ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 September 2019 DOCKET NUMBER: AR20160019117 APPLICANT REQUESTS: * a change of her Noncommissioned Officer (NCO) Evaluation Report (NCOER) for period 5 March 2013 through 4 March 2014 to show her overall performance and overall potential to be adjusted from fair (4) to a minimum of successful/superior (3) from her senior rater * a change of her separation code on her DD Form 214 (Discharge from Active Duty) so that she can be eligible for either reinstatement on active duty or eligibility for early retirement under the Temporary Early Retirement Authority (TERA) program APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Memorandum, Headquarters 4th Cavalry Brigade, Fort Knox, KY, dated 4 December 2015, subject: Evaluation Report Appeal (Applicant), with enclosures * Letter, Applicant, dated 20 September 2016 FACTS: 1. The applicant states: * her evaluation is unjust because there is nothing in her records to justify a rating of fair (four) during that time period or any other time period in her more than 15 years of military service * she was going through personal and emotional issues that prevented her from having the mind to challenge this rating * she did not start seeking psychiatric assistance until just prior to her discharge from the military * she has evidence to support all other claims stated in her appeal * attached is evidence supporting her claim along with character references and personal statements * during the rating period she was promoted to sergeant first class, going through a pregnancy, and marriage troubles * her counseling dates on the NCOER were wrong * she was given a diagnostic tape test that was not dated or signed * she invested more than 15 years of combined active duty and active guard reserve time * she worked hard through physical and emotional pain to get back within the standards * there is no justice in the fact that she was thrown out without any of her benefits and without anything to show for all of those years of her life 2. Review of the applicant's service records shows: a. The applicant enlisted in the U.S. Army Reserve. She held a finance military occupational specialty. She entered active duty in the Active Guard Reserve program on 17 October 2005. b. At the time of the contested NCOER for the period from 5 March 2013 through 4 March 2014, she was assigned to Headquarters, 4th cavalry Brigade, Fort Knox, as a Budget NCO. She was promoted to sergeant first class on 1 May 2013. c. She gave birth to her second child in July 2013. Her pregnancy physical profile shows her expected date of fully mission capable as 30 January 2014. d. On 4 December 2013 she was awarded the Good Conduct Medal (4th award) for period of service 23 October 2010 to 22 October 2013. e. She provided an undated and unsigned copy of a Body Fat Content Worksheet showing her weight as 174 pounds and a percentage body fat of 37 percent. f. On 22 January 2014, she was issued a 30 day temporary profile for knee pain. Her profile stated she could run at own pace and distance. g. Her Official Military Personnel File contains her NCOER covering the period 5 March 2013 through 4 March 2014. (1) Part IV(c) (Physical Fitness & Military Bearing), the rater marked "NEEDS IMPROVEMENT (Some)." She did not take an Army Physical Fitness Test because of a profile issued on 22 January 2014. Her height was 62 inches, weight 174 pounds, and she was not in compliance with Army Regulation 600-9 (The Army Body Composition Program (ABCP)). (2) Part V(e) (Senior Rater Bullet Comments), the senior rater commented, promote when NCO regains eligibility. (3) Part V(c) (Senior Rater-Overall performance), the senior rater marked "Fair (4)." (4) Part V(d) (Senior Rater. Overall potential), the senior rater marked "Fair (4)." (5) The reviewer reviewed and concurred with the rater and senor rater. The rater signed this NCOER on 12 March 2013 and the senior rater and reviewer signed it on 14 March 2013. The applicant also signed it on 14 March 2013. h. She was recommended for an Army Achievement Medal (2nd Oak Leaf Cluster) for period of award 11 March 2014 to 12 March 2014. i. On 4 December 2015, she submitted an evaluation report appeal to U.S. Army Human Resources Command. j. On 26 April 2016, the Enlisted Special Review Board (ESRB) denied her appeal to change her NCOER. The ESRB states based on the available evidence, the applicant has not provided clear and convincing evidence which shows that the ratings on the contested report were in error or that they were not the considered opinions and objective judgments of the rating officials at the time the report was rendered. k. She was honorably discharged on 1 May 2016. Her DD Form 214 shows the narrative reason for separation as non-retention on active duty, in accordance with chapter 4 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations). Her DD Form 214 further shows: * she completed 10 years, 6 months, and 15 days of active service * she had 5 years, 1 month, and 27 days of prior active service, for a total of 15 years, 8 months, and 12 days of total active service * she was assigned Separation Code JGH and Reentry (RE) Code 4 3. By regulation (AR 623-3), an evaluation report accepted for inclusion in the official record of a rated Soldier's OMPF is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation. The burden of proof rests with the applicant. Accordingly, to justify deletion or amendment of a report, the applicant will produce evidence that establishes clearly and convincingly that: (1) the presumption of regularity will not be applied to the report under consideration and (2) action is warranted to correct a material error, inaccuracy, or injustice. 4. By regulation (AR 635-5-1), Soldier separated from active duty due to non-retention (QMP) are assigned Separation Code JGH, which has a corresponding RE Code of 4. 5. By law, the Fiscal Year 2012 National Defense Authorization Act (NDAA), Public Law 112-81, enacted 31 December 2011, authorized the military services to offer early retirement to Service members who have completed at least 15 years of active service. This is a discretionary authority and not an entitlement. The Army has elected to use this limited program as part of a comprehensive force management strategy to shape the force. It does not apply to Service members of the Army National Guard or the U.S. Army Reserve. BOARD DISCUSSION: After review of the application and all evidence, the Board found relief is not warranted. The applicant’s contentions were carefully considered. Based upon the documentary evidence provided by the applicant, found within in the military service record, and upon the preponderance of the evidence, the Board agreed the contested evaluation was properly completed and filed in her OMPF. Additionally, the Board concluded based upon the requirements outlined within the statute covering TERA that the applicant was not eligible to apply for retirement under TERA. There is insufficient evidence to grant relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION 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. 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 40-501 (Standard of Medical Fitness), in effect at the time, provided information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Paragraph 7-10 (Postpartum profiles) provided postpartum Soldiers are exempt from record weigh-in for 180 days following termination of pregnancy. 3. Army Regulation 600-9 (The Army Body Composition Program (ABCP)) implements policy and prescribes procedures governing physical fitness and weight/body fat standards in the Services. a. Paragraph 3-11 (Temporary Medical Condition) provides Soldiers found to have a temporary medical condition that directly causes weight gain or prevents weight or body fat loss will have up to 6 months from the initial medical evaluation date to undergo treatment to resolve the medical condition. During this time, the Soldier will participate in the ABCP, to include initiation of a DA Form 268 (Report to Suspend Favorable Personnel Actions), nutrition counseling, and monthly body fat assessment, but will not be penalized for failing to show progress. b. Paragraph 3-15 (Pregnancy) prescribes personnel who met this regulation's standards and become pregnant will be exempt from the standards for the duration of the pregnancy plus the period of 180 days after the pregnancy ends. If, after this period of exemption they are verified to exceed the body fat standard, they will be enrolled in the ABCP. If the Soldier is determined to exceed the body fat standard and is identified to have a temporary underlying medical condition, refer to paragraph 3-11 for appropriate actions. 4. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces reentry eligibility (RE) codes. * RE-1 applies to persons completing an initial term of active service who are considered qualified to reenter the U.S. Army if all other criteria are met * RE-3 applies persons who are not considered fully qualified for reentry or continuous service at the time of separation, but disqualification is waivable * RE-4 applies to persons separated from their last period of service with a nonwaivable disqualification * RE-4R applies to persons who retired for length of service with 15 or more years of active Federal service * RE-1A, 1B, 1C, 2, 2B, 2C, and 4A apply to persons who separated prior to the effective date of this regulation – qualified for enlistment provided the reason and authority do not preclude enlistment or require a waiver – applicants may not enlist until 93 days after separation if otherwise qualified * RE-2A, 3A, 3B, 3C, 3D, 3E, 3S, and 3V apply to persons separated prior to the effective date of this regulation but did not meet reentry criteria at the time of separation 5. Title 10, U.S. Code, section 12731aI(3) (Temporary Special Retirement Qualification Authority), enacted the early qualification for retired pay at age 60 for Soldiers found medically disqualified for retention in the Selected Reserve on or after 5 October 1994. Under this provision, Soldiers who completed at least 15 but less than 20 years of qualifying service and were medically disqualified were eligible to receive retired pay at age 60. The amount of retired pay was based on the total number of qualifying years of service at the time of removal rather than the 20 years normally required. Only Soldiers who transferred to the Retired Reserve as a result of the medical disqualification were entitled to receive this benefit. 6. Public Law 106-65, enacted 5 October 1999, added section 12731b, (Special Rule for Members with Physical Disabilities Not Incurred in Line of Duty) to Title 10, U.S. Code. Section 12731b(a) states a member of the Selected Reserve who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability may, for the purposes of section 12731 (Age and Service Requirements) of this title, be treated as having met the service requirements and be provided with the notification required if he has completed at least 15 and less than 20 years of service. 7. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes the policies governing the OMPF. Appendix B (Documents Authorized for Filing in the Army Military Human Resource Record and/or Interactive Personnel Electronic Records Management System), states NCOER's will be filed in the performance and service folders of the OMPF. 8. Army Regulation 623-3 (Evaluation Reporting System) states an evaluation report accepted for inclusion in the official record of a rated Soldier's OMPF is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation. The regulation also states the burden of proof rests with the applicant. Accordingly, to justify deletion or amendment of a report, the applicant will produce evidence that establishes clearly and convincingly that: (1) the presumption of regularity will not be applied to the report under consideration and (2) action is warranted to correct a material error, inaccuracy, or injustice. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160019117 5 1