ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 December 2019 DOCKET NUMBER: AR20190013814 APPLICANT REQUESTS: through counsel, pursuant to Title 10, U.S. Code, section 1558: * reinstatement to active duty in the rank/grade of master sergeant (MSG)/E-8 effective 1 August 2014 with all back pay and allowances * in the alternative, reinstatement to active duty in the rank/grade of MSG/E-8 effective 1 August 2014 until reaching his high-year tenure or end-of-service date and retirement with all back pay and allowances * removal of the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) from his Army Military Human Resource Record (AMHRR) and records systems * removal of the DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) covering the period 1 March 2012 through 28 February 2013 from his AMHRR and records systems * removal of the DA Forms 4856 (Developmental Counseling Form) from his AMHRR and records systems * a personal appearance hearing before the Board 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) * Counsel Letter and Petition (Applicant), dated 16 January 2018 * Appendix A – Army Directive 2016-33 * Appendix B – Complaint, Sommers v. United States, 14-690C, U.S. Court of Federal Claims * Appendix C – Work Schedule, Applicant, April 2013 * Appendix D – Email Message, redacted, dated 28 May 2013 * Appendix E – Administrative Record Index, Applicant, 2012 through 2014 * Tab 1 – Letter, Army Review Boards Agency, dated 14 August 2014 * Tab 2 – Letter, Army Review Boards Agency, dated 28 April 2014 * Tab 3 – Memorandum, U.S. Army Human Resource Command (HRC), dated 21 April 2014, subject: Request for Voluntary Retirement (Applicant) * Tab 4 – DA Form 4187 (Personnel Action), Request for Retirement (Applicant), dated 4 April 2014 * Tab 5 – Letter, Military-Veterans Advocacy, Incorporated, dated 31 March 2014 * Tab 6 – Memorandum, HRC, dated 26 March 2014, subject: Request for Appeal of Involuntary Separation under the Qualitative Management Program (QMP) (Applicant) * Tab 7 – Memorandum, Applicant, dated 10 February 2014, subject: Soldier Acknowledgement – Notification of Denial of Continued Active Duty Service under the QMP * Tab 8 – Memorandum, HRC, dated 7 February 2014, subject: Notification of Denial of Continued Active Duty Service under the QMP * Tab 9 – Letter, Department of Defense, Inspector General, dated 9 January 2014 * Tab 10 – Memorandum, HRC, dated 29 August 2013, subject: Appeal of NCOER, 20120301-20130228 (Applicant) * Tab 11 – Counseling Documents, 2012 through 2013 * Tab 12 – DA Form 4856 (Developmental Counseling Form), dated 12 October 2012 * Tab 13 – Allied documents, DA Form 2627 * Tab 14 – DA Form 2627, dated 20 June 2013 * Tab 15 – AMHRR, Applicant * Tab 16 – Additional Related Documents FACTS: 1. Title 10, U.S. Code, section 1558(b)(1)(B), provides that the Army Board for Correction of Military Records (ABCMR) is designated as a special board. This designation is limited to cases in which noncommissioned officers have been selected for involuntary separation under the Army's QMP. This designation of the special board to review of QMP selection board decisions is an exercise of the discretion to the Secretary of the Army to grant a special board. Additionally, section 1558(c) provides that when such a record is corrected, an involuntarily board-separated applicant becomes entitled to retention on or restoration to active duty. If an involuntarily board- separated person does not consent to a restoration of status, rights, and entitlements, the Secretary concerned shall pay that person back pay and allowances (less appropriate offsets), and shall provide that person service credit. 2. Under the provisions of Title 10, U.S. Code, section 1558, the Board will consider only so much of the application as pertains to a review of the QMP board decision to deny the applicant continued service on active duty, and the consequent effects of that decision, to include possible reinstatement to active duty in the rank/grade of MSG/E-8 effective 1 August 2014 with all back pay and allowances or, in the alternative, reinstatement to active duty in the rank/grade of MSG/E-8 effective 1 August 2014 until reaching the applicant's high-year tenure or end-of-service date and retirement with all back pay and allowances. 3. The applicant defers to counsel. 4. ARBA personnel contacted applicant’s counsel in November 2019 to determine whether the applicant wished to have a 10 U.S.C. § 1552 board review matters that, under the provisions of Army Directive 2016-33, may not be reviewed by a 10 U.S.C. § 1558 board. Applicant’s counsel made clear that the applicant wished to have a 10 U.S.C. § 1558 board, and only a 10 U.S.C. § 1558 board, review his client’s case. Consequently, this Board is conducted under the provisions of 10 U.S.C. § 1558 and Army Directive 2016-33. This Board will therefore limit its review to the QMP board decision denying the applicant continued service on active duty. 5. Counsel states the applicant is a deeply religious Christian with over 25 years of active Federal service in the Regular Air Force and Regular Army. He enjoyed a stellar career with the U.S. Army Band (Pershing's Own) (TUSAB) as a featured tenor soloist until 2012, when a series of events ultimately resulted in being denied continued active duty service by the QMP board. a. Statement of the case: * during the 2012 Presidential election cycle, the applicant was ordered to remove a political bumper sticker until counsel intervened and advised it was authorized * in July 2012, the applicant was upbraided by his commander for reading a political book in uniform, while the applicant and other members of TUSAB were backstage at the U.S. Capitol awaiting their performance and reading private materials * on 11 October 2012, the applicant was counseled regarding his religious opposition to the repeal of the "Don't Ask, Don't Tell (DADT)" policy which prevented homosexuals from openly serving in the military * the applicant erroneously emailed Command Sergeant Major (CSM) S , stating he had a medical appointment on 22 April 2013, when it was actually his son who had a medical appointment on 22 April 2013 and he had an appointment on 23 April 2013 * when his leadership asked him to provide information concerning his son's medical appointment, the applicant requested a Health Insurance Portability and Accountability Act (HIPPA) Compliant Privacy Act Release, but none was provided * on 16 May 2013, the applicant was counseled for performing work while on convalescent leave and misrepresenting his leave location on the DA Form 31 (Request and Authority for Leave) he submitted * on 29 May 2013, the applicant received a "downgraded" NCOER covering the period 1 March 2012 through 28 February 2013 that was biased and did not include some of his positive accomplishments during the rating period * on 4 June 2013, a radio host from Fox News, X X , began making inquiries into the circumstances surrounding his religious persecution * on 7 June 2013, nonjudicial punishment was initiated against him * on 7 November 2013, his command conducted a Soldier Leader Risk Reduction Tool process which determined the applicant was under stress due to complaints made by his coworkers regarding his political and religious viewpoints and an Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation was directed at him * on 1 August 2014, the applicant filed a complaint regarding religious discrimination, reprisal, and the QMP determination in the U.S. Court of Federal Claims – the case later stayed pending action by the U.S. Court of Appeals for the Federal Circuit in Santana v. United States, 16-2435 b. The nonjudicial punishment administered on 20 June 2013 was arbitrary, capricious, and unsupported by substantial evidence. On 4 June 2013, X X from Fox News began inquiries into the circumstances of the applicant's religious persecution and the national media attention resulted in reprisal. The command was aware there was some confusion regarding his work schedule, yet he was wrongfully charged with violating three specifications of the UCMJ. The applicant's Article 15 Record of Proceedings shows: * the applicant failed to go to his appointed place of duty at 1300 on 23 April 2013, but he provided supporting documentation to account for his whereabouts * the applicant failed to obey an order by providing documentation of his whereabouts on 22 April 2013, but it was not a lawful order and the command failed to provide a HIPPA compliant release form to protect his son's medical information * the applicant made a false statement by stating he had a medical appointment on 22 April 2013, but he provided supporting documentation to show he had extensive medical appointments, and it was an honest mistake regarding his son who had a medical appointment on that date c. The NCOER covering the period 1 March 2012 through 28 February 2013 was arbitrary, capricious, and unsupported by substantial evidence. There was some tension within his unit during the 2012 election cycle, and the subsequent repeal of the DADT policy. The evaluation states the applicant does not treat people as they should be treated. However, no details were provided and it is assumed this was tied directly to the applicant's religious beliefs. * disagreement in beliefs has not translated into any mistreatment * while one homosexual Soldier asked to be assigned to a different section, the applicant was never accused of any mistreatment * the applicant's counseling remarks during the rating period praised his good work and are inconsistent with the "downgraded" evaluation * the evaluation was targeted to damage him and was not an accurate reflection of his performance d. The actions of the QMP in ordering the applicant's separation was arbitrary, capricious, and unsupported by substantial evidence. Despite the pending NCOER appeal, the QMP reviewed the applicant's records and denied him active duty service. This was in keeping with Colonel (COL) X 's plan to force the applicant to a QMP board. The QMP board committed material error and action was based on false or misleading information. * the applicant was discriminated against by his command for engaging in protected political speech, as well as expressing his religious beliefs * this discrimination led to a degraded NCOER, which was under appeal at the time the QMP board acted e. The action of the U.S. Army violated the First Amendment to the U.S. Constitution, the Religious Freedom Restoration Act, Department of Defense directives, and constituted arbitrary and capricious actions. * the Religious Freedom Restoration Act prohibits the government from substantially burdening a person's exercise of religion unless there is a compelling governmental interest and amends Title 10, U.S. Code, dealing with active duty military and the believer's ability to observe his or her faith * the applicant has not urged any action by himself or others to jeopardize the good order and discipline of the unit when he expressed his personal opinions during the national election cycle * displaying political bumper stickers, reading conservative books, and tweeting his opposition to the repeal of DADT is a legal expression of free speech * there was a hypocrisy and double standard practiced by COLX when he allowed a vehicle with pro-democratic stickers to park in his designated parking space and the applicant was counseled for opposing political views f. The actions of COL X constituted reprisal for the applicant. COL X was obviously upset at the applicant, who had contacted members of Congress, and filed a complaint with the Inspector General. This resulted in a prima facie case of reprisal. Additionally, the command admitted the applicant was targeted for his political and religious beliefs. * on 7 November 2012, the applicant was counseled by Sergeant Major (SGM) X in that his political and religious viewpoints expressed via social media were discovered by coworkers, who then complained to the chain of command * an email from COL X , dated 28 June 2013, includes strong evidence he was biased and reprised against the applicant g. Finally, pursuant to Army Directive 2013-33, dated 24 October 2016, he requests the Army Review Boards Agency convene a special board pursuant to Title 10, U.S. Code, section 1558, to review the decision of the QMP denying the applicant continued active duty service. 6. On 4 December 2000, the applicant reenlisted in the Regular Army under the indefinite reenlistment program. Assigned to TUSAB, he continued serving as a master vocalist. 7. On 1 September 2012, he was promoted to the rank/grade of MSG/E-8. 8. Before his promotion ceremony on 4 September 2012, he tweeted the following from his personal Twitter account: * "in honor of DADT repeal, and Obama/Holder's refusal to enforce DOMA [Defense of Marriage Act] act, I'm serving Chick-Fil-A at my MSG promo[tion] reception for Army today" * "luv ya, Mark! Fellow Virginian & MSG, Army. Being promoted today, serving Chick-Fil-A @ reception, in honor of DADT repeal" 9. The DA Form 4856 (Developmental Counseling Form), dated 11 October 2012, shows the applicant was counseled by SGM X . The purpose of the counseling was to remind him of the limitations Soldiers have when it comes to expressing personal opinions regarding the policies of the President of the United States or other superiors. It was also to remind him of the damage and fear his public comments can inflict on subordinates when reading his inflammatory comments. a. The DA Form 4856 further states: * in addition to his two tweets on 4 September 2012, it was also reported that he made the public statement on Twitter on 2 February 2010, "Lordy Lord! Must be faggot Tuesday, the lefty loons and Obamabots are out in force" * Soldiers in his rating chain expressed fear because of those comments * he must be cognizant his statements can be perceived by the public and service members to boarder on disrespect toward the President of the United States * he is authorized to have bumper stickers on his vehicle, but his stickers were creating an atmosphere detrimental to morale and workplace tension * Soldiers must balance their personal feelings with the Army mission * he should express his opinion while being aware of the overall ramifications b. In Part III (Summary of Counseling – Session Closing), the applicant marked "I disagree with the information above" and stated: he is allowed to state his opinions concerning disagreement with the Commander in Chief, but needs to express them while not as a Soldier or specifically disparaging specific Soldiers within his rating chain * he has not violated the Hatch Act * religious liberty, freedom, and the right afforded noncommissioned officers to dissent politically are in danger * he has not done anything that is prohibited by the Department of Defense regarding political activities * good morale and discipline are important, but not at the expense of First Amendment rights 10. On 7 November 2012, the applicant was counseled by SGM X regarding his results on the U.S. Army Soldier Leader Risk Reduction Tool that was conducted on 5 October 2012. During that process, it noted the applicant was under stress and answered "yes" to enough questions that placed him at moderate risk. The counseling addressed his concerns regarding freedom of speech and his religious beliefs, and advised him that he is a subject in an Army Regulation 15-6 investigation being conducted by the commander. 11. On 16 May 2013, he was counseled by SGM X and SGM X regarding work he performed while off duty and out of the local area while on convalescent leave. The DA Form 4856 states: a. While on convalescent leave and recovering from surgery, he was out of state performing in a concert tour with the vocal ensemble Brethren. This information was verified in Facebook posts and photographs by Brethren's leader, X X . The dates of the tour were also posted on Brethren's website. Photographs of the tour show him standing on risers and singing, identical to his normal duty with The U.S. Army Chorus. b. Convalescent leave was approved from 23 March 2013 through 21 April 2013 so he could fully recover from surgery. If a Soldier desires to return to duty before the end of convalescent leave, the medical authority must approve the return. However, he did not seek medical authorization, nor did he request regular leave to perform in the concert tour. c. The commander approved convalescent leave showing his local home address. He did not obtain permission to travel to Florida, nor did he submit a corrected leave request. His leave ended at midnight on 21 April 2013, but he did not fly home from Florida until the early morning of 22 April 2013, a regular duty day. d. In Part III (Summary of Counseling – Session Closing), the applicant marked "I disagree with the information above" and stated: * he was on pain medication and crutches and a walking boot for a majority of the time he was in Florida * he had consulted with his physician before the trip, and thought it would be a way for him to safely check his ability to function in his normal duty capacity * he was unaware he had done anything in violation of the regulation and suspected this has to do with an investigation in which he was subjected to harassment in response to his religious expression * this represents a selective application of standards – applied in his case because of increased hostility to his perceived religious and political views * he requested an opportunity to have his attorney review the counseling by SGM X and SGM X before he signed but was denied – he signed under duress and in protest 12. His NCOER covering the period 1 March 2012 through 28 February 2013 was completed on 29 May 2013 and shows: a. in Part IVa3 (Respect/Equal Opportunity/Equal Employment Opportunity: Treats people as they should be treated), his rater marked the "No" block and commented: "at times, showed insufficient respect in written and verbal communications"; b. in Part IVd (Leadership), his rater marked the "Needs Improvement (Some)" block and commented: * some of the Soldier's actions appeared to have a negative impact on subordinates and eroded trust between himself and his section compromising his ability to lead * one of his subordinate Soldiers requested to be removed from his rating chain; the request was granted * supervised and rated Second Tenor Section of seven NCOs, and integrated a new Soldier to quickly become a successful member of the section c. in Part IVf (Responsibility and Accountability), his rater marked the "Needs Improvement (Some)" block and commented: * was late to a mission formation, which caused The Army Chorus undue concern and distraction just prior to mission execution * resisted written counseling, failing to lead by example and undermining his ability to hold his subordinates accountable * as the unit MEDPROS [Medical Protection System] and Readiness clerk, helped bring PHA [periodic health assessment] compliance from 76% to 91% first six months of 2012, keeping unit rating green in all areas d. in Part Va (Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), his rater marked the "Marginal" block; e. in Part Vc (Overall Performance), his senior rater marked the "Successful/3" block; f. in Part Vd (Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), his senior rater marked the "Fair/4" block; and g. in Part Ve (Senior Rater Bullet Comments), his senior rater commented: * demonstrated difficulty accepting correction from his leadership and taking responsibility for his own actions * maintained satisfactory MOS [military occupational specialty] proficiency * during this rating period, this Soldier has demonstrated limited potential for positions of greater rank and responsibility 13. Counsel states that on 4 June 2013, X X from Fox News began making inquiries into the circumstances surrounding the applicant's religious persecution and later that same afternoon the applicant received notification of an office call with the commander scheduled on 7 June 2013. There is no documentary evidence to support counsel's statement. 14. On 7 June 2013, the applicant's commander initiated nonjudicial punishment against him for three violations of the UCMJ: * he failed to go to his place of duty on or about 23 April 2013 at 1300 in violation of Article 86 (absence without leave) * he failed to submit accountability documentation to show his whereabouts on 22 April 2013 in violation of Article 92 (failure to obey order or regulation) * he made a false statement with intent to deceive on or about 5 April 2013 that he had a medical appointment on 22 April 2013 in violation of Article 107 (false official statements) 15. In the applicant's memorandum for record, dated 19 June 2013, he disputed the allegations of misconduct as outlined in the nonjudicial punishment proceedings, dated 7 June 2013. a. On the charge of failure to report, he stated he was never briefed that he was required to be present for the briefing at 1300 on 22 April 2013. Email correspondence from CSM X simply asked, "Will you be available on the week of 22 April to take part in the Subsequent Command Inspection?" b. On the charge of failure to obey an order or regulation, he advised CSM X there was an honest mistake regarding his schedule. His son's autism therapy appointment was on 22 April 2013 and his own medical appointment was on 23 April 2013. The command had asked him to provide medical documentation regarding his son, but did not provide him with a HIPPA compliant release form to protect the privacy of his child. As a result, it was an unlawful order. c. On the charge of making a false official statement, his family calendar reflected the wrong date for his third post-operative surgery appointment. As a result, he made an honest mistake and simply gave the wrong date, which he later corrected. Due to the magnitude of his health problems, he has had numerous medical appointments. Additionally, he has been under the care of a psychiatrist for 2 years and takes a prescription medication for mood stabilization. While the medication has been helpful, it also has side effects that include memory loss, paranoia, loss of normal personality, or inability to focus thoughts. It is possible the medication may have contributed to his confusion. 16. On 20 June 2013, he accepted nonjudicial punishment for failing to go to his appointed place of duty, disobeying a lawful order, and making a false official statement. The DA Form 2627 shows: * he was afforded the opportunity to consult with counsel * he did not demand trial by court-martial * he requested a closed hearing * he did not request a person to speak on his behalf * matters in defense, extenuation, and/or mitigation were attached * he was found guilty of all specifications * his commander directed filing the original DA Form 2627 in the performance folder of his AMHRR * he elected to appeal and submit additional matters * the punishment imposed was an oral reprimand 17. On 27 June 2013, counsel submitted matters for appeal of the nonjudicial punishment to the Commander, Military District of Washington. He stated it was constitutionally infirm, unjust, and a violation of the Manual for Courts-Martial. The nonjudicial punishment is without merit and legally and factually deficient because: * it did not comply with the basic due process provisions * two witnesses remained with COL X after the applicant was dismissed * the required elements for being absent without leave were not met – the charge is without merit and must be set aside and dismissed * not all of the required elements for making a false official statement were met and the charge was not proven – it must be set aside and dismissed * the required elements for failure to obey an order were not met because the command failed to provide a HIPPA compliant release – the order was unlawful 18. On 28 June 2013, an email from COL X to Captain X , Staff Judge Advocate, provided his input regarding whether he believed the appeal should be granted (in whole or part) or denied. After reviewing the matters for appeal, he stated: a. The questions regarding the applicant's itinerary on 21 and 22 April 2013 were to establish that he was in Florida in an unauthorized absence. He was not on leave, pass, or approved to be out of the area. He concealed that information until he was confronted with social media evidence. It was only after being "caught" that he was confused by his schedule. b. It was clear the applicant failed to comply with instructions to provide information on his whereabouts on 22 April 2013. It was only after he was caught that he started citing HIPAA, when no one had any interest in intruding in his son's medical care. c. The photographs [a vehicle with pro-democratic stickers parked in the TUSAB Commander's reserved parking space] are somewhat laughable. As commander, he lives across the street and never uses that parking space. Instead, it is awarded to the Soldier with the highest physical fitness test score. d. The punishment cannot obviously be reduced. It is true his previous adverse NCOER and nonjudicial punishment will make him subject to QMP review. That is exactly how the process should work. This Soldier has not demonstrated adherence to Army Values and should be among those thanked for their service and retired as soon as possible. 19. On 29 June 2013, counsel submitted additional matters for appeal of the nonjudicial punishment to the Commander, Military District Washington. He stated: * it is becoming more and more apparent that the command mischarged the absent without leave charge by charging 23 April 2013, instead of 22 April 2013 * the applicant was never ordered to be at any place on 22 April 2013, and no evidence of any such order was introduced * 22 April 2013 was scheduled to be an individual practice session, which is normally done at home – while the applicant was on post that day, he was not required to be there * the applicant did not intentionally make a false statement with intent to deceive, but merely got the date wrong during a period of numerous medical appointments * COL X and TUSAB have been under heavy criticism by the national media due to their actions against the applicant * the timing of notification for the first reading of the nonjudicial punishment is suspicious because it occurred the same day Fox News began making inquiries * it is obvious the applicant has been targeted in reprisal for several national news stories and for his conservative Christian beliefs, in direct violation of the Religious Freedom Restoration Act 20. On 2 July 2013, the reviewing judge advocate considered the appeal and opined the proceedings were conducted in accordance with law and regulation and the punishment imposed was not unjust nor disproportionate to the offense committed. 21. On 3 July 2013, the court-martial convening authority denied his appeal. 22. On 29 July 2013, the applicant submitted an appeal of his NCOER covering the period 1 March 2012 through 28 February 2013 based on substantive inaccuracy. He stated he is the subject of bias, prejudice, inaccuracy, and/or unjust ratings. Additionally, during the time of his adverse NCOER, his story came to the attention of the Chaplain's Alliance. As a result, Chaplain X briefed Fox News and there was a flurry of media interest in the matter. The overall result was that he was discriminated against because of his religious beliefs. a. Part IVa3 (Respect/Equal Opportunity/Equal Employment Opportunity: Treats people as they should be treated) shows his rater marked the block "No," but he has never been shown an example of mistreatment, and to his knowledge, he has not mistreated anyone. His religious beliefs and opinions are his own. While one admitted homosexual asked to be assigned to a different section, there was never any type of mistreatment and this rating is unjustified. b. Part IVb (Competence) shows his rater marked the block "Success (Meets Standard," but this is a "downgraded" rating from "Excellence (Exceeds Standards)." During this rating period, he received an Army Commendation Medal for his superior performance of duty. His NCOER counseling stated he should continue at the same level. As a result, this rating is inaccurate and shows a bias from his rater. c. Part IVd (Leadership) shows his rater marked the block "Needs Improvement (Some)." However, he was never counseled regarding any problems within his section, and was not relieved of his duties. Additionally, his leadership was praised during this rating period when he integrated a new Soldier who quickly became a successful member of the section. * his command cannot point to any single action that had a negative impact on his subordinates – none of his quarterly counselings included any negative leadership issues * while he did have a number of medical appointments that were often out of his control, none of those matters were leadership issues * the mark is inaccurate and reflects a lack of tolerance of his religious beliefs d. Part IVf (Responsibility and Accountability) shows his rater marked the block "Needs Improvement (Some)." However, the mark and comments are not consistent with his actual performance. * on one occasion, he was a few minutes late due to an unavoidable traffic delay in the National Capital Region, but he was in telephone contact with the mission producer and provided progress updates * while he disagreed with some of the counseling that was not correct about allowable rules regarding authorized political activities, he did not resist it * in February 2013, his counseling praised his performance in this area e. Part Va (Overall Potential for Promotion and/or Service in Positions of Greater Responsibility) shows his rater marked the block "Marginal." However, this rating is because he did not accept correction from leadership, which told him to reject his religious beliefs. During this period, he was promoted to MSG/E-8, which shows his potential for greater rank and responsibility, and he was recommended for positions of greater responsibility. He has always been rated "Among the Best" and this mark is not only inaccurate, but a result of bias and reprisal. f. Part Vc (Overall Performance) shows his senior rater marked the block "Successful/3," but he has always been rated "1" or "2." This "downgrade" is the result of bias. g. Part Vd (Overall Potential for Promotion and/or Service in Positions of Greater Responsibility) shows his senior rater marked the block "Fair/4," but he has always been rated "Superior" and "1" or "2." This "downgrade" is the result of bias. 23. A memorandum from HRC, dated 15 August 2013, returned the applicant's NCOER appeal without action due to insufficient evidence. HRC advised him that should he resubmit his appeal, it would help to include third-party statements from people who worked with him during the time of the report. It further advised the burden of proof is upon him to establish, through clear and convincing evidence, that a report is incorrect and provide additional instructions and references for his appeal. 24. On 20 August 2013, counsel resubmitted the NCOER appeal to HRC. He stated they were unable to provide third-party statements as required because people are afraid to come forward. However, he provided an affidavit from a private investigator who spoke to a number of the individuals who refused to be identified for fear of retaliation. X X , a licensed private investigator, stated: * he interviewed seven individuals who have served with the applicant * five of the seven interviewed requested anonymity due to fear that their support would adversely impact their own military careers * several of the interviewees cited a command environment subsequent to the repeal of DADT in which it appears there is a concerted effort in the Army Chorus to rid it of any conservatives and/or conservative Christians while openly endorsing the homosexual agenda * X X , who is retired and has known the applicant for 17 years, stated the applicant is a professional Soldier, peaceful in his demeanor, and has never shirked a military duty or responsibility * X X , who is a retired MSG and has known the applicant for 8 years, was highly complementary of his honesty, dependability, and trustworthiness, and characterized him as a conservative Christian 25. A letter from the Department of Defense Inspector General, dated 9 January 2014, advised the applicant that his complaint of reprisal does not warrant an investigation. His cased was closed because he did not file timely within 60 days of becoming aware of the personnel action. It further advised that he may petition the ABCMR. 26. A memorandum from HRC, dated 7 February 2014, notified the applicant that the QMP selection board recommended denied of continued active duty service. As a result, he would be involuntarily discharged from the Army no later than 1 August 2014. 27. On 10 February 2014, he elected to appeal the denial of continued active duty service under the QMP. 28. On 3 March 2014, counsel submitted an appeal for the QMP action to HRC based on material error. He stated the applicant was discriminated against by his command for engaging in protected political speech, as well as expressing his religious beliefs. This led to a degraded NCOER and pretextual nonjudicial punishment. The applicant's NCOER is under appeal and further action will be taken regarding the nonjudicial punishment upon completion of the NCOER appeal. 29. A memorandum from HRC, dated 26 March 2014, denied the applicant's appeal to continue active duty service. It advised that he has the right to appeal to the ABCMR. 30. On 31 March 2014, the Military-Veterans Advocacy submitted matters to the Secretary of the Army for consideration on behalf of the applicant. It stated that after 26 years of sterling and unblemished service, the applicant received an unfair and biased NCOER in direct reprisal for his religious and political beliefs. The nonjudicial punishment did not comply with the basic due process provisions and the findings were nonfactual. 31. On 4 April 2014, the applicant requested voluntary retirement effective 31 July 2014 and placement on the Retired List effective 1 August 2014. 32. On 21 April 2014, HRC approved the applicant's request for retirement effective 1 August 2014. 33. The applicant retired effective 31 July 2014. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows: * he completed 17 years, 4 months, and 7 days of active service during this period * he completed 8 years, 4 months, and 6 days of prior active service 34. On 1 August 2014, counsel filed a complaint with the U.S. Court of Federal Claims. Sommers v. United States, complaint number 14-1690C, contends the actions taken against the applicant were in violation of the Constitution, laws, and regulations of the United States, and caused the applicant to be deprived of pay and allowances guaranteed by Title 37, U.S. Code, section 204. The complaint requests: * reinstatement to active duty in the rank/grade of MSG/E-8 effective 1 August 2014 with all back pay and allowances * in the alternative, reinstatement to active duty in the rank/grade of MSG/E-8 effective 1 August 2014 until reaching his high-year tenure or end-of-service date and retirement with all back pay and allowances * removal of the DA Form 2627 from his AMHRR and records systems * removal of the DA Form 2166-8 covering the period 1 March 2012 through 28 February 2013 from his AMHRR and records systems * removal of the DA Forms 4856 (Developmental Counseling Form) from his AMHRR and records systems * court-awarded costs of this action to the applicant * court-awarded attorney fees in this action 35. A memorandum from the Army Review Boards Agency, dated 14 August 2014, advised HRC that the Enlisted Special Review Board administratively closed Docket Number AR20140002715 and returned the applicant's NCOER appeal without action. Since he retired effective 1 August 2014, the regulatory authority to consider the case rests with the ABCMR. 36. A memorandum from HRC, dated 18 August 2014, advised the applicant that the Enlisted Special Review Board had administratively closed and returned his NCOER appeal without action. He was further advised that he may apply to the ABCMR to resolve any issues with the evaluation in question. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief is not warranted. 2. The issue presented is whether an error or injustice occurred relative to the Qualitative Management Program (QMP) Selection Board’s decision to deny the applicant continued active duty service. The QMP is designed to enhance the quality of the career enlisted force; to selectively retain the best qualified Soldiers; to deny continued service to nonproductive Soldiers; and to encourage Soldiers to maintain their eligibility for continued service. Army Regulation (AR) 635-200, Active Duty Enlisted Separations, para. 19-3, 6 JUN 05 (Rapid Action Revision (RAR) (6 SEP 11). Noncommissioned officers (NCOs) whose performance, conduct and/or potential for advancement do not meet Army standards, as determined by HQDA centralized selection boards responsible for QMP screening, will be denied continued service. AR 635-200, para. 19-2, 6 JUN 05 (RAR 6 SEP 11). Senior NCOs are subject to denial of continued service upon the Senior NCOs’ receipt for filing in the Army Military Human Resource Record (AMHRR) an official document that includes the following: a) an Article 15, UCMJ; b) a Senior Rater rating of 4 (Fair) or 5 (Poor) in the overall performance or potential blocks of an NCOER; or c) an annotation of “no” in part IV.a. (Army Values) on an NCOER with an ending date of 30 April 2011 and later. MILPER Message 13-195, Procedures for the FY14 Qualitative Management Program (QMP) for Senior NCOs, 25 July 2013. The evidence of record indicates that the applicant’s AMHRR contains a) a DA Form 2627, Record of Proceedings Under Article 15, UCMJ, in which the final appeal was completed in July 2013; b) an NCOER with a thru date of 20130228 that contains a “no” annotation in Part IV.a., “Army Values, etc.” and a Senior Rater rating of 4 (Fair) in the Overall Performance and Potential section; and c) an NCOER with a thru date of 20140228 that contains a Senior Rater rating of 4 (Fair) in the Overall Performance and Potential section. Thus, the applicant’s AMHRR contains three documents that satisfy the specific criteria of the aforementioned MILPER message. Furthermore, AR 635-200 provides that the objective of the QMP is to identify and deny additional active duty service to NCOs whose performance, conduct and potential for advancement do not meet Army standards. Given that the applicant’s official record (i.e., his AMHRR) reflects three documents indicating substandard performance, substandard conduct, and / or substandard advancement potential, it appears the QMP’s decision also fully complies with AR 635-200. Neither the applicant nor his counsel has explained how the QMP’s decision fails to comport with applicable law, regulation, or policy. In light of the applicable provisions of AR 635-200 and MILPER Message 13-195, this Board finds nothing eccentric or irregular with regard to the QMP’s decision. This Board therefore finds that the applicant and his counsel have failed to demonstrate by a preponderance of evidence that an error or injustice occurred. 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. 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. REFERENCES: 1. Army Directive 2016-33 (Special Board Review of Approved Qualitative Management Program Board Recommendations) provides the ABCMR is designated as a special board pursuant to Title 10, U.S. Code, section 1558(b)(1)(B). This designation is limited to cases in which noncommissioned officers have been selected for involuntary separation under the Army's QMP. This designation of the special board for review of QMP selection board decisions is an exercise of the discretion reserved to the Secretary of the Army to grant a special board. 2. Title 10, U.S. Code, section 1558(b)(1)(B), provides that the ABCMR is designated as a special board. This designation is limited to cases in which noncommissioned officers have been selected for involuntary separation under the Army's QMP. This designation of the special board to review of QMP selection board decisions is an exercise of the discretion to the Secretary of the Army to grant a special board. Additionally, section 1558(c) provides that when such a record is corrected, an involuntarily board-separated applicant becomes entitled to retention on or restoration to active duty. If an involuntarily board-separated person does not consent to a restoration of status, rights, and entitlements, the Secretary concerned shall pay that person back pay and allowances (less appropriate offsets), and shall provide that person service credit. 3. Title 37, U.S. Code, section 204, provides entitlement to service members for the basic pay of the pay grade to which assigned, in accordance with their years of service. The total amount of pay and allowances provided by law or regulation for a member of a regular component of a uniformed service of corresponding grade and length of service for that period. The Secretary concerned by extend such period in any case if the Secretary determines that it is in the interests of fairness and equity to do so. 3. Department of Defense Directive Number 7050.06 (Military Whistleblower Protection) implements military whistleblower protection under Title 10, U.S. Code, section 1034, and makes it policy that: a. members of the Military Services are free to make protected communications; b. no person will restrict a service member from making lawful communications to a member of Congress or an inspector general; c. service members will be free of reprisal for making or preparing to make or being perceived as making or preparing to make a protected communication; d. no person may take or threaten to take an unfavorable personnel action or withhold or threaten to withhold a favorable personnel action in reprisal against any service member for making or preparing to make, or being perceived as making or preparing to make a protected communication; and e. no investigation is required when a service member submits a reprisal complaint more than 1 year after the date the member became aware of the personnel action that is the subject of the allegation. 4. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 5. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes policies governing the Army Military Human Resource Records Management Program. The Army Military Human Resource Record (AMHRR) includes, but is not limited to, the Official Military Personnel File, finance related documents, and non- service related documents deemed necessary to store by the Army. Paragraph 3-6 provides that once a document is properly filed in the AMHRR, the document will not be removed from the record unless directed by the ABCMR or other authorized agency. 6. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts- Martial. Chapter 3 implements and amplifies Article 15 of the UCMJ and chapter XXVI of the Manual for Courts-Martial. Paragraph 3-4 states a commander will personally exercise discretion in the nonjudicial process by evaluating the case to determine whether proceedings under Article 15 should be initiated, determining whether the Soldier committed the offense(s) where Article 15 proceedings are initiated, the Soldier does not demand trial by court-martial, and determining the amount and nature of any punishment, if punishment is appropriate. 7. Army Regulation 623-3 (Evaluation Reporting System) prescribes the policy for completing evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System. a. Paragraph 2-12 states the rater will provide an honest assessment of the rated Soldier's performance and potential (as applicable), using all reasonable means, including personal contact, records and reports, and the information provided by them on the applicable support form or associated counseling documents. b. Paragraph 2-14 states senior raters or reviewing officials use their positions and experiences to evaluate the rated Soldier's performance and/or potential within a broad organizational perspective, military program of instruction, or civilian academic standards. The senior rater's evaluation is the link between the day-to-day observation of the rated Soldier and the longer-term evaluation of the rated Soldier's potential by Headquarters, Department of the Army, selection boards. Normally, senior raters or reviewing officials control the accurate preparation and timely submission of evaluation reports. Senior raters evaluate performance in perspective by considering the rated Soldier's experience; the relative risk associated with the performance; the difficulty of the organization's mission; the prudence and results of action taken; the adequacy of resources; the overall efficiency of the organization; and when applicable, adherence to established military course or academic standards established by the civilian educational, medical, or industrial institution. c. Paragraph 4-7 states an evaluation report accepted for inclusion in the rated Soldier's AMHRR 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 to represent the considered opinions and objective judgment of the rating officials at the time of preparation. The rated Soldier or other interested parties who know the circumstances of a rating may appeal any evaluation report that they believe is incorrect, inaccurate, or in violation of the intent of this regulation. An appeal will be supported by substantiated evidence. An appeal that alleges an evaluation report is incorrect, inaccurate, or unjust without usable supporting evidence will not be considered. Alleged bias, prejudice, inaccurate or unjust ratings, or any matter other than administrative error are substantive in nature and will be adjudicated by the Army Special Review Board. Substantive appeals will be submitted within 3 years of an evaluation report "THRU" date. Failure to submit an appeal within this time will require the appellant to submit his or her appeal to the ABCMR. d. Paragraph 4-11 states the burden of proof rests with the appellant. Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. 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. e. Paragraph 4-13 states 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. 8. Department of the Army Pamphlet 623-3 (Personnel Evaluation Reporting System) prescribes the procedures for completing evaluation reports. It states that an evaluation report which is inconsistent with others in an official military personnel file does not mean that it is inaccurate or unjust. Some individuals do not perform certain duties as well as others and this is one of the things that the evaluation reporting system should indicate. 9. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 19, contains policies and procedures for voluntary and involuntary separation noncommissioned officers under the Qualitative Management Program. The purpose of Qualitative Management Program is to enhance the quality of the career enlisted force, selectively retain the best qualified Soldiers while denying continued service to nonproductive members, and to encourage Soldiers to maintain their eligibility for further service. 10. MILPER Message Number 13-195, Procedures for the FY14 Qualitative Management Program (QMP) for Senior NCOs. The Senior NCO Selection Boards and Qualitative Management Boards scheduled for the 1st, 2nd, and 3rd Quarters of FY14 will consider regular Army (RA) and United States Army Reserve Active Guard Reserve (USAR AGR) Soldiers in the rank of SFC thru CSM for possible involuntary separation. These Senior NCOs are subject to denial of continued service by the QMP upon receipt of an official document for filing the Army Military Human Resources Record (AMHRR) as specified below: A. General Officer Letter / Memorandum of Reprimand. B. Conviction by Courts-Martial or Article 15, UCMJ. C. Relief for Cause Noncommissioned Officer Evaluation Report (NCOER) (DA Form 2166-8). D. Senior Rater rating of 4 (Fair) or 5 (Poor) in the overall performance or potential blocks of an NCOER. F. Annotation of “no” in part IVa (Army Values) on an NCOER with an ending date of 30 April 2011 and later. F. Academic Evaluation Report (DA Form 105) indicating NCOES course failure. //NOTHING FOLLOWS//