ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 June 2020 DOCKET NUMBER: AR20200000129 APPLICANT REQUESTS: through counsel, pursuant to Title 10, U.S. Code, sections 1552 and 1558, via voluntary remand by the U.S. Court of Federal: * overturn of the wrongful decision of the Qualitative Management Program (QMP) Board to involuntary separate the applicant * correction of his type of separation to show retirement with a narrative reason for separation of "Sufficient Service for Retirement" * constructive service credit from his separation date of 1 November 2017 with all back pay and allowances APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Defendant's Motion for a Voluntary Remand, Applicant, U.S. Court of Federal , dated 20 December 2019 * Order, Number , U.S. Court of Federal , dated 2 January 2020 * Letter, U.S. Court of Federal dated 6 January 2020 * Supplement to Complaint and Request for Correction of Records in the Case of (Applicant), U.S. Army, dated 1 April 2020 * Enclosure 1 – Motion to Remand and Court Order * Enclosure 2 – Complaint, Number , U.S. Court of Federal, dated 22 October 2019 * Enclosure 3 – Memorandum, U.S. Recruiting Company – , dated 18 October 2016, subject: Performance of (Applicant) * Enclosure 4 – Appeal, Nonjudicial Punishment, dated 7 July 2015 * Enclosure 5 – Appeal, General Officer Memorandum of Reprimand (GOMOR), dated 2 July 2015 * Enclosure 6 – Memorandum, Headquarters, U.S. Army Training and Doctrine Command (TRADOC), dated 23 May 2016, subject: Notification of Reinstatement to Position of Significant Trust and Authority * Enclosure 7 – Email, U.S. Army Recruiting Battalion, First Sergeant (1SG) W____, 23 August 2016, subject: (Applicant) Favorably Adjudicated * Enclosure 8 – Memorandum, U.S. Army Human Resources Command (HRC), dated 11 October 2016, subject: Notification for Potential Denial of Continued Active Duty Service under the QMP * Enclosure 9 – Submission of Matters in Extenuation and Mitigation of QMP, Counsel, dated 19 January 2017 * Enclosure 10 – Petition to Remove/Move GOMOR and Nonjudicial Punishment, Counsel, dated 17 January 2017 * Enclosure 11 – Petition to Remove Nonjudicial Punishment, Counsel, dated 18 January 2017 * Enclosure 12 – Memorandum, HRC, dated 24 January 2017, subject: Request for Removal of Nonjudicial Punishment and GOMOR (Applicant) * Enclosure 13 – Email, Counsel, dated 27 January 2017, subject: QMP * Enclosure 14 – Memorandum, HRC, 3 April 2017, subject: Notification of Denial of Continued Service under the QMP REFERENCES: 1. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. 2. 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. 3. Army Directive 2016-33 (Special Board Review of Approved QMP Board Recommendations) provides that 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. 4. 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. 5. 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. 6. Army Regulation 600-37 (Unfavorable Information) provides that an administrative memorandum of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court- martial jurisdiction over the Soldier. The memorandum must be referred to the recipient and the referral must include and list applicable portions of investigations, reports, or other documents that serve as a basis for the reprimand. Statements or other evidence furnished by the recipient must be reviewed and considered before a filing determination is made. a. Paragraph 3-5 provides that a memorandum of reprimand may be filed in a Soldier's Army Military Human Resource Record (AMHRR) only upon the order of a general officer-level authority and is to be filed in the performance folder. The direction for filing is to be contained in an endorsement or addendum to the memorandum. If the reprimand is to be filed in the AMHRR, the recipient's submissions are to be attached. Once filed in the AMHRR, the reprimand and associated documents are permanent unless removed in accordance with chapter 7. b. Paragraph 7-2 provides that once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the AMHRR. c. Paragraph 7-2 also provides that only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder of the AMHRR. Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would be in the best interest of the Army. The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met. 7. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR. Table B-1 states a memorandum of reprimand is filed in the performance folder of the AMHRR unless directed otherwise by an appropriate authority (i.e., Department of the Army Suitability Evaluation Board (DASEB) or ABCMR). 8. 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 Uniform Code of Military Justice (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. 9. 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 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. c. 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. d. 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. 10. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. a. Chapter 10 (Discharge in Lieu of Trial by Court-Martial) provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. A discharge under other than honorable conditions is normally appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. b. Chapter 12 (Retirement for Length of Service) sets policies and procedures for voluntary retirement of Soldiers because of length of service. c. Chapter 19 (Qualitative Management Program) contains policies and procedures for voluntary and involuntary separation noncommissioned officers under the QMP. The purpose of the QMP is to enhance the quality of the career enlisted force, selectively retain the best qualified Soldiers while denying continued service to nonproductive members, and encourage Soldiers to maintain their eligibility for further service. 11. Army Regulation 135-180 (Retirement for Non-Regular Service) applies to the Active Army, Army National Guard/Army National Guard of the United States, and U.S. Army Reserve and prescribes the policies and procedures governing Non-Regular retirement. a. Minimum Retirement Age: To be eligible for retired pay, an individual must have attained the minimum age prescribed by law – age 60. b. Reduced Retirement Age: The eligibility age for receipt of retired pay should be reduced below 60 years of age by 3 months for each aggregate of 90 days of qualifying active duty or active service performed after 28 January 2008 in any fiscal year. Qualifying active duty is service pursuant to a call or order to active duty on orders specifying, as the authority for such orders, a provision of law referred to in Title 10, U.S. Code, section 101(a)(13)(B) (Title 10, U.S. Code, section 101(a)(13)(B)) which is service performed per Title 10, U.S. Code, section 688, 12301(a), 12302, 12304, 12305, 12406 or Chapter 15 (insurrections), or any other provision of law during a war or during a national emergency declared by the President or Congress, as well as service under Title 10, U.S. Code, section 12301(d). c. To be eligible for retired pay at or after the age specified, an individual must have completed a minimum of 20 years of qualifying service computed under Title 10, U.S. Code, section 12732, or 15 years of qualifying service, and less than 20, computed under Title 10, U.S. Code, section 12732, if the individual is to be separated because he or she has been determined unfit for continued Selected Reserve service and none of the conditions in Title 10, U.S. Code, section 12731b(B), exist. 12. Army Regulation 190-5/Naval Operations 11200.5D (Military Police – Motor Vehicle Traffic Supervision) provides instructions for motor vehicle traffic supervision and implements 0.08 blood alcohol content (BAC) as the standard for adverse administrative actions. It provides policy on towing, storing, and impounding vehicles and adopts the National Highway Traffic Safety Administration technical standards for breathalyzer equipment. For the U.S. Navy, traffic violations that include driving under the influence will be referred to the Federal Magistrate. All traffic violators on military installations will be issued either a DD Form 1408 (Armed Forces Traffic Ticket) or a DD Form 1805 (U.S. District Court Violation Notice) as appropriate. 13. Military Personnel Message Number 16-251, dated 7 September 2016, title: Procedures for the Fiscal Year 2017 QMP), provided guidance and procedures in support of the QMP and set the criteria for Regular Army and U.S. Army Reserve Active Guard Reserve Soldiers in the rank of staff sergeant through command sergeant major for possible involuntary separation. These Soldiers will be considered for denial of continued service when the HRC receives adverse information, to include a GOMOR; conviction by court-martial or punishment under Article 15, UCMJ; an adverse noncommissioned officer evaluation report (NCOER); or an academic evaluation report indicating Noncommissioned Officer Education System course failure. a. The QMP does not apply to Soldiers who have an approved retirement, were previously retained on active duty by a QMP Board (provided no new adverse actions since the earlier retention), or hold the rank of command sergeant major/sergeant major and are within 2 years of the retention control point. b. In support of the QMP, HRC will identify Soldiers meeting the criteria above for consideration. The QMP process stems from a presumption of administrative finality in that adverse documents filed within a Soldier's record are properly filed, administratively correct, and filed pursuant to an objective decision by a competent authority. A pending appeal to the DASEB, or any Army Review Board, will not stop or delay QMP consideration, selection, or processing for denial of continued service, to include separation if otherwise denied continued service. Soldiers are advised to take action to correct any problems with their record prior to QMP selection. 14. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Service Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. FACTS: 1. 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. 2. The Board will consider only so much of the application as pertains to retirement in the rank/grade of staff sergeant/E-6 with constructive service credit from his separation date, 1 November 2017, with all back pay and allowances, or in the alternative, Non- Regular retirement. 3. The applicant defers to counsel. 4. Counsel states the applicant served on active duty in the rank/grade of staff sergeant/E-6 until his involuntary discharge on 1 November 2017. His discharge followed a series of events which stemmed, in part, from a traffic citation for allegedly driving while intoxicated at an entrance checkpoint to the Naval Air Station (NAS), Kingsville, TX. However, the U.S. Navy did not follow established protocol regarding jurisdictional authority. As a result, the subsequent GOMOR, nonjudicial punishment, and relief-for-cause NCOER ultimately led to the arbitrary and capricious QMP decision to involuntarily separate the applicant, who has completed more than 25 years of honorable service in the U.S. Army National Guard, U.S. Army Reserve, and Regular Army. a. Statement of the case: * the motion for remand is predicated upon the interests of justice and is not upon an admission of error by the U.S. Army * remand is appropriate to allow the ABCMR to consider the full record and address any injustices or whether equitable considerations may warrant relief * the involuntary separation through a QMP board denied him the ability to submit evidence that would have been permitted had that decision been reviewed by an administrative separation board * the applicant's previous requests to remove the GOMOR and relief for cause NCOER from his AMHRR would also benefit from evaluation by the ABCMR * if the ABCMR finds that either the DASEB or the Enlisted Special Review Board (ESRB) erred in their findings, the applicant may receive the relief from the ABCMR that he is seeking in court * the applicant is alleged to have driven while intoxicated, but he disputes the facts due to his medical condition and was never criminally charged by the civilian court system with jurisdictional authority * the resulting GOMOR and nonjudicial punishment were rushed in an attempt to allow his outgoing command to punish him before a new, unbiased command could look at the facts and realize such actions were not necessary * the applicant was never processed for involuntary separation under the provisions of Army Regulation 635-200, chapter 10 (misconduct), but instead notified he would be subject to a QMP board * after reviewing his record, the Deputy Commanding General, Headquarters, TRADOC, directed his reinstatement as a recruiter stating the information does not call into question his character and he is still best suited to serve in a position of significant trust and authority b. On 18 April 2015, the applicant, as a career recruiter, conducted duties at the Wings over South Texas Air Show at NAS Corpus Christi. After completing the event, he went a local restaurant for dinner that evening, and then to a local bar to play pool. At approximately 0315 on 19 April 2015, he was approaching the entrance gate to NAS Kingsville, where he was residing. He became aware that his hazard lights had been activated. His vehicle was relatively new, and he was still somewhat unfamiliar with the layout of his dashboard. He tried to locate the switch for the hazard lights, but was unsuccessful. At the gate, the NAS patrolman queried the applicant as to why his hazard lights were on. He explained it was a new truck and he was unable to locate the switch. The NAS patrolman then asked if he had consumed any alcohol, to which he stated he had a couple of beers over an extended period of time. * at approximately 0400, the applicant was administered a portable breathalyzer test * since portable breathalyzer tests have been found unreliable for purposes of convicting an individual beyond a reasonable doubt for driving under the influence of alcohol, a test administered by an Intoxilyzer 5000 is required * because NAS Kingsville does not have a properly calibrated Intoxilyzer, the applicant was transported to the Kleberg County Sheriff's Office at approximately 0503 for the purpose of conducting the test * at approximately 0534 and 0536, the test was administered and resulted in readings of 0.150 and 0.147 percent BAC respectively * at approximately 0654, he was issued a DD Form 1408 (Armed Forces Traffic Citation) and was advised of his right to remain silent in accordance with Article 31(b), UCMJ * at approximately 0700, Sergeant First Class (SFC) G____ arrived to pick him up from the naval military police and was informed the applicant had been cooperative with law enforcement personnel during the entire time * SFC G____ spoke with the recruiting station 1SG who stated "[Applicant] is going down and he is going to pay" c. The applicant went to the Sheriff's Office for the sole purpose of using a calibrated machine, which NAS Kingsville did not have, and was not considered an arrest. However, the readings do not accurately reflect his BAC at the time he originally approached the gate at NAS Kingsville, which was well over 2 hours earlier. The processing of alcohol concentration can be divided into three phases: absorption, peak, and post-absorption. Through the peak phase, the level of BAC will continue to rise. In this case, it is likely that his BAC level was significantly less (potentially lesser than the legal limit of 0.08 percent) at the time he was stopped at the gate than the time he was officially tested. Medically, the applicant suffers from type 2 diabetes which can also result in a skewed reading of BAC. * he was not stopped due to any erratic driving behavior, but for the routine process of providing his military identification card for inspection for entrance to the base when the NAS patrolman noticed his hazard lights were flashing * under the provisions of Article 31(b), UCMJ, his rights advisement should have occurred before he was asked if he had consumed any alcoholic beverages * the U.S. Navy requires that traffic violations that include driving under the influence be referred to the Federal Magistrate, using a DD Form 1805 (U.S. District Court Violation Notice), but instead a DD Form 1408 (Armed Forces Traffic Ticket) was issued to him * had the matter been processed correctly through a U.S. Attorney's office before a Federal magistrate judge, the evidentiary issues would have likely resulted in a finding of not guilty at trial * presuming a finding of not guilty at trial, the resulting actions of a GOMOR, nonjudicial punishment, relief-for-cause NCOER, and removal from the SFC promotion list would not have occurred and there would have been no basis for the resulting QMP Board 5. Having prior active and inactive enlisted service in the Army National Guard and U.S. Army Reserve, the applicant enlisted in the Regular Army on 21 November 2001 in the rank/grade of specialist/E-4. On 1 September 2007, he was promoted to the rank/grade of staff sergeant/E-6. 6. On 19 April 2015, at approximately 0654, he was issued a DD Form 1408 (Armed Forces Traffic Ticket) for driving under the influence of alcohol. The comments annotated in the remarks block, name of person issuing the traffic ticket, organization and installation are not legible. 7. On 29 May 2015, he was issued a GOMOR for drinking and driving wherein the Commanding General, Headquarters, U.S. Army Recruiting Command, stated: a. On 19 April 2015, he was stopped at the NAS Corpus Christi main gate where he failed field sobriety tests. His breathalyzer test results were 0.150 and 0.147 percent BAC, which exceeds the Texas state limit of 0.08 percent. b. The Army and this command have consistently emphasized the consequences of drinking and driving. Clearly, his actions fell below the standards expected of a noncommissioned officer. There is no excuse for his irresponsible and improper behavior, and further incidents may result in more serious action. c. The administrative reprimand was imposed under the provisions of Army Regulation 600-37 and not as punishment under Article 15, UCMJ. 8. On 12 June 2015, counsel submitted a request for extension to submit rebuttal matters for the GOMOR. She stated the case is convoluted. It involves Federal charges in the U.S. District Court, and thus requires extensive coordination with his civilian criminal attorney. Additionally, the applicant is currently seeking an evaluation by the Army Substance Abuse Program to determine what, if any, treatment is necessary. 9. On 24 June 2015, he accepted nonjudicial punishment for physically controlling a vehicle while drunk. The DA Form 2627 (Record of Proceedings under Article 15, UCMJ) shows: * he was afforded the opportunity to consult with counsel * he did not demand trial by court-martial * he requested a closed hearing * he requested a person to speak on his behalf * matters in defense, extenuation, and/or mitigation were presented in person * he was found guilty of the specifications * his commander directed filing the original DA Form 2627 in the performance folder of his AMHRR * he elected to not appeal * the punishment consisted of reduction to the grade of E-5 (suspended) and forfeiture of $1,562.00 pay for 1 month (suspended) 10. On 2 July 2015, counsel submitted a rebuttal for the GOMOR through the applicant's chain of command wherein she stated: a. The applicant requests rescission of the GOMOR as the allegations that form the basis are untrue. Alternatively, he requests filing the GOMOR locally. He makes these requests because the underlying facts are inaccurate, he has already received punishment for his actions, and he has taken immense steps to rehabilitate himself. b. On 18 April 2015, the applicant was conducting recruiting duties at NAS Corpus Christi. Later that evening, he went to dinner and to a local bar to play pool. During that time, he was separated from his wife and residing in Navy lodging at NAS Kingsville. At approximately 0315 on 19 April 2015, he approached the main gate of NAS Kingsville. As he approached the gate, he became aware his hazard lights had been activated. The vehicle was relatively new and he was still somewhat unfamiliar with the layout of his dashboard. He tried to locate the switch for the hazard lights, but was unsuccessful before arriving at the gate. c. At the gate, the NAS Kingsville patrolman queried him as to why the hazard lights were on and they had a conversation about the new vehicle and him being unfamiliar with the dashboard. The patrolman asked if he had consumed any alcohol, to which he stated he had a couple of beers over an extended period of time. d. At approximately 0400, he was administered a portable breathalyzer test. Since they are unreliable, and NAS Kingsville does not have a properly calibrated Intoxilyzer, he was later transported to the Kleberg County Sheriff's Office to conduct the test. At approximately 0533 and 0544, the test was administered and resulted in readings of 0.150 and 0.147 percent BAC. e. At approximately 0654, he was issued an Armed Forces Traffic Citation (DD Form 1408) and was advised of his right to remain silent. However, the time of the rights advisement poses a problem. Article 31(b), UCMJ, requires that service members must be read their rights before being questioned by law enforcement. Additionally, he was required to appear in traffic court at NAS Kingsville and his driving privileges on NAS Kingsville were suspended for a period of 1 year. f. On 27 May 2015, he received the first reading of nonjudicial punishment for the offense, which was stayed pending receipt of documentation that the matter would be prosecuted in U.S. Federal District Court. g. On 25 June 2015, counsel spoke with the Federal prosecutor, who advised that the U.S. Navy used the wrong form, delaying the process. h. On 29 June 2015, the applicant accepted nonjudicial punishment after being found guilty. He received a suspended reduction in rank and suspended forfeiture of pay. The nonjudicial punishment was directed to be filed in the performance folder of his AMHRR. i. Finally, in addition to the factual inconsistencies listed in the GOMOR, it is likely that his BAC level was significantly less at the time he was first stopped than when he was officially tested, which was over 2 1/2 hours later. The processing of alcohol concentration can be divided into three phases: absorption, peak, and post-absorption. Through the peak phase, the level of BAC will continue to rise. In this case, it is likely that his BAC level was significantly less (potentially lesser than the legal limit of 0.08 percent) at the time he was stopped at the gate. Medically, the applicant suffers from type 2 diabetes which can also result in a skewed BAC reading. 11. On 7 July 2015, counsel submitted an appeal for the nonjudicial punishment through his chain of command wherein she stated: * the punishment was unjust because there was not sufficient evidence before the hearing indicating that he was operating a motor vehicle while drunk at the time he approached the main gate at NAS Kingsville * Article 111, UCMJ, defines "drunk" as "any intoxication which is sufficient to impair the rational and full exercise of the mental or physical faculties" * he was not stopped due to any erratic driving behavior, but for the routine process of providing his military identification card for inspection for entrance to the base when the NAS patrolman noticed his hazard lights were flashing * under the provisions of Article 31(b), UCMJ, his rights advisement should have occurred before he was asked if he had consumed any alcoholic beverages * because NAS Kingsville does not have a properly calibrated Intoxilyzer, he was transported to the Kleberg County Sheriff's Office for the BAC test * at approximately 0534 and 0536, the test was administered and resulted in readings of 0.150 and 0.147 percent BAC respectively * due to the significant delay between his field sobriety testing at 0400 and the official testing, the results do not match his BAC while operating a vehicle * at approximately 0654, he was issued a DD Form 1408 (Armed Forces Traffic Citation) and was untimely advised of his right to remain silent in accordance with Article 31(b), UCMJ 12. On 30 July 2015, consistent with recommendations by his chain of command, the GOMOR-imposing authority directed permanently filing the GOMOR in the applicant's AMHRR. 13. His NCOER covering the period 21 September 2014 through 10 July 2015 was completed on 26 August 2015 and shows in: a. Part Ig (Reason for Submission), 05/Relief for Cause; b. Part IVa5 (Honor: Lives up to all the Army values), his rater marked the "No" block and commented: "he did not uphold all of the Army values"; c. Part IVa6 (Integrity: Does what is right – legally and morally), his rater marked the "No" block and commented: "demonstrated a lack of integrity and poor judgment without consideration of results"; d. Part IVd (Leadership), his rater marked the "Needs Improvement (Some)" block and commented: "displayed poor judgment as a member of the Profession of Arms; failed to maintain acceptable standards of conduct"; e. Part IVf (Responsibility and Accountability), his rater marked the "Needs Improvement (Some)" block and commented: * he has been notified of the reason for the relief * suspended from recruiting duty for violating the Army Values; violated U.S. Army Recruiting Command Regulation 190-3 (Procedures in Drunk Driving Cases) f. Part Va (Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), his rater marked the "Marginal" block; and g. Part Vc (Overall Performance), his senior rater commented "senior rater does not meet minimum qualifications." 14. A memorandum from the Deputy Commanding General, Headquarters, TRADOC, dated 6 October 2015, subject: Notification of Suspension and Intent to Permanently Remove from Position of Significant Trust and Authority Due to Disqualification, advised that he is being considered for permanent removal from recruiting duties due to derogatory information precluding suitability to serve in a position of significant trust. The basis for this determination is credible evidence of alcohol abuse, which constitutes a disqualifying offense. He is suspended from all recruiting duties until a final decision is made, has the right to consult with counsel, and may submit matters in rebuttal. 15. On 19 October 2015, HRC advised the applicant's chain of command that he was recommended for selection to SFC by the promotion board that was convened on 2 June 2015. However, after screening his record and discovering the GOMOR and relief-for-cause NCOER, his record was referred to a Headquarters, Department of the Army, Standby Advisory Board (STAB). The memorandum further advised the STAB will make a recommendation as to whether he should be retained or removed from the promotion list. Until then, he will remain flagged until a final decision is rendered. He may submit a rebuttal in his own his behalf before 20 November 2016. 16. On 20 November 2015, counsel submitted a rebuttal to the STAB on behalf of the applicant wherein she stated the applicant requests to remain on the promotion list. She explained the details and sequence of the adverse actions that occurred and summarized: * the underlying basis utilized for the GOMOR, evaluation, and nonjudicial punishment are factually inaccurate * his immediate command prematurely determined guilt and forced him through an unfair process * the applicant is a Soldier of the caliber commensurate with the rank of SFC 17. On 12 May 2016, HRC advised that the STAB was convened on 1 March 2016 to consider whether he should be retained or removed from the Fiscal Year 2015 SFC List. The board members recommended, and the Director of Military Personnel Management approved, the board's recommendation for his removal. The memorandum further stated he will be eligible to compete in subsequent boards if otherwise qualified for consideration. 18. The memorandum from the Deputy Commanding General, Headquarters, TRADOC, dated 23 May 2016, subject: Notification of Reinstatement to Position of Significant Trust and Authority, directed his reinstatement as a recruiter. He further stated: * the information in his file does not call into question his character, conduct, or personal integrity * he is still best suited to serve in a position of significant trust and authority 19. On 17 August 2016, the Certificate of Search, U.S. District Court, shows that after a diligent search of the records, there were no criminal actions against the applicant during the period 1 September 2013 through 17 August 2016. 20. Headquarters, U.S. Army Recruiting Command, Orders 235-07, dated 22 August 2016, reinstated his special duty proficiency pay effective 23 May 2016. 21. On 11 October 2016, HRC advised the applicant that a QMP Board would convene on 7 February 2017 to consider him for separation as a result of the GOMOR permanently filed in his AMHRR. It further advised he may submit matters of mitigation or extenuation for consideration no later than 27 January 2016. 22. The memorandum from the Commander, U.S. Army Recruiting Company – Corpus Christi, dated 18 October 2016, subject: Performance of (Applicant), states that since he took command of the unit, the applicant's performance has been satisfactory and he has performed all assigned tasks in a timely manner. Further, he stated that based on what he knows now, he believes: * the nonjudicial punishment occurred the same week that he took command by the previous leadership to resolve an outstanding legal issue * the hearing was rushed and evidence presented may have been erroneous * the timing of the hearing, which occurred immediately before a 4-day weekend, was purposeful in order to minimize the amount of business days the applicant had to respond to the hearing 23. On 19 October 2016, counsel petitioned HRC to remove or correct the applicant's relief-for-cause NCOER. She summarized the details and sequence of the adverse actions that she had previously submitted to his chain of command. 24. On 17 January 2017, counsel petitioned the DASEB for removal/transfer of both the GOMOR and nonjudicial punishment for the applicant, presenting matters previously submitted for extenuation and mitigation to his chain of command and the QMP Board. She explained the details and sequence of the adverse actions that had occurred and summarized: * unfavorable information can be removed from an AMHRR if the information is found by clear and convincing evidence to be untrue or unjust * both a GOMOR and nonjudicial punishment may be transferred to the restricted folder if it is determined they have fulfilled the intended purpose and transfer would be in the best interest of the Army * the GOMOR should be removed or moved to the restricted folder because it is untrue, inaccurate, and was based on erroneous information * the nonjudicial punishment was based on the faulty GOMOR * the Deputy Commanding General, TRADOC, reviewed the applicant's record and has already determined the information in his file does not call into question his character, conduct, or personal integrity and he is still best suited to serve in a position of significant trust and authority 25. On 18 January 2017, counsel petitioned the ESRB for removal of the nonjudicial punishment for the applicant, presenting matters previously submitted for extenuation and mitigation to his chain of command. She explained the details and sequence of the adverse actions that had occurred and summarized: * the nonjudicial punishment should be removed because it is unjust and untrue * there was not sufficient evidence indicating he was operating a motor vehicle while drunk at the time he approached the main gate at NAS Kingsville * Article 111, UCMJ, defines "drunk" as "any intoxication which is sufficient to impair the rational and full exercise of the mental or physical faculties" * he was not stopped due to any erratic driving behavior, but for the routine process of providing his military identification card for inspection for entrance to the base when the NAS patrolman noticed his hazard lights were flashing * under the provisions of Article 31(b), UCMJ, his rights advisement should have occurred before he was asked if he had consumed any alcoholic beverages * because NAS Kingsville does not have a properly calibrated Intoxilyzer, he was transported to the Kleberg County Sheriff's Office for the BAC test * at approximately 0534 and 0536, the test was administered and resulted in readings of 0.150 and 0.147 percent BAC respectively * due to the significant delay between his field sobriety testing at 0400, and the official testing, the results do not match his BAC while operating a vehicle * at approximately 0654, he was issued a DD Form 1408 (Armed Forces Traffic Citation) and was untimely advised of his right to remain silent in accordance with Article 31(b), UCMJ * even if the nonjudicial punishment is determined to be accurate, the purpose has been fulfilled and it should be moved to his restricted folder 26. On 19 January 2017, counsel submitted matters in extenuation and mitigation to the QMP Board on behalf of the applicant wherein she stated he should be retained for continuation on active duty because his performance, conduct, and potential to serve in positions of increasing responsibility meet the high standards of the Army. She explained the details and sequence of the adverse actions that occurred and summarized: * the underlying derogatory information which formed the basis for consideration by the QMP Board is both untrue and unjust * his previous command pushed derogatory information without adequate investigation and for personal reasons * he was reinstated in his recruiting position, a billet of high trust and responsibility, and has maintained his security clearance * if the misconduct truly occurred, he would have been involuntarily separated * the Deputy Commanding General, TRADOC, reviewed his record and already determined the information in his file does not call into question his character, conduct, or personal integrity and he is still best suited to serve in a position of significant trust and authority 27. On 3 April 2017, HRC notified the applicant the QMP Board recommended denial of continued active duty service. As a result, the Director of Military Personnel Management approved the board's recommendation and he will be involuntarily discharged from the Army not later than 1 November 2017. In lieu of involuntary discharge, he was advised that he may request an earlier separation date, or may appeal the decision within 30 days and request retention on active duty. 28. On 2 May 2017 in Docket Number AR20160016943, the ESBR denied the applicant's request to remove or correct his relief-for-cause NCOER. The board stated, in part: * counsel contends the applicant's type 2 diabetes could have had an adverse and disproportionate effect on the BAC but did not provide any medical documents to support that argument * counsel did not provide any letters of support from his chain of command * there is a presumption of regularity in the process of evaluation reports and there was no clear and convincing evidence to support his contention that the NCOER contains a material error, substantive inaccuracy, or is unjust 29. On 23 May 2017 in Docket Number AR20170001650, the DASEB denied the applicant's request to remove the GOMOR from his AMHRR. The board stated, in part: * counsel provided several documents, but did not provide any evidence which negated the imposition of the GOMOR * counsel did not provide sufficient evidence which supports the contention that the GOMOR's purpose has been served or that it is in the best interest of the Army to transfer it to the restricted folder of his AMHRR 30. On 1 November 2017, he was honorably discharged under the provisions of Army Regulation 635-200, chapter 19. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows: * he completed 15 years, 11 months, and 11 days of net active service during this period * he completed 1 year and 6 months of total prior active service * he completed 9 years, 10 months, and 3 days of prior inactive service * he completed 6 years, 10 months, and 4 days of foreign service * separation pay – $40,828.03 * member is entitled to half separation pay * narrative reason for separation – Non-Retention on Active Duty 31. On 20 December 2019, in Case , counsel filed a motion for voluntary remand in the U.S. Court of Federal, requesting that the Court remand this case to the Secretary of the Army with instructions for the ABCMR to consider the claims for relief by the applicant. The primary argument is that the Army's decision to adjudicate his involuntary separation from service through a QMP Board denied him the ability to submit evidence that would have been permitted had that decision been reviewed by an administrative separation board. Such a decision would allow the ABCMR to review the applicant's claim that the QMP Board's decision was inconsistent with other evidence indicating his good conduct, performance, and/or potential for advancement. 32. On 2 January 2020 in Case , the U.S. Court of Federal ordered the ABCMR to review the applicant's concerns with the integrity of his personnel record and the terms of his separation from service. The Court agrees that a remand to the ABCMR is warranted. Accordingly: * the applicant's unopposed motion for a voluntary remand is granted * the applicant's claims are remanded to the Secretary of the Army so the ABCMR may review the allegations, permit the applicant to submit additional information and argument, and grant any appropriate relief * the initial duration of the remand is for 180 days or until 30 June 2020, which may be extended upon motion * the Clerk's Office is directed to serve a certified copy of the order to the ABCMR * the Clerk's Office is directed to stay further proceedings until further ordered * the applicant will file a status report on or before 1 April 2020, and every 90-day interval thereafter, indicating the status of proceedings on remand * the applicant shall file a notice of the ABCMR's decision within 30 days of the ABCMR decision 33. On 1 April 2020, counsel submitted a supplement to complaint and request for correction of records. As remanded, she requests the ABCMR review this matter pursuant to Title 10, U.S. Code, sections 1552 and 1558, as outlined in paragraph 4. 34. His DA Form 5016 (Chronological Statement of Retirement Points), dated 15 April 2020, shows that from 5 July 1990 through 20 November 2001, he completed 10 years, 4 months, and 16 days of qualifying service in the Army National Guard and U.S. Army Reserve for retired pay at age 60. BOARD DISCUSSION: 1. 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. (Hereinafter, “Selection Board” refers to the QMP Selection Board; “the Board” or “this Board” refer to the ABCMR board that reviewed this case.) 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, 19 DEC 2016. 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, 19 DEC 2016. 2. In accordance with the applicant’s counsel’s request, the issue with regard to the decision to involuntarily separate the applicant were reviewed under the provisions and authority of 10 U.S.C. 1558 and 10 U.S.C 1552. The balance of the applicant’s requests were reviewed under the provisions of 10 U.S.C 1552. 3. An NCO will be considered for denial of continued service when U.S. Army Human Resources Command (HRC) receives material from one of the following categories for permanent filing in the Performance or Restricted folder of the NCO’s Army Military Human Resource Record (AMHRR) (this material must be based on performance or conduct in the Soldier’s current grade): (1) General Officer Memorandum of Reprimand (GOMOR). (2) Conviction by court-martial or punishment under Article 15, Uniform Code of Military Justice (UCMJ). (3) DA Form 2166-8, NCO Evaluation Report (NCOER), with any of the following: (a) Relief for Cause NCOER; (b) Annotation of “NO” in Part IV, block a (Army Values) on an NCOER; (c) Senior Rater rating of 4 (Fair) or 5 (Poor) in the Overall Performance or Potential blocks of an NCOER. (4) DA Form 2166-9-2, NCO Evaluation Report (SSG-1SG/MSG), with any of the following: (a) Relief for Cause NCOER; (b) Annotation of "Did Not Meet Standard" in Part IV, blocks c, d, e, f, g, h or i; (c) Annotation of "Not Qualified" in Part V, block a; (5) DA Form 2166-9-3, NCO Evaluation Report (CSM/SGM), with any of the following: (a) Relief for Cause NCOER; (b) Annotation of "Did Not Meet Standard" in Part IV, block c or e; (c) Annotation of "Not Qualified" in Part V, block a. (6) Academic Evaluation Report (DA Form 1059) indicating Noncommissioned Officer Education System (NCOES) course failure. MILPER Message Number 16-251, Procedures for the FY17 Qualitative Management Program (QMP) [Issued 9/7/2016]. 4. Thus, the foregoing regulatory provisions and the MILPER Message for executing the procedures of the FY2017 QMP Selection Board establish the criteria for how an NCO would properly be selected for denial of continued service in the Army. According to the MILPER Message, any single criterion provided in paragraph 2(a) of the message would justify selection for denial of continued service. A review of the applicant’s AMHRR record indicates three separate items that individually would satisfy the criteria for denying the applicant continued service in the Army: a) punishment under Article 15, UCMJ; b) an NCOER that is a relief for cause OER and which contains numerous negative evaluation entries, and c) a General Officer Memorandum of Reprimand (GOMOR). Consequently, the Board found ample documentation for the QMP Selection Board to find that the applicant should be denied continued service in the Army. 5. Applicant’s counsel argues that each of the derogatory documents in the applicant’s AMHRR derives from a single DUI incident and that procedural and substantive errors committed by the government make it improper and / or unjust to base adverse administrative actions on these documents. Applicant’s counsel asserts that the Article 15, UCMJ proceedings were rushed and that the applicant consequently was denied due process. But applicant’s counsel can point to no authority that prohibits the government from conducting the Article 15 hearing within the time periods indicated by the Article 15 documentation. Army Regulation 27-10 governs Article 15 procedures and it does not provide a minimum amount of time a Soldier should be afforded to prepare his case for the Article 15 hearing. The regulation indicates the Soldier should be provided a reasonable amount of time. In this case, the applicant was notified on 27 May 2015 that his battalion commander intended to dispose of the alleged DUI misconduct using Article 15 proceedings. The regulation provides that a Soldier should be given at least 48 hours in which to consult with counsel and to decide whether to accept Article 15 proceedings. The record indicates that the applicant was represented by both a military appointed JAG officer and by a civilian attorney. The documentation indicates that the applicant made his decision to accept Article 15 proceedings, and to not request a court-martial, on or about 29 June 2015. The applicant and his attorneys therefore had more than a month to prepare for a proceeding that is administrative and non-adversarial. (See AR 27-10, paras. 3-18(g)(2) and (h) (11 May 2016)). The Board found that a month’s time is more than adequate to prepare for an Article 15 hearing. The Board consequently determined found that the applicant has not demonstrated by a preponderance of evidence that the Article 15 proceeding were “rushed” or that he and his counsel were not afforded adequate time to prepare for the proceedings. 6. Applicant and his counsel assert that the Navy’s law enforcement personnel used the wrong form to record the facts about the applicant’s DUI arrest. Applicant’s counsel argues that this procedural error undermines the reliability of the accusations against the applicant, and that all the derogatory documents resulting from the arrest should be discarded. But it is unclear from counsel’s argument how a purely procedural error such as using the wrong form should undermine the validity of the substantive accusations against the applicant. The greater weight of the evidence indicates that the applicant was drinking that night; that he voluntarily operated a motor vehicle; and that chemical testing revealed that his blood alcohol content was above the legal limit. A letter with the subject “character statement” offered on behalf of the applicant indicates that the letter’s author talked with the applicant and that the applicant “regrets his actions” and that he “understands that he made a bad decision.” Applicant’s counsel asserts that applicant’s actual blood alcohol content at the time of his arrest was probably lower than the very high test result that later was obtained using a breathalyzer. But counsel offers no scientific or logical explanation for this counterintuitive assertion. Nor does counsel offer anything other than speculation relative to the claim that the applicant’s diabetic condition caused his blood alcohol test to register a result that was false and too high. Consequently, the Board found that the greater weight of the evidence supports a finding that no prejudicial error occurred relative to how the Navy documented the applicant’s DUI arrest. The Board likewise found that the greater weight of the evidence supports a finding that the applicant did unlawfully operate a motor vehicle while intoxicated. 7. Applicant’s counsel highlights the fact that in May 2016 the Deputy Commanding General (DCG) of Training and Doctrine Command reinstated the applicant for recruiting duty. The DCG made this determination so that the applicant could finish his tour of duty as a recruiter, thereby eliminating the need to transfer him to another duty positon. But Army NCOs do not spend their entire careers as recruiters. Instead, as they rise through the ranks, they are expected to lead larger and larger units of actual Soldiers. Consequently, the DCG’s determination that the applicant had sufficient characteristics to remain as a recruiter is not binding on other Army decision makers (such as the QMP Selection Board) as to whether the applicant should, or should not, be retained for additional Army service. As previously indicted, the applicant’s DUI offense and the resulting derogatory documentation are ample justifications for the QMP Selection Board’s decision. Consequently, the Board determined that the DCG’s decision to retain the applicant as a recruiter in no way undermines the QMP’s decision to select the applicant for denial of continued Army service. 8. Applicant’s counsel asserts that the applicant was unlawfully prejudiced by the command’s refusal to consider his Article 15 appeal relative to the imposing commander’s decision to find the applicant guilty and to impose punishment. But the record indicates that the applicant himself chose to annotate the Article 15 form to indicate that he wished to waive his right to appeal. It should be noted that the applicant was not a junior enlisted Soldier when he made his waiver decision, but instead was an experienced NCO. Moreover, the applicant and his counsel later failed to submit their appellate matters within the 5 calendar days allotted for Article 15 appeals. Applicant’s counsel now claims that more than 5 calendar days should have been permitted because the 5 days allotted fell on a federal holiday weekend. But the use of “calendar days” instead of “business days’ should have alerted the applicant and his counsel that only 5 days would be permitted despite the federal holiday coinciding with the time for the appeal. Furthermore, it seems inexplicable that the applicant and his counsel would wait for the last minute, whether that last minute pertained to 5 calendar days or business days, to submit their appeal. The Board therefore finds that applicant’s inability to submit appellate matters for his Article 15 was as much attributable to his own mistake (initially indicating appellate rights waiver) and to procrastination as it was attributable to the command’s inflexible attitude regarding the deadline. Furthermore, the Board finds that that the applicant and his counsel have not offered any compelling facts or argument that plausibly would have convinced the commander who imposed Article 15 punishment to overturn his finding of guilt or to reduce the punishment imposed. 9. Applicant’s counsel asserts that the applicant never was processed for involuntary separation for misconduct under Chapter 10, AR 635-200. But Chapter 10 of AR 635- 200 pertains only to Soldiers pending court-martial who submit requests to be discharged in lieu of facing trial by court-martial. A review of the applicant’s records indicate that court-martial charges were never preferred against him or referred to court- martial. Consequently, Chapter 10 of AR 635-200 would have no applicability to the applicant’s situation. 10. Applicant’s counsel asserts that the QMP Selection Board might not have fully considered materials counsel had sent to the QMP board. Applicant’s counsel asserts these materials “may not have been considered.” But Army regulations provide that the ABCMR will “begin 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.” AR 15-185, para. 2-9. Applicant’s assertions in this regard are merely speculative and do not undermine the propriety of the QMP Selection Board’s proceedings. Moreover, this Board is empowered to take corrective action and has available to it any matters the applicant and his counsel wished to submit. Thus, the Board found that the applicant has failed to demonstrate by a preponderance of evidence that an error or injustice occurred relative to the QMP’s consideration of relevant matters in making its decision to select the applicant for denial of continued service in the Army. 11. As previously discussed, 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 Selection Board’s decision complies with AR 635-200. Neither the applicant nor his counsel has explained how the QMP Selection Board’s decision fails to comport with applicable law, regulation, or policy. In light of the applicable provisions of AR 635-200 and MILPER Message 16- 251, this Board found nothing unusual or improper with regard to the QMP’s decision. This Board therefore found that the applicant and his counsel have failed to demonstrate by a preponderance of evidence that an error or injustice occurred. Consequently, and in accordance with 10 U.S.C. 1552, 10 U.S.C. 1558, and Army Directive 2016-33, the Board determined that the QMP Selection Board’s decision to choose the applicant for denial of continued service was not erroneous, unjust, or unfair. 12. To the extent the balance of the applicant’s requests pertain to removal of the Article 15, GOMOR, and / or the referred NCOER, the Board was persuaded by the same evidence previously discussed that the applicant and his counsel have failed to demonstrate by a preponderance of evidence any error or injustice associated with those documents. Therefore, and in accordance with 10 U.S.C 1552, the Board determined that the applicant has failed to demonstrate an error or injustice warranting a correction to his military records. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200000129 25 1