BOARD DATE:	  14 April 2015

		DOCKET NUMBER:  AR20150001904 


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:

   a.  noncommissioned officer evaluation reports (NCOER) covering the following rating periods be removed from his records:

* 27 August 2009 through 26 August 2010 (hereafter referred to as the annual NCOER)
* 27 August 2010 through 10 January 2011 (hereafter referred to as the relief-for-cause NCOER)

   b.  Reconsideration of his appeal of denial of continued active duty service under the Qualitative Management Program (QMP).

   c.  Revocation of orders discharging him from the U.S. Army Reserve (USAR) Active Guard Reserve (AGR) Program.

2.  The applicant states:

* both of the NCOERs in question are beyond 3 years of their "THRU" dates, but he requests a waiver of the lack of timeliness by the Board
* the NCOERs are unjust, containing erroneous and concocted negative bullets throughout
* a personality conflict with his rater led to the poor ratings on both NCOERs
* the NCOERs were retaliatory in nature as they were prepared after he filed a Department of the Army Inspector General (DAIG) complaint that was later substantiated
* he appealed both NCOERs without more documentary evidence to prove they were substantively inaccurate as he was awaiting the evidence he anticipated emanating from a commander's inquiry into the NCOERs
* the commander's inquiry was not completed at the time of his NCOER appeal submissions although it was requested 1 year prior to that date
* he hoped the commander's inquiry would provide documents from his rater's profile showing his rater had twice been relieved of command
* his 2011 NCOER was a relief-for-cause NCOER, yet he was not in fact relieved during that rating period
* he was informed of his removal from his position on 7 June 2011 and signed the 2011 relief-for-cause NCOER on 8 June 2011, well after the "THRU" date of 10 January 2011
* his relief-for-cause NCOER was not signed by the rating chain until 4 months after the rating period ended
* he refutes that he plagiarized an essay (he simply had his wife proofread it prior to completion), refused to complete an essay as directed (he was only directed to write one essay, not two), and was insubordinate to his rater
* he was proficient in his management of the automated tool Enhanced Logbook Automation System (eLAS) used to monitor organizational priority suspense action taskers 
* the shortcomings regarding updating weekly training slides resulted from his rater not insisting that he be provided the necessary information to make the updates
* it was his rater, not he, who made a practice of berating subordinates, creating a toxic climate, and undermining the training plans
* he appropriately forecasted ammunition from the battalion to subordinate units per brigade instructions, only to leave to attend the Battle Staff Course and learn upon his return that the units had not done their part to assure the ammunition was appropriately forecasted
* he was never assigned a post or tasked to track the movement of the 412th Theater Engineer Command (TEC) Commanders Conference attendees per the operations order and should not be held accountable for that mission on his NCOER
* his 2010 annual NCOER was not signed by his senior rater until July 2011 after the applicant signed his 2011 relief-for-cause NCOER
* the bullet comments stating he was insubordinate to his seniors as well as harsh in his leadership style to subordinates during extended combat training are incorrect – rather, it was his rater who was disrespectful to him
* both NCOERs bear no resemblance to the NCOERs he received from previous raters containing comments such as "strong sense of duty," "treats everyone with respect," and "unlimited potential"
* the QMP action was based on the two negative NCOERs and will result in his transfer to the Retired Reserve, where he will have to wait 6 years until he can collect his pension despite 34 years of service
* this will leave him unemployed with neither income nor benefits for him and his wife, who suffers from type II diabetes and congestive heart failure
* the QMP Board was not made aware of a substantiated DAIG investigation, which confirms hostile treatment by his chain of command and is a material error affecting the QMP Board's decision
* newly discovered evidence is a letter from the USAR Command G-1 to the Office of Congressman S____ C____
* the letter to the Congressman speaks to the fact that the backdating of and delays in processing his NCOERs detrimentally affected his ability to address them, which in turn are the root of the QMP action against him
* the Congressional inquiry was received by the Office of the Chief of Legislative Liaison on 4 April 2014 and he received notice of QMP on 2 May 2014
* the NCOERs drafted under questionable conditions with irregularities in timeliness should not result in QMP action and tarnish his 34-year career

3.  The applicant provides:

* self-authored statement
* memorandum, dated 22 September 2014, subject:  Appeal of Denial of Continued Active Duty Service under the QMP
* memorandum, dated 22 August 2014, subject:  Soldier Acknowledgment – Notification of Denial of Continued Active Duty Service under the QMP
* memorandum, dated 28 July 2014, subject:  Notification of Denial of Continued Active Duty Service under the QMP
* memorandum, dated 23 May 2014, subject:  Matters Submitted in Mitigation and Extenuation to the Fiscal Year 2014 Senior Noncommissioned Officer QMP Board
* memorandum, dated 18 March 2013, subject:  Appeal of NCOER for the 27 August 2010 through 10 January 2011 Rating Period
* NCOER for the period covering 27 August 2010 through 10 January 2011
* memorandum, dated 24 February 2012, subject:  Commander's Inquiry Request
* numerous copies of email correspondence
* DA Form 1059 (Service School Academic Evaluation Report), dated 29 January 2010
* Fragmentary Order 002 to 926th Engineer Brigade Operation 
Order 10-036, dated 6 October 2010
* NCOER for the period 27 August 2008 through 26 August 2009
* NCOER for the period 27 August 2007 through 26 August 2008
* NCOER for the period 1 December 2006 through 31 August 2007
* memorandum, dated 18 March 2013, subject:  Appeal of NCOER for the 27 August 2009 through 26 August 2010 Rating Period
* Headquarters, USAR Command, letter to Congressman C____, dated 
7 May 2014
* Office of the Inspector General letter, dated 14 September 2011
* memorandum, dated 27 September 2010, subject:  Commander's Notice for a Mental Health Evaluation and Notice of Soldier's Rights
* DA Form 1559 (Inspector General Action Request), dated 2 December 2010
* memorandum, dated 24 December 2014, subject:  Request for Appeal of the Involuntary Separation under the QMP
* memorandum, dated 26 March 2013, subject:  Evaluation Report Appeal

CONSIDERATION OF EVIDENCE:

1.  On 14 July 2002, the applicant began service in the USAR in an AGR status after over 18 years of service in the USAR in a troop program unit as well as a prior period of active duty service.  The highest rank that he held was that of master sergeant/E-8.

2.  On 27 September 2010, the applicant's company commander notified the applicant that he was being referred for a mental health evaluation based on his rater's 12 August 2010 counseling recommending him for evaluation due to early morning agitation and changes in his mood.  The applicant's rater stated the applicant behaved differently toward others as the day progressed and he may have been showing signs of stress and possible bi-polar disorder tendencies.

3.  A DA Form 1559 shows the applicant requested DAIG action on 2 December 2010 to determine whether he was properly referred for a mental health evaluation.

4.  In February 2011, the applicant's rater prepared the applicant's annual NCOER covering the period 27 August 2009 through 26 August 2010 for his duties as the battalion operations sergeant.  The NCOER shows the following entries:


	a.  Part II (Authentication) shows the rater and senior rater authenticated the form by digitally signing it on 11 February and 15 April 2011 respectively.  The reviewer concurred with the rater and senior rater and authenticated the document by digitally signing it on 3 July 2011.  The applicant signed the NCOER on 7 July 2011.

	b.  In Part IVa (Army Values), the rater placed an "X" in the "No" block for "Respect/EO/EEO" and "Honor."  The rater entered the following bullet comments:

* maintained a no show rate for school scheduling lower than the average in the Brigade
* was counseled for unprofessional and disrespectful behavior [toward] superiors[,] specifically his rater[,] and has berated subordinates
* fails to live up to the Army Values concerning respect for subordinates

	c.  In Part IVb (Competence), the rater placed an "X" in the "Needs Improvement (Much)" block and entered the following bullet comments:

* does not show sound judgment as shown by his insubordinate actions during Extended Combat Training NTC [National Training Center] 
10-08, (counseling dated 12 August 2010)
* managed ATTRS [Army Training Requirements and Resources System] program with a minimum of cancellations and only seven no shows for Army schools
* managed the TAMIS-R [Total Ammunition Management Information System Redesigned] ammunition for the battalion for one FTX [field training exercise] and NTC 10-08

	d.  In Part IVc (Physical Fitness and Military Bearing), the rater placed an "X" in the "Success" block and entered appropriate bullet comments.

	e.  In Part IVd (Leadership), the rater placed an "X" in the "Needs Improvement (Much)" block and entered the following bullet comments:

* gives undue consideration and attention to personal likes and priorities during NTC 10-08 at the expense of the mission
* overbearing with subordinates that creates tension and becomes a distraction for exercises both at FTX and at NTC 10-08 that the command removed him from the TOC [tactical operations center]
* harsh and coarse in leadership style and overly intolerant of mistakes

	f.  In Part IVe (Training), the rater placed an "X" in the "Needs Improvement (Some)" block and entered the following bullet comments:

* attends training that is given but rarely instructs subordinates
* supports instructors with training materials if requested
* assists company training NCOs with school scheduling if required

	g.  In Part IVf (Responsibility and Accountability), the rater placed an "X" in the "Success" block and entered appropriate bullet comments.

	h.  In Part Va (Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), the rater placed an "X" in the "Marginal" block.  He also entered three positions in which the applicant could best serve the Army at his current or next higher grade.

	i.  In Part Vc (Senior Rater – Overall Performance), the senior rater placed an "X" in the "Fair/4" block.

	j.  In Part Vd (Senior Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), the senior rater placed an "X" in the "Poor/5" block.

	k.  In Part Ve (Senior Rater Bullet Comments), the senior rater entered the following bullet comments:

* lack of professionalism when dealing with battalion staff officers and subordinates has caused him to lose their entire respect despite his rank and position
* conduct has been a disruption to good order and discipline of this battalion; behavior resulted in being thrown out of the Battalion and Brigade CPs [command posts] during NTC rotation
* has lost the trust of the command group to successfully perform duties and responsibilities required of his position; failed to conduct such duties at NTC
* do not promote; do not assign in positions of responsibility; do not continue service in the AGR program

5.  In May 2011, the applicant's rater prepared a relief-for-cause NCOER covering the period 27 August 2010 through 10 January 2011 for his duties as the battalion operations sergeant. The NCOER shows the following entries:

	a.  Part II shows the rater and senior rater authenticated the form by digitally signing it on 17 May 2011 and 18 May 2011 respectively.  The reviewer concurred with the rater and senior rater and authenticated the document by digitally signing it on 25 May 2011.  The applicant signed the NCOER on 8 June 2011.

	b.  In Part IVa, the rater placed an "X" in the "No" blocks for all of the Army Values aside from "Personal Courage."  The rater entered the following bullet comments:

* refused order to complete corrective assignment[,] supplied plagiarized essay received on 28 SEP 2010, refuse to complete essay directed on 12 NOV 2010
* is disrespectful [toward] officers and enlisted, openly argued with supervisor on 08-09 JAN 2011
* violates standards of behavior and conduct, flagrant disregard of regulations

	c.  In Part IVb, the rater placed an "X" in the "Needs Improvement (Much)" block and entered the following bullet comments:

* blatantly plagiarized a corrective counseling written essay concerning leadership; stated work was his own when questioned about the writing
* failed in duty proficiency by not being able to manage eLAS taskings for the Battalion
* Soldier used his rank to make others complete work specifically assigned to him and failed in accomplishing the directed task of updating weekly training slides

	d.  In Part IVc, the rater placed an "X" in the "Success" block and entered appropriate bullet comments.

	e.  In Part IVd, the rater placed an "X" in the "Needs Improvement (Much)" block and entered the following bullet comments:

* countermands orders given to subordinates by his supervisor, the Battalion S3
* uses unacceptable counseling techniques; kept subordinates at parade rest while berating them against his supervisor's direction
* harsh and coarse in leadership style; demands respect based on his rank without earning it while failing to give officers and NCOs the respect that is deserved


	f.  In Part IVe, the rater placed an "X" in the "Needs Improvement (Some)" block and entered the following bullet comments:

* failed to submit planning input for training schedules of the section and disregards guidance from officers in the section on focusing the training
* disruptive to execution of section training; does not function as part of a team effort to accomplish tasks
* Soldier wastes section's time by speaking about himself in third person and pontificating on how knowledgeable he is

	g.  In Part IVf, the rater placed an "X" in the "Needs Improvement (Much)" block and entered the following bullet comments:

* failed to properly request Battalion ammunition for Battalion qualifications; required involvement of Battalion, Brigade, and TEC Commanders to resolve
* violated General Order Number 1; left his post without completing the mission or being properly relieved on 9 November 2011 and lost accountability of personnel in movement
* the rated NCO has been notified of the reason for relief

	h.  In Part Va (Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), the rater placed an "X" in the "Marginal" block.  He also entered three positions in which the applicant could best serve the Army at his current or next higher grade. 

	i.  In Part Vc, the senior rater placed an "X" in the "Poor/5" block.

	j.  In Part Vd, the senior rater placed an "X" in the "Poor/5" block.

	k.  In Part IVe, the senior rater entered the following bullet comments:

* counseled by the Battalion Commander on lack of professionalism before rating period began; failed to show improvement when dealing with battalion staff
* poor duty performance continued even after addition of Battle Staff training; failings adversely effected the unit and resulted in involvement of brigade and TEC CDRs [commanders]
* lost the trust of the command to successfully perform the duties and responsibilities required of his position; blamed others for failing to have work accomplished
* do not promote; do not assign in positions of responsibility; do not continue service in the AGR program

6.  A letter, dated 14 September 2011, from the DAIG Office advised that they completed their Report of Investigative Inquiry (ROII) into the applicant's allegations of an improper referral for a command-directed mental health evaluation.  Although the ROII is not available for review, the letter indicated it was substantiated that the applicant's commander improperly referred him for a command-directed mental health evaluation and that the mental health care provider failed to contact the chain of command regarding problems with the referral memorandum.

7.  There is no record of the applicant's referral for a command-directed mental health evaluation or the results of the evaluation in any section of his service record.  Neither is it mentioned in the two contested NCOERs, nor is there any evidence the QMP Board had knowledge of the command-directed referral for a mental health evaluation.

8.  On 24 February 2012, a commander's inquiry into the two NCOERs in question was requested on behalf of the applicant.  As part of the commander's inquiry, the applicant requested that his rating chain provide the following:

* all documents the rating chain relied upon to support the ratings
* copies of NCOER support forms and counseling session forms documenting the quarterly counseling sessions for the rating periods
* Soldiers who claim they were mistreated by the applicant be made available for the appointed officer to interview
* an explanation as to how the late NCOERs are in compliance with the requirement for NCOERs to arrive at the U.S. Army Human Resources Command (HRC) no later than 90 days after the "THRU" date of the report
* all documentation pertaining to the rationale behind the decision to refer him to a mental health evaluation
* an opportunity to be interviewed by the officer appointed to conduct the inquiry in order to explain why he believes he received the negative NCOERs
* a review of his service record by the appointed officer to confirm the contested NCOERs are inconsistent with the prior NCOERs he received
* sworn statements from his rating chain regarding the applicant's contention he was told he would be rehabilitatively transferred in lieu of receiving a relief-for-cause NCOER
* all evidence regarding the credibility of his rating chain be expressly incorporated in the appointed officer's report

9.  The results of the commander's inquiry are not in the applicant's service record and the applicant has not provided a copy to the Board for review.

10.  On 18 March 2013, the applicant appealed both the 2010 annual NCOER and the 2011 relief-for-cause NCOER to HRC, arguing that both NCOERs were substantively inaccurate.  He acknowledged he did not have an abundance of substantiating evidence as he had not yet received the results of the commander's inquiry he had requested in February 2012.  In both appeals he requested that the NCOERs be remanded to the rating officials who drafted the content with instructions to redraft them based on the applicant's performance and not based on personality conflicts.  Alternately, he requested filing the NCOERs in the restricted folder of his Official Military Personnel File (OMPF).

11.  On 26 March 2013, HRC returned both NCOER appeals without action due to insufficient evidence, advising the applicant that the burden of proof was upon him to establish through clear and convincing evidence that a contested report is incorrect.

12.  On 28 July 2014, the applicant was notified by HRC of his denial of continued active duty service under the QMP.  He was notified that the QMP Selection Board conducted a comprehensive review of his record and recommended that he be denied continued active duty service.  He was advised he would be involuntarily discharged from the Army not later than 1 February 2015 unless he requested an earlier separation date or appealed the decision.  He was also advised that any appeal of the decision was limited to newly-discovered evidence, the subsequent removal of documents from his OMPF, and/or material error in his record when reviewed by the selection board.

13.  On 22 August 2014, he acknowledged notification of denial of continued active duty service under the QMP and informed HRC he would appeal the decision and request retention on active duty.

14.  On 22 September 2014, the applicant appealed the QMP decision on the basis of material error and newly discovered evidence.  The applicant argued the fact that the QMP Board was not made aware of the substantiated DAIG investigation into his command-directed referral to a mental health evaluation was a material error.  Additionally, he argued that newly-discovered evidence, namely a 7 May 2014 letter from the USAR Command to Congressman C____, was not previously seen by the QMP Board and it substantiated the delays in the processing of his NCOERs along with limiting his opportunity to address them.


15.  On 24 December 2014, HRC denied his appeal of separation under the QMP because it did not meet the appeal criteria set forth regarding the identification of a material error, newly-discovered evidence, or the subsequent removal of documents from the Soldier's OMPF to make him eligible to appeal.  He was advised by HRC to appeal to the Army Board for Correction of Military Records should he feel HRC's decision was unjust or in error.

16.  On 15 February 2015, he was honorably released from active duty under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 16-4a (Non-retention on Active Duty), and transferred to the USAR Control Group (Reinforcement) (better known as the Individual Ready Reserve (IRR)).  After a series of orders revocations and amendments made by HRC alternately releasing him from the IRR and assigning him to the Retired Reserve then reassigning him from the Retired Reserve to the IRR, he was ultimately discharged from the USAR on 15 March 2015 after completing over 35 years of creditable service, more than 17 of which were active Federal service.

17.  Army Regulation 635-200, chapter 19 (Qualitative Management Program), contains policy and procedures for voluntary and involuntary separation for the convenience of the government of Regular Army NCOs and USAR NCOs serving in an AGR status under the QMP.

	a.  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.

	b.  Screening for QMP is accomplished by HQDA boards that may be convened for other purposes as well.  The appropriate board reviews the performance folder 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.

	c.  QMP appeals are limited to newly-discovered evidence, the subsequent removal of documents from the Soldier's OMPF, or material error in the Soldier's record that was reviewed by the QMP screening board.

	d.  AGR Soldiers with at least 17 years and 9 months but less than 20 years of qualifying service for Nonregular retired pay at the time of notification of QMP selection who choose not to appeal or whose appeal is denied and whose expiration of term of service occurs prior to the 20-year point may extend their enlistments for the minimum period required to qualify for nonregular retirement.  AGR Soldiers with 20 years or more of qualifying service for nonregular retired pay may elect voluntary REFRAD with concurrent transfer to the Retired Reserve.

	e.  In accordance with paragraph 16-4 (Non-Retention of Active Duty), Soldiers denied or ineligible for continued active duty service may be separated upon request.  The criteria in chapter 1, section VII (Mobilization Asset Transfer Program), govern whether the Soldier is released from active duty with transfer to the IRR or discharged.  Per that section, Reserve Component Soldiers will be transferred to the IRR to complete their statutory military service obligations (MSO).  Soldiers without 3 or more months remaining on their MSO are not eligible for transfer to the IRR.  Soldiers not transferred to the IRR will be discharged.

18.  Army Regulation 600-8-104 (Army Military Human Resource Records Management), table 2-1, states an NCOER will be filed in the performance folder of the OMPF.  

19.  Army Regulation 623-3 (Evaluation Reporting System), prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.

	a.  Paragraph 1-11 pertains to commander's inquiries and states when a commander discovers that an evaluation report rendered by a subordinate or a subordinate command may be illegal, unjust, or otherwise in violation of this regulation, he or she will conduct an inquiry into the matter.  The inquiry will be confined to matters related to the clarity of the evaluation report, the facts contained in the evaluation report, the compliance of the evaluation with policy 


and procedures established by HQDA, and the conduct of the rated Soldier and members of the rating chain.  The official does not have the authority to direct that an evaluation report be changed; command influence may not be used to alter the honest evaluation of a rated Soldier by a rating official.

	b.  Paragraph 3-33 states evaluation reports will be forwarded error-free to reach HQDA no later than 90 days after the "THRU" date of the evaluation report.  The senior rater is responsible for ensuring the timely submission of OERs and NCOERs to HQDA.

	c.  Paragraph 3-36 states an evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to be administratively correct, to have been prepared by the properly designated rating officials who meet the minimum time and grade qualifications, and represent the considered opinions and objective judgment of the rating officials at the time of preparation.

	d.  Paragraph 4-4 provides further guidance on the commander's inquiry.  The primary purpose of a commander's inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record.  A secondary purpose is to obtain command involvement in clarifying errors or injustices after the evaluation is accepted by HQDA.  However, in these after-the-fact cases, the commander's inquiry is not intended to be a substitute for the appeals process, which is the primary means of addressing errors and injustices after they become a matter of permanent record.

	e.  Paragraph 4-5 states that if the commander finds no fault with the evaluation, then the commander's inquiry is filed locally and a copy is given to the rated Soldier.  There is no requirement to send the commander's inquiry forward to HQDA.

	f.  Paragraph 4-7 states an appeal will be supported by substantiated evidence.  An appeal that alleges an evaluation report is incorrect, inaccurate, or unjust without usable supporting evidence will not be considered.

	g.  Paragraph 4-11 states the burden of proof in the appeals process rests with the appellant.  Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  For a claim of inaccuracy or injustice of a substantive type, evidence will include statements from third parties, rating officials, or other documents from official sources.

	h.  Paragraph 4-13 advises that appeals based on substantive inaccuracy must include the basis for the belief that the rating officials were not objective or had an erroneous perception of the performance.  Note that a personality conflict between the appellant and a rating official does not constitute grounds for a favorable appeal; it must be shown conclusively that the conflict resulted in an inaccurate or unjust evaluation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reconsideration of his appeal of denial of continued active duty service under the QMP was carefully considered and determined to lack merit.

2.  Without evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the QMP process.

3.  The applicant appealed the QMP decision declining him continued active service; however, HRC denied his appeal because his request did not meet the criteria set forth by Army policy.  An appeal is only warranted when a material error exists or newly-discovered evidence is provided.

4.  The applicant asserted the material error in the QMP process was the board's lack of knowledge regarding the DAIG substantiation that he was improperly referred to a command-directed mental health evaluation.  The letter from the DAIG pointedly does not reference hostile treatment by his chain of command, as the applicant claims, but only speaks to the improper referral to a mental health evaluation.  Additionally, the applicant's records do not contain the mental health evaluation itself, his referral to the mental health evaluation, nor is it referenced anywhere in his NCOERs.  Thus, this information could not have erroneously swayed the QMP decision process.  The applicant's service records are void of evidence that substantiates that a material error existed during the QMP process.

5.  The applicant also asserted that new information in the form of correspondence to Congressman's C____'s office, dated 7 May 2014, would have changed the outcome of the QMP process.  A review of the correspondence in question shows it does not contain any new information.

6.  In view of the foregoing information, there is no evidence that the applicant's denial of continued active duty service under the QMP was in error.  Thus, his discharge from the AGR Program is appropriate considering the facts of the case.

7.  The applicant's request that his contested NCOERs for the periods covering 27 August 2009 through 26 August 2010 and 27 August 2010 through 10 January 2011 be voided based on irregularities in timeliness and erroneous bullets has been carefully considered and determined to lack merit.

8.  Both NCOERs in question were submitted discernibly past their "THRU" dates and in no way were in keeping with the regulatory intent of timely submission.  The NCOER covering the period 27 August 2009 through 26 August 2010 was signed by the rater on 11 February 2010 (over 5 months past the "THRU" date) and signed by the applicant on 7 July 2011.  The NCOER covering the period 27 August 2010 through 10 January 2011 was signed by the rater on 17 May 2011 (4 months past the "THRU" date) and signed by the applicant on 8 June 2011.  Regulatory guidance requires submission of NCOERs to reach HQDA no later than 90 days after the "THRU" date of the evaluation report.

9.  Notwithstanding the egregious tardiness of the NCOERs, the applicant was nonetheless able to appeal them to HRC on 18 March 2013, which was within the prescribed time frame of not over 3 years from the "THRU" date of the evaluations.  Additionally, the applicant appealed the NCOERs more than 1 year prior to the QMP board decision, allowing ample time for corrections of substantive errors were they found to exist.

10.  HRC returned his NCOER appeals without action due to insufficient evidence.  It is noted that the applicant states he intended to include as substantiating evidence with his appeals the outcome of his request for a commander's inquiry into the tardiness of his NCOERs and his perceived inaccuracies in the bullet comments they contain.  The applicant's service record does not contain a copy of the resulting commander's inquiry and the applicant has not provided the Board a copy for review, thus the outcome is unknown.  It is presumed that if a commander's inquiry was conducted, the commander ultimately found no fault with the evaluations as the applicant's record is void of the findings.  There is no requirement to send the commander's inquiry forward to HQDA for inclusion in the Soldier's record if no fault was found.

11.  Regardless of the outcome of the commander's inquiry, the applicant has not provided clear and compelling evidence to this Board which shows the ratings on the contested NCOERs were in error or that they were not the considered opinions and objective judgments of the rating officials at the time the reports were rendered.

12.  In view of the foregoing evidence, 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 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)                                         AR20150001904



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ABCMR Record of Proceedings (cont)                                         AR20150001904



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