BOARD DATE: 7 September 2017 DOCKET NUMBER: AR20170011011 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 BOARD DATE: 7 September 2017 DOCKET NUMBER: AR20170011011 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. BOARD DATE: 7 September 2017 DOCKET NUMBER: AR20170011011 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, in effect, correction of his military records to show the Qualitative Management Program (QMP) Board retained him on active duty or reinstatement on active duty. He also requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 1 August 2017 to show his reentry eligibility (RE) code as 3 or lower. 2. The applicant states: a. He petitions the Board to correct the QMP Board's decision to deny him continued service under the QMP. The basis for this request is injustice and/or error. b. After being advised the QMP had selected him for denial of continued service, he appealed. In March 2017, his appeal was returned without action. c. On 23 May 2016, he was advised he was selected for QMP consideration due to failure of the Senior Leader Course (SLC). The SLC failure was due to only one deficiency, failure of the Army Physical Fitness Test (APFT). He failed the 2-mile run event of the APFT by only 10 seconds. There were significant extenuating circumstances that explain his inability to successfully complete the run event of the APFT at that time. He began experiencing lower leg pain in December 2015. Medical records from 2016 and 2017 show he was experiencing this issue at the time he took the APFT at the SLC. Although this pain is in an area where he had surgery in 1999 to remove a benign tumor from his left tibia, he cannot say it is related to that surgery since he did not have problems with it until December 2015. His records show he has received multiple tests and has been treated by multiple doctors since then, and all of them agree he is suffering from a bona fide medical condition and have set limitations, which include no running, while they continue to evaluate and treat him. d. He was registered for the SLC during his unit's redeployment phase from Kuwait to Fort Hood and he never received the initial email notification. He didn't receive notification until 25 January 2016. As a result, he had less than 2 weeks' notice to prepare for the SLC, which began on 7 February 2016. When combined with the medical issues he was experiencing at the time, it directly impacted his ability to pass the run event of the APFT. e. A review of his career as a whole shows he has performed at a high level as an noncommissioned officer (NCO) and has adhered to the Army Values. But for this one failure of the run event at the SLC by 10 seconds, he would not have been referred for QMP consideration. He has always met physical fitness standards and passed the APFT throughout his military career. Even with this medical issue, he still able to pass two of the three APFT events and failed the run event by only 10 seconds. f. This one isolated incident is not indicative of the type of Soldier he is. He has been a good Soldier who has adhered to the Army Values and provided quality service as an NCO. His NCO Evaluation Reports (NCOERs) and letters of support show this and his strong potential for continued quality Army service. g. Two substantial errors occurred in his case. First, after submitting his rebuttal to the proposed QMP action, he learned his unit may have submitted matters to the board for consideration. There is no provision in the implementing regulatory guidance in effect at the time of his QMP Board that permits the unit to submit matters. Accordingly, this constitutes material error. Additionally, he was not provided with a copy of any matters submitted by his unit and given the opportunity to respond to those matters. This also constitutes material error, since a basic principle of due process is that the person is given the opportunity to review all matters and given the opportunity to respond to those matters. h. Second, the Force Alignment Division Chief's memorandum, dated 16 March 2017, advised him that his QMP appeal did not meet the criteria for a proper QMP appeal, since his appeal did not address material error or newly discovered evidence. Respectfully, this is erroneous. A copy of his appeal shows he addresses both material error (his unit's action) and newly discovered evidence (medical records documenting his lower leg pain). The failure to consider his appeal in spite of it meeting the criteria for a proper QMP appeal constitutes material error. i. Should the Board deny his petition to correct the QMP Board's decision to deny him continued service, he requests correction of his records so he can receive an RE code which permits him to continue serving in the U.S. Army Reserve (USAR). 3. The applicant provides: * self-authored letter, dated 15 June 2017 * notification of the SLC, dated 25 January 2016 * notification for potential denial of continued active duty under the QMP * matters of mitigation and extenuation to QMP Board President, dated 18 July 2016 * QMP appeal, dated 17 February 2017 * two letters of support * DA Forms 2166-8 (NCOER) * service personnel records * service medical records * x-rays CONSIDERATION OF EVIDENCE: 1. The applicant provided medical documentation, dated 20 November 1998, showing he underwent surgery on his left leg on 19 November 1998. 2. Having prior active service in the Regular Army from 10 May 2004 to 8 August 2008, he enlisted in the USAR on 8 August 2008. He was ordered to active duty in an Active Guard Reserve status on 28 September 2009. 3. He provided a DA Form 3349, dated 24 May 2011, showing he was assigned a temporary physical profile rating of "112111" for right knee pain with an expiration date of 24 August 2011 (90 days). 4. He provided DA Forms 2166-8 covering the periods 27 September 2011 through 15 January 2013 showing: * he was rated "Fully Capable" for his overall potential for promotion and/or service in positions of greater responsibility by his raters * he passed the APFT on 17 September 2012 and 30 December 2012 * he was rated "Successful-2" for overall performance and "Superior-2 for overall potential for promotion and/or service in positions of greater responsibility by his senior raters 5. He was promoted to sergeant first class effective 1 July 2014. 6. He provided DA Forms 2166-8 covering the periods 16 January 2014 through 31 October 2015 showing: * he was rated "Fully Capable" for his overall potential for promotion and/or service in positions of greater responsibility by his raters * he passed the APFT on 14 February 2014 and 17 August 2015 * he was rated "Successful-2" for overall performance and "Superior-2 for overall potential for promotion and/or service in positions of greater responsibility by his senior raters. 7. He also provided a DA Form 2166-9-2 (NCOER) for the period 1 November 2015 through 19 June 2016 showing: * he passed the APFT on 29 January 2016 * he was rated "Met Standard" for his overall performance by his rater * he was rated "Highly Qualified" for his overall potential by his senior rater 8. He provided a DA Form 705 (APFT Scorecard), dated 29 January 2016, showing he passed the record test. This form shows he completed the 2-mile run in 16 minutes and 23 seconds with a score of 72 points. 9. His records contain a DA Form 1059 (Service School Academic Evaluation Report), dated 18 February 2016, showing he failed to achieve course standards for the SLC. The form states he was eliminated from the SLC due to failure to pass the initial and second APFT. 10. On 23 May 2016, he was notified for potential denial of continued active duty under the QMP due to his SLC failure. The memorandum stated the QMP Board would convene on 1 September 2016. 11. He provided medical records, dated 2016, showing he was treated for left lower leg pain, left shin pain, and symptomatic pes planus. 12. He provided a letter of support from his executive officer, dated 23 June 2016, stating he was aware of the applicant's Department of the Army-imposed bar to reenlistment under the QMP. The applicant has vast leadership experience that is irreplaceable in the new Army we have today. If the applicant's past is any indication of his character, morale, and resiliency, there is no question in his mind that the applicant will learn from this situation to better himself. He recommends allowing the applicant to continue mentoring and shaping the future NCOs because there aren't too many Soldiers like him these days. 13. He provided a letter of support from his company commander, dated 4 August 2016, stating the applicant is one of the most loyal Soldiers he has served with in 25 years of service. The applicant is competent, trustworthy, hardworking, and emulates the Warrior Ethos, lives the Army Values, and is an outstanding Soldier and NCO. 14. On 20 January 2017, he was notified he had been denied continued service under the QMP. On 17 February 2017, he appealed the QMP Board decision and requested retention on active duty. In summary, he reiterated his contentions provided in his application to the Army Board for Correction of Military Records. 15. On 1 August 2017, he was honorably discharged by reason of non-retention on active duty. He completed 12 years, 1 month, and 28 days of creditable active service. His DD Form 214 for this period shows in: * item 25 (Separation Authority) – Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 19 * item 26 (Separation Code) – JGH * item 27 (RE Code) – 4 * item 28 (Narrative Reason for Separation) – Non-Retention on Active Duty REFERENCES: 1. Army Regulation 350-1 (Army Training and Leader Development) prescribes policies, procedures, and responsibilities for developing, managing, and conducting Army training and leader development. Paragraph 3-13 provides policy concerning physical readiness and body fat standards applicable to institutional training. All Soldiers attending institutional training courses are expected to meet the physical readiness standards of this regulation and body fat standards in accordance with Army Regulation 600-9 (The Army Body Composition Program). Soldiers attending the SLC will be administered the APFT as a course requirement. Proponents of functional training courses may require an APFT, as either an entrance or graduation requirement, regardless of their length. Successful completion of the APFT is mandatory for course graduation. One APFT retest is allowed; it will be administered no earlier than 7 days and no later than 24 days after the initial failure of the APFT. Soldiers who subsequently fail to meet the physical fitness standards will be removed from the course. 2. Army Regulation 635-200 sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. Chapter 19 contains policies and procedures for voluntary and involuntary separation for the convenience of the government of Regular Army and USAR NCOs serving in an Active Guard Reserve status under the QMP. The service of a Soldier discharged under this chapter will be characterized as honorable. NCOs whose performance, conduct, and/or potential for advancement do not meet Army standards, as determined by the approved recommendations of Headquarters, Department of the Army, centralized selection boards responsible for QMP screening, will be denied continued service. The QMP is not intended as a substitute, and does not relieve commanders of the responsibility, for initiation of separation proceedings under other provisions of this regulation when required or appropriate. a. The QMP is designed to: * enhance the quality of the career enlisted force * selectively retain the best qualified Soldiers * deny continued service to nonproductive Soldiers * encourage Soldiers to maintain their eligibility for further service b. Paragraph 19-12 states that except as otherwise provided in this section, Soldiers who choose not to appeal the QMP selection for denial of continued service, or whose appeal is denied, will be involuntarily discharged. Soldiers who elect to appeal but fail, without compelling justification, to submit the appeal within the time prescribed, will also be involuntarily discharged. Such discharge will occur 90 days after the Soldier receives pre-separation counseling as required by law, which may be scheduled before a final determination of discharge has been made or as soon as possible after a final determination has been made. 3. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing in the Regular Army, U.S. Army Reserve, and Army National Guard. Table 3-1 provides a list of RE codes. a. RE code 1 applies to persons completing their terms of active service who are considered qualified to reenter the U.S. Army. b. RE code 3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable. c. RE-4 applies to persons who are separated from their last period of service with a nonwaivable disqualification. They are ineligible for enlistment. 4. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (statutory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. SPD code JGH applies to Soldiers discharged by reason of non-retention on active duty under the provisions of Army Regulation 635-200, paragraph 19-12. 5. The SPD/RE Code Cross Reference Table, dated 15 June 2006, shows Soldiers assigned an SPD code of JGH will be assigned an RE code of 4. DISCUSSION: 1. The applicant contends his SLC failure was due to only one deficiency: failure of the run event of the APFT by 10 seconds. 2. The evidence of record shows he failed to achieve course standards for the SLC on 18 February 2016 by failing to pass the initial and second APFT. Soldiers attending the SLC are administered the APFT as a course requirement. Successful completion of the APFT is mandatory for course graduation. 3. He contends his unit may have submitted matters to the QMP Board for consideration, which constitutes a material error because he was not given the opportunity to respond to those matters. There is no evidence and he provided no evidence to support this contention. 4. He was honorably discharged on 1 August 2017 by reason of non-retention on active duty under the provisions of the QMP. There is no evidence showing his denial of continued service was in error or unjust. 5. The RE code 4 was assigned based on his discharge for non-retention on active duty. His assigned RE code was administratively correct and in conformance with applicable regulations at the time of his discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170011011 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170011011 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2