IN THE CASE OF: BOARD DATE: 28 November 2017 DOCKET NUMBER: AR20170016004 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 IN THE CASE OF: BOARD DATE: 28 November 2017 DOCKET NUMBER: AR20170016004 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. IN THE CASE OF: BOARD DATE: 28 November 2017 DOCKET NUMBER: AR20170016004 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 her military records by showing she was retained in the U.S. Army for the purpose of attending the Senior Leaders Course (SLC). 2. The applicant states: a. It is unjust not to retain her in the U.S. Army in order to attend the SLC once her temporary military medical profile has been lifted, or until a medical board determines she requires a permanent profile. Once the medical authorities determine she meets the fitness standards of the Training and Doctrine Command (TRADOC) Regulation 350-10 (Institutional Leader Training and Education), she will attend the SLC. She currently has a separation date of 1 November 2017, established under the fiscal year (FY) 2017 Qualitative Management Program (QMP), due to her not attending SLC. b. Army Directive (AD) 2016-19 (Retaining a Quality Noncommissioned Officer (NCO) Corps), dated 26 May 2016, instituted a policy change requiring NCOs in the rank of Sergeant First Class (SFC) to complete the SLC within 36 months of promotion or be subject to separation under the QMP. This change was effective immediately upon publication of the AD. c. On 14 October 2016, she was notified that she was denied continued service under the FY 2017 QMP for not attending the SLC within 36 months of promotion. On 25 January 2017, she appealed the decision based on a temporary medical profile; however, she was ineligible to attend the SLC between the time the Army enacted the new “36 month rule” on 26 May 2016 and the convening of the QMP board on 7 February 2017. During those 10 months, one SLC was scheduled by TRADOC; but her temporary profile prohibited her attendance. d. She appealed to the Commander, Army Human Resources Command (HRC), on 1 June 2017, the QMP decision to separate her. Her appeal was considered based on her medical profile and new letters of recommendation. HRC reviewed her appeal and stated that the medical documentation and letters of recommendation were not enough and continued with the course of action set forth by the QMP Board. e. She is asking that the Army Board for Correction of Military Records (ABCMR) retain her in order to attend the SLC. She argues that the 26 May 2016 policy change in AD 2016-19, all but guaranteed that she would be recommended for separation by the QMP board that convened less than 10 months after the change was instituted. This is the true injustice. f. The instituted policy change requires NCOs in the rank of SFC to complete the SLC within 36 months of promotion or be subject to separation under the QMP. She contends that prior to the policy change, there was no requirement to attend SLC within a specified time. There were no instructions to the QMP board to separate NCOs who had not attended SLC. She had only one opportunity to attend SLC between the publication of AD 2016-19 and the convening of the QMP. g. TRADOC Regulation 350-10, para 2-6d states: “Students with temporary profiles that prohibit full participation in the completion of course requirements will be denied enrollment.” In accordance with TRADOC Regulation 350-10, she was ineligible to attend due to her temporary profile, based on a training injury. Her temporary profile was in place before the AD 2016-19 policy change, and remained in place during the QMP. The policy change should have given consideration to those Soldiers who, due to no fault of themselves, were unable to attend SLC. AD 2016-19 does not contain provisions to exempt Soldiers who are ineligible to attend SLC within 36 months based on temporary physical limitations. A mere 10 months after AD 2016-19 implemented the policy change requiring NCOES within 36 months of promotion, she was recommended for separation under the QMP. Again, there were no exceptions to this policy change. AD 2016-19 essentially ensured that she would be selected for separation by the QMP, due to no fault of her own. She requests not to be separated and to be retained on active duty in order to complete SLC. 3. The applicant provides: * TRADOC Regulation 350-10, dated 12 August 2002 (33 pages) * Memorandum from HRC to the applicant, dated 11 October 2016 * Memorandum from the applicant to his commander, dated 14 October 2016 * Memorandum from the U.S. Special Operations Command Clinic to HRC, dated 14 December 2016 * Memorandum from the applicant to HRC, dated 25 January 2017 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. On 25 October 1999, the applicant enlisted as a private first class, pay grade E-3, in the U.S. Army Reserve for 8 years. She further contracted to serve in the Regular Army for a period of 4 years commencing no later than 19 November 1999. She reenlisted as a specialist, pay grade E-4 on 28 March 2003 and again on13 May 2004. On 13 February 2007, she reenlisted as a sergeant, pay grade E-5 for 4 years. On 1 October 2009, she reenlisted for 6 years as a staff sergeant, pay grade E-6. 3. Order Number 56-333, Fort Knox, Kentucky, dated 25 February 2011, announced the applicant’s promotion to SFC, pay grade E-7, with an effective date and date of rank of 1 March 2011. 4. Orders BG-213-0031, Fort Bragg, North Carolina, dated 1 August 2011, as filed in the applicant’s Official Military Personnel File (OMPF), announced her deployment to Afghanistan with a proceed date on or about 15 September 2011. Her deployment was not to exceed 365 days. 5. On 1 October 2013, the applicant reenlisted for an indefinite period beginning as an SFC, pay grade E-7. 6. Orders 320-01, Fort Bragg, North Carolina, dated 17 November 2014, assigned the applicant to the U.S. Special Operations Command at MacDill Airforce Base with a reporting date of 10 March 2015. She was authorized to report early, not to exceed 60 days. 7. In a memorandum dated 11 October 2016, the Chief, Transition Branch, HRC, notified the applicant of a potential denial of continued active duty service under the QMP based on her failure to graduate from the SLC within 36 months of her promotion effective date for SFC. She was informed that the QMP was established as a means of improving the enlisted career force. It is designed to ensure NCOs serve in a manner consistent with good order and discipline, and that those serving in positions of authority perform in an exemplary manner. It is intended to deny continued service to NCOs whose performance, conduct and/or potential to serve in positions of increasing responsibility do not meet Army standards. She was also informed of her option to submit matters of mitigation or extenuation to the President of the Board. 8. In a memorandum, dated 14 October 2016, the applicant acknowledged the memorandum discussed in the previous paragraph. She indicated she would submit matters of extenuation or mitigation no later than 27 January 2017. 9. A memorandum from the U.S. Special Operations Command Clinic, dated 14 December 2016, as provided by the applicant, indicates that she sustained an injury to her left elbow resulting in a 60 day temporary physical profile issued on 19 November 2015. She underwent medical treatment and surgery in April 2016. She reported persistent pain and worked with occupational therapy. She was administered steroid injection and scheduled for a follow up with the surgeon in January 2017. 10. In a memorandum from the applicant, dated 25 January 2017, to HRC, she appealed the QMP decision and requested retention on active duty. She listed the following as extenuating circumstances: a. Seven months after her promotion to SFC on 1 March 2011, she was deployed to Afghanistan for 12 months. Pre-mission training prevented her from attending SLC prior to deployment. b. Two months after returning from deployment, she was permanently reassigned to a competitive assignment with the Joint Special Operations Command (JSOC) where she performed duty as the J6 Executive Administrative Assistant. The operational tempo precluded her attendance at SLC. c. Next, she was selected to serve as the Enlisted Aide to the JSOC Command Sergeant Major and was again precluded from attending SLC. d. In March 2015, she was assigned to the U.S. Special Operations Command at MacDill Airforce Base. Shortly after her arrival there, she was deemed medically unqualified to attend SLC due to a training injury to her elbow. e. In October 2016, the surgery she had to correct her elbow was determined to have been a failure, resulting in another surgery scheduled for January 2017. 11. A review of the applicant’s Official Military Personnel File (OMPF) revealed no documents related to her QMP. REFERENCES: 1. Army Regulation 600-8-19 prescribes policies and procedures governing promotions and reductions of Army enlisted personnel. a. Paragraph 1-28 (NCO Education System (NCOES) Requirement for Promotion and Conditional Promotion) states the development of our NCO Corps is an essential element of the Army?s institutional success. The policies set forth in this regulation support the accumulation of training, education, and experiences while encouraging lifelong learning in an effort to develop NCO leader competencies. The intent is to achieve a synchronized relationship between NCOES and promotions that is deliberate, continuous, sequential, and progressive in order to produce competent, confident, and versatile leaders. Except where authorized, Soldiers (all components) must complete the professional military education courses as follows: * completion of Structured Self Development-3 is an eligibility requirement for recommendation for promotion to SFC * graduation of the SLC is a promotion requirement for SFC * NCOES requirements are waived for terminally ill Soldiers, Soldiers who are retired for physical disability, and for posthumous promotions b. Table 3-3 explains the eligibility criteria for promotion pin-on for Regular Army and U.S. Army Reserve AGR and table 3-4 explains the same for U.S. Army Reserve troop program unit, U.S. Army Reserve Element, and multi-component commands or units. The Soldier must be promoted in the career progression MOS and must be fully qualified in the MOS, to include meeting all school requirements. The military education requirements for an SSG to pin-on SFC is Structured Self Development level 3. Graduation from SLC is a promotion requirement for SFC. NCOES waivers are no longer authorized except for unique circumstances specifically noted above. 2. Several Military Personnel (MILPER) messages provide guidance and procedures in support of the QMP. MILPER Message Number 14-314, dated 23 October 2014, provided guidance and procedures in support of the QMP. The purpose of the QMP is to identify selected NCOs for possible involuntary separation, specifically NCOs will be considered for denial of continued service when they have a GOMOR, 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 NCOES failures. Also included in the QMP review are NCOs who fail to meet the regulatory NCOES requirements for their rank. The guidance stated that an SFC who has not graduated from SLC upon attainment of 48 months of time in grade has failed to qualify for their promotion. DISCUSSION: 1. The applicant contends that her military records should be corrected by showing she was retained in the U.S. Army for the purpose of attending the SLC because her deployment, competitive assignments and a persistent training injury were problematic causes of her inability to attend this training. 2. The available evidence shows the applicant was promoted to SFC on 1 March 2011. At the time, regulatory guidance provided her a period of 48 months to complete SLC in order to retain her promotion. By regulation, the NCOES requirement is waivable in specified situations, such as posthumous promotions, for terminally ill Soldiers, and Soldiers who are retired based on physical disability. 3. The available evidence fails to show that she had made any request to attend SLC, or that she was denied for such attendance by appropriate authority. 4. The applicant’s contention that there was no specified period of time in which to complete SLC prior to the establishment of the 36 month time period is in error. The previous period of time was 48 months, which was reduced to 36 months. Accordingly, she always had a time constraint in which to complete this training so as to retain her promotion. 5. MILPER messages have long provided guidance and procedures in support of the QMP. The latest change has required QMP consideration for SFCs who, upon attainment of 36 months? time in grade, have not graduated from SLC. The applicant fell into this category and was appropriately considered by the QMP. 6. An appeal and request to be retained on active duty is appropriate only on the basis of newly discovered evidence, the removal of documents from the official file, or a material error in the record that was reviewed by the QMP screening board. These conditions do not exist in this case. 7. While the applicant argued her subsequent physical condition precluded her from completing SLC, the fact remains that the standard to complete the required NCOES for her grade for all NCOs was 48 months at the time of her promotion and subsequently reduced to 36 months. There is no evidence showing that she diligently pursued attendance at SLC from the time of her promotion to injuring her elbow in late 2015, a period of more than 48 months. A review of her circumstances shows she does not meet the regulatory criteria for waiving SLC completion requirements for promotion. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170016004 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170016004 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2