MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:                        29 June 2000
	DOCKET NUMBER:               AR1999026999

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

	Mr. Carl W. S. Chun		Director	
	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. John N. Slone		Member	
	Mr. Melvin H. Meyer		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  In effect, removal of his DA Bar to Reenlistment under the Qualitative Management Program (QMP) and reinstatement to active duty with all rights and privileges.

APPLICANT STATES:  In effect, that he should not have been selected for QMP based on a single instance of derogatory information.  He also states that the totality of his service should have been considered before directing discharge.  He further states that these words are his own, but are directly quoted from the Memorandum of Instruction (MOI) for the QMP Board as directed by the Amy Chief of Staff for Personnel.  He goes on to state that the Army is violating its own regulation, which is stated in paragraph 1-5c, of Army Regulation 623-205, which states in pertinent part that “a single report should not, by itself, determine an NCO’s career”.  He feels that he is being subjected to unjust misguided mistreatment and that the QMP appeals Board was not aware that he had already been punished with nonjudicial punishment (NJP) and that the Article 15 had been transferred to his restricted fiche affording him the opportunity to continue his career.  He concludes by stating that a relief for cause noncommissioned officer evaluation report (NCOER) was unwarranted.

In support of his application he submits an addendum to his application with supporting documents.  In this addendum he contends that he made mistakes and is willing to profit from them with proper guidance, time and understanding from his chain of command.  He contends that he was not given counseling pertaining to a potential challenge of material error which he contends occurred through redundant references to one isolated event.  The applicant also claims that he was denied promotion and schooling due to North Atlantic Treaty Organization (NATO) mission requirements.  He alleges that his records were not “submitted for review” for some unspecified purpose to the previous promotion board.  He also states he has no new adverse information in his Official Military Personnel File (OMPF).  He further contends that one isolated incident should not be the sole discriminator and that focusing on that one isolated incident acts contrary to the QMP board’s own Memorandum of Instruction (MOI).  Finally the applicant contends that the QMP action refutes the protection of the Army’s Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).  The applicant concluded that his record speaks for itself, shows a record of successes when opportunities were made available and shows an over willingness to succeed in what ever he does.

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted on 10 September 1981 and continued to serve through a series of continuous reenlistments.  He was promoted to the rank of Sergeant First Class (SFC) on 1 September 1993.

At the time in question, the applicant was serving as the Detachment Sergeant for a Finance Detachment in Southern Europe.

On 13 June 1997, the applicant was accused of sexually harassing a female family member.  On 1 July 1997 the commander of the 22nd Area Support Group (ASG), with area jurisdiction as the Area Special Court-Martial convening authority, advised the applicant of his intent to administer punishment under Article 15, Uniform Code of Military Justice (UCMJ) for the offense of indecent assault.  The applicant was provided an opportunity to consult with counsel and the commander of the 22nd ASG conducted the hearing.  Although a copy of the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) is not available, other evidence shows that the applicant accepted NJP, and the NJP was filed on the restricted fiche.

On 21 August 1997 the applicant’s commander tendered a relief for cause NCOER for the period May 1997 to July 1997 as a result of his misconduct.

On 6 April 1998, the Calendar Year 1998 Master Sergeant Selection Board determined that the applicant should be barred from reenlistment under QMP. 
The basis for the determination was one NCOER for the period May 1997 through July 1997, which indicated that the applicant displayed areas of deficiency/weakness in performance/efficiency and discipline.

There is no indication in the available records to show that the applicant appealed to the Enlisted Special Review Board (ESRB) to remove his relief for cause NCOER covering the period May 1997 through July 1997.

On 10 June 1998, the applicant submitted an appeal of his DA Bar to Reenlistment imposed under the QMP to the Standby Advisory Board (STAB).
In this appeal, he stated that inadvertently left his hand on the buttocks of a female at an on post club and alcohol was a factor.  He also contends that his relief for cause NCOER violated the spirit and intent of Army Regulation 623-205.
He also contends that in his 17 years of service he cared for soldiers and that his integrity, professionalism, performance, potential and ability as a person and NCO have never been in question before or after the incident of indecent assault. He concluded the 12 memorandums of support he submitted and his NCOER’s attest to his performance and future potential to serve in the US Army.  His company commander, a captain, and his Group Commander, a Colonel, supported his approval.  However, the general court-martial convening authority recommended disapproval on 5 August 1998.  The STAB denied his appeal on 5 December 1998.

A review of the applicant’s personnel records revealed no other derogatory information.  His records also indicate that he has received the Meritorious Service Medal, Army Commendation Medal (Third Oak Leaf Cluster), Army Achievement Medal (Fifth Oak Leaf Cluster), the Good Conduct Medal and several additional awards and decorations and that he had an otherwise excellent record of service.

The applicant was honorably discharged on 31 May 1999 under the provisions of AR 635-200, paragraph 16-5 due to a DA imposed bar to reenlistment.  He had completed 17 years, 8 months, and 21 days of creditable service.

The applicant’s OMPF is unavailable for review by this Board.

The applicant provided a copy of an email from the former Command Sergeant Major (CSM) of the 22nd ASG.  The CSM stated that the applicant had received a field grade Article 15 from the previous commander of the 22nd ASG for his misconduct, which was filed on his restricted fiche.  The CSM also stated that this was an isolated incident in an otherwise stellar career and that the commander’s intent was not to end the applicant’s career, but to reinforce what is and what is not appropriate professional behavior.  The CSM goes on to state that the applicant’s battalion commander directed the relief for cause NCOER that the applicant received, and that no one in the 22nd ASG chain of command was involved in the relief for cause NCOER.  The CSM concluded by stating that
neither the commander nor the CSM of the 22nd ASG thought that a relief for cause was warranted in this situation.  The CSM stated that the applicant received his NJP from 22nd ASG only because of the area Special Court-Martial Convening Authority responsibilities of the ASG Commander.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 16 covers discharges caused by changes in service obligation.  Paragraph 16-5 applies to personnel who are denied reenlistment.
Paragraph 16-5a provides for soldiers who received a DA imposed bar to reenlistment.  Soldiers who perceive that they will be unable to overcome a DA bar to reenlistment will be discharged upon their request, unless disapproved of the request is required or permitted under other provisions of this regulation.  
Soldiers may request discharge at any time after the receipt of the DA bar to reenlistment from unit commander or upon notification that an appeal of the bar to reenlistment was disapproved.  Soldiers separated with a DA imposed bar to reenlistment under this regulation will be characterized as honorable and issued an honorable discharge certificate.

Army Regulation 601-280, chapter 10, sets forth policy and prescribes procedures for denying reenlistment under the QMP. This program 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 30 years of active duty, (3) deny reenlistment to nonprogressive and nonproductive soldiers, and (4) encourage soldiers to maintain their eligibility for further service. The QMP consists of two major subprograms, the qualitative retention subprogram and the qualitative screening subprogram. Under the qualitative screening subprogram, the DA promotion selection boards regularly screen records for grades E-5 through E-9. The 
appropriate selection boards evaluate past performances and estimate the potential of each soldier to determine if continued service is warranted. Soldiers whose continued service is not warranted receive a QMP bar to reenlistment.
Army Regulation 623-205 sets the policies and procedures governing the Noncommissioned Officer Evaluation Reporting System (NCOERS).  It provides guidance for preparing, processing, submitting DA Form 2166-7 (NCOER) and DA Form 2166-7-1 (NCO Counseling Checklist/Record).  Paragraph 1-5c states in pertinent part, that a single report should not, but itself, determine an NCO’s career.  The Army and the NCO are best served by an appraisal philosophy that recognized continuous professional development and growth, rather than one that demands immediate, uncompromising perfection.

Paragraph 2-10, of Army Regulation 623-205 states, in pertinent part, that a Relief for Cause is defined as the removal of a NCO form a ratable assignment based on a decision by a member of the NCO’s chain of command or supervisory chain that the NCO’s personal or professional characteristics, conduct, behavior, or performance of duty warrant removal in the best interest of the US Army.  If relief for cause is contemplated on the basis of an informal Army Regulation 15-6 investigation, the referral procedures contained in that regulation must be complied with before the act of initiating or directing the relief.  This does not preclude a temporary suspension from assigned duties pending application of the procedural safeguards contained in Army Regulation 15-16.  The rating official directing the relief will clearly explain the reason for relief in part IV, if the relieving official is the rater; if the relieving officials is the senior rater part Ve (paragraph 6-4b(3).  If he relief is directed by an official other than the rater or senior rater, the official directing the relief will describe the reasons for the relief in an enclosure (not to exceed one page) to the report.  Regardless of who directs the relief, the rater will enter the statement “The rated NCO has been notified of the reason for the relief” in part IVf. 

Army Regulation 600-20 prescribes the policies and responsibilities of command, which include military discipline and conduct and the Army Equal Opportunity Program. 

The Table of Maximum Punishment in the Manual for Courts-Martial shows that the maximum punishment for indecent-assault is a Dishonorable Discharge, forfeiture of all pay and allowances, and confinement for 5 years.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
1.  The bar to reenlistment was properly imposed in accordance with the applicable regulations based on his record of NJP and his relief for cause NCOER.

2.  The Board noted the applicant’s had an overall excellent record of service, his support from his chain of command and his NCOER for the period May 1997 through July 1997.  It is also noted that a duly appointed selection board based its collective judgement and found the applicant’s overall record warranted a bar to reenlistment.  The general court-martial convening authority recommended disapproval of the applicant’s appeal of the bar and the STAB denied the applicant’s appeal.  

3.  There is no evidence of record available to the Board, and the applicant has provided no evidence, which shows that he applied to the ESRB to appeal his NCOER covering the period May 1997 through July 1997.

4.  The applicant has not provided compelling evidence that his relief for cause NCOER was improper or insufficient as a basis for QMP action.

5.  The Board noted the comments of support by the former CSM of the 22nd ASG.  While the CSM states that the relief for cause NCOER was unwarranted, he was not in the applicant’s chain of command at the time.  In accordance with Army regulations, matters of discipline and conduct were in the domain of the applicant’s battalion commander.

6.  The placement of his NJP actions in the applicant’s restricted fiche is not revelant to consideration of the relief for cause NCOER for QMP purposes.  
Although the applicant argues that he committed an act of “minor misconduct”, the Board notes the applicant could have received a trial by general court-martial resulting in a dishonorable discharge, forfeiture of pay and all allowances, and confinement for 5 years for his actions.

7.  Although the applicant contends he was denied promotion and schooling due to mission requirements, he has submitted no evidence to show he was denied professional advancements was denied consideration for promotion or educational opportunities. 

8.  The Board noted the applicant’s contention that one NCOER should not lead to QMP.  However, the QMP Board MOI states “the weight to be given derogatory information must be determined by the collective judgement of the board”.  In this case the QMP Board found that the applicant’s previous excellent record of service did not outweigh the derogatory information in his records.  The applicant has not provided compelling evidence to overturn this decision by the QMP board.

9.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

JHL_____  JNS____  MHM____  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000026999	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000629	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19990531	
DISCHARGE AUTHORITY	AR 635-200, C, 16	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 7		
2.		
3.		
4.		
5.		
6.