PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:            30 November 2000
	DOCKET NUMBER:   AR1999024575

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun
Mr. Richard H. Allen		Director
Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Celia L. Adolphi		Member	
	Mr. Thomas Lanyi		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in a brief prepared by counsel, that a Department of the Army (DA) imposed bar to reenlistment (referred to hereafter as Bar) under the Qualitative Management Program (QMP) be set aside;  that all derogatory correspondence and/or documents relating to the Bar be deleted with appropriate nonprejudical remarks inserted into his (sic) records explaining the corrections;  permit the applicant to immediately reenlist under the provisions of 
chapter 2 (Qualification for Immediate Reenlistment), Army Regulation 601-210; and set aside (removal) of five Noncommissioned Officer Evaluation Reports (NCOER’s) for the periods 8806-8905, 8906-9001, 9312-9411, 9412-9511 and 9512-9610.  If this is not appropriate, that action be taken to favorably act only on the first three requests above (i.e., set aside the Bar, remove correspondence related thereto and reinstate on active duty).  

3.  The applicant states in the same brief, in essence, that the Bar imposed on 
30 December 1996 was based upon two NCOER’s, for the period 
8906-9001 (change of rater) and 9312-9411 (annual report).  Her appeal of the Bar was denied on 17 June 1997.  Her command began elimination proceedings on 21 September 1997.  A board of officers (elimination) was convened to determine if the applicant should be discharged prior to her normal expiration of term of service (ETS).  She also filed a complaint with the Department of Defense (DoD) Inspector General (IG) under the Whistleblower Protection Act, Title 10, United States Code, Section 1034.  The elimination board met on 
30 March 1998 and voted that she be retained on active duty until her ETS and then be allowed to reenlist.  The board found her last three poor NCOER’s were the result of her supervisor, a civilian employee, maltreating her.  The board recommended to the convening authority that an investigation be conducted.  The approval authority approved the board’s findings on 26 May 1998, and directed an investigation be conducted.  Counsel essentially contends that the issue of “collateral estoppel---barring re-litigation of facts after a final proceeding. The elimination proceeding, and no others, is the recognized final authority on behalf of the Secretary of the Army applicable for administrative double jeopardy protection.”  Secondly, because the elimination board found that the factual allegations embodied in the Bar were unsupported by substantial evidence, the Bar must be set aside.  While the Army Board for Correction of Military Records is not bound by other cases, these cases should be given some weight.  Counsel contends that the elimination board was acting for the Secretary of the Army and found that the Bar should be set aside and the applicant should be allowed to reenlist.  Thus:  “the board had convened, in part, as a fact-finding body to specifically address the merits of the Bar.  In other words, the board was acting as final authority on behalf of the Army Secretary.”  Counsel goes on to cite case law which states that it was immaterial whether that board was to find whether the applicant should be separated prior to ETS.  Furthermore, the general officer convening authority approval of the board of officer’s action placed his “imprimatur” on behalf of the Secretary of the Army.  The DoD IG letter to the 

applicant, dated 16 March 1999, stated that it had found that the NCOER’s and elimination action were not “technically within the definition of ‘reprisals’ qualifying under Title 10, United States Code, Section 1034, as they were ‘non-discretionary personnel actions’.”  However, the DoD IG’s report did state that the applicant’s raters had repeatedly violated Army regulations by not properly counseling her, to include before her relief-for-cause report, provided insufficient evidence of counselings and that some counselings were unjustified.  Counsel then contends that the DoD IG’s report essentially recommended the same thing as the elimination board, although the DoD IG’s office had not seen the local elimination board results.  The brief is accompanied by six exhibits including the notification of the Bar, with her appeal; the elimination board proceedings, to include a summary of testimony at the hearing; a statement from a retired lieutenant general concerning injustices in the elimination board procedures in the Army (he is citing the case of a commissioned officer who was retained in the service, but where the adverse information in his case was kept in his official records); a copy of a DD Form 214WS (essentially the work sheet for her DD Form 214 (Certificate of Release from Active Duty or Discharge); a copy of the denial from the DoD IG of her claim for Whistleblower protection; and a copy of 10 NCOER’s between July 1987 and October 1996 (the relief-for-cause NCOER).  

4.  Counsel’s contentions are the same as those in the brief he prepared on behalf of the applicant.  

5.  The applicant's military records show that she enlisted in the Army Reserve (USAR) on 6 June 1979 for 6 years.  She was trained as a unit supply specialist (military occupational specialty), MOS 76Y.  She served continuously thereafter, until she was honorably discharged on 9 May 1999, in pay grade E-7, at the completion of required active service, under the provisions of Army Regulation 635-200, Chapter 4.  Her reentry eligibility (RE) code was RE-4 (not eligible to reenlist).  Besides duties as a supply specialist, she held duties in 
MOS 75H (Personnel Services Specialist) and MOS 71L (Administrative Specialist).  

6.  On 28 January 1985, she was ordered to active duty in the Army Guard/Reserve (AGR) program in pay grade E-4, effective 18 February 1985.  Her initial assignment was for 3 years, and she served in various AGR tours until her discharge on 9 May 1999.  She was credited at that time with 14 years, 
2 months and 22 days active service between 1985 and 1999, 10 months and 
8 days prior active service, and 4 years, 10 months and 4 days prior inactive service.  She had been promoted to the rank of sergeant, pay grade E-5, on 
27 January 1986; to staff sergeant, pay grade E-6 on 29 February 1988; and to sergeant first class, pay grade E-7, on 1 October 1993.  

7.  Between July 1987 and May 1988, the applicant served as a team member in a centralized reenlistment office at the Army Reserve Personnel Center (ARPERCEN) located at St. Louis, Missouri.  She was in an AGR status and held the rank of sergeant, then staff sergeant.  From June 1988 to May 1989, she served as a Section Chief in the same office, and from June 1989 through January 1990, she served as an administrative specialist in the same office.  From February 1990 through January 1991, she served as a personnel management sergeant in an office providing support to 55 recruiting battalions throughout the United States in support of review of records of prior service personnel.  She next was assigned to Jackson, Mississippi, where she served as a personnel management supervisor in a USAR personnel command.  In October 1993, she was promoted to the rank of SFC, and in December 1993 she was assigned to the 416th Engineer Command, Chicago, Illinois, as the Personnel Staff Noncommissioned Officer (PSNCO) for the command.  After being relieved for cause in October 1996, she was reassigned to the Intelligence Section of the command where she served as the section’s administrative supervisor.  

8.  A summary of the applicant’s available NCOER’s [i.e., DA Form(s) 2166-6 and DA Form(s) 2166-7] is provided below.  Note that for DA Form(s) 2166-6 only the average score is shown, with 125 being the maximum score achievable. Also note that for DA Form(s) 2166-7 the rating system depicted below is limited to three entries:  the first entry is derived from Part Va (the rater’s rating of the NCO’s overall potential for promotion and/or service in positions of greater responsibility), expressed in Roman numerals, with “I” (Among the Best) the highest and “III” (Marginal) the lowest; and the last two entries are derived from Part Vc (the senior rater’s (SR’s) rating of the noncommissioned officer’s (NCO’s) overall performance) and Part Vd (the SR’s rating of the NCO’s overall potential for promotion and/or service in positions of greater responsibility) respectively, also expressed in Roman numerals, with “I thru III” indicating a rating of “Successful/Superior”, “IV” indicating a rating of “Fair”, and “V” indicating a rating of “Poor.”

			 Score/
	Period	         Rater/SR	Rank	   Position	         Type Report

 #Jul 87-Dec 87	123.5		SGT	  Team Clerk		Ch of Rater
 #Jan 88-May 88	124		SSG	  Team Member  	Final
 *Jun 88-May 89	III/IV/IV	SSG	   Pers Sec Chief	Annual
 *Jun 89-Jan 90	III/IV/IV	SSG	   Admin Spec	Ch of Rater
  Feb 90-Jan 91	I/I/I		SSG	   Pers Mgmt SGT	Annual
  Feb 91-Jan 92	I/I/I		SSG	   Pers Mgmt SGT	Annual
  Feb 92-Jan 93	I/I/I		SSG	   Pers Mgmt SGT	Annual
  Feb 93-Apr 93	I/I/I		SSG	   Pers Mgmt Supv	Ch of Rater
  May 93-Nov 93	I/II/I		SFC	   Pers Mgmt Supv	Ch of Rater
 			 Score/
	Period	         Rater/SR	Rank	   Position	         Type Report
 *Dec 93-Nov 94	III/IV/IV	SFC	   Pers Staff NCO	Annual
 *Dec 94-Nov 95	III/V/V		SFC	   Pers Staff NCO	Annual
 *Dec 95-Oct 96	III/V/V		SFC	    Pers Staff NCO	Relief for Cause
  Nov 96-Nov 97		No Report (s) on OMPF (Fiche Form)
  Dec 97-Oct 98	II/II/III		SFC	    Admin Supv	Annual
  Nov 98-Mar 99	II/II/III		SFC	    Admin Supv	Ch of Rater
  Apr 99-May 99			No Report Rendered                                    
# DA Forms 2166-6 (All others are DA Forms 2166-7)
*Contested Reports

9.  The NCOER between June 1988 and May 1989, an annual report, was for duty as a Section Chief (MOS 75Z40) in the USAR reenlistment operations at the ARPERCEN.  She supervised five NCO’s in preparing computer data for input, assigning cases for processing, and the management of blank forms.  She and her team also prepared reenlistment contracts for Individual Ready Reserve soldiers reenlisting through her office.  The report (DA Form 2166-7), in 
Part IV (Values/NCO Responsibilities-as prepared by her rater, a master sergeant, the noncommissioned officer-in-charge (NCOIC) of the Reenlistment Branch showed all positive ratings except for a “no” rating in item 3 (Is disciplined and obedient to the spirit and letter of lawful orders).  The comment is made that she “consistently questions directives and orders from superiors.”  In 
Part IV (Values/NCO Responsibilities) item b (Competence) is marked “needs improvement (much).”  The comments made include:  “needs to improve NCO competence” and “does not display sound judgement with following orders.”  She had successful ratings in Part IV, sections C through F, for Physical Fitness & Military Bearing; Leadership: Training and Responsibility and Accountability.  However the rater stated in Part V (Overall Performance and Potential),
Part Va, that her promotion potential was marginal.  The senior rater (a major, the Reenlistment Branch Chief) in Part Vc stated that her overall performance was only fair and in Part Vd, stated that her overall potential for promotion and or service in positions of greater responsibility, was likewise rated as fair.  In Part Ve, the senior rater narrative comments included:  “needs additional training and expertise to improve MOS competency;  has shown improvement in striving to become an NCO; and that future assignments should be as a mid-level supervisor in daily contact with rater.”  The reviewer, another major, who was chief of the Enlisted Services Division, of the ARPERCEN, concurred in the ratings.  There is no evidence of record that she ever appealed this NCOER.  

10.  The next report, for the rating period June 1989 through January 1990, was for duty as an Administrative Specialist, and served as the assistant to the chief of the Correspondence Support Section of the Reenlistment Branch.  Her overall ratings for Values/NCO Responsibilities from her rater, in Part IVa, were all positive.  Her rating in Part IVb for Competence was “needs improvement (some)” with the negative comment that she “needs to improve SQT (Skill Qualification Test) score to a passing grade.”  Other comments in this section were positive.  Ratings in Parts IVc-IVf were all successful.  However, the rater (a sergeant first class, her section chief)  stated that her overall potential was marginal, and the senior rater (the NCOIC of the Reenlistment Branch), in 
Part V, items c and d, rated her as having only fair performance and potential.  The senior rater, the Reenlistment Branch Chief, concurred in the ratings.  There is no indication that she ever appealed this report.

11.  In the NCOER from December 1993 through November 1994, at the 
416th Engineer Command in Chicago, for duties as the PSNCO of the command, with the rank of sergeant first class, pay grade E-7, her overall rating was unsatisfactory.  In Part IVa (Values/NCO Responsibilities), her rater, a captain, Assistant Adjutant, gave her “no” ratings for four out of the seven values. His comments included:  “Allowed personnal (sic) problems to interfere with job performance;  Failed to follow through on key personnel actions;  Failed to follow direct orders of the ACofS Pers and others;  Failed to keep superiors informed.”  In Parts IVb-f, the only section which is rated successful is Part IVc (Physical Fitness & Military Bearing).  All the other Parts were marked “needs some improvement.”  His overall rating of her in Part Va was marginal.  The senior rater, the Military Personnel Officer, (a civilian employee), gave her a “fair” rating for overall performance and potential.  His single comment in Part Ve was “Puts forth little effort to provide motivation for soldiers to become involved in section duties.”  The reviewer, a colonel, the Assistant Chief of Staff Personnel, concurred in the report.  

12.  In the annual report for the next rating period (December 1994 through November 1995), the ratings were even worse.  The same rater, marked “no” in five of seven attributes in Part IVa (Values/NCO Responsibilities).  His comments included:  “Fails to follow instructions.  Doesn’t check work.  Doesn’t get envolved (sic) unless directed.  Insubordinate.  Fails to meet Army Standards in many activities.”  All ratings in Part IV, sections c-f, were marked needs improvement, either some or much.  He marked her overall potential rating in Part Va as marginal.  The same senior rater marked her as “poor” for her overall performance and potential in Parts Vc and Vd.  His comments in Part Ve included:  “Substantial efforts to reverse down spiral in performance is needed.  A positive attitude and desire to participate in improving section and unit is needed.  An effort to strive for excellence in work is desired.” and “A display of initiative and responsibility for work will improve performance.”  The reviewer, a lieutenant colonel, the command’s new Assistant Chief of Staff Personnel concurred.  No appeal of this report is on record.

13.  The NCOER for the rating period December 1995 through October 1996, was a relief-for-cause report.  Again in Part IVa (Values/NCO Responsibilities), five of the seven characteristics were marked “no” by the rater, the same rater as in the two prior reports.  In Parts IVb-IVf, all ratings were “Needs Improvement,” either some or much.  The rater stated that her overall potential was only Marginal.  The same senior rater gave her “Poor” ratings in Parts Vc and Vd.  His comments in Part Ve included:  “Refuses to follow instructions;  Refuses to share information;  Fails to keep supervisor informed of actions;” and “Complains about and belittles supervisors to personnel in lateral commands.”  The Assistant Chief of Staff Personnel concurred in the report.  Again, there is no recorded appeal of the report.  

14.  Following her relief for cause, she was assigned to the Intelligence Section of her command as an administrative supervisor (MOS 71L).  Her performance of duty between November 1996 and October 1997 is not a matter of record.  Her two ratings between November 1997 and March 1999 were essentially successful ratings, with her senior rater stating that her performance was successful (second highest rating) and her potential was superior, but with the third highest rating in this section.  Comments were generally laudatory, but not outstanding.

15.  On 30 December 1996, the ARPERCEN notified the applicant, that a Department of the Army (DA) Qualitative Management Program (QMP) Board met on 21 October 1996, and imposed a bar to reenlistment under the USAR AGR QMP Program.  The basis for the action was cited as the deficiencies in her duty performance as shown in her NCOER’s for the rating periods 
8906-9001 and 9312-9411.  On 17 June 1997, she was advised that her appeal of the Bar had been denied by a DA Standby Advisory Board which adjourned on 16 May 1997.  On 6 August 1997 she essentially acknowledged notification of the denial and stated that she elected to receive pre-separation counseling and to take a separation/retirement physical.  

16.  On 16 January 1997, the applicant submitted a complaint to the DoD Hotline alleging reprisal by her chain of command following protected communications she made with the President, Members of Congress, Inspector General (IG) and Equal Opportunity (EO) officials.  This essentially was a request for protection under Title 10, United States Code, Section 1034, “Military Whistleblower Protection Act.”

17.  The Department of Defense IG (DoD IG) directed the Department of the Army to investigate the allegations.  The allegations were investigated on behalf of the Office of the Inspector General, DA (DAIG), by the Office of the IG, Forces Command (FORSCOMIG).  Her claims of reprisal in the form of two adverse NCOER’s (December 1993 through November 1995), three adverse counseling statements in October 1996, followed by her relief for cause NCOER later in October 1996 (for the period December 1995 through October 1996), and her transfer to another duty section were not substantiated as acts of reprisals for her communications with governmental officials.  Further, the DoD IG’s response stated that the DAIG(FORSCOMIG’s) investigation found that the action to impose a Bar under the QMP was initiated by the Army Personnel Center based on her performance record and the relief-for-cause NCOER, which was a nondiscretionary personnel action, and therefore was not an act of reprisal.  

18.  The redacted report of investigation by the FORSCOMIG which was provided to the Board, shows that she received at least 13 counselings during her service as the PSNCO at the 416th Engineer Command.  It appears that 
10 counselings were rendered by her rater during the period December 
1993 through November 1994.  Some of these were based on observations by the rater, others were based upon observations from the senior rater and other staff officers and NCO’s in the command.  Many of them involved not completing assigned tasks in the proper manner, not doing what she was instructed to do, for being absent from duty under questionable circumstances, at least one counseling in which command asked whether she needed more training to perform her duty, to which she responded only in general terms (“whatever training was appropriate for her job”), poor motivation, a belligerent attitude and the like.  In some instances, she had even refused to perform assigned tasks, which required other NCO’s in the personnel office to complete them.  These documents were referred to in a memorandum prepared in January 1995 in connection with the completion of her annual NCOER for the period December 1993 through November 1994.  This document was apparently not included with the official copy of her NCOER forwarded for placement in her official files, but was provided to her career manager at the ARPERCEN (Full Time Support Management Directorate) as an enclosure to the report.  She was also advised in January 1995, that her job description would be revised, which it was in April of 1995.  The rating aspects of this first report were discussed earlier (see paragraph 11, above).  

19.  The rating aspects of her second NCOER, for the rating period December 1994 through November 1995 are discussed in paragraph 12, above.  Documentation to support the ratings given consisted of eight of the counseling forms for the previous rating period (December 1993 through November 1994), which were included with the report.  

20.  On 10 October 1996, she received three counseling statements, at the same time.  One involved her failure to report for makeup training, a second for failure to complete paperwork as directed by the senior rater and the third for making disparaging remarks about her command to an individual from another command.  All these instances appear to have been over the prior month.  She was advised at that time that she was facing a relief-for-cause action.  She requested a commander’s inquiry through her Representative in Congress.  The inquiry was conducted and she was informed by the commanding general of her command on 2 March 1997 that her allegations were without merit.  
21.  She was relieved for cause on 31 October 1996, and a memorandum from the senior rater reassigned her to the Intelligence Section of the Engineer Command effective 4 November 1996.  

22.  Shortly thereafter, her relief-for-cause NCOER was completed and submitted and was accompanied by the three counseling statements and the reassignment memorandum.  There was no mention, nor did the FORSCOMIG investigation develop any evidence that she had received quarterly performance counselings during the last rating period.   

23.  During the investigation, the applicant testified that no matter how hard she tried, she and her rater (a captain) did not get along.  After she made an Equal Opportunity (EO) complaint (February 1994-within 3 months after her arrival in the command) she was repeatedly counseled by her rater.  She did not feel that the counselings were instructive and he provided her no rehabilitation time.  After her mother filed an Inspector General (IG) complaint on her behalf, the situation got even worse and she received even more counselings.  

24.  She also related to the FORSCOMIG that she and her senior rater had a serious  disagreement over a sergeant who was an alcoholic and missed numerous drills, without an excuse.  She initiated paperwork to show he was AWOL, but her senior rater told her to place him on leave.  She felt this counseling was unfair.   

25.  Two other witness testified to the FORSCOMIG (names and ranks were redacted) that many of the counselings the applicant received were unwarranted and were in retaliation against the applicant.

26.  The investigation found that the applicant had made at least seven “protected communications” during her assignment to the 416th Engineer Command.  The first was an EO complaint in February 1994 alleging discrimination and unfair treatment by her supervisors. This complaint was investigated and the applicant’s allegations were substantiated.  Her supervisors were counseled concerning this.  A subsequent allegation of unfair and discriminatory treatment was made by her mother on her behalf to the DAIG on 29 April 1994.  This complaint was investigated by the 416th Engineer Command’s IG, and the allegations were unsubstantiated.  She also wrote to her United States Senator in 1995;  to the President of the United States (two letters), one was investigated and found unsubstantiated in July 1996;  she visited her career manager in September 1996 and requested reassignment (not approved); and to her Representative in Congress after her relief for cause.  This last complaint was also investigated and found unsubstantiated.

27.  The FORSCOMIG’s report concluded that her NCOER’s for the rating period December 1994 through November 1995 and the relief-for-cause report for the rating period December 1995-October 1996, were not properly documented as required by Army Regulation 623-204 (sic 205), chapters 3 and 6, but that these reports fairly reported her continued decline in duty performance.  Therefore, the report found that her claims of reprisal were unfounded.  This report was approved by the commanding general of the FORSCOM on an unknown date.  

28.  On 16 March 1999, the DoD IG’s office advised her that her claim of reprisals under the DoD Whistleblower Protection Act was essentially unfounded. The DoD IG’s office stated that it concurred with the Department of the Army’s  investigation and report.  She was provided a redacted copy of the report which also was subsequently provided to this Board.  However, the DoD IG’s office went on to state that there were three problems identified:  The first involved a counseling she received from her supervisor on 10 October 1996 which was not justified in that she had reported for make-up training as ordered, but that the instructor had closed the training before she arrived.  Therefore, her lack of receiving training was not her fault.  Her NCOER for the rating period December 1994 through November 1995 lacked documented counselings and the attachment of enclosures violated Army Regulation 623-204 (sic 205), chapter 6. For the final reporting period (December 1995 through October 1996) she did not receive quarterly performance counselings, in accordance with the same reference.  Also, the enclosures that were with this report were improper.  She was advised that she could apply to this Board if she desired.

29.  On an unknown date, she appealed the Bar imposed under the QMP.  On 26 June 1997, her command was notified by the ARPERCEN that the appeal had been denied and that separation action under the provisions of Army Regulation 140-111 must be initiated within 60 days.

30.  On 21 September 1997, her command initiated separation action under the provisions of chapter 13, Army Regulation 635-200, by reason of unsatisfactory performance, as evidenced by the Bar.  Her command stated that her last five NCOER’s clearly and specifically showed that her development as an NCO was far below the standards required under the USAR-AGR program.  Her continued assignment in that command or any other command would be disruptive.  Her command then stated:  “She is not a leader and has very little potential for further advancement.”

31.  The applicant requested a hearing by a board of officers.  Therefore, on 
30 March 1998, a board of officers convened at Fort Leavenworth, Kansas, to determine if she should be separated from active duty prior to the completion of her obligated period of service (May 1999).  Three individuals testified for the government (the rater, the senior rater and one of the reviewers).  Fifty-nine exhibits were submitted by the government.  Seven individuals testified for the applicant, and 14 exhibits were submitted on her behalf.  Except for the NCOER’s, most of these documents, are not available to the Board.  
32.  Summarized testimony showed that the government witnesses discussed the applicant’s inability to perform her duties, to keep her superiors informed as to her actions and whereabouts and her generally disruptive attitude.  Her rater was very frustrated with the applicant.  The senior rater stated that he had a ‘laid back” attitude and denied the incident of grabbing the arm/touching a female NCO.  

33.  Testimony on behalf of the applicant essentially indicated that she did her work well with others in the command headquarters, that there was a “command climate” problem in her duty section, that her senior rater was vindictive and tended to rule by fear.  Summaries of testimony show:

a.)  A Captain:  Joined command in 1994.  Noted that applicant did her job well.  She observed that the applicant was not the favorite of the senior rater.  Another sergeant, who was a favorite, and was an alcoholic was given preferential treatment by the senior rater concerning granting leave instead of a declaration of being absent without leave.  The senior rater, on at least one occasion, entered the captain’s office when she was the Headquarters Command’s commanding officer and “ranted and raved” at her about an issue.  She had to invite him to leave her office.

b.)  A Staff Sergeant:  He had to work overtime because the applicant failed to assist him on a personnel records project, which was in her area of expertise.  However, the applicant was a good supervisor and was solicitous of the welfare of her “troops.”   

c.)  A Major:  He worked in the same building as the applicant, saw her daily and observed her duty performance.  She performed her duties in a professional manner.  He never had any complaints about her from his own personnel.  She went out of her way to help people and was always a friendly face.  She was one of the few headquarter’s female soldiers who were weapons qualified.  She even volunteered for extra training in Nuclear, Biological and Chemical classes.  The major then commented on the senior rater, who he believed had “difficulty with people.”  Females did not get along well with the senior rater.  He would have difficulty with anyone who would question his orders.  The applicant had shared some of her problems with the major.  

d.)  Another Major:  The applicant worked on his floor.  She often corrected errors on work from his section and did a good job as the “recorder” on a personnel board.  He related that the senior rater “leads by fear,” that he was abusive with his authority and was very revengeful towards those who questioned his authority.  He further commented on the difficulty the senior rater had with working with females, especially those with rank or authority, or those under a “GS-5” (indicating a person with a clerk’s level of responsibility).  
	e.)  A third Major:  This officer testified that he believed that the senior rater was biased against the applicant.  The officer testified that the rater (the captain) did what he was told to do by the senior rater.  She would “hire” the applicant.

	f.)  A Sergeant Major:  She testified about an incident on the first day she was on duty during which she was physically accosted by the senior rater and he used racial slurs and swear words to the sergeant major.  He physically pinned her against a wall locker.  There were several witnesses to this incident.  (She complained and the senior rater was supposedly counseled).  

g.)  A second Sergeant Major:  He was her supervisor in the new duty section in the Engineer Command, after her release for cause.  He and his major believed they needed to shield her from the senior rater because of unfair treatment due to a “personality conflict” with him in her previous duty assignment. However, she also did not live up to their expectations as to her duty performance, but this had to be tempered by the stress she had been under.  Further, she was not assigned to duties which should have challenged her.  He recommended that she be assigned to a position of “competence” where she could excel.  He recommended that she be retained in the service.  

34.  The board of officers found that the applicant should be permitted to remain on active duty and be permitted to reenlist.  Further, the board of officers recommended that the personnel operations in the applicant’s command be investigated.  The convening authority, a lieutenant general approved the board findings, directed that the applicant be retained on active duty and that the command climate issue be referred back to the 416th Engineer Command for further investigation.  

35.  Information available to this Board indicates that the recommendations of the board of officers was reviewed by the 416th Engineer Command’s staff judge advocate who recommended no further investigation.  The matter involving the “assault” on the NCO had been resolved by that command’s Assistant Chief of Staff Personnel at the time of the incident.  Much of the testimony on behalf of the applicant at the hearing was designed to discredit the government’s case and was not substantive evidence of the applicant’s situation.

36.  The applicant was honorably discharged from the Army on 9 May 1999, in pay grade E-7, under the provisions of Army Regulation 635-200, chapter 4, by reason of completion of required active service.  She was assigned a reentry eligibility (RE) code of RE-4.  She was credited with 14 years, 2 months and 
22 days active service, 10 months and 8 days prior active service and 4 years, 10 months and 4 days of prior inactive service.  Her awards and decorations included the Army Commendation Medal, the Army Achievement Medal, the Army Good Conduct Medal (4th award), the Army Reserve Components Achievement Medal, the National Defense Service Medal, the Armed Forces Reserve Medal(1st Hourglass Device), the NCO Professional Development Ribbon (Basic Level), the Army Service Ribbon, the Army Reserve Components Oversea Training Ribbon and the Expert Marksman Badge (M16 Rifle).  She was entitled to half separation pay, but the dollar amount is not shown on her DD Form 214WS.

37.  Army Regulation 140-111, chapter 10, sets forth the policy and prescribes procedures for denying reenlistment under the QMP for AGR soldiers.  This program is similar to one established for Regular Army soldiers and is based on the premise that reenlistment is a privilege for those whose performance, conduct, attitude, and potential for advancement meet Army standards. It is designed to (1) enhance the quality of the career enlisted force, (2) selectively retain the best qualified soldiers to 29 years of active federal service, (3) deny reenlistment to nonprogressive and nonproductive soldiers, and (4) encourage soldiers to maintain their eligibility for further service.  Bars to reenlistment imposed under the QMP are not intended to be rehabilitative in nature.  They are intended to deny reenlistment for continuing service on AGR status to soldiers who are identified through the qualitative screening program as failing to meet USAR AGR standards.  While the Bar denies further service in the AGR, it will not deny a soldier an opportunity to reenlist in the USAR for continuing service in another status, provided the soldier is otherwise eligible.  Soldiers who appeal the QMP Bar will be notified if their appeal is approved or denied.  The appeal is final.  Separation action will then begin within 60 days for unsatisfactory performance.  If the applicant appears before a board of officers which determines that the soldier should be retained until the expiration of their term of service, paragraph 10-13 of the regulation specifies, in essence, that the bar will not be removed.  

38.  That same regulation, at chapter 8 provides for the reenlistment/extension of Reserve component soldiers in the AGR program.  Soldier’s may reenlist for up to 6 years, and every effort will be made to have their ETS (end or reenlistment contract) date and their scheduled release from active duty (REFRAD) date to be the same.  Soldier’s in an AGR status may only serve to their retention control points (RCP’s).  For a soldier in pay grade E-7, that RCP is 22 years and 29 days.  It should also be noted that a soldier in the AGR program could retire at the completion of 20 years active service similar to a soldier in the Regular Army.

39.  An RE code of RE-1 denotes that a soldier is eligible to immediately reenlist. RE-4 applies to soldiers who are separated with a reason for discharge which would permanently preclude reenlistment.  Soldiers with DA or locally imposed bars to reenlistment are disqualified from reenlistment in the RA (and by inference, continued active duty in the AGR program).    

40.  Army Regulation 623-205, currently in effect, provides the policy and guidance for the preparation and forwarding the DA Form 2166-7 (NCOER) and the DA Form 2166-7-1 (NCOER Counseling Checklist/Record).  Essentially, the reports are prepared on an annual basis (minimum rating period of 90 days) to record the duty performance ratings and potential of NCO’s in the rank of sergeant through sergeant major.  The reports are used to ensure the selection of the best qualified NCO’s to serve in positions of increased responsibility.  These reports are used for promotion purposes, assignment actions, school selection and other Enlisted Personnel Management System actions.  Reports, once accepted for inclusion in an official military personnel file (OMPF), are considered to be administratively correct, have been prepared by the proper rating officials and represents the considered opinion and objective judgment of rating officials at the time of preparation.  A soldier facing a relief-for cause situation will be counseled at least 30 days prior to initiation of the relief for cause action.  This permits the soldier a chance to change their duty performance.

41.  This same regulation, at chapter 6, provides that a DA Form 2166-7-1 will be utilized to counsel the NCO four times during an annual rating period for active duty and AGR NCO’s.  Reserve NCO’s will be counseled semi-annually.  The first rating will be within 30 days of assignment and the following counseling periods will be spread throughout the year.  The form was to be retained by the rater for at least 1 year after the end of the rated period.

42.  That same regulation, also in chapter 6, provides that each NCOER must stand alone and not use information from previous reporting periods upon which to establish ratings.  Exceptions are granted for Army Physical Fitness Test scores and height and weight information.  In cases of a relief for cause NCOER, information from prior NCOER’s may be used to establish a trend in declining or substandard performance of duty.  

43.  Further, that same regulation, also in chapter 6, authorizes only certain enclosures to NCOER’s submitted to the DA, State Adjutant’s General (for National Guard Personnel) and the ARPERCEN (now the Army Reserve Personnel Command (AR-PERSCOM)) for USAR soldier for filing in the OMPF. These enclosures are limited to three items:  comments by the reviewer when he or she nonconcurs in the ratings given by subordinate raters; a statement from the official directing a relief for cause, when that individual is other than the rater or senior rater; or when a waiver is given to complete a relief-for-cause report after more than 30 days.    

44.  Chapter 4 and appendix F to the same regulation provides the policy and procedures for submitting appeals of NCOER’s that a soldier believes is unfair or inaccurately reflects their potential.  The appeal should be filed on a timely basis and must be fully substantiated.  The burden of proof of error or injustice rests with the soldier.  Further, a Commander’s Inquiry does not constitute an appeal of an NCOER, but the results may be used in the appeals process.  

45.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.  Discharge proceedings of soldiers whose appeals of a DA Bar are denied will be processed under this regulation, unless the soldier voluntarily accepts discharge action.  Soldiers with more than 6 years continuous service are entitled to a hearing before a board of officers, if they so request.  A general or an honorable discharge may be granted under this separation authority.  

46. That same regulation, at chapters 1 and 2, make provisions for a hearing by a board of officers in cases where a soldier is being involuntarily separated with more than 6 years of service, or the discharge recommended is under other than honorable conditions, regardless of the years of service.  The board of officers may recommend to the convening authority that the discharge action be immediately approved, with an appropriate characterization of service recommended; or the discharge action not be approved and that the soldier be held to the completion of their current enlistment; or that the separation action be suspended.  The convening authority may approve the board of officer’s recommendation, but may not approve a characterization of service less than that recommended by the board, or may disapprove the board results and direct that the soldier be retained on active duty.  However, no provisions for overturning separation actions directed by the Secretary of the Army or officials/boards acting on his behalf are contained in Army Regulation 635-200.  

CONCLUSIONS:

1.  The Board notes that the DoD IG, based upon the FORSCOMIG’s investigation in 1997, notified the applicant in March 1999 that there was insufficient evidence to determine that the applicant was reprised against for privileged communication with government officials.

2.  This Board finds otherwise.  The FORSCOMIG conducted its investigation in 1997.  However, the report of the board of officers in connection with her separation from active duty in March 1998 clearly shows that the applicant worked in a hostile environment almost from her first day of duty in the 
416th Engineer Command starting in December 1993.  As early as 4 months later, she lodged her first EO complaint, which was validated.  Her testimony indicates that she believed that her rater was unfairly counseling her and that it got worse after she complained.  Therefore, the Board concludes that the unsatisfactory NCOER for the rating period 9312-9411, supposedly supported by 10 counseling statements, is seriously flawed.

3.  The testimony from at least six other persons at her separation hearing in March 1998 clearly shows that the applicant’s senior rater was abusive, tried to rule by fear and had great difficulty in working with females.  

4.  Further, while the DoD IG findings did not find a justifiable case for protection under the Whistleblower Protection Act, it did document three problem areas.  These included the fact that one of the counselings used in connection with her relief-for-cause NCOER in October 1996 was in error (incorrect facts/conclusions reached).  Further, proper counseling documentation was not prepared in connection with her NCOER for the rating period 9412-9511; and that the same problem again existed for the rating period 9512-9610, when the relief-for-cause NCOER was rendered.  Her command also included improper documentation (counseling forms, reassignment memorandums and the like)  as enclosures when submitting the NCOER’s for filling in her official files, but did not properly advise the applicant of the documentation submitted.  

5.  The Board also noted that the relief for cause action was otherwise flawed.  While the other two counseling statements used as bases for the relief-for-cause action may have been valid, she was not given the required 30 days in which to overcome her problems.  Therefore, she technically could not have been relieved for cause until at least 9 November 1996, instead of 31 October 1996.  

6.  This Board also finds that she was not properly counseled as required by Army regulations.  At least four counselings were required for each of the rating periods December 1994-November 1995 and December 1995-October 1996.

7.  Therefore, the Board finds that a clear case of abuse has been established and concludes that the three NCOER’s issued between December 1993 and October 1996 are invalid and should be removed from her records.

8.  While the applicant has also requested the removal of two other NCOER’s, for the rating periods June 1988 through May 1989 and June 1989 through January 1990 be removed, she has established no basis for such an action.  Neither did she appeal these reports at the time they were issued.  Therefore, the Board concludes that they should remain in her official records.

9.  The Board also finds that since one of the two NCOER’s used as the basis for the QMP action (9312-9411) is invalid, the entire QMP action should be declared invalid.  This is further supported by the findings of the board of officer’s recommendations in March 1998 that the applicant should be permitted to continue on active duty beyond her May 1999 ETS.  
10.  Since no basis for the QMP action has been established, the Board must conclude that her separation from active duty and the AGR program on 9 May 1999 is invalid and should be voided.  She should have been permitted to reenlist in the USAR on 10 May 1999 and to continue active duty in her AGR status.  

11.  If she does reenlist, she should be permitted to only reenlist for 5 years.  This will give the applicant 20 years and 24 days for retirement purposes, and also will not take her beyond her RCP in pay grade E-7 of 22 years and 29 days total service.  Otherwise, she may reenlist for the Ready Reserve and be permitted to serve in a “drill” status until she reaches 20 qualifying years for retirement from the USAR. If she does so reenlist, she will be given 50 retirement points, or a prorated portion thereof, from 10 May 1999 to the date of reenlistment. 

12.  While such an action would only be fair and equitable, the Board also notes that reenlistment in the USAR and continuation in the AGR program would necessarily have to be voluntary.  Further, she must be morally and medically qualified for reenlistment.  Additionally, if she elects to return to active duty, she would be required to pay back any separation pay she may have received in May 1999.  Secondly, while she would be entitled to all pay and allowances between May 1999 and the date she reenlists, she also may have an off-set (pay she has received from civilian employment would most likely be subtracted from her military entitlements).  Final determination on this matter rests with the Defense Finance and Accounting Service.  

13.  Accordingly, the applicant should be given 120 days from the date of this Board’s action to explore her options and to make a final decision.

14.  In view of the foregoing, the applicant’s records should be corrected, but only as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected:

	a.  by removing the NCOER’s rendered on the individual concerned for the rating periods 9312-9411, 9412-9511 and 9512-9610 (Relief for Cause Report) from her records;

	b.  by declaring the QMP action, dated 30 December 1996, is null and void, without force or effect; 

c.  by also declaring that her honorable discharge action on 9 May 1999 is likewise declared null and void, without force or effect;
d.  by further correcting her records to show that, if she is morally and medically qualified, she be permitted to reenlist in the USAR for 5 years, in pay grade E-7, in accordance with chapter 8 Army Regulation 140-111, and other appropriate Army regulations, effective 10 May 1999, with full credit for service, with pay and allowances between that date and the date she reenters active duty; and 

e.  that she be permitted to continue to serve in the AGR program for a similar length of time, unless removed for cause;

2.  An appropriate nonprejudical statement explaining the absence of the three aforementioned NCOER’s should also be placed in her records.

3.  That in accordance with Army Regulation 15-185, following completion of the administrative corrections directed herein, the three NCOER’s issued between December 1993 and October 1996, all references to the QMP action of December 1996 and appeal thereof, the separation action begun in September 1997 and the board of officers action dated March 1998, her separation action of 
9 May 1999, the current proceedings of this Board and all documents related thereto, be returned to this Board for permanent filing.

4.  That the applicant be given a reasonable period of time, not to exceed 
120 days, to reenlist in the AGR program.  If she elects not to enlist in the AGR program, she may reenlist in the Ready Reserve of the USAR for 6 years, and be credited with 50 retirement points (or prorated portion) per year from 10 May 1999 until her date of reenlistment.  

5.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__jns         __cla____  __tl_____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		        _John N. Slone_
		        CHAIRPERSON

INDEX

CASE ID	AR1999024575	
SUFFIX		
RECON		
DATE BOARDED	20001130	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	PARTIAL GRANT 	
REVIEW AUTHORITY	DASA	
ISSUES         1.	114.03	
2.	110.03	
3.		
4.		
5.		
6.