IN THE CASE OF: BOARD DATE: 21 July 2016 DOCKET NUMBER: AR20150014850 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ __X______ ____X____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 21 July 2016 DOCKET NUMBER: AR20150014850 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ______________X____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. IN THE CASE OF: BOARD DATE: 21 July 2016 DOCKET NUMBER: AR20150014850 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests reinstatement in the Iowa Army National Guard (IAARNG). 2. The applicant states: a. He was non-selected for retention in the IAARNG due to the Qualitative Retention Board (QRB) that convened on 16 March 2015. The QRB stated the reason for non-retention as, "Soldier is missing his current Noncommissioned Officer Evaluation Report (NCOER) and needed to show improvement on his NCOER to show he is the best qualified Soldier." The ARNG forced him to retire, effective 30 September 2015. b. The IAARNG denied his request for reconsideration. He filed inquiries with his state Senators, the Governor, and the National and State Inspectors General (IG). He has not received adequate responses to his requests for a review of all the documentation and his determination that his unit did not file the completed NCOER in his permanent file until over a month after the QRB decision, which was a command failure. The QRB decision should be overturned and the IAARNG should reinstate him. c. The unjust error lies in his command's failure to ensure that his current NCOER was available when the board convened in March [2015]. Because of his command's failure, he was unjustly required to retire from the military. He is physically and mentally capable of continuing his military career; he is only asking for another re-look by the QRB, contingent on him obtaining an E-8 position within the IAARNG. 3. In an 8 March 2016 letter, the applicant also requests reclassification of his reentry eligibility (RE) code to RE-1 to allow him to reenlist without a waiver. 4. The applicant provides: * three copies of his DA Form 2166-8 (NCOER), for the period ending 30 September 2014 (one complete and two incomplete) * a memorandum, dated 23 December 2014, subject: Memorandum to the President of the QRB * a memorandum, dated 25 March 2015, subject: Individual Iowa QRB Results for Fiscal Year (FY) 2015 * a memorandum, dated 17 April 2015, subject: Memorandum to The Adjutant General * a memorandum, dated 15 May 2015, subject: Response for Reconsideration of FY15 QRB Results Due to Administrative Error * a letter from The Adjutant General of the State of Iowa, addressed to his Member of Congress, dated 16 June 2015 * a letter from his Member of Congress, dated 24 June 2015 * a letter from his spouse, addressed to The Adjutant General or the State of Iowa, dated 25 August 2015 * a response letter from The Adjutant General of the State of Iowa, addressed to his spouse, undated * a timeline and supplemental timeline related to his NCOER * numerous e-mails between the applicant and various members of the IAARNG CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Washington Army National Guard (WAARNG) on 31 October 1985. 3. He completed overseas service in Iraq from 25 February 2005 to 25 February 2005. 4. Orders Number 209-039, issued by the WAARNG on 28 July 2005, promoted him to the rank/grade of sergeant first class (SFC)/E-7 with an effective date and date of rank of 1 October 2005. 5. He transferred from the WAARNG to the IAARNG on 2 February 2009. 6. He completed overseas service in Afghanistan from 15 October 2012 to 7 July 2013. 7. He received an annual NCOER, covering the period 1 October 2012 through 30 September 2013, which he and his rating officials digitally signed on 16 November 2013. His rater evaluated him as a Section Chief, while assigned to the 1034th Combat Sustainment Support Battalion, Camp Pratt in Afghanistan during the rating period. His rater assessed his overall potential for promotion and/or service as "Fully Capable." His senior rater listed his overall performance as "Successful/block-3" and potential for promotion and/or service in positions of greater responsibility as "Superior/block-3." His senior rater commented, "Soldier should consider career broadening opportunities" and "Soldier continues self-development by completion of SSD level 4." 8. He provides an annual NCOER covering the period 1 October 2013 through 30 September 2014, which shows his rater and senior rater digitally signed the report on 25 April 2015 and his reviewer digitally signed the report on 26 April 2015. He signed the report on 26 April 2015. His rater evaluated him as a Section Chief, while assigned to the 1034th Combat Sustainment Support Battalion during the rating period. His rater assessed his overall potential for promotion and/or service as "Fully Capable." His senior rater listed his overall performance as "Successful/block-3" and potential for promotion and/or service in positions of greater responsibility as "Superior/block-3." His senior rater commented, "Soldier should consider career broadening opportunities" and "Soldier continues self-development by completion of SSD level 4." 9. In a 23 December 2014 memorandum addressed to the President of the QRB, the applicant requested retention in the IAARNG beyond 20 years of service. He stated he served honorably in the U.S. Army for 29 years and wants to continue his service because he has much more to give to the organization. He expressed his desire to complete a tour as a Master Sergeant or First Sergeant (1SG). He stated he has leadership skills and he served as an Acting 1SG while a member of the WAARNG. As a Financial Services Technician, he served as the primary point of contact (POC) for military pay issues. He transferred to Joint Forces Headquarters to better enhance his skills in his alternate MOS. He wants to enhance his career within the IAARNG and assist with the workload in his current Technician position at the U.S. Property and Fiscal Office. He listed the issues that needed to be addressed from last year's relook: (1) review of Enlisted Record Brief, (2) recommend Department of the Army (DA) Photograph in Army Service Uniform (ASU), and (3) need NCOERs to reflect more than success for retention potential. 10. He provides a 25 March 2015 memorandum from The Adjutant General, IAARNG, informing him that the Enlisted QRB convened on 16 March 2015 and did not recommend him for continued retention in the IAARNG. The Adjutant General cited the reasons as, "Soldier is missing his current NCOER and needed to show improvement on his NCOER to show he is the best qualified Soldier." The Adjutant General stated that those Soldiers not selected for retention would be separated no later than 30 September 2015. 11. He provides email correspondence from his rater and senior rater discussing his NCOER. On 29 January 2015, his rater stated that, for some reason, he could not sign the applicant's NCOER and advised him to transfer it to a new form. On 10 April 2015, the applicant informed his rater that he had been non-select for retention from the QRB and cited as one of the reasons, the missing NCOER. He informed his rater of his intent to file a congressional appeal and his need for a completed NCOER. On 10 April 2015, his rater informed him again that he could not sign the NCOER. On 17 April 2015, the applicant further informed his rater that he was submitting an appeal to the QRB decision due to an administrative error. He asked his rater to prepare a memorandum stating he had finished and signed the NCOER, the date NCOER returned for corrections, and lack of appropriate software to edit and sign the NCOER. His rater stated he was in South Dakota at the time and told him to prepare memorandum for his signature. 12. He provides a 17 April 2015 memorandum addressed to The Adjutant General, appealing the QRB decision. He cited an administrative error that slowed the processing of his NCOER as the basis for his appeal. He stated his rater had not processed his current NCOER in time for the QRB's review. Since the command did not process his NCOER in a timely manner, the board could not see his improvement, which would have made him the best qualified Soldier. He tracked his current NCOER from 7 October 2014 to 11 January 2015 but his unit did not have any status on the NCOER. His rater could not sign the NCOER due to not having access to the digital signature software. He continued to push his NCOER to be finished and to find out about his transfer packet. He submitted his packet to The Adjutant General with an unsigned NCOER and would resubmit the document with signatures on 27 April 2015. His unit was in the process of selecting him for an E-8 position pending the appeal decision. 13. He provides a 15 May 2015 memorandum from The Adjutant General of the IAARNG responding to his appeal. The Adjutant General reviewed his request for reconsideration of the FY15 QRB results and determined that no administrative error existed in his board file. The Adjutant General also stated that he determined that that administrative error was not substantial enough to overturn the board's initial determination of non-retention. 14. He provides a letter from The Adjutant General of the IAARNG to his Member of Congress, dated 16 June 2015. The Adjutant General stated the purpose of the QRB is to select the best-qualified personnel for continued retention beyond 20 years of service. The QRB reviewed the applicant's records and identified multiple reasons for the non-selection recommendation, including his missing current NCOER, borderline NCOER performance history, failed Army Physical Fitness Test (APFT) in 2014, and minimal passing of other fitness tests. The Adjutant General stated the applicant's letter to the board did not fully address the concerns from the previous year's board; specifically, related to the requirement to reflect more than success for retention potential. The Adjutant General expressed that the notification memorandum of non-retention did not fully identify the totality of the reasons for the board's recommendation and this would be corrected for future board notifications. Additionally, The Adjutant General stated that reconsideration due to an administrative error is based on an administrative error on the part of the board, such as if a document was complete and in the record but the board failed to review the available document. The applicant's unit completed his NCOER over one month after the QRB convened, so its absence in the original board file is not considered an administrative error. 15. Orders 230-007, issued by the IAARNG on 18 August 2015, discharged him from the ARNG and assigned him to the U.S. Army Reserve Control Group (Retired Reserve), effective 30 September 2015. 16. He provides a letter from his spouse to The Adjutant General of the IAARNG, dated 25 August 2015, requesting a face-to-face discussion. a. She questioned the responsibility of Soldiers to ensure the completeness of their record against the command's responsibility to do their job. She acknowledged positive aspects of the QRB and its duty to free up slots for Soldiers to fill. However, she stated that the mistake in her husband's case resulted in a devastating consequence falling upon the wrong person. b. She stated the applicant failed the run portion of the Army Physical Fitness Test only by 6 seconds. Several Soldiers in the applicant's unit failed the same test for the same reason. The applicant rescheduled the test five days later and passed. An E-8 slot was available in Iowa that the IAARNG considered him before the QRB decision. His spouse also stated the applicant's packet failed to show his overseas service his duties while in Afghanistan. She questioned how the military reflect a mark of "excellence" on the NCOER. c. She further mentioned flaws of QRB process highlighted in congressional letter, but the military should not punish or hold him accountable for failures by multiple parties. She contested the military should afford her husband a second chance. It is clearly understood that the failure of the command is not deemed an administrative error; therefore, the G-1 and The Adjutant General could not provide an administrative remedy. 17. On 30 September 2015, the IAARNG G-1 provided an advisory opinion. The advisory official referenced Army Regulation 135-205 (Enlisted Personnel Management), paragraph 2-17f, dated 11 March 2008 stating, "A Soldier may not appeal non-selection for retention by a QRB other than for reason of ineligibility for consideration." The advisory official stated the 2015 Enlisted QRB convened during 16 March 2015 to 20 March 2015. The QRB reviewed the applicant's record based on The Adjutant General's guidance. The QRB recommended non-selection for retention. The Adjutant General approved the recommendation and signed the notification memorandum for the applicant's 2015 Enlisted QRB results providing reasons for non-retention. 18. Orders Number 328-079, issued by the IAARNG on 24 November 2015, placed him on the rolls of retired enlisted personnel of the IAARNG, in the rank/grade of SFC/E-7, effective 1 October 2015. 19. On 4 February 2016, the Deputy Chief, Personnel Policy Division, National Guard Bureau provided an advisory opinion and recommended disapproval of the applicant's request for reinstatement in the IAARNG and promotion to MSG. The advisory official stated: a. The 2014 QRB selected the applicant for retention, but the 2015 IAARNG Enlisted QRB did not select him for retention. The Adjutant General notified the applicant of board results on 25 March 2015. The applicant appealed the QRB decision. The Adjutant General responded to the applicant's appeal by stating, "I have reviewed your request for reconsideration of your individual results as determined by the FY15 QRB and have determined that there was not an administrative error in your board file." b. The applicant submitted a timeline documenting his contacts with his command about completing his evaluation; however, there is no evidence he addressed the missing evaluation with the president of the board. It is the Soldier's responsibility to review their records to ensure they are complete and correct prior to the board. The IAARNG reviewed the applicant's records and determined that the missing evaluation would not have changed the board's decision. In regards to the applicant's promotion to E-8, he would have to be in service to be considered for the position and selected for promotion within the IAARNG. c. Disapproval of the applicant's request is due to the fact that he was eligible for the 2015 IAARNG Enlisted QRB and not retained. The IAARNG concurred with this recommendation. 20. On 8 March 2016, the applicant provided comments in response to the advisory opinion. He stated: a. He believes vital information was missing during the QRB review. The 2014 QRB selected him for retention with reconsideration in one year. The QRB informed him to review his Enlisted Record Brief (ERB), to provide an updated DA Photo in ASU's and to show more than successes on his NCOERs to be considered "best qualified." b. When he received counseling regarding reasons for the one year reconsideration, he immediately went to work addressing the issues that the QRB had recommended to him. He updated his ERB and DA Photo and continued to do his best to show that the quality of his work within his unit would warrant his receiving "excellent" on his NCOER. He stated the bullet comments on his NCOER appeared to warrant a quantitative rating of excellence, but his rater did not feel the points warranted a mark of excellence. This lead to his removal from the promotion list to MSG/E-8 in 2014. c. The friction between him and his rater continued during the deployment from 25 August 2012 to 7 July 2013. He discussed the situation regarding the amount of equipment needed for deployment. His rater felt he needed more equipment for upcoming deployment, but he disagreed with this decision. He alleged that his rater told him that he was going to make his NCOER either "look good" or "look bad" based on whether or not he did what he told him to do. He addressed this "bribery" issue with the acting 1SG following this incident. d. He completed the rough draft of his NCOER with the rater's comments and ratings. Afterwards, he forwarded the form to his rater. He believed he had done everything needed to complete his QRB packet. He continued to notify his command regarding the need for the completion of his NCOER for the 2015 QRB review. He submitted a letter to the QRB president addressing the reasons for reconsideration. e. He reiterated that he needed his NCOER completed and to show more than just successes on a current NCOER. His missing NCOER made his record incomplete for the QRB review. REFERENCES: 1. Army Regulation 135-205 prescribes policies and responsibilities for the Qualitative Retention Program (QRP). Chapter 2 provides policy governing the selective retention of Soldiers in ARNGUS units and Army Reserve Troop Program Units (TPUs). a. Paragraph 2-2 states that a continuing program of qualitative retention is essential to provide for career progression of qualified enlisted personnel at proper intervals in their careers. The QRP will— (1) Ensure only the best qualified Soldiers are retained beyond 20 years of qualifying service for non-regular retired pay. These Soldiers will be retained for continuing assignment to the comparatively few senior NCO positions. (2) Provide career incentives. (3) Ensure an opportunity for advancement to the higher grades during the peak years of a Soldier’s effectiveness. (4) Satisfy the continuing requirement for senior NCOs by the appropriate commands. (5) Provide the command with a tool to control enlisted personnel inventory and manage career progression. The QRP is not to be used in lieu of separation or removal procedures authorized by other regulations, for reasons such as unsatisfactory performance, unsatisfactory participation, failure to meet body fat standards, and so on. b. Paragraph 2-15(a) states the convening authority will review the QRB recommendations. Within 30 days following adjournment of the board, the convening authority will— (1) Approve the report as submitted. (2) Disapprove a part of or the whole report and require the board to reconsider some or all cases. This will occur if the board report contains substantial administrative errors or procedural deficiencies that adversely affect those considered. The convening authority will give supplemental guidance to the board to correct the deficiencies, or may appoint a new board, if necessary. (3) Modify the board report to move a Soldier’s name from the not recommended list to the recommended list. Justification for any such modification must be attached and made a part of the board report. The convening authority is prohibited from moving a Soldier from the recommended list to the not recommended list. (4) Require board reconsideration of any individual case in which material error in the record as reviewed by the board is established. The convening authority may do this at any time during 60 days after the board adjourns. (5) Administratively delete from the recommended list or the not recommended list the name of any Soldier erroneously considered by the board. A Soldier will be determined to be erroneously considered if the Soldier had not completed 20 qualifying years of service for non-regular retired pay on the day before the date the board convened was not within the zone of consideration or was not to be considered by the board. c. Paragraph 2-17(f) states a Soldier may not appeal non-selection for retention by a QRB other than for reason of ineligibility for consideration. 2. National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 6-35n states that a Soldier not selected for retention by a QRB per Army Regulation 135-205, chapter 2 and the Soldier elects to be reassigned to the USAR Control Group (Reinforcement) or the Retired Reserve will be assigned RE-3 code. DISCUSSION: 1. The applicant contends his non-selection for retention in the IAARNG was due to an administrative error. 2. The evidence of record shows the applicant was notified on 25 March 2015 that he was denied continued service under the provisions of QRB, based on his missing current NCOER and the lack of evidence showing improvement on his NCOER to show he is a best qualified Soldier. 3. The applicant provided a memorandum, dated 17 April 2015, appealing the QRB decision. However, The Adjutant General of the IAARNG denied his appeal because no administrative error existed in his board file and no administrative error existed that was substantial enough to overturn the board's initial determination of non-retention. 4. The applicant received an annual NCOER for the period 1 October 2013 through 30 September 2014. His rating officials completed and digitally signed the report on 25 April 2015 and 26 April 2015, one month after the QRB decision. 5. The Adjutant General's 16 June 2015 letter fully explained to a congressional representative that the QRB reviewed the applicant's records and identified multiple reasons for the recommendation of non-selection. The reasons included the applicant's missing current NCOER, his borderline NCOER performance history, his APFT failure in 2014, and the fact that he minimally passed other fitness tests. 6. It is presumed that all requirements of law and regulation were met, and the applicant's rights were fully protected throughout the QRB process. Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge was appropriate considering the facts of this case. 7. Based on the governing regulation, a Soldier not selected for retention and elects reassignment to the Retired Reserve will be assigned a RE-3 code. 8. The applicant's reason for his discharge was his non-selection for retention by the 2015 Enlisted QRB. It appears he elected for reassignment to the Retired Reserve. The appropriate RE code associated with his discharge is RE-3. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014850 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014850 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2