

	c.  voluntary retirement;

	d.  back pay and allowances due as a result of relief outlined above; and

	e.  issue a new DD Form 214 reflecting voluntary retirement.

2.  Counsel states the following:

	a.  The DA-imposed bar to reenlistment on the applicant as a result of his selection for separation under the Qualitative Management Program (QMP) was unjust.

	b.  The QMP selection action was in part based on an improper letter of reprimand (LOR) issued on 24 April 1989 and an improper Noncommissioned Officer Evaluation Report (NCOER) covering the period September 1988 to April 1989.

	c.  The improper LOR and NCOER in question were the result of racial prejudice and bias on the part of the applicant's sergeant first class/E-7 supervisor/rater.

	d.  The command adjutant/equal opportunity officer, a captain, failed to follow up on the applicant's fear for his safety due to the racial prejudice displayed by his supervisor.

	e.  The supervisor/rater retaliated against the applicant with an extremely poor NCOER after learning of the applicant's equal opportunity complaint against him.

	f.  A successful appeal of the NCOER in question failed to result in the removal of the senior rater comments that were based on the rater's evaluation that was removed as a result of the appeal.

	g.  The successful appeal of the NCOER did not help the applicant remain in service because it was completed after the QMP appeal had already been denied.

	h.  The applicant's NCOER for the period January through August 1988 in which the reviewer recommended "promote ahead of peers" was not used in the bar to reenlistment letter.

	i.  The applicant was awarded the third award of the Army Good Conduct Medal (AGCM) for the period 10 August 1988 through 9 August 1991, which overlapped the period covered by the NCOER used as a basis for the QMP action.

	j.  The applicant's military service spanned more than 9 years and he received only the one unfavorable NCOER, which was originated by the supervisor/rater in retaliation for the applicant's complaint against him.

	k.  The second LOR, dated 24 April 1989, used in the QMP selection process also originated from the supervisor/rater and should be voided and removed from the applicant's record based on the supervisor's history of discrimination.

3.  Counsel provides a self-authored brief and the 12 enclosures identified on the attached exhibit list in support of the 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 enlisted in the Regular Army and entered active duty on 10 August 1982.  Upon completion of initial entry training, he was awarded military occupational specialty 75B (Personnel Administration Specialist).

3.  On 11 March 1987, while stationed in Germany, the applicant received a general officer memorandum of reprimand (GOMOR) for driving a vehicle while intoxicated on 23 August 1986.

4.  On 24 April 1989, while serving with the U.S. Army Recruiting Battalion, Sacramento, California, the applicant received an LOR for being disrespectful in language and attitude towards his immediate supervisor.

5.  The applicant received two unfavorable NCOER's covering the periods January through August 1988 and September 1988 through April 1989 and he appealed these reports.

6.  An undated letter on file appears to show that sometime in 1990 the applicant's supervisor/rater was relieved of his duties based on making racially offensive comments and remarks while in the personnel staff NCO (PSNCO) position he held as the applicant's supervisor.

7.  On 1 November 1991, a memorandum, subject:  DA Imposed Bar to Reenlistment Under the QMP, pertaining to the applicant was issued by the U.S. Army Enlisted Records and Evaluation Center (EREC), Fort Benjamin Harrison, Indiana.  It notified the applicant that he was selected for separation under the QMP and was being barred from reenlistment as a result.

8.  The QMP notification memorandum also contained a list of documents upon which the applicant's QMP selection was based.  This list included an NCOER for the period September 1988 through April 1989; an LOR, dated 11 March 1987; and an LOR, dated 24 April 1989.

9.  The applicant submitted an appeal to the DA-imposed bar to reenlistment and on 2 March 1992 he was notified his appeal was denied by a DA Standby Advisory Board.

10.  An EREC memorandum for record, dated 4 May 1992, confirms that based on the Enlisted Special Review Board (ESRB) decision of 23 April 1992, the applicant's appealed NCOER's were changed and replaced with corrected copies excluding the rater/supervisor's evaluations.  The ESRB decision determined the senior rater evaluations were valid and left them in the record.

11.  On 28 May 1992, the applicant was discharged under the provisions of paragraph 16-8, Army Regulation 635-200 (Personnel Separations), by reason of reduction in authorized strength, QMP.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows that based on the authority and reason for his separation, he was assigned a separation program designator (SPD) code of JCC and an RE code of 4.  It also shows he completed 9 years, 9 months, and 19 days of creditable active service.

12.  Army Regulation 601-280 (Total Army Retention Program), paragraph 10-5 in effect at the time, governed DA QMP screening procedures and stated that appropriate DA Selection Boards would review the performance portion of the official military personnel file, the DA Form 2A (Personnel Qualification Record - Part I) and DA Form 2-1 (Personnel Qualification Record - Part II), and other authorized documents.  From those documents, the board would evaluate past performance and estimate the potential of each service to determine if continued service was warranted.

13.  Army Regulation 601-280, paragraph 10-8 in effect at the time, provided that a Soldier could appeal the bar to reenlistment imposed under the QMP based on improved performance and/or material error in the Soldier's record when reviewed by the selection board.  The appeal must have been submitted within 45 days of completion of the statement of option and would include substantive comments on the Soldier's performance and potential by each member of the chain of command. 
Paragraph 10-10 provided that the appeal was considered by the QMP Appeals Board normally conducted in conjunction with centralized enlisted selection boards. 
The QMP Appeals Board would consider the Soldier's potential for future service and promotion, review the Soldier's complete record "de novo," and notify the Soldier's commander (lieutenant colonel or above) of the results of the appeal.

14.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of Armed Forces RE codes, including Regular Army RE codes.  RE-4 applies to persons who are permanently disqualified for continued Army service.

15.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities, reasons for separating soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states, in pertinent part, that the SPD code of JCC is the appropriate code to assign to Soldiers separated under the provisions of paragraph 16-8, Army Regulation 635-200, by reason reduction in authorized strength - qualitative early transition program.  The SPD/RE Code Cross Reference Table establishes RE-4 as the proper code to assign members separated with this SPD code who have received a DA-imposed bar to reenlistment under the provisions of the QMP.

DISCUSSION AND CONCLUSIONS:

1.  The contentions of counsel and the applicant and the supporting documents provided were carefully considered.  However, the evidence is not sufficient to support granting the requested relief.

2.  The evidence of record confirms the applicant's rater/supervisor was, in fact, racially prejudiced and biased and was ultimately removed from his position for this reason.  However, while this behavior by the supervisor was deplorable, it does not appear it was the sole or primary reason for the applicant's QMP selection and does not absolve him of responsibility for the duty performance that led to his QMP selection and separation.

3.  The evidence of record confirms that in addition to the 24 April 1989 LOR the applicant received based on his interaction with the rater/supervisor in question, he also received a GOMOR on 11 March 1987 for driving while intoxicated.  In addition, the senior rater evaluations on the contested NCOER's revealed poor duty performance and were upheld as valid evaluations during the ESRB appellate review.

4.  The applicant's QMP selection was based on an evaluation of his entire record of service by the QMP selection board.  Even accepting the premise that the 24 April 1989 LOR was the result of inappropriate actions on the part of the rater/supervisor and should have been removed from the record, there was sufficient evidence of substandard performance on the part of the applicant in other documents in his record.

5.  Since it appears the applicant was properly afforded all appellate reviews associated with the QMP and other actions and given there were documents on file not related to the rater/supervisor in question that supported his QMP selection, it would not be appropriate to grant the requested relief in this case.

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

_____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)                                         AR20090009327



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090009327



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1