MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           1 August 2001                   
	DOCKET NUMBER:   AR2001059650

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Ernest W. Lutz, Jr.		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:  That his Department of the Army Qualitative Management Program (QMP) bar to reenlistment be removed.

APPLICANT STATES:  That his family has suffered and they are again becoming a victim of his actions from an incident which occurred four years ago.  He feels his request should be approved due to his performance after the incident and the fact that he has done everything humanly possible to make up for his wrong doing.  Both his daughter and his wife have forgiven him but the Army has not.  He provides a portion of his QMP appeal packet as supporting evidence.

EVIDENCE OF RECORD:  The applicant's military records are not available.  The information contained herein was obtained from alternate sources.

The applicant enlisted in the Regular Army on 4 December 1986.  He was promoted to Sergeant, E-5 on 1 May 1991.  On an unknown date, he was recommended for promotion to E-6.

On 14 March 1997, the applicant indecently assaulted his (about 13-year old) stepdaughter.  Later that night, after being confronted by his wife and stepdaughter, he referred himself to the Wurzburg Army Hospital Psychiatry Clinic.  The medical officer on duty notified the military police, who took him into custody.  After questioning, he was released to his unit commander.  He was moved back into the barracks.  After three months of family counseling, he was allowed to move back home.  

On 9 June 1997, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for “on numerous occasions from on or about    1 Mar 97 to on or about 14 Mar 97 indecently assault your stepdaughter” and “on or about 14 March 97, wrongfully commit an indecent act with your stepdaughter.”  (The applicant contended in his QMP appeal that it only occurred the one time, apparently confirmed by his stepdaughter during an interview with a clinical psychologist.)  His punishment was a reduction to pay grade E-4, a forfeiture of $500.00 pay for 2 months, and extra duty for 45 days.  He appealed the punishment and the reduction in rank was suspended.  

It appears the applicant may have reenlisted at some point after the incident and/or accepting the Article 15.  On 12 June 1998, an administrative board was convened to determine if the applicant should be eliminated from the service due to erroneous reenlistment.  The board recommended that the applicant not be discharged for erroneous reenlistment.  On 22 June 1998, the appropriate authority approved the findings of the board.  

The applicant was promoted to Staff Sergeant, E-6 on 1 March 1999.  

On 18 July 2000, the applicant was recommended for award of the Meritorious Service Medal (MSM) for the period 1 August 1998 to 1 October 2000.  The reverse side of the Recommendation for Award, DA Form 638, the approval side, is not available.  However, he did list the MSM as one of the enclosures to his QMP appeal packet.  

On 31 August 2000, the applicant was recommended for a QMP bar to reenlistment.  The Article 15 was identified as the document used as the basis for the bar.  

On 12 November 2000, the applicant appealed the QMP bar to reenlistment. 

On 1 December 2000, the applicant underwent a mental status evaluation.  The examining psychiatrist noted that the applicant was in good compliance with the treatment regimen and responded well to treatment interventions.  Since terminating treatment he had done well both in his military career and his personal life.  Letters from his wife and daughter attested to reconciliation and a strengthening of the family bonds.  There was every indication that the experience, while painful for all concerned, had a positive outcome.  In the opinion of the examiner, it was very unlikely that the applicant would ever repeat an offense of this nature.

The applicant’s company commander, his battalion commander, and his brigade-level commander recommended approval of the removal of the bar to reenlistment.  His brigade-level commander stated that based upon the applicant’s past documented performance and the psychiatric evaluation, he believed the applicant has exceptional potential for future service to the Army.

The division commander recommended disapproval of the applicant’s appeal.  He stated that the applicant’s misconduct was inexcusable and cannot be tolerated.  

The U. S. Army Enlisted Records and Evaluation Center received the applicant’s appeal packet in January 2001.  The Master Sergeant promotion selection board acted upon it and disapproved his appeal.  The applicant was notified on 9 April 2001 that his appeal was disapproved.  He was required to separate by             22 August 2001.

Army Regulation 635-200, chapter 19, contains policy and procedures for voluntary and involuntary separation, for the convenience of the Government, of Regular Army noncommissioned officers (NCOs), and U. S. Army Reserve NCOs serving on Active Guard/Reserve status, under the QMP.  NCOs whose performance, conduct, and/or potential for advancement do not meet Army standards as determined by the appropriate recommendation of Headquarters, Department of the Army centralized selection boards responsible for QMP screening will be denied continued service.  It is designed to (1) enhance the quality of the career enlisted force, (2) selectively retain the best qualified soldiers, (3) deny continued service to nonproductive soldiers, and (4) encourage soldiers to maintain their eligibility for further service. 

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 Board is cognizant of the applicant’s contrition and the fact that his record of service after the incident was commendable.  However, conduct, not only potential, is one of the factors upon which a QMP decision may be based.  The applicant’s division commander and the Master Sergeant promotion selection board determined that his potential did not outweigh the seriousness of the conduct.  The Board concludes that he has provided no evidence that would sway it to reverse the QMP decision.

2.  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:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__jh____  __mhm___  __ewl___  DENY APPLICATION

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

INDEX

CASE ID	AR2001059650	
SUFFIX		
RECON		
DATE BOARDED	20010801	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	100.06	
2.		
3.		
4.		
5.		
6.