ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 October 2019 DOCKET NUMBER: AR20170015941 APPLICANT REQUESTS: The applicant defers to counsel for submission of his request, statement, and evidence. COUNSEL’S REQUEST, STATEMENT, AND EVIDENCE: Counsel states the applicant was separated from service on 1 August 2017, as a result of a Quality Management Program (QMP) Board decision and requests the following relief: * The separation for adverse action be removed from the applicants official military personnel file (OMPF) * Any adverse files from his non-commissioned officer evaluation report (NCOER) be removed from his NCOER * Promotion consideration by a Standby Advisory Board (STAB) * Award the applicant any back pay and allowances and grant any other relief as justice requires * Appearance Before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Memorandum in Support of Applicant from Attorney X___ X___ * Notification of Denial of Continued Active Duty Service, 3 January 2017, (Enclosure 1) * DD Form 214 (Certificate of Release or Discharge from Active Duty), (Enclosure 2) * Copy of Bronze Star Medal Certificate, (Enclosure 3) * Multiple Memorandums, Subject: Letter of Recommendation/Character Reference for [applicant] (20), (Enclosure 4) * DA Form 2627 (Record of Proceedings Under Article 15), (Enclosure 5) * Memorandum For Record, Field Grade Article 15 Rebuttal from Applicant, (Enclosure 6) * Uniformed Services University of the Health Sciences (USUHS) Emails, reference Army Physical Fitness Test (APFT) and Height and Weight * DA Form 3349 (Physical Profile), Temporary Profile, dated 24 September 2015 * Notification of Potential Denial of Continued Active Duty Service under the Qualitative Management Program (QMP), dated 23 May 2016, (Enclosure 7) * Attorney Emails for Brigade Judge Advocate at USUHS, dated 15 August 2016, (Enclosures 8 & 9) * DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report) (x13), (Enclosure 10) * DA Form 1059 (Service School Academic Evaluation Report (x5), (Enclosure 11) * University of Phoenix College Transcript dated 12 July 2010 * DA Form 2166-9-2 (NCO Evaluation Report) from 1 January 2016 through 30 December 2016, (Enclosure 12) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. Counsel states that the applicant has an exemplary track record of 16 years and 6 months of service over which time he earned the esteem and praise from his superiors, peers, and subordinates. The applicant received numerous commendations and medals and performed to the highest standards in spite of command dynamics that looked for his ouster. On 4 January 2016, the applicant accepted nonjudicial punishment (NJP) on 4 January 2016 for failing his APFT in November 2015. Although, he submitted a comprehensive NJP rebuttal his command initiated a FLAG in accordance with Army regulations a QMP board was initiated. In the interim the applicant’s command initiated a second NJP proceeding but this time the applicant refused NJP and demanded a trial by court-martial. On 21 June 2016 the applicant was notified that the Army was considering denying him continued active duty service. On 3 January 2017 the QMP board recommended the applicant be separated and his appeal was denied. He was railroaded by command dynamics. He had a permanent medical profile when he was unjustly required to perform the APFT ultimately leading to an Article 15 and QMP board initiation. Prior to returning from Korea the applicant was hospitalized in Camp Red Cloud, Korea for an infection around his right foot. The infection required the removal of all tissue and muscles around the outer portion of the foot. The surgical procedure delayed his return from Korea for 60 days leaving him only two weeks of leave prior to his report date at USUHS on 10 April 2014. Despite not seeing his family located in Florida, for over 25 months the applicant reported for duty at USUHS on time in hopes of securing permissive temporary duty in order to secure housing for his family. The command master chief and army senior enlisted advisor informed the applicant that he was required to delay his leave until the completion of an upcoming two week training exercise for students. He often expressed his concerns with conversations from his leadership which he felt were inappropriate. These differences with leadership made it difficult for the applicant to go to work but despite the turmoil he performed his duties to the highest standards. His senior advisor master sergeant (MSG) X__ stated the applicant did not give enough notice of his surgery for left knee and that his shift of roving guard still needed to be covered. During his rehabilitation process the applicant was told he needed to have an APFT on file so he was pressured each month by MSG X__ to perform despite his injury. Eventually he was forced prematurely to run in May 2015 due to not having his medical profile on his person. He was informed that he needed to report for height and weight and additionally he was forced to take the APFT on November 20, 2015. On 17 December 2015 he was summoned by his company commander for counseling he was informed he was flagged for being an APFT failure. On 4 January 2016 was summoned to the brigade commander where he was informed of article 15 for his APFT failure. The command deceived the applicant into believing that he was being sent to a court-martial rather than the QMP board. He did not submit matters on his behalf to the QMP board because the staff judge advocate (SJA) advised him that he would be taken to court-martial. He believed the case would not be considered by the QMP board. Two weeks later in late July 2016 the Army advised the office of the undersigned counsel that charges were imminent. On 27 September 2016, however the SJA office for the first time indicated that the command was waiting for the results of the QMP board that met on 1 September 2016 prior to taking any type of action (see detailed Memo in Support of Applicant). 3. The applicant’s counsel provides: a. Memorandum in Support of Applicant (see attached Memorandum in packet). b. Memorandum of Notification of Denial of Continued Active Duty Service under the Qualitative Management Program (QMP) issued by U.S. Army Human Resources Command (AHRC) which states the Director of Military Personnel Management approved the board’s recommendation to discharge the applicant from the Army not later than 1 August 2017. c. DD Form 214 shows he was honorably discharged on 1 August 2017. He completed 16 years, 6 months, and 7 days of net active service. Item 28 (Narrative Reason for Separation) - Non-Retention on Active Duty. He was awarded or authorized: * Bronze Star Medal * Army Commendation Medal (6th Award) * Army Achievement Medal (3rd Award) * Joint Meritorious Unit Award * Army Good Conduct Medal (4th Award) * National Defense Service Medal * Global War on Terrorism Expeditionary Medal * Global War on Terrorism Service Medal * Korea Defense Service Medal * Humanitarian Service Medal * Noncommissioned Officer Professional Development Ribbon (3rd Award) * Army Service Ribbon * Combat Medical Badge d. Multiple letters (20) of recommendation which speak highly of the applicant's capacity as a noncommissioned officer, critical roles he fulfilled, his leadership skills, optimistic disposition and accomplishments throughout his career. They all agree that the applicant should be allowed to complete his twenty years of military service 1) A retired Lieutenant General (LTG) X___ X___ which states the applicant was a continuous source of solutions and optimism maintaining high standards of the faculty and staff and never failing his mission. He is a model NCO his integrity was undermined. 2) A Colonel X__ X__ actively serving as a physician which states the applicant was a fantastic NCO who models adaptive and authentic leadership. He taught and inspired the next generation of medical physicians. 3) Letter from his mother X__ WX which states her son wears his uniform with pride in being able to serve others and his country. Her son has given the Army his all. He is a professional, and a leader devoted to the Army she would not like to see him returned a broken man because he was involuntarily separated from the Army (see Multiple Letters of Recommendation/Character Letters in packet). e. On 10 January 2016, Memorandum For Record Rebuttal from the applicant that states he was recommended for NJP for unauthorized absence and making false official statement. In his rebuttal he was not evading responsibility but merely requesting that the level of punishment be appropriately tailored for the offense and the offender. He had hopes that the brigade leadership would take a look at mitigating evidence and the inconsistencies that had occurred in his case. He was proud to be a personable leader and he was attempting to take care of himself (see detailed rebuttal in packet). f. Emails, dated 9 November 2015 between the applicant and the training NCO which asked him to make time or schedule a time for his height and weight that he knew he was busy and he could do one at a different time. g. DA Form 3349, dated 24 September 2015, which shows a temporary profile for left knee injury and limitation of no running but walking, swim or bike was acceptable. The temporary profile expiration date was 24 December 2015. h. Letter from the AHRC, dated 23 May 2016 which notified the applicant that a board would convene on 1 September 2016 for his potential denial of continued active duty service under the qualitative management program. He would be allowed to submit matters of mitigation or extenuation for consideration by the president of the board no later than 26 August 2016. An acknowledgement memorandum was due no later than 24 June 2016. i. Emails, dated 15-16 August 2016, between the counsel and the brigade judge advocate show that they were ready to prefer charges that week or next week against the applicant. j. His DA Forms 2166-8, covering the periods from November 2004 through 31 December 2015 consistently show that his raters rated him on Part V(a) as “Amongst the Best” throughout his career likewise his senior raters rated him on Part V (c) and (d) “Successful and Superior” for overall performance and potential for promotion. However, his APFT shows failed on 20 November 2015 and he passed his height and weight for the period ending 31 December 2015 and Part IVc (Physical Fitness & Military Bearing) shows “Needs Improvement.” (see detailed DA Forms 2166-8 in packet) k. His DA Form 1059’s show he completed and achieved course standards for: * Health Care Specialist Course from 25 August 2003 through 18 December 2003 * Primary Leadership Development Course 21 October 2004 through 4 November 2004 * Army Medical Department (AMEDD) NCO Basic Course from 26 March 2007 through 6 April 2007 * Basic Noncommissioned Officer Course Phase I from 9 October 2007 through 26 October 2007 * AMEDD Senior Leader Course from 7 July 2013 through 6 August 2013 l. His University of Phoenix college transcript dated 12 July 2010 shows he completed his Associate of Arts degree on 26 April 2010 with a total cumulative grade point average of 3.45. m. His DA Form 2166-8 from 1 January 2016 through 30 December 2016 shows his rater rated him in Part IV “Far Exceeded Standard” top 5% of all senior NCO’s, and his senior rater on Part V(a) rated him “Most Qualified”, a driven leader whose focus on training and ensuring our medical students are ready for real-world missions or combat were a top priority. His energetic leadership and uncommon strategic perspective will serve him well. Unlimited potential promote to MSG now. 4. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 25 January 2001. He completed required training in multiple military occupational specialties to include 75H (Personnel Service Specialist), 91W (Health Care Specialist), and 68W (Health Care NCO). b. His Enlisted Record Brief shows he served multiple deployments to Iraq from 17 March 2003 to 28 July 2003; 10 December 2005 to 5 December 2006; 29 December 2008 to 29 December 2009. His highest rank held was sergeant first class effective 1 October 2009. c. His DA Form 2166-8 for the period 16 February 2015 through 31 December 2015 shows his rater rated him on Part IV (c) “Needs Improvement” APFT fail 20 November 2015. It stated “Soldier failed APFT; obtained permanent profile, training for future event.” His rater marked Part V(a) “Fully Capable.” His senior rater rated him in Part V(e) Overall Performance “Successful” 3; Overall Potential for promote “Superior” 2. d. On 11 January 2016, he accepted nonjudicial punishment on or about 20 November 2015 fail to go to the time prescribed to his appointed duty; he also deceived Sergeant First Class (SFC) X__ X__-X__ by making a false official statement to wit “Yes I have a profile” which he did not. He was advised of his rights under Article 15. After consulting with legal counsel he requested a closed hearing, he did not demand trial by court-martial and on 18 February 2016 he did not appeal. His punishment consisted of forfeiture of $500.00 pay per month for 2 months (oral reprimand). e. His DA Form 2166-8 from 1 October 2013 through 30 December 2016 shows he was an effective leader his raters and senior raters rated him “Amongst the Best” and “Successful” and “Superior” for his Overall Performance and Overall Potential for promotion (see attached DA Form 2166-8 in packet). f. His Orders 337-51 awarded him the Army Good Conduct Medal, issued on 3 December 2015 for the period of service 4 February 2013- 3 February 2016. g. On 24 February 2016, Memorandum, Subject: Intent to Not Recommend Award of the Army Good Conduct Medal) notified the applicant of the immediate commander not approving his eligibility for the Army Good Conduct Medal for the period of 4 February 2013- 1 February 2016 based on his article 15 on 1 February 2016. On 25 February 2016 he acknowledged receipt of this memorandum. h. On 1 August 2017 he was honorably discharged under the provisions of AR 635-200, chapter 4 for non-retention on active duty. The DD Form 214 shows he completed 16 years, 6 months, and 7 days of net active service. His immediate reenlistments this period 1 October 2004 to 1 October 2006; 2 October 2006 to 29 December 2011 and 1 October 2011 to 1 August 2017. Applicant received separation pay $44,716.32 he is entitled to half separation pay. It also shows he was awarded or authorized: * Bronze Star Medal * Army Commendation Medal (6th Award) * Army Achievement Medal (3rd Award) * Joint Meritorious Unit Award * Army Good Conduct Medal (4th Award) * National Defense Service Medal * Global War on Terrorism Expeditionary Medal * Global War on Terrorism Service Medal * Korea Defense Service Medal * Humanitarian Service Medal * Noncommissioned Officer Professional Development Ribbon (3rd Award) * Army Service Ribbon * Combat Medical Badge 5. By regulation (AR 600-8-19), STABs are convened to consider records of those otherwise eligible Soldiers: * whose records were not reviewed by a centralized selection board * whose records were not properly constituted, due to material error, when reviewed by the regular board * on whom derogatory information has developed that may warrant removal from a recommended list * all Soldiers who are within the zone of promotion consideration will be advised of the importance of reviewing their promotion files before each selection board 6. Army Regulation (AR) 635-200, (Personnel Separations) Rapid Action Revision (RAR), effective 6 September 2011, sets policies and procedures for voluntary and involuntary separation, for the convenience of the Government, of Regular Army NCOs, under the QMP. a. paragraph 19-2 (a) 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. b. paragraph 19-7 states QMP selection criteria include, but are not limited to: (1) Moral or ethical conduct incompatible with the values of the NCO corps and the Army ethic. (2) Lack of potential to perform NCO duties in current grade. (3) Decline in efficiency and performance over a continuing period, as reflected by NCOER or failure of NCO Education System courses. (4) Recent or continuing disciplinary problems, as evidenced by conviction by court-martial, non-judicial punishment, or administrative reprimand. 7. Title 10, United States Code, section 1552 correction of military records: claims incident thereto states the Secretary concerned may pay, from applicable current appropriations, a claim for the loss of pay, allowances, compensation, emoluments, or other pecuniary benefits, or for the repayment of a fine or forfeiture, if, as a result of correcting a record under this section, the amount is found to be due the claimant on account of his or another's service in the Army, Navy, Air Force, Marine Corps, or Coast Guard, as the case may be, or on account of his or another's service as a civilian employee. BOARD DISCUSSION: The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. After reviewing the application and all supporting documents, the Board found relief was not warranted. The applicant’s contentions through counsel and letters of support were carefully considered. Regulatory guidance states that once placed in the OMPF, a document becomes a permanent part of that file. The document will not be removed from the OMPF or moved to another part of the OMPF unless directed by competent authority, such as this Board. Based upon all the documentary evidence provided by the applicant and found within the military service record, as well as by a preponderance of the evidence, the Board agreed the applicant did not provide sufficient evidence to show that there was a clear injustice which would warrant relief. Additionally, the Board found that the applicant was afforded all due process for appealing the information contained; therefore, the Board determined the derogatory documents should remain in his record to accurately reflect his service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X C 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 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 600-8-19 (Enlisted Promotions and Reductions) prescribes the enlisted promotions and reductions function of the military personnel system. The regulation states in: a. Paragraph 4-13 – the DCS, G-1 or designee may approve cases for referral to a Standby Advisory Board (STAB) upon determining that a material error existed in a Soldier’s official military personnel file (OMPF) when the file was reviewed by a selection board. For the purpose of this paragraph, the U.S. Army Human Resources Command (AHRC) (AHRC–PDV–PE) is a designee. (1) An administrative error is immaterial, if the Soldier, in exercising reasonable diligence, could have discovered and corrected the error. STAB’s are convened to consider records of those—Otherwise eligible Soldiers whose records were not reviewed by a centralized selection board. Soldiers whose records were not properly constituted, due to material error, when reviewed by the regular board. Recommended Soldiers on whom derogatory information has developed that may warrant removal from a recommended list. Soldiers selected by a STAB will be added to the appropriate recommended list and promoted along with their con- temporaries when their sequence number is reached. (2) Reconsideration normally will be granted when one or more of the following conditions existed on the Soldier’s OMPF and was reviewed by a selection board. Soldiers requesting reconsideration under paragraphs (2) through (6) normally will be granted reconsideration only for the most recent board held prior to the Soldier’s request. b. Paragraph 5-8 – to comply with the convening authority, commanders will— Ensure all noncommissioned officers (NCO) in the command are aware of the contents of their promotion files and advise those Soldiers who are within the zone of consideration of the importance of reviewing their promotion files before each selection board. The records manager will assist Soldiers in reviewing the performance folder of the OMPF, and ensure they are current and complete. The promotion file will consist of the following: * current official photograph * complete record NCO Evaluation Report * current Enlisted Record Brief, all data must be up-to-date and certified as true and correct by the records custodian * Memorandum from security manager verifying security clearance eligibility and date of the background investigation * performance section of the OMPF * statement from Soldier requesting consideration by a command other than that to which they are assigned and/or outside the geographic area * statement signed by the Soldier indicating he/she has reviewed the promotion files for accuracy and completion c. Paragraph 4-13(11)k – all standby requests will be sent through the servicing Brigade S1/Military Personnel Division/HR specialist for evaluation. Each case will be evaluated by the servicing HR specialist using the guidelines stated in this section. Cases clearly not meeting these guidelines will be disapproved locally and will not be forwarded to HRC. The request will be sent to the Commander, AHRC (AHRC–PDV–PE), 1600 Spearhead Division Avenue, Fort Knox, KY 40122–5407, and will include a certified true copy of the Personnel Qualification Record along with the source documents. 3. Army Directive 2014-06, dated 10 April 2014, revised Army policies for the QMP and is applicable to Soldiers in the Regular Army and U.S. Army Reserve (Active Guard Reserve). The QMP identifies NCOs whose performance, conduct, or potential for advancement do not meet Army standards for continued service, as determined by the approved recommendations of a Headquarters, Department of the Army centralized selection board responsible for the QMP selection. The specific changes to AR 635-200, chapter 19, which established policy for the QMP, are enclosed to this Directive. This Directive supersedes references 1b and 1c in their entirety, and reference 1d, paragraph 2a. The guidance in AR 635-200, chapter 19, not addressed in this directive remains in effect. The Deputy Chief of Staff, G-1, will incorporate the policy at the enclosures into the next revision of AR 635-200. This directive is effective immediately and will remain effective until publication of the revision to AR 635-200. Furthermore, it specifies in enclosure 1, change to AR 635-200, chapter 19, QMP, paragraph 19-10 (b) (Soldier Options)) “if the board president does not receive matters, this non-receipt will not constitute grounds for an appeal.” 4. AR 635-200, effective 19 December 2016, sets policies, standards, for the separation of enlisted personnel. Chapter 19 of the regulation contains policies and procedures for voluntary and involuntary separation under the QMP. Paragraph 19-7 establishes the same criteria as the regulatory guidance dated 6 September 2011. Furthermore it states: a. Paragraph 19-9(a), Soldiers selected for denial of continued service under the QMP are notified by individually addressed memorandums prepared and dispatched by Commander, U.S. Army Enlisted Records and Evaluation Center (USAEREC). b. The responsible commander expeditiously forwards the notification memorandum by memorandum to the first Lieutenant Colonel (LTC) or higher commander in the Soldier's chain of command for further action. c. Detailed guidance is included in administrative instructions provided by the Commander, USAEREC. d. Upon receipt of the notification memorandum, the LTC or higher commander expeditiously presents the notification to the Soldier and counsels him/her on the ramifications. e. Paragraph 19-10, the Soldier and commander complete DA Form 4941 within 7 days of receipt of the QMP notification memorandum, in accordance with administrative instructions furnished by the Commander, USAEREC. f. Paragraph 19-11, Soldiers denied continued service under the QMP may appeal and request retention on active duty based on improved performance and/or presence of a material error in the Soldier's record. The Soldier may submit only one appeal, and requests for reconsideration of denied appeals are not authorized. The Soldier is permitted to include relevant material in support of the appeal. g. Appeals are addressed by the QMP appeals board, normally conducted in conjunction with Headquarters, Department of the Army, Centralized Promotion Selection Boards, and this board considers all information previously reviewed by the QMP board, as well as any information included in the appeal. The mere fact a Soldier's performance has improved, or that the Soldier's file contains a material error, is not necessarily sufficient to overcome the reason for QMP selection. h. The appeals board may determine the reason for QMP selection still applies, even in the light of the improved performance or correction of an error. Successful appeals result in removal of the denial of continued service determination. 5. 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. a. The ABCMR will decide cases on the evidence of record. It is not an investigative body. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 6. Title 10 § 1552. Correction of military records: claims incident thereto states the Secretary concerned may pay, from applicable current appropriations, a claim for the loss of pay, allowances, compensation, emoluments, or other pecuniary benefits, or for the repayment of a fine or forfeiture, if, as a result of correcting a record under this section, the amount is found to be due the claimant on account of his or another's service in the Army, Navy, Air Force, Marine Corps, or Coast Guard, as the case may be, or on account of his or another's service as a civilian employee. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170015941 9 1