ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 September 2019 DOCKET NUMBER: AR20170002802 APPLICANT REQUESTS: * amend non-commissioned officer evaluation report (NCOER) for rating period 3 May 2012 through 7 December 2012 * overrule the unfavorable decision on his qualitative management program QMP appeal by the U.S. Army Human Resources Command (HRC) * direct his reinstatement to active duty * if he is not restored to active duty, direct that he be transferred to the Retired Reserved APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Online Application) * DD Form 149 (Application for Correction of Military Record) * attorney letter * two Enlisted Record Briefs (ERB) * three Army Commendation Medals * four Army Achievement Medals * five Army Good Conduct Medals * four Certificate of Achievements * Certificate of Appreciation * three DA Form 1059s (Service School Academic Evaluation Report) * eight Certificates of Training * permanent order 113-02, Drivers Badge with Wheel * seven DA Form 2166-8s (NCOER) covering the period of 9 May 2009 through 7 June 2015 * NCOER appeal letter * six character letters * two DA Form 1506s (Statement of Service – for Computation of Length of Service for Pay Purposes) * United States Navy Reserve (USNR) Retirement Points * USNR record of discharge * attorney letter to the Field Alignment Division (FAD), HRC * * extract Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) * extract AR 623-3 (Evaluation Reporting System) * notification of denial of continued active duty service under QMP * statement of options, QMP * applicant statement to the QMP board * DA Form 4187 (Personnel Action), exception to policy (ETP) for extension of term of service (ETS) * FAD, HRC response to applicant’s appeal of involuntary separation under the QMP * applicant’s request for an ETP for his expiration ETS FACTS: 1. The applicant states he was selected for separation under the QMP process. HRC refused to consider his appeal on the basis of improved performance. This was in clear violation of the published text in paragraph 19-11a, AR 635-200 which was in effect at the time that he submitted his appeal in June 2016. 2. The applicant provides: a. Letter from his attorney to the Army Board of Corrections for Military Records (ABCMR), dated 17 October 2016 states the applicant was referred to the QMP process due to a single adverse NCOER (Relief for Cause) that he had received while he was in a previous unit, E Company, 2nd Battalion, 501st General Support Aviation Battalion during the rating period 3 May 2012 – 7 December 2012. [Applicant] has only received one adverse NCOER during his entire Army career. This eventually resulted in a decision to separate him pursuant to the QMP process. He is now appealing that decision. This petition to the ABCMR is as follows: (1) Amendment of his NCOER for rating period 3 May 2012 – 7 December 2012. (2) Overturn the action of the QMP board and reinstate [applicant] to active duty status and allow him to serve on active duty until he qualifies for retirement. (3) In the event that the ABCMR does not act to grant full relief, he should not simply be discharged from the Army. In addition to the foregoing, if he is not retained in the Regular Army (RA), consider his prior service in the USNR. He completed 9 years, 3 months, and 18 days in the USNR. Combined with his RA service, he completed a total of 27 years, 4 months, and 24 days of service as of 1 November 2016 as computed IAW 10 USC 12732. He reached the total of 20 years of service in 2009. Therefore, he is not subject to the requirement of 10 USC 12731 (a) (3) to have completed the last 6 years of service in a reserve component. This will entitle him to be transferred to the Retired Reserve rather than discharged from the RA and to receive (1) retired pay for non-regular service based on the military pay scale at that time upon reaching the age of 60 IAW the provisions of 10 USC 12731. (4) [Applicant] submitted his appeal to HRC as a QMP appeal because that was the appropriate action IAW both AR 635-200 and AR 623-3. [Applicant] was notified that he had been identified for separation under the QMP process by means of a memorandum dated 29 April 2016 which was served to him on 9 May 2016. It stated that QMP appeals are supposedly "limited to newly discovered evidence, the subsequent removal of documents from the Army Military Human Resources Record (AMHRR), or material error. These requests are validated IAW the rules established by AR 635-200, paragraph 19-11. However, this memorandum completely fails to note that paragraph 19-11a of AR 635-200 clearly provides that a “Soldier denied service under the QMP may appeal the determination on the basis improved performance and/or material error in the Soldier’s record when reviewed by the selection board [emphasis added]." (5) While [applicant] did receive a problematic NCOER for one rating period (3 May 2012 – 7 December 2012), this was not typical of his overall military record and it reflected a situation which was beyond his control and which is addressed below and is in several letters of support. In addition, this NCOER contains highly significant substantive and administrative errors. (a) The NCOER for rating period 10 April 2010 – 3 April 2011 contained negative comments which alleged that he had been responsible for unit supply problems. However, it failed to cite any specific examples such as financial liability investigation of property losses (FLIPL), etc. (b) The credibility of this NCOER is highly questionable. Part III f (Counseling Dates) lists three dates: 19 September 2012, 1 November 2012, 20 November 2012, and 3 December 2012 on which counseling was supposedly conducted. However, it also contains a Senior Rater Bullet comment which states that “quarterly counseling not conducted IAW AR 623-3; DA Form 4856's were utilized in place of required DA Form 2166-8-1.” The unit also failed to meet the requirements of chapter 3 of AR 623-3 by completely neglecting to conduct an initial counseling or any periodic counseling. [Applicant] never received an initial counseling session for this rating period as required by DA Pam 623-3 (Evaluation Reporting System), paragraph 3-11. The AR compels a rater to conduct the initial counseling within 30 days of the beginning of a rating period, yet his organization waited 4 months before conducting this counseling. This lapse clearly violates the process requirements of DA Pam 623-3. This NCOER also failed to refer the actual substance of any counseling that was supposedly conducted during this period. (c) In addition to this glaring administrative error, this NCOER also contained negative comments which alleged that he had failed to perform effectively as a company supply sergeant despite the fact that this very same NCOER contains highly (a) positive comments concerning his performance for the period in question. Section IVf (Responsibility and Accountability) contains the following bullet comments that are highly favorable. The fact that he was responsible for over $15.5 million worth of property and maintained complete accountability for all sensitive and major end items during this period is a clear indication that he did in fact carry out his responsibilities in an effective manner during this rating period. * was responsible for the care and accountability of the Company Commander's property valued in excess of $15.5 million * did not lose accountability of any sensitive or major end item during rated period * took initiative to improve education by completing additional university courses (6) His attorney provided a detailed letter consisting of the circumstances and summary of the case, (detailed letter enclosed in packet). b. USNR retirement points from 1 March 1985 – 28 February 1993. c. USNR record of discharge shows he was honorably discharged from the USNR on 24 February 1995. d. Seven DA Form 2166-8s covering the period of 9 May 2009 through 7 June 2015. His NCOER covering the period 3 May 2012 – 7 December 2012 (contested NCOER) was a relief for cause. e. NCOER appeal letter from Sergeant XXX, dated 31 January 2013, states that he is aware that Captain (CPT) X was not able to accurately write [applicant’s] NCOER as he would have liked, because of the pressure on him by CPT X (E Company commander) and Sergeant First Class X (E Company first sergeant (ISG)). CPT X ’s concerns were expressed to him behind closed doors that he felt that he would be unable to write the [applicant’s] NCOER without it being drastically altered by the commander and 1SG. f. The applicant was notified of denial of continued active duty service under the QMP through the deputy commander, U.S. Army Forces Command, Fort Bragg, NC on 29 April 2016 due to a QMP selection board held at the HRC. He had a suspense of 31 May 2016 to request an earlier separation date or appeal the decision and request retention on active duty. Appeals are limited to newly discovered evidence, subsequent removal of documents from the Soldier’s AMHRR or a material error. g. On 9 May 2016, on his statement of options, QMP form he selected to submit an appeal. a. h. Six character letters, submitted by former superiors, peers and subordinates. They state that he embodied his duties as a well-rounded non-commissioned officer and has an extremely positive impact on any duty position given. [Applicant] is not only proficient in every characteristics of supply transactions, requisitions, distributions, movement, receipts, issue, turn-in, and property FLIPL transactions. He is an extremely motivated NCO who genuinely cares for the health and welfare of his Soldiers and the unit’s mission. [Applicant] is a natural leader, but more importantly than that, he also knows how to follow an order and take charge in the absence of it. [Applicant] was the catalyst behind the overwhelming success experienced during the relocation of 1st Armored Division (1AD) from outside continental U.S. to Fort Bliss, TX. He was also the principal trainer and mentor to all junior enlisted Soldiers assigned in the 1AD Headquarters while simultaneously being sought out by his peers to provide guidance on difficult NCO related issues. Additional comments may be reviewed (detailed letters enclosed in packet). i. Two DA Form 1506s, dated 1 June 2016 and 1 August 2016, show his total creditable service and active federal service. j. On 5 June 2016, the applicant wrote a statement to the QMP board to ask the board to consider the totality of his official performance evaluations, specifically all of those both prior and subsequent to the one adverse NCOER, in a positive light and allow him to continue serving the Army in his current or higher position. All of his NCOERs reflect his unquestionable adherence to the Army values, as well as examples where he has specifically sought to act as a role model to others. In addition to this NCOER not being an accurate reflection of the overall quality of his service. He would also like to point out that his NCOERs in the four years since that NCOER have improved and that this NCOER is not consistent with the rest of his record in the Army. His QMP notification stated that the grounds for appeals are “limited to newly discovered evidence, the subsequent removal of documents from the AMHRR, or material error.” However, this clearly contradicts the plain language of AR 635-200. Paragraph 19-11a clearly provides that a “Soldier denied service under the QMP may appeal the determination on the basis improved performance and/or material error in the Soldier’s record when reviewed by the selection board [emphasis added]." It has been three and a half years since he received what has been the only adverse NCOER of his entire Army career. The applicant provided a detailed statement which describes his NCOERS and his military experiences (detailed letter enclosed in packet). k. His attorney sent a letter to the FAD, HRC dated 15 June 2016 in reference to his QMP appeal. The FAD informed the applicant that his appeal was going to be returned without because it should have been submitted as an NCOER appeal. The facts and circumstances in this letter may be reviewed (detailed letter enclosed in packet). l. DA Form 4187, dated 9 August 2016, the applicant requested to extend his involuntary discharge for 24 days in order to meet his non-regular retirement criteria. a. m. On 29 August 2016, the FAD, HRC responded to applicant’s appeal of involuntary separation under the QMP. The chief of the FAD states that Army policy identifies that only cases with material error, newly discovered evidence or the subsequent removal of documents from the Soldier’s AMHRR are eligible for a QMP appeal. The FAD determined his appeal did not meet the criteria and was returned without action. n. On 21 September 2016, the applicant submitted a request for an ETP for his ETS to be extended from 1 November 2016 to 25 November 2016 to allow his son to complete his college semester and transfer to the University of TX El Paso. The extension would also have allowed him and his family to plan for transition into the civilian sector. o. The applicant supplied several of his awards, certificates of training, and AERs to show the Board his many positive accomplishments. 3. Review of the applicant’s service record shows: a. Having had prior service in the USNR, he enlisted in the RA on 2 June 1999. His DD Form 214 (Certificate of Release or Discharge from Active Duty) erroneously shows he enlisted on 14 November 1998. He reenlisted four times and became indefinite on 26 March 2010. b. He received a 3 month change of rater NCOER that is in his AMHRR, for the period covering 3 May 2012 – 7 December 2012. Signed by the rater, senior rater, and the reviewer. The applicant’s signature block in part II e (Authentication) is blank. (1) Part IVa (Army Values), the applicant received a "No" for duty and honor and the following bullet comments: * struggled with daily responsibilities; needs to develop better habits in property accountability * placed self-interest above professional obligations and Soldier welfare * kept high standards of personal conduct on and off duty (2) Part IVb (Values/NCO Responsibilities), the applicant received a "Needs Improvement (Some)" and the following bullet comments: * had trouble demonstrating the ability to effectively meet daily responsibilities and tasks * was inconsistent in meeting the Company Commander's intent and prioritizing tasks * worked to begin establishing Company Commander's Command Supply Discipline Program * (3) Part IVd (Leadership), the applicant received a "Needs Improvement (Some)" and the following bullet comments: * received his certification as a 'Demonstrated Senior Logistician' * exhibited a difficult time maintaining the patience to coach and mentor his Soldiers * challenged with basic leadership skills (4) Part IVe (Training), the applicant received a "Needs Improvement (Some)" and the following bullet comments: * selected as Safety NCO in order to support our Battalion's MEDEVAC unit during the M16 and M9 ranges * needs to devote more time in developing specific training in support of the Company's Mission Essential Task Listing (METL) * he has knowledge and experience, but must improve drastically in order to fully utilize it (5) Part IVf (Responsibility and Accountability), the applicant received a "Success (Meets standard)" and the following bullet comments: * was responsible for the care and accountability of the Company Commander's property valued in excess of $15.5 million * did not lose accountability of any sensitive or major end item during rated period * took initiative to improve education by completing additional university courses (6) Part Va (Rater - Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), the applicant received a "Marginal" rating. (7) Parts Vc and d (Senior Rater - Overall Performance and Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), the applicant received a " Fair 4"/ Fair 4" rating. (8) Part Ve (Senior Rater Bullet Comments) the bullet comments read: * promote at the Army's convenience * continue to challenge with Company Supply Sergeant duties; room for professional growth * has potential to become an asset to the unit with further MOS training and NCO development * quarterly counseling not conducted IAW AR 623-3; DA Form 4856's were utilized in place of required DA Form 2166-8-1 * * Soldier refused to sign c. He was honorably discharged from active duty on 14 November 2016 for non- retention on active duty. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 17 years and 5 months of active service this period. His DD Form 214 also shows he was awarded or authorized: * Army Commendation Medal (4th Award) * Army Achievement Medal (5th Award) * Army Superior Unit Award * U.S. Navy “E” Ribbon * Army Good Conduct Medal (5th Award) * Naval Reserve Meritorious Service Medal * Global War on Terrorism Service Medal * Kosovo Campaign Medal * Noncommissioned Officer Professional Development Ribbon (3rd Award) * Army Service Ribbon * Overseas Service Ribbon (3rd Award) * Kosovo Campaign Medal with Bronze Service Star * NATO Medal * Driver and Mechanic Badge – Mechanic * Sharpshooter Marksmanship Badge with Rifle Bar 4. By regulation, AR 635-200, a Soldier denied continued service under the QMP may appeal the determination and request retention on active duty on the basis of improved performance and/or presence of material error in the Soldier’s record when reviewed by the selection board. 5. By regulation, AR 623-3, advised that appeals based on substantive inaccuracy must include the basis for the belief that the rating officials were not objective or had an erroneous perception of the performance. A personality conflict between the appellant and a rating official does not constitute grounds for a favorable appeal; it must be shown conclusively that the conflict resulted in an inaccurate or unjust evaluation. 6. By regulation (AR 140-10), chapter 7 relates to the removal of Reserve Component Soldiers from an active status and states in pertinent part that Soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve. Transfer to the Retired Reserve is authorized in a number of instances, not all of which require 20 years of qualifying service (e.g., reached age 37 and completed a minimum of 8 qualifying years of Federal service). The applicant was not in the U.S. Reserve. He was in the Regular Army from June 1999 to November 2016. 1. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found determined relief was not warranted. The Board noted that the evidence does not show the contested NCOER contains any substantive deficiencies or that it was not prepared in compliance with applicable regulations and policies. The evidence does not significantly undermine the presumption that the evaluation rendered by the rating officials represented anything other than their objective judgment and considered opinions at the time they prepared the NCOER. Because, in the opinion of all Board members, there was insufficient cause provided by the applicant to remove the NCOER, the Board concluded there is also no reason to negate the findings of the QMP. The Board also opined that the applicant is not a USAR Soldier. He was in the Regular Army and does not qualify for USAR retirement. 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. 9/24/2019 X CHAIRPERSON Signed by: 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. Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 19-11a, a Soldier denied continued service under the QMP may appeal the determination and request retention on active duty on the basis of improved performance and/or presence of material error in the Soldier’s record when reviewed by the selection board. b. Regular Army Soldiers must submit their appeals to their commanders within 60 days of completion of DA Form 4941 (Statement of Options, Qualitative Management Program). 2. Army Regulation 623-3 (Evaluation Reporting System), in effect at the time, prescribed the policies and tasks for the Army's Evaluation Reporting System. a. Paragraph 3-36 (Modifications to previously submitted evaluation reports) states an evaluation report accepted by Headquarters, Department of the Army (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 who meet the minimum time and grade qualifications, and represent the considered opinions and objective judgment of the rating officials at the time of preparation. b. Paragraph 4-7 states an appeal will be supported by substantiated evidence (see paragraph 4-11). An appeal that alleges an evaluation report is incorrect, inaccurate, or unjust without usable supporting evidence will not be considered. The determination regarding adequacy of evidence may be made by HQDA, Evaluation Appeals Branch (AHRC–PDV–EA). c. Paragraph 4-11 (Burden of proof and type of evidence) states the burden of proof in the appeal process rests with the appellant to justify deletion or amendment of an evaluation report, the appellant will produce evidence that establishes clearly and convincingly that, (1) 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. 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 practicable, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the (1) time the report was rendered. The results of a CDR’s or Commandant’s Inquiry may provide support for an appeal request. (2) To be acceptable, evidence will be material and relevant to the appellant’s claim. In this regard, note that support forms or academic counseling forms may be used to facilitate writing an evaluation report. However, these are not controlling documents in terms of what is entered on the evaluation report form. Therefore, no appeal may be filed solely because the information on a support form or associated counseling document was omitted from an evaluation, or because the comments of rating officials on the evaluation report are not identical to those in the applicable support form or counseling document. While there will be consistency between a rating official’s comments on both forms, there may be factors other than those listed on a support form or counseling document to be considered when evaluating a rated Soldier. In addition, no appeal may be filed solely based on the contention that the appellant was never counseled. d. Paragraph 4-13 (Appeals based on substantive inaccuracy) a decision to appeal an evaluation report will not be made lightly. Before deciding whether or not to appeal, the prospective appellant will analyze the case dispassionately. This is difficult but unless it is done, the chances of a successful appeal are reduced. (1) Pleas for relief citing past or subsequent performance or assumed future value to the Army are rarely successful. (2) Limited support is provided by statements from people who observed the appellant’s performance before or after the period in question (unless performing the same duty in the same unit under similar circumstances); letters of commendation or appreciation for specific but unrelated instances of outstanding performance; or citations for awards, inclusive of the same period. (3) Once the decision has been made to appeal an evaluation report, the appellant will state succinctly what is being appealed and the basis for the appeal. For example, the appellant will state— (a) Whether the entire report is contested or only a specific part or comment. (b) The basis for the belief that the rating officials were not objective or had an erroneous perception of his or her performance. Note that a personality conflict between the appellant and a rating official does not constitute grounds for a favorable appeal; it will be shown conclusively that the conflict resulted in an inaccurate or unjust evaluation. (4) Most appellants will never be completely satisfied with the evidence obtained. A point is reached, however, when the appellant will decide whether to submit with the available evidence or to forgo the appeal entirely. The following (1) factors are to be considered: (a) The evidence must support the allegation. The appellant needs to remember that the case will be reviewed by impartial board members who will be influenced only by the available evidence. Their decision will be based on their best judgment of the evidence provided. (b) Correcting minor administrative errors or deleting one official’s rating does not invalidate the report. 3. Army Regulation 135-178 (Separation of Enlisted Personnel (U.S. Army Reserve and Army National Guard) prescribes policies and procedures for the separation of USAR enlisted Soldiers. It states an enlisted Soldier will be discharged when his removal is required by Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) unless he is eligible for a transfer to an active status or is eligible for and applies for a transfer to the Retired Reserve. 4. Army Regulation 140-10 (U.S. Army Reserve Assignments, Attachments, Details, and Transfers) sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR Soldiers. Chapter 7 of the regulation relates to the removal of Soldiers from an active status and states in pertinent part that Soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve. Transfer to the Retired Reserve is authorized in a number of instances, not all of which require 20 years of qualifying service (e.g., reached age 37 and completed a minimum of 8 qualifying years of Federal service).