PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            17 October 2000
	DOCKET NUMBER:   AR2000040274

	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		Director	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Ms. Linda D. Simmons		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 effect, that she be granted retirement under the provisions of the Temporary Early Retirement Authority (TERA) authority of the law in lieu of her 28 February 1998 honorable discharge by reason of reduction in force, and that her records be corrected to reflect she completed her fifth overseas tour.   

3.  The applicant states, in effect, that she was unjustly separated as a result of a Department of the Army (DA) bar to reenlistment imposed under the provisions of the Qualitative Management Program (QMP).  She claims that her service record contradicts the judgement of the board that identified her for QMP, which found that her past performance and estimated potential to serve were not in keeping with the standards expected of a Noncommissioned Officer (NCO).

4.  The QMP board listed three Noncommissioned Officer Evaluation Reports (NCOERs) as the documents used as their basis for taking the QMP action on the applicant.  They commented that these NCOERs revealed the applicant’s weakness in the Physical Fitness/Weight area.  The first NCOER identified by the QMP board covered the period December 1993 (9312) through November 1994 (9411); the second 9412 through 9509; and the third 9510 through 9609.  

5.  The applicant contends that the identified weakness resulted from the NCOERs listed containing comments that indicated that she failed to make progress in the weight control program, a statement that was later found to be erroneous.  She comments that given her weight problem was determined to be the result of a valid medical problem, by regulation, she was precluded from being enrolled in the Army weight control program.  

6.  She also claims that the NCOERs cited in the QMP action all indicated that she met or exceeded the standards expected of an NCO in both the performance and potential areas.  The only possible questionable entry was contained in the NCOER covering the period 9412 through 9509.  This report contained a “Needs Improvement” evaluation in Part IVc (Physical Fitness & Military Bearing) with the statement “failed to make progress in the weight-control program”, a statement she claims was later proven to be erroneous.  She has enclosed a statement from the senior rater (SR) on the NCOER which indicates that the “Fully Capable” rating in Part V was based on the “Needs Improvement” rating in Part IVc, both evaluations which the rating chain erroneously believed they had to render based on the weight issue, when an evaluation of “Among the Best” was the rating the applicant deserved based on her duty performance.  

7.  In addition, the applicant comments that shortly after her QMP appeal was denied her military occupational specialty (MOS) was identified as one in which members were eligible to request 15 year retirement under TERA provisions of the law.  She claims that she served honorably for 15 years, 2 months, and 
25 days without one blemish in her records until she was discharged under the terms of the QMP. 

8.  She further states that under normal circumstances, based on her having attained the rank of Sergeant First Class/E-7 (SFC/E-7) in less than 10 years, and in the absence of any disciplinary or derogatory actions she would have been allowed to remain on active duty to earn retirement.  Her records verify that she more than met the standards expected of an NCO, as was confirmed by members of her chain of command in their strong support for her QMP appeal and as evidenced by her NCOERs that show that she was consistently rated as well above average in both performance and potential.  

9.  In addition, she contends that after providing over 15 years of dedicated service to the Armed Forces, she was denied the benefits and privileges afforded other soldiers who served with similar value and valor.  Her distinguished service record is evidenced by the Department of Defense (DD) Form 214 (Certificate of Release or Discharge) issued to her upon her discharge, which documents the many awards and decorations she earned during her tenure in the Army and verifies that she completed four overseas tours and countless hours of training.  In her opinion, after 15 years of dedicated service and personal sacrifice any prudent person would have a reasonable expectation of achieving retirement status, instead she received half separation pay based on receiving a negative separation. 

10.  Finally the applicant asks that her entire record of service be evaluated and be amended to document that she completed her last overseas tour.  Additionally, subsequent to this review she asks that a determination be made that confirms that she performed above and beyond expectations which should result in her being granted retirement under the TERA as of 1 March 1998.  

11.  The applicant’s military records show that she entered the Regular Army on 
6 December 1982 and that she continuously served on active duty for 15 years, 
2 months, and 25 days until being honorably discharged, under the provisions of paragraph 16-8, Army Regulation 635-200, by reason of reduction in force on 
28 February 1998.  Her record also shows that she was promoted to SFC, the highest rank she attained while on active duty, on 1 July 1992 and that she had completed 12 months of her overseas tour in Hawaii at the time of her separation.

12.  The applicant’s service record shows that during her service she earned the following awards:  the Meritorious Service Medal; the Joint Service Commendation Medal; six Army Commendation Medals; four Army Achievement Medals; two Army Superior Unit Awards; five Army Good Conduct Medals; the National Defense Service Medal; the NCO Professional Development Ribbon/ with numeral 2; the Army Service Ribbon; the Overseas Service Ribbon/with numeral 4; the Expert Marksmanship Qualification Badge/ with the Rifle, Pistol, Grenade, and Pistol-Small Bore bars; the Driver and Mechanic Badge/ with Driver bar; the Bronze German Army Marksmanship Badge; the Silver German Military Sportsman Performance Badge; and the Silver German Armed Forces Proficiency Badge for General Duties of the Army.

13.  The record also includes a DA Form 3349 (Physical Profile), dated 5 July 1994, pertaining to the applicant.  This form confirms that based on a diagnosed medical condition she was awarded a P2 physical profile which allowed her to exceed the Army Weight for Height Table by 25 pounds.  The applicant’s 
DA Form 2-1 (Personnel Qualification Record), in block 4 (Assignment Considerations), that this physical profile and its limitations were permanent.  

14.  On 15 February 1996, the applicant’s unit commander requested a medical evaluation of the applicant based on her having exceeded the terms of her physical profile by exceeding the Army height/weight table by more than the 
25 pounds authorized by her profile.  A medical evaluation was conducted and the results determined that the applicant’s overweight condition was in fact the result of a pathological medical problem.  Medical authorities further advised the applicant’s unit commander that she was being treated for a medical condition and should not be administratively placed in the Army Weight Control Program based on her being overweight.

15.  On 16 April 1996, the Commander of the Enlisted Records and Evaluation Center (EREC) issued a memorandum (DA Imposed Bar to Reenlistment under the QMP) to the applicant.  This letter informed the applicant that the Calendar Year 1996 (CY96) Master Sergeant (MSG) promotion selection board had determined that she should be barred from reenlistment under the QMP.  The CY96 board listed two NCOERs, covering the periods 9312 through 9411 and 9412 through 9509, as the documents on which the QMP action was based and identified Physical Fitness/Weight as the specific weakness revealed in these NCOERs. 

16.  The first document listed in the QMP action was an annual NCOER ending in 9411.  The applicant was evaluated as the Noncommissioned Officer In Charge (NCOIC), End of Course Practical Testing Course.  The ratings rendered by both the rater and senior rater (SR)report were generally very good.  In Part IVb-f, the rater placed the applicant in the “Excellence” block in three areas and in the “Success” block in the other two areas.  One of the areas in which the applicant was given a “Success” rating was “Leadership” which included only favorable supporting bullet comments.  The other “Success” block rating was in the area of “Physical Fitness & Military Bearing” , the area identified as her weakness in the QMP action, which contained the following supporting bullet comments:  “medically waivered for weight”; “soldier has a hormonal imbalance”; and “medical waiver does not hinder duty performance.” 

17.  In Part V (overall performance and potential) the rater and SR both placed the applicant in the top box in every area.  This included placement in the “Among the Best” block by the rater in Part Va (potential for promotion and or service in positions of greater responsibility).  The SR rated the applicant “Successful” 1 block in Part Vc (overall performance) and “Superior” 1 block in Part Vd (overall potential for promotion and service in positions of greater responsibility).  The SR provided the following bullet comments in support of his evaluation:  “shows tremendous potential and should be promoted ahead of her peers.”

18.  The second NCOER cited by the CY96 board was a change of rater report that ended in 9509.  This report also indicated that the applicant’s performance and potential to serve were excellent.  It did contain a rating of “Needs Improvement” in Part IVc (Physical Fitness & Military Bearing) with the bullet comments “failed to meet Army Weight Standards as allowed by Medical Waiver and AR 600-9” and “failed to make progress on weight control program.”  The rater also placed the applicant in the “Fully Capable” block of Part Va (potential for promotion and or service in positions of greater responsibility).  However, in Part V c-d the SR rated the applicant “Successful” block 2 and “Superior” 
block 1 respectively and provided the following positive bullet comments:  “promote immediately”; consistent superior performance is evidence or her unlimited potential”; and “select for Advanced Foreign Counterintelligence Training Course as soon as possible.”  

19.  On 10 June 1996, the SR of the NCOER ending in 9509, outlined in the preceding paragraph, submitted a statement in support of the applicant’s QMP appeal.  He commented that members of the rating chain believed that the “Needs Improvement” rating in Part IVc was mandatory due to weight control program statements that they later found to be erroneous by both medical and legal reviewers.  Further, the “Needs Improvement” rating mandated placing the applicant in the “Fully Capable” box in Part V (Overall Performance and Potential) when in fact the applicant should have been rated as “Among the Best” based on her performance of duty.  He concluded his comments by indicating that the applicant was a fine soldier and had performed her duties in an exemplary manner.  

20.  In June 1996, the applicant appealed the OMP action of the CY96 MSG board.  She based her appeal on the fact that there was a medically diagnosed basis for her exceeding the Army weight standards.  She received the strong support of her chain of command, which included the statement from her SR outlined in the preceding paragraph. 

21.  On 27 September 1996, the Chief of Internal Medicine, 121st General Hospital, Korea recommended that the applicant be reassigned to Oahu, Hawaii and be enrolled in the Lean Program (an inpatient weight control program) at Tripler Army Hospital.  It was documented that the applicant underwent a medical evaluation that began at the 121st Internal Medicine Clinic and was completed at the Endocrinology clinic at Tripler Army Hospital.  Physicians conducting the evaluation concurred in recommending that the applicant be enrolled in the year long Lean Program to assist her in weight reduction.  In addition, the Chief of Internal Medicine confirmed that there was no formal inpatient weight reduction program in Korea and the applicant’s participation in this program would require her reassignment to Hawaii.  This reassignment action was supported by the applicant’s chain of command which began processing the applicant’s reassignment action. 

22.  On 21 October 1996, the Commander of EREC issued a memorandum which approved the applicant’s appeal.  It stated that after review by a DA Standby Advisory Board (STAB) the appeal of the DA imposed bar to reenlistment pertaining to the applicant had been approved.  

23.  On 24 March 1997, the Commander of the EREC issued a second memorandum (DA Imposed Bar to Reenlistment under the QMP) to the applicant which informed her that the CY97 MSG promotion selection board had determined that she should be barred from reenlistment under the QMP.  The CY97 board identified the two NCOERs already successfully appealed by applicant and an additional NCOER covering the period 9510 to 9609 as the documents on which this QMP action was based.  The applicant’s specific area of weakness as revealed by these documents was again identified as Physical Fitness/Weight.

24.  The only document added to the CY97 QMP action that had not been successfully appealed in the CY96 QMP action was an annual NCOER that covered the period 9510 to 9609.  This report evaluated the applicant as an Operations NCOIC.  In Part IV b-f the rater assigned two “Excellence” ratings and three “Success” ratings.  One of the “Success” rated areas was “Physical Fitness & Military Bearing”, which contained the following supporting bullet comments:  “allowed 25 pounds over the Army weight table per P2 profile” and “soldier has medical condition precluding compliance with Army weight standards.”  

25.  In Part Va (overall potential for promotion and/or service in positions of greater responsibility) the rater placed the applicant in the first block “Among the Best.”  In Part V c-d the SR rated the applicant “Successful” 2 block and “Superior” 1 block respectively and provided the following bullet comments in support of the evaluation:  “promote immediately; she is ready to be an Operations Sergeant; and “technically competent, a strong and capable leader and administrator.”  

26.  On 30 April 1997, the applicant appealed this second DA imposed bar to reenlistment on the grounds of material error.  Her claim was that pertinent medical information had been excluded from the record reviewed by the CY97 board and two of the NCOERs cited in the CY97 QMP action had already been successfully rebutted in the appeal of the CY96 QMP action.  With the strong support of her chain of command, she presented substantial information rebutting the weight information contained in the NCOERs listed as the basis for the action and indicated that the most negative of this information had already been successfully rebutted which resulted the previous years QMP bar being lifted.  She also stated that nothing in her record had changed sufficiently in the year since her successful appeal that would warrant another bar being imposed, including the one new NCOER added to the list of documents by the CY97 QMP board, which contained no significantly different weight information.  

27.  In her appeal, the applicant also indicated that all of the NCOERs listed as a basis for the QMP action contained excellent evaluations and were favorable reports except for the misleading statements pertaining to her weight.  She also pointed out that her performance since the first successful QMP appeal had continued to be outstanding as evidenced by the NCOER ending 9609, and that she had consistently made progress in the physical fitness and weight areas.  She further commented that subsequent to her last QMP action she had undergone a comprehensive medical evaluation of her physical condition and found that there was no further medical remedy for her condition.  Upon this discovery she requested enrollment in the LEAN program, as recommended by medical officials, to enhance her weight reduction efforts.  This request was approved by her chain of command and she had been pending reassignment to Hawaii in order to participate in the program when the second QMP action arrived and halted this processing.  She also claimed that these efforts to enroll in the LEAN program after realizing there was no further medical remedy for her condition demonstrated her continued commitment to overcoming her weight problems.  

28.  The applicant’s QMP appeal was again strongly supported by her chain of command.  Her unit commander stated that she had distinguished herself as an outstanding soldier and that in spite of her weight problems was more than capable of and was in fact performing her duties in an outstanding manner.  Further, the unit commander noted that even though the applicant had a medical condition that contributed to her weight problems she still continued to pursue methods of weight reduction as evidenced by her enrollment in the LEAN program.  

29.  Both her Battalion and Brigade Commanders strongly supported her appeal. They provided statements that stated, in effect, that she was an outstanding NCO who knew how to lead, train, and care for soldiers, and that her obesity was the result of a verified medical condition.  Further, they recommended that she be allowed to continue with her participation in the LEAN program and given the opportunity to succeed.  The Brigade Commander specifically indicated that if the applicant were given this opportunity, he was confident that she would make the necessary weight loss progress and continue to be a successful and valuable asset to their organization and the Army.

30.  Her appeal included a medical statement of support from her attending Clinical Psychologist.  It confirmed that her medical condition was unchanged and that health care officials had recommended her enrollment in the LEAN program.  He stated that she was currently undergoing treatment in the program and while she had only completed the initial stage she had already began to show positive weight loss results.  He concluded that this program offered an opportunity to correct her chronic weight deficiency and that her appeal should be approved in order to provide her this opportunity for success at learning to manage her weight in spite of her medical condition.  

31.  On 22 October 1997, the EREC commander issued a memorandum that indicated that after a careful review by a recent DA STAB, the applicant’s appeal of the DA imposed bar to reenlistment was disapproved.  The reason cited for the disapproval was that the STAB found the past performance and estimated potential of the applicant as not in keeping with the standards expected of the NCO Corps.  

32.  Army Regulation 600-9 (The Army Weight Control Program) establishes policies and procedures for the implementation of the Army Weight Control Program.  Section III (Proper Weight Control), in effect, prohibits a member from being entered into the Army weight control program when medical officials determine that there is an underlying medical condition causing the member’s overweight condition.  If an individual's condition is diagnosed by medical authorities to result from an underlying or associated disease process, health care personnel are required to prescribe treatment to alleviate the condition and return personnel to their unit; hospitalize individuals for necessary treatment; or determine whether the individual's condition is medically disqualifying for continued service and take action under provisions of appropriate regulations. 

33.  Army Regulation 635-200 (Enlisted Personnel) sets policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of soldiers for a variety of reasons.  Chapter 18 outlines the policy and procedure for the separation of soldiers who fail to meet the body fat standards set forth in Army Regulation 600-9 when that is the sole reason for their separation.  Paragraph 18-2 (procedures) states, in pertinent part, that soldiers who have been diagnosed by health care personnel as having a medical condition that precludes them from participating in the Army body fat reduction program will not be separated under this chapter. 

34.  The QMP program is implemented and managed under the supervision of the Commander, EREC.  DA Centralized Selection Boards conduct the screening/selection of soldiers for this program as an additional mission when conducting Centralized Promotion Selection Boards.  Criteria includes but is not limited to moral, professional or ethical conduct incompatible with that expected of an NCO; the lack of potential to perform duties; inefficiency or substandard performance; a trend of disciplinary problems; or the inability to meet physical fitness standards or failure to comply with requirements of the Army body composition program. 

35.  The EREC commander defines the objective of the QMP as being to enhance the quality of the career enlisted force by selectively retaining the best qualified soldiers and denying further service to non-progressive or 
non-productive soldiers.  It is used to eliminate soldiers who do not meet performance conduct and attitude standards, and do not have the potential for advancement.  No quotas are established for selection boards; it is not used as a method to reduce the size of the Army.

36.  EREC’s QMP policy since 1990, when they assumed responsibility for the program, has been that documents used in a QMP that had been successfully appealed may not serve as the basis for future a QMP selection.  The names of all members identified for QMP by a Centralized Board are screened against previous QMP files and those members who had been identified for QMP based on the same documents that they had successfully appealed based on an earlier QMP selection are removed from the QMP list.  In addition, those members identified for QMP based on additional document(s) not previously identified or appealed in an earlier QMP process remain on the QMP list but only based on the new or additional document(s).  In addition, they are only required to address or appeal the new additional document(s).  

37.  Title 10 of the United States Code, section 3914 provides the legal authority for the Secretary of the Army to retire an enlisted member of the Army who has at least 20, but less than 30, years of service.  Public Law 102-484 provided Temporary Early Retirement Authority (TERA) by authorizing the Secretary of the Army, during the period beginning October 23, 1992, and ending October 1, 1995, to apply this section to an enlisted member with at least 15 but less than 20 years of service by substituting ''at least 15'' for ''at least 20.''  TERA authority was subsequently extended to cover the period through October 1, 2001 via Public Law 105-206.

38.  Army Regulation 614-30 (Overseas Service) provides policy guidance on the eligibility and selection criteria for overseas service.  Chapter 5 provides guidance on the curtailment of foreign service tours and states, in pertinent part, that an overseas tour may be curtailed for those soldiers whose early release has been approved in conjunction with the QMP.  Table 3-3 provides guidance on the awarding tour credit.  It states, in pertinent part, that completed tour credit will be awarded to soldiers who serve less than the normal prescribed overseas tour if they are curtailed for the convenience of the Government through no fault of their own.

CONCLUSIONS:

1.  A comprehensive review of the applicant’s entire service record shows that the three NCOERs listed in the CY97 QMP selection contained no ratings, evaluations, or information/comments that could be construed to be negative, other than those related to her overweight condition.  This confirms that the sole basis for her QMP selection was her failing to meet Army weight control standards.  Lacking any other documented indicators of substandard performance and/or potential, the Board finds the applicant’s QMP selection was inappropriate and unjust. 

2.  Army regulations prohibit a member from being entered into a weight control program or from being separated under weight control provisions when medical officials determine that there is an underlying medical condition causing the member’s overweight condition.  By regulation, when a member is diagnosed with an underlying medical condition that contributes to a weight problem, health care officials are required to prescribe necessary treatment to alleviate the weight condition.

3.  The evidence of record shows that the applicant was diagnosed with a medical condition that contributed to her overweight condition and that health care officials attempted to satisfy the regulatory treatment requirements by initiating action to enroll her in an in-patient weight reduction program.  This solution was fully supported by the chain of command and the applicant’s reassignment to the program was pending when she was selected for QMP by the CY97 board.  

4.  The processing of the FY97 QMP selection and the subsequent appeal appears to have been improper.  Two of the three NCOERs used as a basis for the CY97 QMP action had already been successfully appealed by the applicant in connection with the CY96 QMP action.  In the opinion of the Board, by allowing these documents to be used as a basis for the CY97 QMP action, EREC officials violated their own policy that prohibits allowing successfully appealed documents to be used as a basis for a subsequent QMP action. 
5.  The Board also finds the STAB decision to deny the applicant’s CY97 QMP appeal was incompatible with the evidence provided in support of the appeal action and the strong support of the appeal action from the chain of command and from medical officials.  The STAB was provided information pertaining to both her medically diagnosed condition and the treatment program prescribed by health care officials.  

6.  In addition, the appeal packet contained strong supporting statements from members of the applicant’s chain of command and her rating chain that attested to her outstanding performance and potential for future service.  The Board concludes that the STAB decision, in effect, served to deny the applicant the opportunity to participate in a medically prescribed and chain of command supported weight control program that could have provided a fair and just resolution of this case given her outstanding record of service. 

7.  TERA was codified in law in October 1991 and was authorized for use at the time of the applicant’s separation.  The records shows that the applicant completed over 15 years of honorable active military service on the date of her separation and, had she not been processed for separation under the provisions of the QMP, would have been qualified to retire for length of service under the TERA provisions of the law.  

8.  Finally, the evidence or record shows that the applicant’s last overseas tour in Hawaii was curtailed for the convenience of the government based on her QMP separation and was through no fault of her own.  Therefore, the Board finds that it would be appropriate to correct the applicant’s record to grant her tour completion credit for this overseas tour.

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was released from active duty on 28 February 1998, under the provisions of the TERA, in lieu of her current honorable discharge of the same date, and that she was placed on the Retired List the following day.

2.  That the individual concerned be provided all back retired pay and allowances due as a result of the correction outlined in paragraph 1, minus any monies received as a result of her involuntary separation.

3.  That the records of the individual concerned be corrected to award overseas tour completion credit for her overseas service in Hawaii between 24 January 1997 and 26 January 1998.  

BOARD VOTE:  

___lds___  ___rvo __  ___be___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Raymond V. O’Connor, Jr._
		        CHAIRPERSON

INDEX

CASE ID	AR2000040274	
SUFFIX		
RECON		
DATE BOARDED	2000/10/17	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1998/02/28	
DISCHARGE AUTHORITY	AR 635-200 C16	
DISCHARGE REASON	QMP-Reduction in Strength	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  191	110.0200	
2.		
3.		
4.		
5.		
6.