IN THE CASE OF:	  

		BOARD DATE:	  12 March 2015

		DOCKET NUMBER:  AR20140014699 


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, 

   a.  his retirement, as a result of selection by the Qualitative Management Program (QMP) process, be set aside; 
   
   b.  his records be reviewed again under the QMP process based on the new All Army Activities (ALARACT) Message 188/2014, which replaced ALARACT Message 147/2013; and 
   
   c.  his DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the period covering 27 May 2012 through 6 March 2014 (hereafter referred to as the contested NCOER) and a General Officer Memorandum of Reprimand (GOMOR) be voided based on review and findings of the QMP process.

2.  He states:

	a.  he was given a relief for cause NCOER and a GOMOR as a result of an investigation for a dispute with a captain.  

   b.  as a result of ALARACT Message 147, he was relieved from duty as a recruiter and was given the relief for cause NCOER.
   
   c.  the Army reviewed ALARACT Message 147 and later changed it to ALARACT Message 188 with new guidelines.  As a result, he was chosen for early retirement under the QMP.
   
	d.  since the message changed and he was never given a review of his case under the message, he believes he shouldn't be selected to retire until his review/waiver is considered.  

	e.  the relief for cause NCOER was the reason he was selected for the QMP.  If the relief is unjust based on the new ALARACT Message 188, he should not be discharged under QMP.  His review and findings should be considered before the QMP process.

3.  He provides:

* Letter, dated 23 July 2014, from the Chief, Assistance and Investigation Division, Headquarters, U.S. Army Recruiting Command, Fort Knox, KY
* DA Form 2166-8 (NCOER)) for the period covering 27 May 2012 through 6 March 2014
* Memorandum, subject:  Soldier Acknowledgement - Notification of Denial of Continued Active Duty Service under the QMP, dated 7 August 2014

CONSIDERATION OF EVIDENCE:

1.  During the processing of the applicant's case, he was voluntarily retired from active duty in lieu of involuntary separation under the QMP on 31 January 2015 in the rank of sergeant major (SGM)/E-9.  He was placed on the retired list on the following date.  He completed 24 years, 3 months, and 14 days of active military service at the time of his retirement.

2.  After having prior service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 17 October 1990.  He continued to serve on active duty through a series of reenlistments and completed overseas assignments in Germany and Bosnia.  

3.  He was promoted to SGM/E-9 on 1 September 2013.

4.  In a 31 January 2014 memorandum, the Major General, Commanding General of U.S. Army Recruiting Command stated he was contemplating directing the applicant's relief from recruiting duty for being unsuitable under the provisions of Army Regulation 601-1 (Assignment of Enlisted Personnel to the 
U.S. Army Recruiting Command), paragraph 5-6b.  The commanding general stated:
   a.  he reviewed the Report of Investigation, dated 3 January 2014, the legal review, and the chain of command recommendations.
   
   b.  the preponderance of evidence substantiates that the applicant disrespected a commissioned officer by saying that he "do not take orders from LTs [lieutenants], CPTs [captains], and MAJs [majors]" and that he was a "worthless Reserve Officer."  The applicant then disobeyed an order from the commissioned officer to leave his office.  In addition, the applicant lied in his sworn statement to the Investigating Officer when he claimed he never made those statements.  
   
   c.  the applicant's actions are clearly not in keeping with Army Values or the qualities necessary of a senior NCO in the U.S. Army.
   
   d.  in accordance with Army Regulation 623-3 (Evaluation Reporting System), paragraph 3-55c and Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers), paragraph 1-9c the applicant would be provided a copy of the supporting evidence on which this action is based.  The applicant was given 7 days to submit any rebuttal matters before the Commanding General would make his final decision.  

5.  In an undated memorandum, he acknowledged receipt of notification of intent to relieve which he received on 10 February 2014.

6.  In a 3 March 2014 memorandum, the Commanding General of the U.S. Army Recruiting Command informed the applicant that he was relieved of his duties as a recruiter based upon his review of the Report of Investigation, dated 3 January 2014, the recommendations of the chain of command, and the legal review under the provisions of Army Regulation 623-3, paragraph 3-55.  The Commanding General also informed him that the applicant's rating officials would prepare a relief for cause NCOER and that the compromise of his personal integrity and professional ethics rendered him unsuitable for recruiting duty.  

7.  The contested NCOER is a relief for cause report that covers the period 27 May 2012 through 6 March 2014.  He was evaluated as a Battalion Operations SGM and was assigned to the Milwaukee Recruiting Battalion, Milwaukee, WI during the rating period:

	a.  Part II (Authentication) shows his rater as Captain BTL, his senior rater as Lieutenant Colonel DLC, and the reviewer as Colonel JEB.  The applicant did not digitally sign the contested NCOER.

	b.  Part IIIf (Counseling Dates) shows he received his initial counseling on 17 January 2014 and later counseling on 10 February and 4 March 2014.

	c.  Part IVa(3) (Respect) (5) (Honor) (6) (Integrity) shows his rater gave him ratings of "No" with negative comments, "demonstrated a serious lack of integrity and poor judgment without consideration of results" and "did not live up to all of the Army values."

	d.  Part IVb (Competence) shows his rater gave him a "Needs some improvement" rating with negative comments and "used questionable personal judgment in situations which could have impaired mission readiness and morale."

	e.  Part IVd (Leadership) shows his rater gave him a "Needs some improvement" rating with negative comments and "displayed lack of judgment and clear disregard for Army Values."

	f.  Part IVf (Responsibility and Accountability) shows his rater gave him a "Needs some improvement" rating with negative comments, "the rated NCO has been notified of the reason for the relief," and "showed a lack of self discipline and did not act responsibly in making sound decisions."

	g.  Part V (Overall Performance and Potential) shows the rater assessed his overall potential for promotion and/or service as "Marginal."  The senior rater commented "disobeyed a direct order from a commissioned officer."  The senior rater listed his overall performance as "Fair – 4" and potential for promotion and/or service in positions of greater responsibility as "Fair – 4."  

	h.  The rater listed three positions in which the applicant could best serve the Army at his current or next higher grade as:

* Battalion Operations SGM
* Brigade Operations SGM
* Army Recruiting and Retention School SGM

8.  A review of the interactive Personnel Electronic Records Management System (iPERMS) revealed the contested NCOER was filed in the performance section of his Official Military Personnel File (OMPF).  iPERMS does not indicate a GOMOR was filed.

9.  On an unknown date, he filed a complaint to the Office of the Inspector General concerning misconduct allegations presented against members of the U.S. Army Milwaukee Recruiting Battalion.  In a 23 June 2014 letter, the Chief, Assistance and Investigation Division, Headquarters, U.S. Army Recruiting Command, Fort Knox, KY informed the applicant that each of his allegations were thoroughly investigated and appropriately addressed in a command investigation.  The official stated that the applicant's case was closed and this office would take no further action.  The official also stated the results of the applicant's case would be maintained in the Inspector General database.  

10.  The notification memorandum informing him that he was denied continued active duty service under the provisions of the QMP is not available.  

11.  In a 7 August 2014 memorandum, he acknowledged receipt of the notification memorandum, Subject: Notification of Denial of Continued Active Duty Service under the QMP.  He further acknowledged that, as a result of this denial of continued active duty service, he was in a non-promotable status, stabilized in his current assignment, and eligible to exercise the options afforded to him in ALARACT Message 203, 2009 and/or MILPER [Military Personnel] Message 12-198.  He elected the option "I appeal and request retention on active duty…" and he signed the notification memorandum on 7 August 2014.  

12.  iPERMS includes a memorandum, dated 20 August 2014, which shows he submitted an appeal as a result of his notification Potential Denial of Continued Active Duty Service under QMP.  In his appeal, he attested:

   a.  he received a relief for cause NCOER that removed him as a career recruiter based on ALARACT Message 147/2013, which was superseded by ALARACT Message 188/2014.
   
   b.  the NCOER given by his senior rater and all circumstances surrounding it is currently being investigated by the Department of Defense (DoD) on the premise of reprisal.  DoD is also reviewing his records for a determination to reinstate him and hundreds of other career recruiters after a detail board was conducted to review the procedures used to remove him from the recruiting command.
   
   c.  he wanted to remain on active duty and to be given the opportunity to allow the process to be completed.
   
   d.  there is a clear error in his records in which the DoD is taking in account.  Until all the facts are presented, the contested NCOER used to QMP him should not be considered or used to discontinue his active service in the military.  

13.  On 22 September 2014, an advisory opinion was obtained from the Deputy, Operations Management Division, U.S. Army Human Resources Command, Fort Knox, KY who stated:
	a.  this command did not find regulatory reason to overturn the selection for QMP for the applicant.

	b.  the applicant was denied continued service under the QMP by the June 2014 screening board.  His eligibility for QMP consideration was based on a relief for cause NCOER filed in his Army Military Human Resource Records (AMHRR) with a thru date of 6 March 2014.  

	c.  the QMP review was in accordance with Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 19-5a(3), as revised by Army Directive 2014-6 (QMP).  

	d.  the Soldier has indicated that he will appeal the QMP decision; however, no appeal has been received to date.

	e.  QMP appeals are processed in accordance with paragraph 19-11 of Army Regulation 635-200 and are limited to newly-discovered evidence, the subsequent removal of documents from the Soldier's AMHRR, or material error in the Soldier's record that was reviewed by the QMP screening board.

	f.  ALARACT Messages 147/2013 and 188/2014 deal with the screening of personnel in positions of significant trust and have no bearing on QMP eligibility and therefore was not used during the consideration process.  

14.  A copy of the advisory opinion was forwarded to the applicant to allow him to provide comments.  However, he did not respond within the allotted timeframe. 

15.  In a 10 October 2014 memorandum, the Chief, Transition Branch, U.S. Army Human Resources Command, Fort Knox, KY informed the applicant that his appeal of separation under the QMP did not meet the criteria set forth by Army policy and was therefore denied.  The official stated that Army policy requires appeals submitted under the QMP to meet the guiding principles established by paragraph 4-13 of Army Regulation 600-8-19 (Enlisted Promotions and Reductions).  An appeal is only warranted when a material error exists.  The official also stated that an error is considered material when there is a reasonable chance that had the error not existed, he would not have been selected for separation under the QMP.  The applicant was advised that if the applicant feels this decision is unjust, he has the right to appeal to the ABCMR.

16.  A DA Form 4187 (Personnel Action), dated 23 October 2014, shows he requested voluntary retirement in lieu of QMP, effective 1 February 2015.  The authorized representative recommended approval.  

17.  In a 3 November 2014 memorandum, the Acting Chief of Staff, G-1, U.S. Army Recruiting Command recommended approval for the applicant's retirement date of 1 February 2015. 

18.  On 20 November 2014, his request for retirement was approved to be effective 1 February 2015.

19.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 19, in effect at the time, contains policy and procedures for voluntary and involuntary separation, for the convenience of the Government, of Regular Army NCOs and U.S. Army Reserve NCOs serving on Active Guard Reserve status, under the QMP.  NCOs whose performance, conduct, and/or potential for advancement do not meet Army standards as determined by the appropriate recommendation of Headquarters, Department of the Army (HQDA) centralized selection boards responsible for QMP screening will be denied continued service.  The QMP is designed to (1) enhance the quality of the career enlisted force, (2) selectively retain the best qualified Soldiers, (3) deny continued service to nonproductive Soldiers, and (4) encourage Soldiers to maintain their eligibility for further service.  The QMP does not apply to Soldiers who hold the grade of Sergeant and below.  

20.  Army Regulation 635-200, chapter 19 states screening for QMP is accomplished by HQDA boards that may be convened for other purposes as well.  The appropriate board reviews the performance fiche of the OMPF, Personnel Qualification Record (DA Forms 2A and 2-1 or Enlisted Record Brief), official photograph, and other authorized documents pertaining to Soldiers in the QMP zone of consideration.  This material forms the basis for the board's evaluation of the Soldier's past performance and potential for continued service, leading to a determination of whether the Soldier does or does not warrant retention.  QMP selection criteria include, but are not limited to, lack of potential to perform NCO duties in current grade and a decline in efficiency and performance over a continued period as reflected by NCOERs.  

21.  Army Regulation 600-8-104 (AMHRR Management), table 2-1, states an NCOER will be filed in the performance section of the AMHRR.  Paragraph 4-13 states the Deputy Chief of Staff, G-1 or designee may approve cases for referral to a standby advisory board upon determining that a material error existed in a Soldier's AMHRR when the file was reviewed by a selection board.

22.  Army Regulation 600-37 (Unfavorable Information) prescribes policies and procedures regarding unfavorable information considered for inclusion in official personnel files.  Paragraph 3-4 applies to filing nonpunitive administrative letters of reprimand or censure in official personnel files.
23.  ALARACT 147/2013, Date-Time Group (DTG) P102347Z June 2013, Subject; HQDA Exord 161-13 Sexual Harassment/Assault Response and Prevention Program Army Stand-Down states in part:

   a.  on 17 May 2013, the Secretary of Defense signed a memorandum directing the Army to implement a Sexual Assault Prevention and Response Stand-Down.  In addition, on 28 May 2013, the Secretary of the Army signed a memorandum providing additional guidance on the implementation of screening for the Sexual Assault Response Coordinators (SARC), Sexual Harassment/Assault Response and Prevention (SHARP), Victim Advocates (VA), Recruiters, Drill Sergeants and Advanced Individual Training (AIT) Platoon Sergeants.  
   
   b.  the intent of this order is to: (1) provide guidance on the immediate records review of existing SARC, SHARP VA, recruiters, Drill Sergeants and AIT Platoon Sergeants and the implementation of broadened screening requirements; 
(2) provide guidance on the refresher training for SARCS, SHARP VAS, Recruiters, Drill Sergeants and AIT Platoon Sergeants and the leader engagement for the total force; and (3) provide guidance on initial actions to institutionalize screening processes, policies and procedures for positions of trust and authority.  
   
   c.  the Army will implement these requirements in three phases.  This order will only cover the screening of military personnel in Phase I.  

24.  ALARACT188/2014 DTG 2602422 July 2014, Subject: HQDA EXORD 193-14 Screening states in part:

   a.  on 12 February 2014, the Secretary of the Army signed a memorandum clarifying the term "credible evidence" and providing revised guidance specific to career recruiters.  
   
   b.  the intent of this order is to provide clarifying guidance on procedures to conduct broadened screening of personnel serving in or nominated for positions of significant trust (SARCS, SHARP VAS, Recruiters, Drill Sergeants, AIT Platoon Sergeants, and Army National Guard Recruit Sustainment Program Cadre); to implement broadened screening for positions of significant trust in the Reserve Component; to implement Behavioral Health interviews for active duty personnel serving in or nominated for positions of significant trust; and to provide guidance on the assignment of SHARP personnel at the company level in the active component.  

   c.  for Recruiters, Drill Sergeants, and AIT Platoon Sergeants, it is not the 
intent to repeat the review of any screening element that has been reviewed within the past three years.  This guidance applies to civilians only where specifically noted.  This order covers Phase II requirements and future orders will provide guidance on Phase III.  

25.  DA Pamphlet 623-3 (Evaluation Reporting System) outlines the procedures, tasks, and steps pertaining to the completion of each evaluation report.  

   a.  Paragraph 3-7 states Army Values/NCO Responsibilities is completed by the rater.  Part IVa contains a listing of the Army values that define professionalism for the Army NCO.  These Army values are needed to maintain public trust and confidence as well as the qualities of leadership and management needed to maintain an effective NCO Corps.  Table 3-4 states the rater will check either a "yes" or "no" in the values block.  Mandatory specific bullet comments are required for all "no" entries.  Base each entry on whether the rated NCO "meets" or "does not meet" the standard for each particular value. Quantitative and substantiated bullet comments are used to explain any area where rated NCO is particularly strong or needs improvement.

   b.  Table 3-4 states that in items IVb-IVf (Values/NCO Responsibilities) the rater must check one of three blocks.  For an "Excellence" block check the NCO must exceed standards by demonstrating by specific examples and measurable results; special and unusual feats achieved by only a few; and that they are clearly better than most others.  For "Success": block check the NCO must meet all standards, and must be fully competitive for schooling and promotion.  The "Needs improvement" block is used for NCOs who missed meeting some standard(s).

   c.  Table 3-5, part Va states the rater must check one of three blocks.  The "Among the best" block will be used for NCOs who demonstrated a very good, solid performance and a strong recommendation for promotion and/or service in positions of greater responsibility.  The "Marginal" block will be used for NCOs who demonstrated poor performance and should not be promoted at this time.

   d.  Table 3-5, part Vc, states the senior rater evaluates the overall potential by placing one "X" in the appropriate box.  The senior rater's box marks are independent of the rater's.  There is no specific box mark ratings required of the senior rater based on box marks made by the rater.  A "Fair" number "4" rating represents NCOs who may require additional training/observation and should not be promoted at this time.  

   e.  Table 3-5, part Vd states the senior rater rates the overall potential for promotion and/or service in positions of greater responsibility by placing one "X" in the appropriate box.  The senior rater's box marks are independent of the rater's.  There is no specific box mark ratings required of the senior rater based on box marks made by the rater.  A "Fair" number "4" rating represents NCOs who may require additional training/observation and should not be promoted at this time.  A "Poor" number "5" rating represents NCOs who are weak or deficient and, in the opinion of the senior rater, need significant improvement or training in one or more areas. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his retirement, as a result of selection by the QMP process, be set aside has been carefully reviewed.  However, there is no evidence of an error or injustice regarding his retirement.

2.  It appears that the applicant was notified sometime in 2014 (possibly July or August) that he was denied continued active duty service under the provisions of QMP based on the contested NCOER.  He was afforded the opportunity to appeal the QMP decision and request retention on active duty to his chain of command within 30 days of completed the notification.

3.  His service record includes his memorandum, dated 20 August 2014, appealing the QMP decision.  However, the U.S. Army Human Resources Command denied his appeal because his request did not meet the criteria set forth by Army policy.  The Army principles established in Army Regulation 600-8-19 state an appeal is only warranted when a material error exists.  However, the applicant's service record is void of evidence that substantiates that a material error existed during the QMP process.

4.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the QMP process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed his retirement was appropriate considering the facts of this case.

5.  The applicant's request that his records be reviewed again under the QMP process based on the new ALARACT Message 188/2014 (superseded ALARACT Message 147/2013) is acknowledged.  ALARACT Message 188/2014 provides guidance on the screening of personnel in positions of significant trust, including recruiters.  This message is not related to QMP eligibility and therefore was not used during the QMP process.  Therefore, there is no basis for reviewing his records again under the QMP process applying the guidelines in ALARACT Message 188/2014.   

6.  The applicant's request that his contested NCOER for the period covering 27 May 2012 through 6 March 2014 be voided based on review and findings of the QMP process has been carefully considered and determined to lack merit.

7.  He states that he received a relief for cause NCOER and a GOMOR as a result of an investigation for a dispute with a captain is acknowledged.  His service record confirms he received a relief for cause NCOER for the period ending 6 March 2014; however, there is no evidence that shows he received a GOMOR during the rating period.  

8.  The catalyst for his relief for cause NCOER is the fact that he was disrespectful toward and disobeyed a direct order from a commissioned officer.  His relief for cause NCOER shows:

   a.  His rater gave him ratings of "No" under Part IVa for Respect, Honor, and Integrity with negative comments "demonstrated a serious lack of integrity and poor judgment without consideration of results" and "did not live up to all of the Army values."

   b.  The Army value "Respect" is defined as treating people as they should be treated; "Honor" is defined as living up to all the Army Values; and "Integrity" is defined as doing what is right, legally or morally.  NCOs are expected to set an example by living the Army values.  The applicant admits he was investigated for having a dispute with a captain, which is a breach of respect, honor, and integrity.  

   c.  In Part IV(b), the rater gave him a "Needs some improvement" rating for Competence with negative comments "used questionable personal judgment in situations which could have impaired mission readiness and morale."  This statement is appropriate for this section since this part of the evaluation rates NCOs on sound judgment.
   
   d.  In Part IV(d), his rater gave him "Needs some improvement" rating for Leadership with negative comments "displayed lack of judgment and clear disregard for Army Values."  These statements are appropriate since this part of the evaluation rates NCOs on setting the example.
   
   e.  In Part IVf, his rater gave him "Needs some improvement" rating for Responsibility and Accountability with negative comments "the rated NCO has been notified of the reason for the relief" and "showed a lack of self discipline and did not act responsibly in making sound decisions."  This area of the NCOER rates Soldiers on being responsible for good, bad, right, and wrong.  The rater's comments are appropriate because they show he behaved irresponsibly.
   f.  However, he has not provided clear and compelling evidence which shows the ratings on the contested NCOER were in error or that they were not the considered opinions and objective judgments of the rating officials at the time the report was rendered.  

9.  In view of the foregoing, there is no basis for granting the applicant's requests.

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)                                         AR20140014699





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ABCMR Record of Proceedings (cont)                                         AR20140014699



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