IN THE CASE OF:	  

		BOARD DATE:	 19 August 2014 

		DOCKET NUMBER:  AR20130021404 


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 following corrections:

	a.  removal of the comment shown in item 4 (Assignment Considerations) of his DA Form 2-1 (Personnel Qualification Record – Part II);

	b.  a change to item 26 (Separation Code) of his DD Form 214 (Certificate of Release or Discharge from Active Duty), from "JCC" to an unspecified separation code;

	c.  a change to item 27 (Reentry (RE) Code) of his DD Form 214, from "4" to an unspecified RE Code;

	d.  removal of a Headquarters, Department of the Army (HQDA) imposed bar to reenlistment; and

	e.  early retirement, or another separation that would allow him to keep the benefits granted under Title 10, U.S. Code (USC), sections 1174a or 1175.

2.  The applicant states:

   a.  His discharge was unjust because he was on a 6-year reenlistment contract that would have carried him into 19 years of service.  His selection for separation under the Qualitative Management Program (QMP) was a serious breach of his contract.  There was a false statement entered on his DA Form 2-1, stating "Reenlistment Denied Per HQDA Memo (PCRE-RP-Q 930405)," which barred him from reenlistment.  This was not true since he had completed           13 years of service at the time of his reenlistment on 1 May 1991.

   b.  His DA Form 2-1 was reviewed and signed by him on 26 November 1991. The false statement was entered on his DA Form 2-1 on 5 April 1993, well after his DA Form 2-1 was reviewed.  He had completed 16 years of service at the time of his discharge on 30 April 1994. 

   c.  His Army career was destroyed when he was denied his retirement.  He sacrificed 16 years of his life for his country and this was how he was repaid by being denied his reenlistment because of a draw-down.  He served honorably and earned his retirement.  

   d.  The QMP has had a devastating effect on his life and has temporarily crippled his standard of living and quality of life.  Regardless of the time that has elapsed, he was unjustly discharged from the Army.  He is not pleased with what the Army allowed to happen to him.  There were no Article 15s, no bad conduct, no letter of reprimand, no formal counseling, and only one bad noncommissioned officer evaluation report (NCOER) out of 16 years of faithful and honorable service.

   e.  Based on a review of the categories warranting separation under the QMP, he was never in one of those categories.  There are no sufficient documents to support the bar.  His QMP was based on trumped-up statements by various officers of the 101st Support Battalion who did not know enough about him to make an accurate assessment of him as a Soldier or fair judgment of his character.  Captain (CPT) Bxxxx (the outgoing company commander) was the only one who knew him and wrote a statement supporting his retention in the Army.  

   f.  The RE Code "4" listed in item 27 of his DD Form 214 has prevented him from entering any other branch of the military.  The officer who pushed the QMP did not check his records because if they had they would have seen that he had reenlisted years before the QMP in 1993.  His discharge was not in the best interest of the Army because he was in excellent physical condition, among the best qualified, and a well-seasoned Soldier.  Soldiers were being separated from the Army for any reason.

   g.  He would like for the Board to look into this great injustice and grant his request to be retired with all of his benefits that he rightfully earned.  To retire from the Army was his goal because he was proudly serving his country.  He may not have been the only Soldier who was treated this way.  He did not know what to do about it, but he wanted to see this wrong made right, otherwise he served in vain.

3.  The applicant provides copies of the following:

* DA Form 2-1
* DA Form 2166-7 (NCOER)
* DA Form 4/1 (Enlistment/Reenlistment Document – Armed Forces of the United States)
* Active Duty Retention Based on Duty Performance memorandum
* Three QMP Appeal memoranda
* Appeal to DA Bar to Reenlistment memorandum
* Orders 024-00255
* DD Form 214

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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the Regular Army on 21 February 1978 for 6 years.  He reenlisted in the Regular Army on 17 November 1980 for 3 years, and on      11 August 1986 for 6 years.

3.  He was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 1 October 1986.

4.  His record contains and he provided a copy of a change of rater NCOER covering the period June 1990 to March 1991.  In this report, his was evaluated as a petroleum supply sergeant.  The report shows:

   a.  The rater, a sergeant first class, provided a "No" response to "Places dedication and commitment to the goals and missions of the Army and nation above personal welfare" in Part IV (Values/NCO Responsibilities (Rater)), sub-section a., and "Yes" responses to all other questions in this section.  He entered the comments, "needs guidance on major changes" and "occasionally allows anxiety to interfere with job performance."

   b.  In Part IV (Values/NCO Responsibilities), sub-section b. (Competence), the rater gave the applicant a "Needs Improvement" rating and entered the comment, "some increase in initiative would help progress and advancement."

   c.  In Part V, sub-section a. (Overall Performance and Potential, Rater) the rater gave the applicant a "Fully Capable" rating.  The senior rater, a captain, gave the applicant a "4" (Fair) rating in Part V, sub-section c. (Overall Performance) and a 4 rating in Part V, sub-section d. (Overall potential for promotion and/or service in positions of greater responsibility).  The senior rater entered the comments, "has difficulty following detailed guidance" and "has difficulty managing several missions at one time."

5.  He reenlisted in the Regular Army on 1 May 1991 for 6 years.  Section C (Partial Statement of Existing United States Law) of his DD Form 4/2 (Enlistment/Reenlistment document) states, "Laws and regulations that govern military personnel may change without notice to me.  Such changes may affect my Status, pay, allowances, benefits, and responsibility as a member of the Armed Forces REGARDLESS of the provisions of this enlistment/reenlistment document."

6.  His record also contains the following:

   a.  A memorandum from the U.S. Army Enlisted Records and Evaluation Center (EREC), Fort Benjamin Harrison, IN, dated 5 April 1993, subject: DA Imposed Bar to Reenlistment Under the QMP, which explained the QMP and advised him of the following:

		(1)  The Calendar Year 1993 Sergeant First Class/Advanced NCO Course Promotion/Selection Board, after a comprehensive review of his official military personnel file (OMPF), determined that he would be barred from reenlistment.

		(2)  During the review of his file, the board considered his record of service, including performance and future potential for retention in the Army.  The sealed envelope contained an updated copy of his OMPF and a list of those documents indicating areas of deficiency or weakness which contributed most to the board's decision to bar him from reenlistment.


		(3)  He was advised of his rights and provided a U.S. Army Enlisted Records & Evaluation Center (USAEREC) Form 51 (A Statement of Option to Accompany Memorandum of Notification of DA Bar to Reenlistment Under the QMP Enlisted Qualitative Early Separation Program).

   b.  A USAERC Form 51, dated 16 April 1993, which shows on that date he acknowledged notification of his DA bar to reenlistment under the QMP (Army Regulation 601-280 (Army Retention Program)) and elected to submit an appeal.
   c.  A QMP Appeal memorandum, dated 19 July 1993, wherein he stated the following:

		(1)  His physical condition had improved significantly.  After a period of dieting and exercising for a period of 7 months, he had made real progress.  He had been off the weight program since 12 March 1993, and would stay off the weight control program permanently.  His last physical training score was 236.

		(2)  His duty performance over the past 9 months had been outstanding.  His command strongly supported his retention.

		(3)  Some of the Enlisted Evaluation Reports (EER) cited by the board had been appealed by him.  The EERs did not accurately reflect his overall service record.  His most recent EER provided convincing evidence that he was a productive NCO.

		(4)  He requested the board consider the fact that he was single parent with three children.  He had raised the children by himself for 3 years.  Separation at that time would bring an undue hardship.

		(5)  For fifteen years he had been dedicated to military service.  He really did like the Army and he liked serving his country with pride.  His motivation was high and he requested the board allow him to continue his service.

7.  His record further contains and he also provided copies of the following:

   a.  A QMP Appeal memorandum, dated 12 July 1993, wherein CPT Bxxxx supported the applicant's retention on active duty and requested his bar to reenlistment be lifted.  He stated the applicant excelled in his duty positions both as the petroleum section NCO-In-Charge and presently as the Supply Platoon Sergeant for Supply and Services, A Company of the 101st Support Battalion.  He had the honor of being the applicant's commander from 6 March 1992 until the date of his recently-imposed QMP bar to reenlistment.

   b.  A QMP Appeal memorandum, dated 28 July 1993, wherein the applicant's current company commander recommended disapproval of his appeal.  The commander stated that he had known the applicant for approximately 2 months.  The applicant had problems accounting for his whereabouts.  The applicant displayed a propensity to make military and personal appointments and not inform the chain-of-command until after the fact, or he would phone from the appointment.  Because of those actions, he could not rely on the applicant to apply his experience and talents when they were needed.
   
   c.  A QMP Appeal memorandum, dated 28 July 1993, wherein the applicant's battalion commander recommended disapproval of his appeal.  The commander stated the applicant's duty performance had not improved significantly since the four consecutive NCOERs, indicating weaknesses that were the basis for the DA imposed bar.  The applicant's company commander, first sergeant, and platoon leader all indicated that his reliability, accountability, and consistency were not of the quality expected of an NCO.  The appeal was late because the applicant did not follow the instructions in the 5 April 1993 memorandum.  Instead of submitting his appeal through his chain of command as instructed, he mailed his reply directly to USAEREC, who returned the appeal to be resubmitted through the chain of command.
   
   d.  A QMP Appeal memorandum, dated 5 August 1993, wherein the applicant's division commander recommended disapproved of his appeal.

   e.  An Appeal to DA Bar to Reenlistment memorandum, dated 22 September 1993, wherein he was notified that his appeal was denied.

8.  His record also contains the following:

   a.  An Appeal DA Imposed Bar to Reenlistment Under the QMP memorandum, dated 27 December 1993, wherein the applicant's command was notified that after careful review by the recent DA Standby Advisory Board, the applicant's appeal was disapproved.  The memorandum stated:

		(1)  The board adjudged that the past performance and estimated potential of the applicant were not in keeping with the standards expected of the NCO Corps.  Consequently, the bar would remain in effect.  Discharge would be under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 16-8, and must occur no later than 30 April 1994.

		(2)  The Secretary of the Army had directed the early release of Soldiers with a QMP bar to reenlistment when budgetary or authorized limitation required a reduction in enlisted strength (drawdown).  Therefore, the narrative reason for separation to be placed on the DD Form 214 was "Reduction in Force."  The RE code was "4."  The separation code was "JCC."  Service was characterized as "Honorable" and the Soldier was entitled to half separation pay.
   
   b.  A DA Form 4856, dated 6 January 1994, wherein he received counseling on the final disposition of his appeal of his DA imposed bar to reenlistment, its disapproval, the bar remaining in effect, and his discharge no later than 30 April 1994.

9.  On 30 April 1994, he was honorably discharged from the Army in the rank/grade of SSG/E-6.  He was credited with completing 16 years, 2 months, and 10 days of net active service.  His DD Form 214 lists in:

* Item 25 (Separation Authority) – Army Regulation 635-200, paragraph   16-8
* Item 26 – JCC
* Item 27 – 4
* Item 28 (Narrative Reason for Separation) – Reduction In Force

10.  Army Regulation 635-200, in effect at the time, provided the basic authority for the separation of enlisted personnel.  Paragraph 16-8 of the regulation set forth the requirements for early separation of enlisted personnel due to reduction in force, strength limitations, or budgetary constraints.  The service of personnel separated under that paragraph would be characterized as honorable.

11.  Army Regulation 601-280, chapter 10, in effect at the time, set forth policy and prescribed procedures for denying reenlistment under the QMP.  That program was designed to (1) enhance the quality of the career enlisted force; (2) selectively retain the best qualified Soldiers to 30 years of active duty; (3) deny reenlistment to non-progressive and non-productive Soldiers; and (4) encourage Soldiers to maintain their eligibility for further service.  The QMP consisted of two major subprograms: the qualitative retention subprogram and the qualitative screening subprogram.  Under the qualitative screening subprogram, records for grades E-5 through E-9 were regularly screened by the HQDA 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 was not warranted were barred from reenlistment under the QMP.

12.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program), in effect at the time, covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army 
Reserve, and Army National Guard.  Chapter 3 prescribed basic eligibility for prior-service applicants for enlistment and included a list of Armed Forces RE codes.  RE code "1" applied to persons who completed an initial term of active service who were fully qualified for enlistment when separated; however, an RE code "4" applied to Soldiers separated from their last period of service with a nonwaivable disqualification.

13.  Army Regulation 635-5-1 (SPD Codes), in effect at the time, prescribed the specific authorities reasons for separating Soldiers from active duty and separation codes to be entered on the DD Form 214.  The regulation stated the separation code "JCC" would be used for Soldiers who were selected for involuntary release from active duty for reduction in force under the provisions of Army Regulation 635-200, paragraph 16-8.

14.  The SPD/RE Code Cross Reference Table, in effect at the time, provided instructions for determining the RE codes for Active Army Soldiers and Reserve Component Soldiers.  That cross reference table stated that a bar to reenlistment under the QMP had a corresponding RE code "4."

15.  Title 10, USC, section 1174 provides for separation pay upon involuntary discharge from active duty.

16.  Title 10, USC, section 1175 provides for payment of a financial incentive upon voluntary appointments, enlistment, or transfer to a Reserve component, requested and approved.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends: 

	a.  the comments shown in item 4 of his DA Form 2-1 should be removed; 

	b.  the Separation Code (JCC) and RE Code (4) shown on his DD Form 214 should be changed; 

	d.  the HQDA imposed bar to reenlistment should be removed; and

	e.  he should be allowed early retirement or another separation that would allow him to keep the benefits granted under Title 10, USC, sections 1174a or 1175.


2.  The evidence of record shows the applicant's records were considered under the QMP and he was not selected for continued service.  It appears the bar was based on more than one NCOER.  He received a bar to reenlistment as a result of his selection for non-continuation.  He was notified by memorandum and elected to appeal.  His appeal was denied and he was advised of its disapproval and his discharge no later than 30 April 1994.  Upon his separation, he was assigned separation code "JCC" and RE code "4."  

3.  With respect to the entry on his DA Form 2-1:

	a.  The DA Form 2-1 provides a record of individual personnel management qualifications such as grade, skills, physical limitations, and assignment history and is used primarily by personnel managers at unit level to support the Army’s personnel life-cycle function of sustainment.  This form is now obsolete and has been replaced with the ERB. 

	b.  The ERB is an automated record of a Soldier's personnel management qualifications in the form of data.  The ERB is not maintained or updated subsequent to a Soldier's separation from active duty.  Therefore, even if the entry on the DA Form 2-1 was questionable, there is no provision to correct an obsolete form and the applicant is not entitled to correction of his DA Form 2-1. However, it appears there was no error or injustice in recording this statement.

4.  With respect to his Separation Code and RE Code: 

	a.  The applicant's records were considered/evaluated by a board to determine his promotion and retention potential in the Army.  The board determined he should be barred from reenlistment due to his poor potential.  After exhausting his appeals, HQDA ordered his discharge under the QMP with a narrative reason for separation as "Reduction in Force."

	b.  He was discharged as a result of a HQDA-imposed bar due to his poor performance/potential.  Absent such poor performance/potential, there was no fundamental reason to impose a bar against him.  The appropriate Separation Code that was applicable in his case was "JCC" which carried a corresponding RE Code of 4.  Therefore, he received the appropriate Separation and RE Codes and there is no reason to change either code. 

5.  With respect to the removal of his imposed bar, there is no evidence of record and he provided none to show the decisions of the QMP boards were procedurally flawed or otherwise unjust or inequitable based on procedures in effect at that time or procedures currently in effect.  It appears he was properly 
barred from reenlistment under the QMP, based on his past performance and estimated potential.  His 1991 DD Form 4/2 stated that laws and regulations that governed him as a member of military personnel could change without notice to him regardless of the provisions of the reenlistment docment.  

6.  Section 1174a authorizes the payment of separation pay for enlisted members who are discharged involuntarily or as a result of a denial of continued service.  The evidence of record shows he received separation pay; therefore, he did benefit from this provision of law.  

7.  Section 1175 authorized a voluntary separation incentive to certain Soldiers as a means to reduce the overall size of the enlisted force.  Since he was involuntarily separated from service, he did not qualify for this benefit.

8.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  In view of the foregoing, he is not entitled to 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)                                         AR20130021404





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ABCMR Record of Proceedings (cont)                                         AR20130021404



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