ABCMR Proceedings (cont)                                                        AR2002075705

PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            25 November 2003
	DOCKET NUMBER:   AR2002075705

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

| Mr. Carl W. S. Chun | | Director
| Mr. Jessie B. Strickland | | Analyst

The following members, a quorum, were present:

| Mr. Raymond V. O’Connor, Jr. | | Chairperson
| Ms. Lana E. McGlynn | | Member
| Ms. Yolanda Maldonado | | Member

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that he be issued a certificate of completion for the United States Army War College (USAWC), that he be designated as a Military Education Level – 1 (MEL-1) graduate, that he be promoted to the rank of colonel with a date of rank (DOR) of 27 February 2001 and that all documents related to his non-completion of the USAWC be removed from his Official Military Personnel File (OMPF). 

3.  The applicant states, in effect, that he was a student of the USAWC in the Senior Service College Fellowship (SSCF) Program from 13 August 1999 to 30 June 2000 and he completed all of the regulatory requirements for graduation on time and to standard.  He goes on to state that his fellowship sponsor withdrew its sponsorship on 1 February 2000 and his place of duty changed to the National Guard Bureau and Old Dominion University.  His student status did not change and he continued with the course requirements.  However, because the fellowship sponsor for his fellowship withdrew from the program in February 2000, an Academic Review Board (ARB) was convened at the USAWC on 14 April 2000 to determine if he was deemed to have successfully completed the SSCF at his sponsorship agency.  The ARB determined that he did not successfully complete the fellowship program of his sponsor agency because they terminated the fellowship on 1 February 2000.  The ARB opined that the over-arching academic and independent research activities of the applicant since the termination by his sponsor agency was insufficient to be deemed equivalent of a designated MEL-1 educational experience.  However, he was not disenrolled and completed all of the course requirements, as did other SSCF students.  He continues by stating that he did not meet his agency sponsor, who was physically in California, until 6 months after he was in the program and just before the agency decided to terminate his fellowship.  He contends that the agency did not want him from the beginning and set him up for failure because they wanted to select one of their own officers for the program; however, they were unable to do so and withdrew from the program until such time as they could restructure an agreement that was acceptable to both the agency and the USAWC.  Meanwhile, he (the applicant) was the one to suffer the consequences of a program in which the proper framework had not been established.  As a result, he lost job opportunities and his promotion to the rank of colonel because he could not fill billets that required a MEL-1 and his SSCF peers received their promotions ahead of him.  Additionally, he received a damaging AER that contained unfounded comments by someone who did not have any contact with him during the course.  In support of his application he submits an extensive explanation along with supporting documents to show the chain of events that occurred, which include electronic mail (e-mail) messages detailing daily events, many of which he obtained thru the Freedom of Information Act.

4.  The applicant’s military records show that on 12 July 1999, the National Guard Bureau (NGB) published notification that the applicant (a National Guard, Special Forces lieutenant colonel serving on active duty in the Active Guard/Reserve Program) had been selected for attendance at the USAWC and that he had been selected to be a SSCF for academic year (AY) 2000, with another Federal agency.  Orders were published on 26 July 1999 attaching the applicant to the USAWC with duty at the Federal agency effective 14 August 1999 through 15 June 2000.  His orders also indicated that the agency liaison officer was in California.  It is noted that as part of his course requirement, the applicant was required to submit monthly progress reports to the USAWC SSCF Program Director.

5.  On 24 January 2000, the applicant's sponsoring agency dispatched a letter to the Department of the Army Deputy Director, Operations and Plans, Strategy, Plans, and Policy Directorate, informing Department officials that the agency was rewriting the Memorandum of Understanding (MOU) for the SSCF Program to include specific terms and critical tasks, due to numerous issues and unfulfilled expectations identified in the current pilot fellowship.  It also informed officials that the agency was withdrawing from the program effective 1 February 2000 and terminating the agency's relationship with the current fellow (the applicant).  It did not mention the applicant by name. 

6.  On 4 February 2000, the USAWC SSCF Program Director dispatched an email indicating that the applicant's agency had terminated its relationship with the applicant and that the NGB had published orders reassigning him to the NGB where he would continue to work on his SSCF research project in collaboration with another SSCF at Old Dominion University (also a participating agency in the SSCF Program).  The email also indicated that the agency was rewriting the MOU that was not finalized for AY2000 and that at the present time the applicant was still enrolled in the USAWC as a SSC fellow.  Additionally, an ARB would be convened to determine the facts and circumstances surrounding the applicant's termination and additional information would be requested from the agency.

7.  On 7 February 2000, the Program Director approved the applicant's request for two trips to Norfolk and indicated that he had been led to believe that the NGB had found a workspace for him with communications so that he could continue his fellowship work.  He informed the applicant to provide him a phone number where he could be reached and let him know when he was on-line at a workstation. 

8.  The USAWC Dean of Academic dispatched a letter to the agency official who withdrew the agency from the SSCF Program and requested that information (specific written examples) be provided to the ARB which led to the agency's decision to terminate the fellowship for that year.  He requested a chronological summary of key events, incidents, or circumstances that cause the fellowship to be terminated, to be used by an ARB.   

9.  The Program Director again dispatched an email on 28 March 2000 regarding the ARB process, which is quite lengthy and is best read by members of the Board.  However, it is noted that the Program Director recommended that the faculty advisor be called in to testify at the ARB.

10.  The official at the agency in question responded on 10 March 2000 to the effect that the agency entered into the fellowship program with the vision that the relationship would be mutually beneficial and productive; however, once implemented, the agency determined that it was neither.  An initial and significant factor in the failure was the lack of a mechanism for the agency senior management to interview final candidates and provide an assessment to the selecting officials.  The agency official also stated that no formal affidavits would be provided regarding details of why the agency withdrew from the fellowship.  Again, the applicant's name was not mentioned.

11.  The applicant was notified on 28 March 2000 that he had until 10 April 2000 to submit matters in his own behalf to be considered by an ARB that would be convened on 14 April 2000.  He was also informed that failure to acknowledge the letter would result in his disenrollment from the USAWC and the issuance of an AER indicating his failure to meet academic standards.  The applicant submitted a three-page response on 7 April 2000.

12.  On 31 March 2000, the Deputy Chief of Staff for Operations and Plans (a lieutenant general) dispatched a letter to the agency informing them that their participation in the SSCF Program was suspended for the AY2000-01.  He indicated that based on the agency's decision to terminate its association with an Army officer assigned to the fellowship for AY1999-00, it was apparent that the appropriate framework in the agency did not exist.  Suspension from the program for the following year would allow the agency time to assess whether the relationship between the Army and the agency could be mutually beneficial to both sides.

13.  The ARB convened at the USAWC on 14 April 2000 and the applicant was the only person afforded the opportunity to speak before that board.  However, the faculty advisor was waiting outside the boardroom to testify and was not called to testify.

14.  The ARB recommended and unanimously agreed that he should not be awarded MEL-1 credit or a USAWC Certificate of Completion and cited as the reason for their decision that the applicant's over-arching academic and independent research activities since the termination of his fellowship was insufficient to be deemed equivalent of a designated MEL-1 educational experience as prescribed in paragraphs B-2.b.(1) and B-2-i.(2), Army Regulation 621-7.  The ARB also recommended that he remain eligible for another opportunity to gain MEL-1 experience and the actions of the ARB or his agency's experience should not prejudice his selection and attendance at a resident Senior Service College.  The ARB made no finding as to the reason behind the agency's termination of the fellowship program and did not pursue the rationale behind the agency's decision.  The commandant approved the findings and recommendations of the ARB on 26 April 2000.

15.  On 24 May 2000, the Dean of the College of Engineering and Technology at Old Dominion University (ODU) dispatched a letter to the commandant of the USAWC indicating that the applicant had completed the program for research fellows in Interagency Strategic Planning and Analysis for Civil/Military Crisis at the original cited agency, the NGB and ODU.  In the two-page letter he indicated the applicant's accomplishments and opined that the applicant had made the most of his time during the fellowship year and that he had developed a keen knowledge and understanding of the Federal Response Plan and interagency emergency management structure.

16.  The applicant appealed the commandant's decision to the commandant on 26 May 2000.  The commandant denied his appeal on 11 July 2000.

17.  In a 8 June 2000 email from the applicant's faculty advisor at the USAWC, the faculty advisor informed the applicant that he had completed all of the SSC Fellowship academic requirements. 

18.  The applicant appealed the commandant's decision to the Deputy Chief of Staff for Operations and Plans on 27 July 2000 and his appeal was denied on 11 August 2000.  Meanwhile, on 10 August 2000, the Director of the Army National Guard (a major general) also authored a letter of support to the same official recommending approval of the applicant's appeal.  He cited that despite the agency's termination of the fellowship, the USAWC continued to support the applicant's efforts to complete the fellowship and the NGB was never notified that completion of the fellowship was, in effect, an issue. 

19.  On 27 July 2000, a Civilian Institution Academic Evaluation Report (DA Form 1059-1) was prepared by the new Director of the SSCF Program, which indicates that the applicant failed to meet minimum course standards in order to achieve a Certificate of Completion and MEL-1 designation.  It further states that the agency terminated his fellowship on 24 January 2000 based on what the agency described as ongoing, uncorrected, unacceptable and unprofessional behavior.  An ARB was convened which determined that he had not met the requirements outlined in Army Regulation 627-1 and the applicant was afforded an opportunity to appeal the ARB's results.  However, the ARB findings were upheld by all appellant activities.  The AER cited the 10 March 2000 letter from the sponsoring agency as the source document and indicated it as an enclosure to the AER. (Report would have had to be backdated for this to be true)

20.  On 17 August 2000, the applicant's faculty advisor (a colonel) authored a letter in which he again confirmed that the applicant had completed each and every stated USAWC SSCF Program requirement on time and to standard and that it was a matter of record that he confirmed with the USAWC Fellowship Office on 8 June 2000.  He also stated that his first indication that there would be a problem with the applicant's sponsoring agency was shortly after the announcement that the applicant had been selected for a fellowship with that agency, because the agency indicated that they had selected another officer for the fellowship instead of the applicant.  He and other staff members of the USAWC, the Army Staff and the NGB were aware of this situation.  He goes on to state that the agency's apparent lack of support and guidance to the applicant was also a negative factor.  This was further exacerbated by the fact that the agency advisor was located in California and did not meet the applicant until he had been in the program a full 6 months.  He further states that after the applicant's fellowship with the agency was terminated, he continued his research and studies with the support of the USAWC staff.  He also states that he was present for the ARB but was not called to testify and he does not understand the ARB's decision.  Especially since he was not disenrolled and was allowed to complete the course requirements with the USAWC's knowledge and support.  Most disturbing was the AER he received from an officer who had no knowledge of the applicant's performance.  The report is fraught with damming misinformation and is in violation of Army Regulations.  He contends that the applicant should have been granted completion of the course.

21.  The applicant appealed the commandant's decision to the Vice Chief of Staff of the Army on 28 September 2000.  His appeal was returned without action.

22.  On 6 October 2000, the Director of the SSCF Program forwarded the DA Form 1059-1 pertaining to the applicant to the Army National Guard Readiness Center for transmittal to the applicant.  There is no indication of the report being referred to the applicant. 

23.  The applicant was subsequently assigned to Training and Doctrine Command (TRADOC) on 14 August 2002 for duty as the Director, Homeland Security Directorate.  He was promoted to the rank of colonel on 19 December 2002 with a DOR of 31 August 2001.

24.  A requirement of the SSCF Program was that the student/fellow was required to submit a monthly progress report of activities to the SSCF Program Director at the USAWC.  The applicant did so beginning on 30 August 1999 and continued through May 2000.  A brief review of those reports show that he arrived at his agency on 13 August 1999 and was assigned a workspace.  He indicated that there was some confusion over his role as an Army Fellow and a perception that he was a backfill for another colonel who was an action officer at the agency and who was responsible for establishing the fellowship.  That officer departed the agency on 28 August 1999.  He reviewed the agency SSCF MOU and drafted a spreadsheet to assist him in preparing a lesson plan and justification for requesting additional travel funds from the NGB.  He indicated he was awaiting feedback from his sponsor (in California).  He also indicated that he had participated in an agency seminar, had submitted a request for permissive travel, had hosted a fellow from ODU and had agreed to collaborate on a research project with the ODU fellow.  He also indicated that he was working with the USAWC to obtain a clearance for access to the agency and that the agency was still trying to fix his email.

25.  His second progress report indicated that he had attended a conference in Atlanta, Georgia, that he worked the agency's emergency support team for a hurricane on 18 – 19 September 1999 and agreed to cover for the Military Support Liaison while he was on leave from 1 – 11 October 1999.  He noted all visits and visitors during the period, that he had submitted his individual learning plan to the Executive Associate Director of the agency, that he had a meeting with and was able to provide a common understanding of what the fellowship program was all about.  As a result, he was provided a local in-house mentor which he described as a great move.  He further indicated that officials indicated that an attempt would be made to procure him an office that would improve access to the staff and the information sharing process.

26.  Report number three was much the same as one and two except that he still did not have a permanent office in which to hang his hat and his email account was not working.  Report number four also indicated the same information.  Report number five indicated that the military support liaison had scheduled him on the duty roster to work the Y2K issue from 28 –31 December 1999; however, on 27 December, he was notified that the civilian supervisor pulled him from the duty roster.  He went on to state that space management and fellowship (mission) guidance was still a challenge and that he was working to become more visible at the agency.  On 29 December 1999, he was informed by the military support liaison that the agency might desire to withdraw the fellowship.

27.  Report number six indicates that he was working out of the military support liaison's office and although he continued to try and find a niche (guidance or a project) in the agency, his efforts were unsuccessful.  On 14 January 2000, his advisor (from California) advised him that the agency would be terminating his fellowship. He received orders on 28 January 2000 changing his place of duty to the NGB, where he was provided office space and admin support.   

28.  Reports seven through nine outlined his progress and activities and indicated that he had spoken to the SSCF Program Director regarding an ARB.  An ARB was scheduled and he was subsequently notified of the results.

29.  A review of email traffic obtained by the applicant shows that on 10 May 1999, before the applicant was selected for the SSCF Program, the SSCF Program Director visited the agency in question for an orientation in conjunction with the agency becoming a fellows participant.  The agency official (applicant's advisor in California) began email correspondence to the Director in which he indicated that an officer (a colonel in the agency) had already been identified (same individual named by the applicant) to be the agency's first fellow and he outlined how he expected the program to work for the agency's fellow. It should be noted that the proposal was contrary to what actually materialized.  In any event, the SSCF Director responded to the effect that he was concerned that the proposal required a lot of time at the Navy War College versus the agency and that report dates were the call of the Department of the Army and the NGB.

30.  A review of the applicant's OMPF, produced on 11 February 2003, failed to reveal the presence of the contested AER or any supporting documents. 

31.  Army Regulation 621-7 establishes policy and program guidance governing the Army Senior Service College Fellowships for which MEL-1 credit is awarded. Appendix B provides the SSCF Program standards, criteria, and goals.  It provides, in pertinent part, that the standards for evaluating fellowships should be as objective as possible.  A MEL-1 equivalent fellowship must be at least 9 months in duration and the focus of the curriculum clearly must be educational as opposed to operational.  The fellowship is not designed to augment an agency or institution staff in the performance of its duties.  As a general rule, any program of study of less than 9 months duration or in which less than 50 percent of the program can reasonably be attributed to satisfaction of the MEL-1 criteria, will not be designated as MEL-1.  Officers will be considered to have achieved MEL-1 upon successful completion of a designated MEL-1 educational experience.

32.  USAWC AY2000 SSCF Program directive provides, in pertinent part, that the sponsoring institutions and agencies will set the pace and outline the goals and objectives, plus an individual course of study for each assigned SSC fellow.  In most cases, the institutional fellowship sponsor will also appoint an academic advisor for each assigned fellow.  The Fellowship Institutional Sponsor serves as the primary academic advisor for the SSC fellow, develops the academic program and provides the structural setting for the SSC fellow to complete MEL-1 fellowship requirements.  The Fellowship Institutional Sponsor is also responsible for preparing an end-of-year evaluation letter for each assigned fellow and forwards the letter to the USAWC SSCF Program Director for enclosure with the fellow's AER.

33.  In the processing of this case a staff advisory opinion was obtained from the Deputy Chief of Staff, G3, which recommended that the decisions of the ARB and the Commandant of the USAWC not be overturned.  The opinion was provided to the applicant, who responded to the effect that despite the resources at his disposal, the G3 has failed to address the issues and evidence provided.  He failed to address or provide evidence to show that he had been terminated from the program or that he failed to complete the program.  He simply used the same cookie-cutter approach to ignore the facts of the case and reject his appeal for justice. 

34.  Carlisle Barracks (CBks) Memorandum Number 351-7 (Disenrollment from the USAWC) prescribes the procedural due process which shall be followed when USAWC staff and faculty have reason to believe that a student has failed to meet academic standards or has violated academic integrity.  It provides, in pertinent part, that a student may be disenrolled for four reasons; voluntary request, failure to meet academic standards, failure to maintain academic integrity, and for cause.  Except for disenrollment for cause and voluntary disenrollment, the Dean will immediately notify the student concerned that the matter has been referred to an ARB.  The notification will specify the facts and circumstances supporting the allegation, specify the date and time in which the student must submit matters for consideration to the board, and specify that if the student fails to submit matters for consideration to the board or fails to respond, the board will make its recommendation based on the evidence available.  The student may submit any relevant matters to the board in response to the allegations.  The student is not required to appear before the board and the board will submit written findings and recommendations whether or not the alleged violation occurred.  Based on their findings, they will prepare a written recommendation to the commandant.  The commandant will review the board's findings and recommendation before deciding whether or not to disenroll the student.  A student who has been disenrolled from the USAWC may not apply for re-enrollment or reinstatement.

35.  Army Regulation 623-1 establishes the policies and procedures for the Academic Evaluation Reporting System.  It provides, in pertinent part, that an AER will be referred to the student by the reviewing official for acknowledgement and comment when it contains a "NO" response, an "Unsat" rating, a "Marginal achieved course standards" response, a "Failed to achieve course standards" response or it contains comments that in the opinion of the reviewing official that are so derogatory that the report may have an adverse impact on the student's career.  The Senior Service College commandant is responsible for preparing reports within 60 days after the student graduates or terminates.

CONCLUSIONS:

1.  The Board has reviewed the extensive evidence submitted by the applicant as well as the available evidence of record and finds that the applicant's contentions have merit.

2.  It is clearly apparent that the applicant was selected for attendance at the USAWC SSCF Program in an agency that not only had never participated as a fellowship sponsor, but also did nothing to prepare for its responsibilities to the applicant or the program.  It is also apparent that the sponsoring agency had its own agenda as far as the fellowship was concerned vice following the USAWC curriculum.  In essence, the applicant was unknowingly sent off on his own to fend for himself.  However, to the applicant's credit, once he recognized that he was on his own, he made the best of a bad situation.

3.  The evidence also shows that officials at the USAWC were aware that the sponsoring agency wanted to improperly select their own fellow and create their own curriculum/course schedule.  This information became evident before the applicant was selected and the available evidence does not show that USAWC officials took any steps to correct any misconceptions the sponsoring agency had prior to the applicant reporting to that agency.  It is also apparent that there was not a MOU prepared in which both parties agreed upon before the agency became a sponsor.  

4.  This conclusion is further supported by the fact that the officer the sponsoring agency wanted to select for the program (vice officer being board selected) was located in California and the agency fellowship advisor was also in California, 3000 miles away from the applicant.  Consequently, the applicant did not see his advisor, the individual responsible for providing him the structure and guidance necessary for the program until 6 months after he was already in the program and then he notified the applicant that he intended to terminate him.  It is later described in the applicant's AER that he was terminated for ongoing, uncorrected, unacceptable and unprofessional behavior.  This information came from an individual who was designated to be most responsible for the applicant and who only met him once in 6 months.

5.  The evidence that the Board finds to be most compelling in this case is the monthly progress reports submitted by the applicant to the SSCF Program Director.  From the very first report the applicant clearly explains the lack of support and structure at the sponsoring agency and the difficulties he was encountering in trying to integrate himself into the organization.  The resistance he encountered endured for the entire period he was in the agency and had he not taken the initiative to move out on his own in order to make the program work, little or nothing would have been accomplished.

6.  In this regard, the Board finds that the USAWC officials and the Department let the applicant down.  When it became apparent that the sponsoring agency was not fulfilling their responsibilities, an alternative solution should have materialized that would have allowed the applicant to continue with his education. Instead, he was allowed to remain in an environment where he was not welcome and the climate deteriorated further.  It was not until the agency formally withdrew from the program that such occurred. 

7.  The Board finds that an appropriate solution to the problem did eventually materialize when the applicant was moved and he was placed in the NGB and ODU to complete the program.  The USAWC staff supported the applicant's efforts to complete the program and it was not until the ARB convened that any indication was surfaced that the alternative solution was unacceptable.  Again, the system let the applicant down.

8.  The Board finds it perplexing that the ARB would not have been convened if the applicant had remained in the sponsoring agency in an environment where he received little or no assistance or support, yet the ARB determined that because he had been terminated from the agency, he was not getting the educational experience equivalent to MEL-1.  However, after his termination, he was working with officials at the ODU, an institution which had an established and successful program and which accepted the applicant openly.  This is supported by the fact that officials at ODU provided the end of year letter required by sponsoring agencies and in reading the letter, it is very clear that they were aware of the applicant's abilities and accomplishments.  The original sponsoring agency made no such effort and would not memorialize in writing the basis for withdrawing from the fellowship program.  To suggest that the applicant was no longer getting the educational experience required after leaving a broken/non-existent program and going to a viable working program simply does not pass the common sense test.  The Board also notes that another officer successfully graduated from the ODU program at the same time and was a      co-author of a research paper with the applicant.

9.  The Board also finds it disturbing that the ARB did not or would not address the issues surrounding the agency's termination of the applicant, yet when the AER was prepared, the USAWC chose to use information which appears to be unfounded derogatory information against the applicant, without properly referring it to him for comment.  More telling is the fact that the USAWC used a letter in which the original sponsoring agency refused to memorialize in writing the reasons for terminating sponsorship and made no mention of the applicant's accomplishments.  This is especially disturbing given the fact that officials at the ODU submitted an extensive letter outlying the applicant's academic achievements over the previous 10 months, a requirement that is part of the program and in which the original sponsoring agency did not accomplish even when it terminated the applicant's sponsorship.  Additionally, the Board finds it disturbing that at the time the ARB convened, the faculty advisor was not called in to testify, as was suggested by the Program Director.

10.  The Board finds that to suggest that once the sponsoring agency terminated its sponsorship, the applicant was no longer having the educational experience necessary to qualify for MEL-1 is not reasonable.  USAWC officials were aware that there were problems or were going to be problems well before the AY began, yet took no steps to ensure the applicant would have a good AY or educational experience.  When the program began to fall apart, the USAWC staff supported efforts to get it back on track and allow the applicant to complete what he had started.  To suggest that the USAWC did not sponsor those efforts simply will not wash.  Even after the ARB was completed, the USAWC staff continued to accept the applicant's work.  At this point he had essentially completed the course to standard.

11.  The Board further notes that at the time the USAWC notified the applicant that an ARB would be convened in accordance with CBks Memorandum 351-7, he was informed that failure to respond within 2  weeks would result in his involuntary disenrollment from the program.  However, that memorandum specifically states that if a student fails to submit matters for consideration or fails to respond, the ARB will make its recommendation based on the evidence available.  That memorandum also provides two options, either to retain or disenroll.  If a student is disenrolled, they are prohibited from attending the course at a later date.  In the applicant's case, he was not disenrolled, did not get credit for the course despite having completed all established academic requirements and was recommended for resident attendance at a later date.  Given the somewhat unspecific reason cited by the ARB for the applicant not being given credit for the course and the fact that the ARB did not review all of the evidence in his case (input from either the faculty advisor or ODU officials), the Board is not convinced that the applicant received a fair and impartial review. 

12.  In regards to the AER rendered to the applicant, the Board finds that the USAWC official who authored the report and who was coming in as the SSCF Program Director at the time the applicant was departing, improperly used the letter from the original sponsoring agency in which they were withdrawing from the program to create un-proven derogatory comments about the applicant's fellowship with that agency at a time when the author was not at the USAWC.  There is no evidence to support the derogatory comments and the AER was not properly referred to the applicant.  Additionally, the report indicates that the applicant had appealed the ARB results to all appellant authorities and his appeals were denied.  The AER was signed by the program director on 27 July 2000 and by the commandant on 28 July 2000.  The Board finds this disturbing because the applicant did not appeal the commandant's decision to the Deputy Chief of Staff of Operations and Plans until 27 July 2000.  Additionally, the AER was not forwarded from the USAWC until 6 October 2000 and then it was not referred to the applicant in accordance with the applicable regulation.  This in itself suggests that the report was back-dated in order to have the appearance of being prepared on time in accordance with the applicable regulation.

13.  While the circumstances in this case appear to be quite unusual and somewhat confusing, the one element in this case that is not difficult to ascertain is that the applicant was penalized for trying to make the most of a situation/program that was flawed and destined to fail from the start.  The Board finds that the Department, through the USAWC, had a responsibility to ensure that the applicant was being sent to a sponsor that had a viable program with clearly delineated goals and objectives that had been approved in advance.  Clearly the Department failed the applicant in this area.

14.  The Board finds no evidence in this case to suggest that the applicant did not complete all of the course requirements or that he did not get the educational experience that equates to MEL-1.  Accordingly, the Board finds that it would be in the interest of justice to grant the applicant's request to be awarded MEL-1 and to be issued the appropriate certificate of completion of the USAWC SSCF Program. 

15.  The Board also finds that the AER does not properly reflect the applicant's accomplishments and achievements during the period he attended the SSCF Program and that it contains unverified derogatory information.  Additionally, the applicant was denied due process when the report was not referred to him for comment as required by the applicable regulation.  Inasmuch as the AER has not been filed in the OMPF, there is no reason to direct its removal.  However, the Board directs that a new AER be completed using the letter of input from ODU and showing that the applicant successfully completed all requirements of the course. 

16.  In regards to the applicant's DOR for promotion to the rank of Colonel (O-6), the evidence shows that the applicant was on the Department of the Army promotion list for colonel; however, he has not provided sufficient evidence to show that he was unjustly denied an earlier promotion on 27 February 2001 due to a lack of completion of the SSCF Program and a designation of MEL-1.  Therefore, lacking evidence to show that he would have been promoted earlier, there is no basis to adjust his current DOR. 

17.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:  

1.  That all of the Department of the Army records related to this case be corrected:

a.  by showing that the individual concerned has completed the requirements to be designated as MEL-1 graduate and by awarding him the appropriate certificate of completion for the SSCF Program.

b.  by preparing a new AER with the supporting letter from the ODU and showing that the individual concerned successfully completed the requirements of the SSCF Program, and;

2.  That so much of the application pertaining to adjustment of his DOR as is in excess of the foregoing be denied.

BOARD VOTE:  

__lem ___  ___ym __  ___rvp__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_Raymond V. O’Connor, Jr._
		        CHAIRPERSON

INDEX

CASE ID | AR2002075705
SUFFIX |
RECON | YYYYMMDD
DATE BOARDED | 2003/11/25
TYPE OF DISCHARGE |
DATE OF DISCHARGE |
DISCHARGE AUTHORITY |
DISCHARGE REASON |
BOARD DECISION | GRANT PARTIAL
REVIEW AUTHORITY |
ISSUES         1.  21 | 102.0700/DOR
2.  218 | 111.0200/AER
3.  23 | 103.0000/MIL ED COMPL
4. |
5. |
6. |