BOARD DATE: 24 January 2019 DOCKET NUMBER: AR20160012156 BOARD DETERMINATION/RECOMMENDATION: 1. 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. 2. By regulation, an applicant is not entitled to a hearing before the Board. In this case, the evidence of record, including independent evidence he provided, was sufficient to render a fair and equitable decision. 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. BOARD DATE: 24 January 2019 DOCKET NUMBER: AR20160012156 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :x :x :x DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 24 January 2019 DOCKET NUMBER: AR20160012156 APPLICANT'S REQUEST AND STATEMENT: 1. The applicant requests: a. An appeal of his denial of continued service under the Qualitative Management Program (QMP). b. Removal of DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the rating period 1 April 2009 through 31 March 2010. c. A personal appearance before the Board. 2. The applicant states: a. His QMP separation from service is due to an Active Guard Reserve (AGR) and a Troop Program Unit (TPU) NCOER. He believes these are in error. He requests to honorably serve until his mandatory removal date (MRD) of 30 September 2017. b. Upon review, the U.S. Army Human Resources Command (HRC) Inspector General’s (IG’s) office recommended that he submit an application for the following reasons: * HRC did not receive his QMP appeal documents by the suspense date listed in the QMP notification due to a unit error * a look at his 2010 NCOER as he was assigned to the warrior transition unit (WTU) during the rating period * his DD Form 214 (Certificate of Release or Discharge from Active Duty) did not originate from HRC and it is not considered correct c. On 4 December 2008, he was retained on U.S. Army Reserve Command (USARC) mobilization status and assigned to the WTU. The AGR NCOER has been removed per the Enlisted Special Review Board (ESRB) memorandum, dated 28 May 2016. d. On 2 December 2009, he was transferred among TPU units. HRC IG has informed him that this was not a valid order as he was assigned to WTU not a TPU unit. Thus, the TPU NCOER with a through date of 31 March 2010 is not a valid evaluation. By regulation, the WTU is not required to complete an officer evaluation report (OER) or NCOER. The AGR NCOER was removed and replaced with a nonrated statement upon appeal. e. Due to a unit error, his QMP appeal was submitted via e-mail to HRC transition branch on 7 January 2016 at 12:17 PM. Although an acknowledgement receipt was sent on 13 January 2016 at 1:33 PM, transition branch indicates they never received the actual appeal. THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records with supporting documents: * Orders Number A-12-824802, dated 4 December 2008, with amendments * Orders Number 09-306-00001, dated 2 November 2009 * DA Form 2166-8, dated 31 March 2010 * E-mail (4) to Lieutenant Colonel (LTC) S__, dated 28 April 2013 * E-mail to Command Sergeant Major (CSM) H__, dated 28 April 2013 and 29 April 2013 * Memorandum, subject: 3rd Brigade, 100th Division Commander’s Policy Letter #20: Performance Based Counseling, dated 26 July 2013 * DA Form 1559 (IG Action Request), dated 23 August 2013 * E-mail communication from LTC M__, dated 28 October 2013, 27 October 2013, 5 November 2013, 11 December 2013, 24 January 2014, 30 January 2014, 11 February 2014, and 2 April 2014 * DA Form 705 (Army Physical Fitness Test (APFT) Scorecard), dated 21 November 2013 * DA Form 638 (Recommendation for Award), dated 17 November 2013 * NCOER, dated 3 April 2014 * E-mail communication from Captain (CPT) H__, dated 15 July 2014 * Memorandum, subject: Rating Chain/Duty Performance, dated 4 December 2014 * Memorandum, subject: Supporting Statement for Evaluation Report of Applicant, dated 23 July 2015 * E-mail communication from Major (MAJ) C__, dated 29 September 2015 and 30 September 2015 * E-mail communication from Ms. W__, dated 15 October 2015 * Memorandum, subject: Notification of Denial of Continued Active Duty Service under the QMP, dated 18 November 2015, with option statement, dated 4 December 2015 * Memorandum, subject: Appeal of Denial of Continued Active Duty Service under the QMP for Applicant, dated 18 December 2015 * Memorandum, subject: Appeal of QMP Selection for Applicant, dated 18 December 2015 * Memorandum, subject: Request for Redress of Grievances under Article 138 of the Uniform Code of Military Justice (UCMJ), dated 18 December 2015, with approved rating scheme, and organizational chart * Memorandum, subject: Recommendation for Applicant’s Continued Active Duty Service, dated 5 January 2016 * Memorandum, subject: Correction to NCOER for period ending 3 April 2014 for Applicant, dated 28 May 2016 * E-mail communication to Ms. J__, dated 14 June 2016 2. Evidence from the applicant’s service record and Department of the Army and Department of Defense records and systems: * DD Form 214, for period ending 8 March 1985, 18 October 2009, and 1 May 2016 * DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), dated 13 September 1988 * Memorandum, subject: Nonrated Statement, dated 28 May 2016 REFERENCES: 1. Army Regulation (AR) 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or a panel of the ABCMR may grant a formal hearing whenever justice requires. 2. AR 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, prescribes policies and procedures for active duty enlisted separations. Chapter 19 states NCOs whose performance, conduct, and/or potential for advancement do not meet Army standards, as determined by the approved recommendations of HQDA centralized selection boards responsible for QMP screening, will be denied continued service. 3. AR 635-8 (Separation Processing and Documents), provides the preparation and distribution policies and procedures for the DD Form 214. The DD Form 214 is a summary of the Soldier’s most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. Paragraph 3-3 states that transition processing is centralized at the installation level. It specifically states that Soldiers and Family Assistance Centers are authorized to process separation actions for the supported Wounded Warrior population under the authority and supervision of the installation transition center supervisor. 4. AR 623-3 (Evaluation Reporting System (ERS)), in effect at the time, prescribes the policy for completing DA Form 2166-8 (NCOER) and associated DA Form 2166-8-1 (NCOER Counseling and Support Form) that are the basis for the Army's ERS. Procedures, tasks, and steps pertaining to the completion of each evaluation report and support form are contained in DA Pamphlet 623-3 (ERS). a. Paragraph 1-4 states reports are prepared by the individuals named in the published rating chain. Rating chains correspond as nearly as practical to the chain of command and supervision, are drawn up by name, given effective dates, published, and made available to each rated Soldier and each member of the rating chain. Any changes to rating chains will also be published and distributed. No changes may be retroactive b. Paragraph 2-4 states the rater will normally be the immediate supervisor of the rated Soldier. The rater will normally be senior by grade or date of rank to the rated individual. Commanders will normally rate commanders. Civilian raters for NCOERs will be designated as official supervisor on the established rating scheme approved by the commander. c. Paragraph 3-39 states an evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinions and objective judgment of the rating official at the time of preparation. d. Paragraph 3-43 states continuous, extended periods of nonrated time on an OER or NCOER require special considerations. When a Soldier has received a report within 90 days of starting a continuous, greater-than-9-months period of nonrated time on an OER or NCOER because of schooling, AER, patient status, or any other reason covered by nonrated code where the Soldier is not performing duties at an assigned unit, the FROM date for the next report will be one day after the THRU date of last OER/NCOER reflected on the file. However, the rated months will be calculated on the basis of the date of arrival under a valid unit rating scheme. Resulting reports can reflect a rating period greater than 12 months (they include the nonevaluated time), but the rated months cannot exceed 12 months of evaluated time. e. Paragraph 3-45 states an annual NCOER is mandatory for a rated Soldier on completion of 1 calendar year of duty following the THRU date of the last OER or NCOER in the Soldier’s OMPF. If 1 year has elapsed and the rated Soldier has not performed the same duty under the same rater for 90 calendar days, an extended annual report will be submitted. f. Paragraph 6-11 states the burden of proof rests with the appellant. Accordingly, to justify deletion or amendment of a report, the appellant will produce evidence that establishes clearly and convincingly that the presumption of regularity referred to in paragraphs 3-39 and 6-7 will not be applied to the report under consideration and action is warranted to correct a material error, inaccuracy, or injustice. (1) Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions. (2) For a claim of inaccuracy or injustice of a substantive type, evidence will include statements from third parties, rating officials or other documents from official sources (see DA Pam 623–3, chap 6). Third parties are persons other than the rated officer or rating officials who have knowledge of the appellant’s performance during the rating period. Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the appellant’s performance as well as interactions with rating officials. Statements from rating officials are also acceptable if they relate to allegations of factual errors, erroneous perceptions, or claims of bias. To the extent practical, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered. The results of a Commander’s or Commandant’s Inquiry may provide support for an appeal request. 5. DA Pamphlet 623-3 (ERS), in effect at the time, prescribes the procedures for completing Army evaluation reports for officers and NCOs. a. Paragraph 1-9 states that performance evaluations are assessments on how well the rated Soldier meets their duty requirements and adheres to the professional standards established by the Army and Department of Defense. Rating chains evaluate performance by considering the results achieved, how well they are achieved, and how well the rated Soldier complied with professional standards. b. Table 2-9 states Code P is used to account for non-rated periods as a patient, including convalescent leave. 6. Various Military Personnel Messages provide guidance and procedures in support of the QMP. The purpose of this board is to identify selected NCOs for possible involuntary separation. Specifically those with a General Officer Memorandum of Reprimand, conviction by a court-martial or Article 15, Relief for cause NCOER, a "No" in the army values on an NCOER, a senior rating of "4" on an NCOER, and NCO Education System failures. * Soldiers selected by the QMP for denial of retention must exercise an option (appeal, accept, retire, etc.) * Soldiers may appeal on the basis of a material error in their records when reviewed by the board. The chain of command, all the way to a general officer, must recommend approval or disapproval * Soldiers who elect to appeal but fail to submit their appeal within 30 days or without compelling justification will continue to process for discharge; the Director of Military Personnel Management (DMPM) is the final authority for disposition of appeal DISCUSSION: 1. Having had prior service in the U.S. Navy, the applicant enlisted in the U.S. Army Reserve (USAR) on 13 September 1988. He served through multiple reenlistments and extensions in a variety of assignments and he was advanced to sergeant first class (SFC)/E-7. 2. He entered active duty on 29 November 2007. He served in Iraq from 5 January 2008 to 16 October 2008. 3. He was retained on active duty on 4 December 2008 to participate in reserve component warriors in transition medical retention processing program for completion of medical care and treatment for an additional 358 days. 4. He was honorably released from active duty on 18 October 2009 and assigned to Headquarters and Headquarters Company, 432nd Civil Affairs Battalion (Tactical). His DD Form 214 shows he completed 1 year, 10 months, and 20 days of net active service. 5. The applicant was transferred from Headquarters and Headquarters Company, 432nd Civil Affairs Battalion to Headquarters and Headquarters Company, 304th Civil Affairs Brigade, effective 19 October 2009. 6. The applicant received an annual NCOER covering 12 months of time with 3 rated months from 1 April 2009 through 31 March 2010, and Code "P" for his non-rated time, for his duties as a Civil Affairs Team Sergeant while assigned to Headquarters and Headquarters Company, 304th Civil Affairs Brigade. His NCOER shows in pertinent part: a. Part IVa (Army Values), the rater commented “SM (service member) did not attend BA (battle assembly) during rating period due to being on medical hold from a recent deployment” b. Part IVf (Responsibility and Accountability), the rater placed an “X” in the “Needs Improvement (Some)” block and entered the following bullet comments: * “SM did not attend BA due to being on medical hold from a recent deployment” * “SM did not maintain communication with COC (chain of command) on his status; contacted COC only when he needed an NCOER” c. Part Va (Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), the rater placed an “X” in the “Marginal” block. d. Part Vc (Senior Rater – Overall Performance), the senior rater placed an “X” in the “Fair/4” block. e. Part Vd (Senior Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), the senior rater placed an “X” in the “Fair/4” block. f. Part Ve (Senior Rater Bullet Comments), “SM did not attend BA due to being on medical hold from a recent deployment.” 7. The NCOER was signed by the rater and senior rater on 6 July 2010 and 8 July 2010, respectively. The reviewer concurred with the rater and senior rater and authenticated the document by signing it on 8 July 2010. The applicant signed the NCOER on 7 August 2010. 8. There is no indication the applicant appealed this NCOER through HRC to the ESRB within the time allowed by the governing regulation. 9. He entered active duty in an AGR status on 5 April 2010. He was honorably discharged on 1 May 2016. His DD Form 214 shows he completed 6 years and 27 days of net active service for the period of the report, with 7 years and 28 days of prior active service and 20 years, 5 months, and 24 days of prior inactive service. It further shows: * Item 23 (Type of Separation) - Discharge * Item 25 (Separation Authority) - AR 635-200, chapter 19 * Item 28 (Narrative Reason for Separation) - Non-Retention on Active Duty 10. The applicant provides: a. Orders Number A-12-824802, dated 4 December 2008, with amendments, which assign him to a WTU at Fort Bragg, NC, effective 4 December 2008 to participate in reserve component warriors in transition medical retention processing program for completion of medical care and treatment. b. Orders Number 09-306-00001, dated 2 November 2009, which show the applicant was transferred from Headquarters and Headquarters Company, 432nd Civil Affairs Battalion to Headquarters and Headquarters Company, 304th Civil Affairs Brigade, effective 19 October 2009. c. E-mail communication from the applicant to LTC S__, dated 28 April 2013, which reads “as I discussed with you Friday morning: Master Sergeant (MSG) P__ harassed and ridiculed me over having a medical profile. Of all the individuals in the unit, this was not done to any “black” individuals nor was it done with any females. Service members with any type of medical condition should not need to be exposed to discriminatory treatment that could affect them in a negative way nor have a derogatory effect on their performance.” d. E-mail communication from the applicant to LTC S__, dated 28 April 2013, which reads “As I reported to you yesterday, MSG P__ made a death threat to me. He informed me that my biggest problem is that I am breathing. At that time he approached me in a threatening manner to within one quarter of an inch from my face. I accept this as a valid death threat and do not feel safe in areas where he may be present. e. E-mail communication from the applicant to LTC S__, dated 28 April 2013, which states that he is being retaliated against for reporting incidents and as a result he is being punished with having charge of quarters (CQ) up to seven times everyone else. He lists the current list of CQ individuals with their number of tasking which shows he has had duty 7 times and the rest of the individuals are between 0 and 2 times. f. E-mail communication from the applicant to LTC S__, dated 28 April 2013, which states that he has reported to him a number of issues between MSG P__ and himself. It has developed into an extremely hostile work environment and downgraded his level of performance. The situation appears destined to turn violent. He firmly believes that MSG P__ would willingly cause him harm or death if the situation presented itself. He did not feel safe in or near his presence or surroundings. g. E-mail communication from the applicant to CSM H__, dated 28 April 2013, which states that he pulled the most recent published battle roster and after he removed all persons E-8 or higher and all primary and secondary instructors, they average 7 personnel available every day for CQ. It was clear to him that he was being punished for reporting MSG P__’s threat. h. E-mail communication from the applicant to CSM H__, dated 29 April 2013, which lists the criteria from different references pertaining to corrective training. He states that ordering him to complete 7 CQ watches does not meet the Army standards or regulations. It is clearly punishment, not a corrective action. i. Memorandum, subject: 3rd Brigade, 100th Division Commander’s Policy Letter #20: Performance Based Counseling, dated 26 July 2013, which established policies and procedures for conducting timely and effective counseling of subordinates within the 3rd Brigade, 100th Division. j. DA Form 1559, dated 23 August 2013, which shows that the applicant submitted an IG action request to move from the hostile duty station to another duty station. He adds that CSM H__ and Sergeant Major (SGM) P__ (formerly MSG P__) be barred from influencing his evaluations or next duty station. He notes that he reported to the chain of command in person and e-mail a number of issues of extremely hostile work environment. k. E-mail communication from LTC M__ to the applicant, dated 26 October 2013, which states that he cannot accommodate his request (to abstain from the mission for the time periods that SGM P__ is present due to the recent threat and other incidents of harassment) due to the short staffing of the organization and for the applicant to get the lay of Fort Knox for him and to train his replacement. l. E-mail communication from LTC M__ to several individuals, including the applicant, dated 27 October 2013, which states that the applicant has done a great job looking ahead. m. E-mail communication from LTC M__ to the applicant, dated 5 November 2013, which commends the applicant on his recon of finding free flu shots at Fort Knox, KY. n. DA Form 705, dated 21 November 2013, which shows the applicant completed an APFT and scored a 74 in push-ups, 73 in sit-ups, and completed the walk in 30 minutes and 32 seconds. o. DA Form 638, which shows the applicant received an Army Achievement Medal (1st Oak Leaf Cluster) for the period 3 November 2013 through 26 November 2013 for outstanding support of the annual training mission while serving as the training NCO for the 5th Battalion, 98th Regiment. p. E-mail communication from LTC M__ to the applicant, dated 11 December 2013, which shows LTC M__ responding to the applicant reference a Soldier moving from a position. q. E-mail communication from LTC M__ to the applicant, dated 24 January 2014, which states, in pertinent part, “want to congratulate you on some great work.” r. E-mail communication from LTC M__ to several individuals, including the applicant, dated 30 January 2014, which states, in pertinent part, “[Applicant] has done great work there.” s. E-mail communication from LTC M__ to the applicant, dated 11 February 2014, which states, in pertinent part, “you are doing truly exceptional work right now.” t. E-mail communication from LTC M__ to the applicant, dated 2 April 2014, which states, in pertinent part, “[Applicant] is going to save the day.” u. DA Form 2166-8, for the rating period 4 April 2013 through 3 April 2014. (Note: This NCOER was later removed from the applicant’s records by the ESRB.) v. E-mail communication from CPT H__, dated 15 July 2014, which states the a Commander’s Inquiry has been initiated into the NCOER for the rating period 4 April 2013 through 3 April 2014. w. Memoranda from Staff Sergeant W__: (1) Subject: Rating Chain/Duty Performance, dated 4 December 2014, which states he has worked with the applicant since his arrival at the unit in June 2013. The applicant has been an integral part of the unit meeting daily suspense’s with brigade taskers, assisting, planning annual training missions conducted at Fort Knox, KY and Fort Dix, NJ. During the annual training mission in November of 2013, the applicant received an Army Achievement Medal for his performance at the mission for his responsibility with daily situation reports and operations functions. The applicant came in while on leave, assisted the unit in completion of the unit status report and took it to 3rd Brigade, 100th Division located in Fort Totten, NY from Edison, NJ. He added the rating scheme of the applicant as the human resource sergeant. (2) Subject: Supporting Statement for Evaluation Report Appeal of the Applicant, dated 23 July 2015, which states he served as the human resources sergeant for the 5th Battalion, 98th Regiment in Edison, NJ from 5 July 2013 through 25 March 2015. He observed the applicant’s duties as the training NCO, with additional duties as the operations NCO and physical security NCO for the unit. The applicant was a key and integral part of the unit. He was knowledgeable of the working relationship between the applicant and the established rating chain. On many occasions, the applicant would step in to complete responsibilities of the rating chain. He devoted his personal time while on leave to complete the unit status readiness report and take it to the brigade. On many occasions, he observed the applicant and SGM P__ exchange words. The applicant filed a complaint against SGM P__ and requested the commander to intervene. One particular incident is when at Fort Knox, KY, SGM P__ approached the applicant. He added the rating scheme of the applicant. x. E-mail communications from MAJ C__ to the applicant, (1) Dated 29 September 2015, which states, in pertinent part, that she was appointed as the investigating officer to provide recommendations to the commander on whether the claims of threats toward the applicant (and others) are true or not and if a promotion board was held in November 2013. She asked the applicant to complete a sworn statement and add as much detail as he could. (2) Dated 30 September 2015, which states, in pertinent part, that she believes SGM P__’s actions might fall under the definition of hazing and/or bullying. She included definitions from AR 600-20 (Army Command Policy). y. E-mail communication from Ms. W__ to the applicant, dated 15 October 2015, which states that she was in the process of finalizing the report and once it left their office it would go through USARC, Forces Command (FORSCOM), DAIG, and then Department of Defense IG (DODIG). z. Memorandum, subject: Notification of Denial of Continued Active Duty Service under the QMP, dated 18 November 2015, which notified the applicant that he was selected for involuntary separation by the QMP board. He was informed that he was approved for an involuntary discharge date from the Army of 1 May 2016, or request an earlier separation date. On 4 December 2015, he elected to submit an appeal. He provided the following documents in conjunction with his appeal: (1) Memorandum, subject: Appeal of Denial of Continued Active Duty Service under the QMP for the Applicant, dated 18 December 2015, which states, * this was his first consideration under the Army denial of continued active duty service under the QMP * he is an AGR Soldier * the primary cause for his QMP consideration is the NCOER received for the time period 4 April 2013 through 3 April 2014 in which the rater of the NCOER was not his assigned rater, nor was he in his chain of command * the rating individual was seeking retaliation for a death threat the applicant made against the rater of which the applicant reported * as a result of the NCOER, a commander’s inquiry for redress and IG complaint were submitted * the DODIG complaint’s finalized report was being provided to USARC, FORSCOM, DAIG, and DODIG * as a result of the DODIG investigation, the 100th division commanding general and his staff judge advocate office were notified by IG that his case likely warranted further investigation for the rater’s violation of AR 600-20 for hazing/bullying * an Article 138, UCMJ request for redress was submitted along with a corrected NCOER appeal * consolidation from HRC IG office is that “it is a no brainer” that the NCOER should be thrown out, as it was not completed according to the approved and commander’s signed rating scheme * he was a dedicated Soldier who fully supports the U.S. Army’s values to include equal opportunity and sexual harassment/assault response and prevention program * he requested to be retained as an AGR Soldier in support of the Army’s missions until 30 September 2017 (2) Memorandum, subject: Appeal of QMP Selection for the Applicant from CPT K__, legal assistance attorney, dated 18 December 2015, which states: * the applicant was notified on 18 November 2015 that he had been selected for denial of continued active duty service * the applicant is formally appealing this selection * the basis for the appeal stems from an erroneous NCOER that the applicant received in 2013/2014 * the applicant was the victim of retaliation by his chain of command for filing a formal IG complaint, the retaliation came in the form of a negative NCOER * it was his understanding that the basis for the applicant’s QMP was this NCOER in question * the applicant was pending an appeal of the NCOER in question * if successful, the basis for the QMP selection will be null and void, if the NCOER were corrected, the applicant should be retained for continued service * he requested an extension of his termination from service until the applicant receives confirm his NCOER appeal was complete * given the number of years and sacrifices that the applicant has endured, he believes an extension would be justified (3) Approved rating scheme signed by the commander which shows the applicant as being rated by CSM H__, senior rated by the commander, LTC M__, and reviewed by Colonel (COL) S__. (4) 5th Battalion, 98th Regiment’s Organizational Chart, which shows the applicant in the training/S2 position. (5) Memorandum, subject: Recommendation for the Applicant’s Continued Active Duty Service from COL R__, dated 5 January 2016, which recommends approval of his continued active duty service. He states: * he understood that the applicant was selected by the QMP for termination prior to completion of service and is in the process of appealing a negative NCOER from 2013-2014 * new information includes legal assistance letter; rating scheme, USARC IG complaint filed during rating period for racial, health insurance portability and accountability act (HIPAA); harassment; DOD IG complaint status; 100th division commanding general notification for investigation; Article 138 complaint 11. The applicant also provides: a. Memorandum, subject: Request for Redress of Grievances under Article 138, UCMJ, dated 18 December 2015 which shows the applicant submitted a complaint against LTC M__ for the NCOER dated 4 April 2013 through 3 April 2014. b. Memorandum, subject: Correction to NCOER 4 April 2013 through 3 April 2014 for the Applicant, from HRC, dated 28 May 2016, which shows that the ESRB proceedings removed and replaced with a nonrated statement the NCOER with an ending date of 3 April 2014. c. E-mail communication from the applicant to Ms. J__, dated 14 June 2016, which states that CSM S__ had the S1 forward him his QMP appeal packet sent to the transition branch on Thursday, 7 January 2016 at 12:17 PM which included Ms. J__ on the e-mail. Transition branch confirmed receipt on Wednesday, 13 January 2016 at 1:33 PM. He asks for an update as she informed the applicant that the appeal was never received. He adds that she received notification that the NCOER had been removed from his records earlier that day. 12. With regard to his NCOER for the rating period 1 April 2009 through 31 March 2010: a. The applicant argues that he was assigned to a WTU during the rating period and therefore the evaluation is not valid. He adds that by regulation, WTU is not required to complete an OER or NCOER. b. The applicant was assigned to a WTU from 4 December 2008 through 18 October 2009. His DD Form 214 for this period shows he was transferred to Headquarters and Headquarters Company, 432nd Civil Affairs Battalion at his release from active duty. c. The applicant was transferred from Headquarters and Headquarters Company, 432nd Civil Affairs Battalion to 304th Civil Affairs Brigade, effective 19 October 2009. d. During the rating period, he was assigned to the WTU for a period of 6 months and 18 days and to the 304th Civil Affairs Brigade for a period of 5 months and 13 days. e. The regulation in effect at the time provided that a nonrated code of “P” would be annotated on the NCOER for unrated months of the Soldier in a patient status. The applicant’s NCOER shows that he was rated for 3 months with a nonrated code of “P.” f. By regulation, to support removal or amendment of a report, there must be evidence that establishes clearly and convincingly that the presumption of regularity should not be applied and that action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature. g. The Board must determine if the applicant provided clear and convincing evidence of a strong and compelling nature to warrant the removal of the NCOER for the rating period 1 April 2009 through 31 March 2010 from his official records. 13. With regard to his QMP: a. The applicant argues that due to no fault of his own, HRC did not receive his appeal packet by the suspense date of 18 December 2015 as listed on the QMP notification memorandum that he was issued. He adds that HRC acknowledged receipt of his QMP appeal packet that was sent on 7 January 2016. b. The applicant was notified by memorandum, dated 18 November 2015 with a suspense date of 18 December 2015, that he was selected for denial of continued service on active duty. He acknowledged receipt of notification on 4 December 2015 and was given 30 days to respond to HRC. c. On 7 January 2016, his QMP appeal packet was sent to HRC by his unit human resource manager. HRC acknowledged receipt of the applicant’s QMP appeal packet on 13 January 2016. d. There is no evidence in the available records that shows action taken by HRC on the applicant’s submitted QMP appeal packet. e. The Board must determine if the applicant’s rights were fully protected throughout the QMP and separation process. 14. With regard to his DD Form 214: a. The applicant argues that his DD Form 214 did not originate from HRC and is not considered valid. b. By regulation, transition processing is centralized at the installation level. The DD Form 214 was completed at Fort Bragg, NC in accordance with the procedures of AR 635-8. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160005706 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160012156 16 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2