IN THE CASE OF:	  

		BOARD DATE:  2 January 2014

		DOCKET NUMBER:  AR20130005041 


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 non-selection by a Qualitative Retention Board (QRB) be reversed and he be reinstated in the Massachusetts Army National Guard (MAARNG) in an Active Guard Reserve (AGR) status.

2.  The applicant states:

* he was unjustly not retained by the Fiscal Year (FY) 12 MAARNG QRB
* he had been serving as an AGR Soldier since 7 May 2002
* the MAARNG QRB saw a noncommissioned officer evaluation report (NCOER) that incorrectly stated he failed an Army Physical Fitness Test (APFT)
* this document was only in his record for a little over a day before it was replaced with a corrected NCOER that stated he did not take an APFT during the rating period due to temporary profiles for a knee injury
* the interactive Personnel Electronic Records System (iPERMS) shows the board saw the incorrect document	

3.  He further states:

	a.  he was informed by his supervisors that he was not being retained by the QRB on 30 March 2012.  He made a verbal complaint to the Inspector General's (IG) office that same day.  Several months passed by and he was finally told that the IG office did not have any recourse to help him.  He did not feel there was anything in his record that would justify the QRB not retaining him, so he decided to try to figure out what might have caused it on his own.
	b.  he recalled there was an issue with his latest NCOER right before the QRB was conducted.  He reviewed his NCOER and it stated he had failed the APFT, which was not true.  He had not taken one during the rating period due to temporary profiles for a knee injury.  He pointed the error out to his rater, but she said the form required her to enter pass or fail and she couldn't put pass because he hadn't taken an APFT.  He disagreed and made it known to her, but he signed the NCOER anyway because it would have been missing from his record when the board met if he didn't, and he hadn't stated anything was missing from his NCOER in his memorandum to the board.  The NCOER was placed in his record that day.

	c.  he received a phone call from his rater that night and she said she agreed with him and would figure out a way to leave the pass/fail field blank on his NCOER the next day.  The next morning the NCOER that stated he failed an APFT was removed from his record at 1010 hours on 9 February 2012.  His record had been downloaded for the QRB at 0912 hours on 9 February 2012.  Therefore, the QRB had the NCOER that stated he failed an APFT in their packet.

	d.  a corrected NCOER was completed and put into his record at 0638 hours on 13 February 2012, the same day the QRB convened.  He did not realize at the time the records were downloaded before the QRB met and he incorrectly assumed they would be reviewing the corrected NCOER.

	e.  once he made the discovery, he pointed out the error to his chain of command.  Eventually he was told to prepare a formal appeal to The Adjutant General (TAG), through the G1, which he did on 5 December 2012.  His appeal was returned without action by G1 stating he had to make an appeal based on material errors within 60 days of the adjourning date of the QRB.  The QRB convened on 17 February 2012.  He filed his verbal complaint with the IG's office the same day he was notified he wasn't being retained (30 March 2012).  He conducted his own investigation after he was told the IG office could not help him, which was well past the 60 days.  He did not know the QRB saw the NCOER that stated he failed an APFT until long after 60 days from the QRB's adjournment.

4.  The applicant provides:

* Memorandum, dated 5 December 2012, to the Massachusetts TAG
* Memorandum, dated 19 December 2012, from the G1 MAARNG
* iPERMS transaction logs
* DA Form 5500 (Body Fat Content Worksheet)
* DA Form 705 (APFT Scorecard)
* DA Form 3349 (Physical Profile)
* DD Form 214 (Certificate of Release or Discharge from Active Duty) 
* National Guard Bureau Form 22 (Report of Separation and Record of Service)
* Discharge orders, dated 31 January 2013
* Two DA Forms 2166-8 (NCOER) for the period covering 1 January 2011 through 31 December 2011

CONSIDERATION OF EVIDENCE:

1.  Having prior inactive service in the U.S. Army Reserve (USAR) and active service in the Regular Army, the applicant enlisted in the MAARNG on 2 May 1989.  He entered active duty on 7 May 2002 in an AGR status.  He was promoted to sergeant first class on 9 October 2007.

2.  He provides an NCOER covering the period 1 January 2011 through 
31 December 2011 which shows he failed an APFT on 1 October 2011.  He authenticated the NCOER on 8 February 2012.

3.  He also provides an NCOER covering the period 1 January 2011 through 
31 December 2011 which shows the word "FAIL" was removed from the APFT portion of the NCOER.  He authenticated the NCOER on 12 February 2012.

4.  On 7 February 2012, he was issued a permanent profile for osteoarthritis in the cervical region of the spine.  The profile states APFT limitations have been authorized. 

5.  He was non-selected for retention by the FY 12 QRB in February 2012.

6.  On 5 December 2012, he appealed the QRB decision based upon the NCOER that incorrectly stated he failed an APFT.  His appeal was returned without action on 19 December 2012 because the timeframe to appeal had passed. 

7.  On 10 February 2013, he was released from active duty for completion of required active service.

8.  He was honorably discharged from the MAARNG on 10 February 2013 and assigned to the USAR Control Group (Individual Ready Reserve) the following day.     

9.  On 3 June 2013, the Massachusetts TAG disapproved the applicant's QRB appeal and stated the appeal did not contain any additional information that would justify reversal of the approved board recommendations. 

10.  In the processing of this case, on 20 June 2013, a staff advisory opinion was obtained from the Chief, Personnel Policy Division, National Guard Bureau (NGB).  The advisory official recommends disapproval of the applicant's request.  The opinion states:

	a.  the applicant was non-selected for retention in February 2012 and transferred from Title 32 AGR status to the USAR Control Group (Individual Ready Reserve) in February 2013.  

	b.  he cannot appeal the QRB'S decision per Army Regulation 135-205 (Enlisted Personnel Management), paragraph 2-17f, which states "A Soldier may not appeal non-selection for retention by a QRB other than for reason of ineligibility for consideration."  He was eligible for consideration for separation by the QRB because of his time in service.

	c.  the only basis of appeal for material errors in his record as reviewed by the board is within 60 days of the board adjourning.  He attempted to pursue this type of appeal, but he did not do it within the 60 days timeframe allowed.  The board adjourned on 17 February 2012 and he was notified of the decision on 
26 March 2012.  He appealed it on 5 December 2012.  This appeal attempt was past the 60 days allowed by the regulation.  In a memorandum, dated 
19 December 2012, the State notified him that his appeal was returned without action because the timeframe to appeal passed.  Once this case was submitted to NGB and then reviewed by Massachusetts, the State realized the return without action memorandum should have been a disapproval signed by the State Adjutant General, which was then produced; this memorandum is dated 3 June 2013.    

	d.  the applicant's NCOER referenced in this case should be corrected by stating "Pass" and the bullet comment should be removed that states "did not take APFT during rating period" and he should appeal to the Department of the Army Special Review Board for these corrections.

	e.  the State concurs with this recommendation.

11.  A copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He responded and stated:

	a.  he has not seen the memorandum that NGB states was produced by the Massachusetts TAG, dated 3 June 2013.  

   b.  he also disagrees with the comments from NGB regarding his NCOER that is referenced in this case.  It should not state pass in the APFT section and the comment stating he did not take an APFT during this rating period should remain as he was on temporary profiles and did not take an APFT during this rating period. 

12.  Paragraph 2-15a(4) of Army Regulation 135-205 states 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 convening authority may do this at any time during 60 days after the board adjourns.

DISCUSSION AND CONCLUSIONS:

1.  Evidence shows the applicant was non-selected for retention in the AGR program on 17 February 2012.  

2.  His contention the NCOER that stated he failed an APFT was reviewed by the QRB despite an attempt by his chain of command to fix the error was noted.  However, the governing regulation states the only basis of appeal for material errors in a Soldier's record as reviewed by the board is within 60 days of the board adjourning.  He appealed the QRB decision in December 2012.    

3.  He cannot appeal the QRB's decision because the governing regulation states a Soldier may not appeal non-selection for retention by a QRB other than for reason of ineligibility for consideration.  The advisory official states he was eligible for consideration for separation by the QRB because of his time in service.  Therefore, there is insufficient evidence on which to base the requested relief.

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)                                         AR20130005041





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ABCMR Record of Proceedings (cont)                                         AR20130005041



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