BOARD DATE:	  21 October 2014

		DOCKET NUMBER:  AR20130022350 


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, review of the basis for his Reduction in Force (RIF) discharge and award of full military retirement benefits. 

2.  He states the reason his records are unjust or in error is due to two Noncommissioned Officer Evaluation Reports (NCOER) for the rating periods 9112-9206 and 9408-9507 and a DA Form 2627 (Record of Proceeding under Article 15, Uniform Code of Military Justice (UCMJ)), dated 25 August 1995.

3.  He adds that the Board should consider finding in the interest of justice because during his 17 years and 3 months of military service with the U.S. Army he was an exceptional Soldier.  He goes on to explain the various NCOERs he had received during his career and differences in the ratings rendered.  He also adds that he had filed an Equal Opportunity complaint and later received an Article 15 for disobeying a lawful order from his superior commissioned officer and for disrespect to a superior commissioned officer.  He explains the elements of each in detail.

4.  The applicant states he and his family has had to endure the pain and suffering of the loss of their first born son who was killed on 29 March 2008, only 
8 days away from completing his tour of duty during the Iraq War.

5.  The applicant provides:

* six NCOERs
* a Request for Regular Army Reenlistment or Extension
* an Equal Opportunity Complaint Form
* a DA Form 2627
* a list of documents for bar to reenlistment
* eleven letters of support, all dated in 1996
* two copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* an Honorable Discharge Certificate
* five character reference letters, all dated in 2013

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.  He enlisted in the Regular Army on 8 January 1981.  His record shows he served in military occupational specialty 11B (Infantryman) and was later awarded his Ranger Tab.  

3.  The NCOER for the rating period 9112-9206 shows the applicant was serving in the grade of staff sergeant/E-6 as the Operation Sergeant with Headquarters, U.S. Army Personnel Control Facility, Fort Ord, CA, and that he refused to sign the report.  The rater (Sergeant First Class (SFC) CES) placed an "X" in the "YES" block in all seven areas of Part IVa (Values/NCO Responsibilities).  Part IVb (Values/NCO Responsibilities) shows the applicant received an "Excellence" rating in the "Competence" section and received "Success" ratings in the remaining four sections of "Physical Fitness and Military Bearing, Leadership, Training, and Responsibility and Accountability."  In Part Va (Overall Performance and Potential) he was rated as "Fully Capable" and the three positions in which he could best serve the Army were listed as Squad Leader, Platoon Sergeant, and Drill Sergeant.  Part Vc (Senior Rater - Overall Performance) shows the senior rater (SFC DLJ) placed an "X" in the "3 - Successful" block and Part Vd (Senior Rater - Overall Potential) shows an "X" was placed in the "4 - Fair" block.  Part Ve (Senior Rater Bullet Comments) were listed as follows:
* failed to demonstrate his abilities as a noncommissioned officer by continuously complaining
* failed to accept new challenges in a professional manner
* failed to assume full responsibility for his actions
* rater failed to counsel the Soldier in accordance with chapter 3, paragraph 3-6a, Department of the Army Circular 623-88-2

4.  A memorandum, subject:  Reviewer's Non-concurrence, dated 2 July 1992, shows the reviewer of the NCOER for the period 9112-9206 did not concur with the rater's evaluation of the applicant.  He submitted comments in this document indicating what he believed to be the proper evaluation of the performance and/or potential of the applicant during this rating period.  In summary, he stated the applicant did not display any loyalty to the unit and was a constant detractor to unit morale through both his actions and speech.  He had the capacity to be a fine NCO; however, he lacked the maturity or desire to be consistent in this behavior. 

5.  He provided copy number one of a Request for Regular Army Reenlistment or Extension, dated 11 May 1995, showing he requested to reenlist for a period of 
5 years.  His company commander approved the request on the same day. 

6.  On 26 June 1995, the applicant filed an equal opportunity and treatment complaint.  His requested remedy was that all Soldiers assigned within the company be treated equally and that he be removed from the battalion so that he could advance in his career.  The results of the investigation show there was evidence that the applicant was treated differently, but this was due to gross administrative errors and not due to any form of discrimination.  Corrective action had been taken to fix the administrative problems and in fairness to the applicant, he would be reassigned to a different company.

7.  The NCOER for the rating period 9408-9507 shows the applicant was serving in the grade of staff sergeant/E-6 as Squad Leader/Instructor with Headquarters, 6th Ranger Training Battalion, Eglin Air Force Base, FL.  The rater (SFC PMM) placed an "X" in the "NO" blocks 1, 3, 4, and 5 of Part IVa and submitted the following comments:

* honesty has been questionable on different occasions
* encouragement is needed for him to work well as a team player
* has displayed poor self discipline to superiors on numerous occasions

Part IVb shows, in part, the applicant received two "Needs Improvement" ratings in the "Leadership and Responsibility and Accountability" sections and received "Success" ratings in the remaining three sections of "Competence, Physical Fitness and Military Bearing, and Training."  In Part Va he was rated as "Marginal" and the three positions in which he could best serve the Army were listed as Squad Leader, Range Control NCO, and Assistant Operations NCO.  Part Vc shows the senior rater (SFC SRR) placed an "X" in the "2 - Successful" block and Part Vd shows an "X" was placed in the "2 - Superior" block.  Part Ve were listed as follows:

* dedicated to mission accomplishment
* capable of performing as a senior instructor
* send to Advanced Noncommissioned Officer Course immediately
* reassign to a light or airborne infantry rifle company as a platoon sergeant

8.  A memorandum, dated 30 August 1995, subject:  Reviewer's Nonconcurence. This document shows the reviewer (Captain (CPT) JDS) nonconcurred with the senior rater's evaluation of the applicant.  He stated that the applicant, while serving in the capacity of a Ranger Instructor, refused to cross a one-rope bridge with his Ranger students after repeated orders to do so from a superior noncommissioned officer.  The applicant also disobeyed direct orders from him on two separate occasions in that his civilian driver's license had been suspended and despite this fact, he continued to drive his privately owned vehicle.  It was the reviewer's evaluation that the applicant's performance and potential for service in positions of greater responsibility were poor. 

9.  A review of his record shows the remaining NCOERs contained a mixture of “excellence” and “success” ratings. 

10.  His record contains a DA Form 2627, dated 25 August 1995, showing he was administered nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ for disobeying a lawful order and disrespect to a superior commissioned officer.  

11.  His record contains a memorandum, dated 1 August 1996, subject:  Department of the Army (DA) Imposed Bar to Reenlistment under the Qualitative Management Program (QMP).  This document shows that during a review of the applicant's file, the board considered his record of service, including performance and future potential for retention in the Army.  Paragraph 2 shows a DA Form 4941-R (Statement of Options) was enclosed and that he must study them carefully and seek advice from his commander.  After selecting an option, he was directed to complete, date and sign this form.  The Statement of Options is not available for the ABCMR's review. 



12.  The applicant provided a List of Documents, dated 1 August 1996, showing the board identified the NCOERs for the rating periods 9112-9206 and 9408-9507 and the DA Form 2627 dated 25 August 1995 as the basis for his bar to reenlistment.   

13.  On 26 August 1996, the applicant submitted an Appeal of the DA Imposed Bar to Reenlistment under the QMP based on demonstrated improved performance.  On 24 September 1996, his battalion commander recommended approval of his appeal and stated that since the applicant's assignment to the organization he served the unit in an exemplary manner.  He recommended the DA Imposed Bar to Reenlistment be removed. 

14.  His brigade commander recommended disapproval of the QMP appeal.  He stated that although the applicant's performance had been superb since his arrival in Korea and the many letters of recommendation from his chain of command and other senior noncommissioned officers clearly showed his current performance was strong, looking at the entire performance record of the applicant's and comparing him to his peers across the Army it was the brigade commander's conclusion that the applicant's file did not reflect the quality of NCO he wished to retain on active duty.  He viewed the applicant's potential for further promotion and service as a future platoon sergeant and first sergeant as marginal.

15.  The applicant's commanding general recommended disapproval of his request to appeal the DA Imposed Bar to Reenlistment.  He echoed the brigade commander's assessment of the applicant's current performance; however, after reviewing the applicant's entire file, he questioned his ability to lead Soldiers into the 21st century.  

16.  A 5th Endorsement, dated 11 March 1997, shows the applicant's appeal had been reviewed by a DA Standby Advisory Board and it was disapproved.  The board judged that the past performance and estimated potential of the applicant was not in keeping with the standards expected of the NCO Corps and stated the bar would remain in effect.  He was informed that he would be discharged under the provisions of paragraph 16-8, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), by reason of RIF no later than 
31 July 1997.  

17.  On 31 July 1998, the applicant was honorably discharged.  The DD Form 214 issued to the applicant on the date of his discharge shows he completed a total of 17 years, 6 months, and 23 days of active military service.  His extension of service beyond 31 July 1997 was at the request of the government to fulfill his service obligation for a reenlistment bonus he had been paid.  It also confirms he was discharged under the provisions of paragraph 16-8, Army Regulation 635-200, by reason of RIF with entitlement to $21,690.90 of separation pay.  He was also entitled to half involuntary separation pay.

18.  He provided five character reference letters, all dated in 2013.  These letters collectively show he was a very trustworthy, loyal, and reliable person.  He also had many other good qualities and always displayed great enthusiasm and initiative.  He had good moral character and a bright positive attitude and he is a very organized, extremely competent, and respectful person.  

19.  Army Regulation 635-200, in effect at the time, prescribed the Army's enlisted administrative separation policy.  Paragraph 16-8 provided for the early separation of Soldiers due to reduction in force, strength limitations, or budgetary constraints.  It states that Soldiers may be separated prior to expiration of enlistment of fulfillment of active duty obligation when authorization limitations, strength restrictions, or budgetary constraints require the Regular Army active duty enlisted force to be reduced in number.

20.  Army Regulation 601-280 (Army Retention Program), in effect at the time, set forth the policy and prescribed procedures for denying reenlistment under the QMP.  The objectives of the QMP are listed in paragraph 10-2 and state that QMP is 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 Soldiers who did not meet the Army standards for performance, conduct attitude, and potential for advancement; and (4) encourage Soldiers to maintain their eligibility for further service.  This paragraph also states that reenlistment is a privilege for those who meet Army standards and that QMP is not intended to be rehabilitative in nature.  

	a.  Paragraph 10-4 provides selection guidance and criteria.  Specifically it directs the selection of Soldiers who:  (a)  have exhibited moral or ethical conduct incompatible with the values of the NCO Corps and the Army ethic; (b) do not exhibit potential to perform NCO duties in their current grade; (c) decline in efficiency and performance over a continuing period to a clearly substandard level as reflected by NCOER or related reports; (d) have had recent or continuing disciplinary problems as evidenced by Article 15(s), courts-martial, or memoranda of reprimand; (e) decline in appearance of duty performance over a period of time as demonstrated by the inability to meet physical fitness and weight standards; and (f) in the collective judgment of the board, clearly possess indications of substandard performance. 

	b.  Paragraph 10-5 governs screening procedures and states that appropriate DA Selection Boards will review the performance portion of the Official Military Personnel File (OMPF), the DA Form 2A (Personnel Qualification Record Part-I) and DA Form 2-1 (Personnel Qualification Record Part-II), and other authorized documents.  From these documents, the board will evaluate past performance and estimate the potential of each service to determine if continued service is warranted.

	c.  Paragraph 10-8 provides that a Soldier may appeal the bar to reenlistment imposed under QMP based on improved performance and/or material error in the Soldier’s record when reviewed by the selection board.  The appeal must be submitted within 45 days of completion of the Statement of Option and will include substantive comments on the Soldier’s performance and potential by each member of the chain of command.  

	d.  Paragraph 10-10 provides that the appeal is considered by the QMP Appeals Board normally conducted in conjunction with Centralized Enlisted Selection Boards.  The QMP Appeals Board will 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.

21.  Army Regulation 623-205 (Noncommissioned Evaluation Reporting System), in effect at the time, prescribed the enlisted evaluation function of the military personnel system and provided guidance regarding redress programs, including appeals.  

      a.  Chapter 6 of the evaluation regulation contained guidance on NCOER appeals.  Paragraph 6-6 stipulated that a report accepted for filing in an NCO’s record was presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation.

      b.  Paragraph 6-10 of the enlisted evaluation regulation contained guidance on the burden of proof necessary for a successful appeal of an NCOER that had already been accepted for filing in the OMPF.  It stated that in order to justify amendment or deletion of a report, clear and convincing evidence must be provided to show that the presumption of regularity should not be applied to the report in question and/or action is warranted to correct a material error, inaccuracy, or injustice.

22.  Title 10, U.S. Code, section 1315, provided the Temporary Early Retirement Authority (TERA) for the active force for the period 23 October 1992 through 
31 December 2001.  The Secretary of the Army could authorize a member with at least 15 but less than 20 years of creditable service a length of service retirement.  Individuals who were pending involuntary separation, pending trial by court-martial, or under investigation for UCMJ offenses which the immediate commander believed could result in trial by court-martial or involuntary separation, were ineligible to apply for early retirement.  

DISCUSSION AND CONCLUSIONS:

1.  Records show the decision to bar the applicant from reenlistment was based primarily on the applicant’s two NCOERs for the periods 9112-9206 and 9408-9507 and the DA Form 2627, dated 25 August 1995.  There is no evidence in the available records and the applicant has not provided sufficient evidence to show that two NCOERs were erroneously prepared or otherwise flawed.  Additionally the applicant's records do not contain and he has not provided sufficient evidence that shows the NJP he received on 25 August 1995 was issued contrary to law and/or regulation.

2.  A DA board reviewed the applicant’s OMPF under the Army’s Qualitative Management Program and determined that the applicant was to be barred from reenlistment.  The applicant was notified by memorandum, dated 1 August 1996 of his right to appeal.

3.  The Statement of Option was not available for the Board's review; however, it presumed that he chose the option to receive separation pay as shown on his DD Form 214.  He was entitled to half involuntary separation pay of $21,690.90 as a result of discharge under the provisions of paragraph 16-8, Army Regulation 635-200 as a result of reduction in force.  He signed this form.  The applicant has presented sufficient evidence that the decision of the QMP board to separate him was procedurally flawed or otherwise unjust or inequitable based on procedures in effect at that time.

4.  Individuals who were involuntary separated were not eligible for early retirement under the TERA.  As such, he is not entitled to the requested relief of full military retirement benefits. 

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)                                         AR20130022350





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ABCMR Record of Proceedings (cont)                                         AR20130022350



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