MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 4 February 2003
         DOCKET NUMBER: AR2002074856

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

Mr. Carl W. S. Chun		Director
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Melvin H. Meyer		Chairperson
Mr. Curtis L. Greenway		Member
Mr. Ronald J. Weaver		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

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

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APPLICANT REQUESTS: In effect, that an administrative review of his records be conducted and that he be promoted to sergeant first class/E-7 (SFC/E-7).

APPLICANT STATES: In effect, he asserts that an incorrect and inappropriate Academic Evaluation Report (AER) that he received for his attendance at the Quartermaster Advanced Noncommissioned Officer Course (ANCOC), Fort Lee, Virginia, in 1989, resulted in his unjustly being denied promotion to the next higher grade, which he deserved based on his overall record of service. He states that he graduated from the course with an overall satisfactory rating and received a diploma signed by the command sergeant major (CSM), who was the school commandant while he attended the course and at the time of his graduation.

The applicant claims that he did not receive his AER (DA Form 1059) for the course until January 1989, almost two months after his graduation. He states that normally this AER would have been completed and provided to him prior to his graduation, which would have allowed him to provide a rebuttal to the negative comments contained in the report. He states that his DA Form 1059 in question contains negative comments in Item 16 (Comments), which were made by a sergeant first class, his small group leader. The AER was signed by a CSM, who was the school commandant at the time the AER was completed, but who was not the same school commandant at the time he attended and graduated from the course. He states that the CSM that signed his AER had no knowledge of his course performance, and he contends that the commandant who had been in place when he attended the course should have signed the AER.

The applicant claims that the unjust AER in question has caused him great concern over the years, and his inquiries into the report have not resulted in a reevaluation of the contested report. The general responses he has received in regard to the report have had a limited focus and never evaluated the impact the AER had on his career. He outlines his course averages and points out that he satisfactorily completed the course and met the standards for graduation, and he points out that is unfair to allow a group leader to document a career limiting opinion based on this one course and to have this evaluation upheld by an uninvolved CSM commandant. He claims that the weight of this one opinion in this AER overshadowed his exemplary efforts and achievements that he displayed throughout his military career, and served to prejudice all future reviews of his service record.

The applicant goes on to comment that his completion of other courses and his evaluation record should have been the basis for his promotion selection and based on his proven performance as attested to in these documents, he should have been promoted. The one negative AER on file should have only been a snapshot of the that specific course and period and should not have prejudiced his future promotion selection.
The applicant’s full argument and presentation of the facts is contained in his enclosed letter to his Member of Congress. In support of his application, he provides the following: copies of his evaluation reports; individual soldier’s reports; commendations; ANCOC AER, diploma, and official transcripts; reevaluation and rebuttal statements; and his service school records from the Noncommissioned Officer Logistics Program.

COUNSEL CONTENDS: In effect, the applicant’s Senator requests that the applicant’s inquiry be investigated within the existing rules, regulations, and ethical guidelines, and that he be provided a response of the final outcome of the case.

EVIDENCE OF RECORD: The applicant's military records show:

Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. Failure to file within the time allotted may be excused by a correction board if it finds it would be in the interest of justice to do so. Given the AER in question was issued in 1989 and the applicant retired in 1994, he has failed to comply with the statutory filing requirement. However, in the interest of fairness, the Board has elected to conduct a substantive review of the applicant’s case to determine if it would be in the interest of justice to excuse his failure to timely file.

The applicant entered the Regular Army on 24 October 1974, and he served on active duty for 20 years and 6 days until 30 November 1994, at which time he was honorably separated for the purpose of retirement.

The applicant’s records show that he was promoted to the rank and pay grade of staff sergeant/E-6 (SSG/E-6) on 1 August 1983, and this was the highest rank and pay grade he attained while serving on active duty. The Official Military Personnel File (OMPF) contains no indication that he was ever selected for or promoted to SFC/E-7 while he was on active duty.

On 23 November 1988, the applicant was issued a diploma by the commandant of the Quartermaster Noncommissioned Officers (NCO) Academy, which declared the applicant a graduate of the Unit Supply Specialist ANCOC.

The AER prepared to evaluate the applicant’s performance at the ANCOC was dated 13 January 1989. The preparing official on the contested report was the applicant’s small group leader, a sergeant first class, and the reviewing officer was a CSM, the school commandant. The applicant was placed in the third block (Marginally Achieved Course Standards) of Item 13 (Performance Summary) and the “No” block was checked in Item 15 (Has the Student Demonstrated the Academic Potential for Selection to Higher Level Schooling/Training).
Item 16 (Comments) contained comments explaining the Item 13 and 15 entries. The first comment explaining the Item 13 entry stated that the applicant had difficulties with common core subject material, and he failed three out of the four end-of- block examinations. The first comment explaining Item 15 stated that the applicant displayed marginal motivation while in attendance at the course; he continually needed to be monitored and retrained on common core subjects; and with his limited skills, he should not progress any further in the Noncommissioned Officer Education System (NCOES). In addition, a second comment stated that the applicant possessed limited capabilities in his military occupational specialty; his scores were below the class average on the technical side of instruction; and his end-of-block examinations barely met the minimum standards. This comment further indicated that with his limited capabilities, the applicant would best serve the Army in unit level assignments, and that he should seek additional training in reading and comprehension subjects.

On 28 March 1989, the commandant of the Quartermaster NCO Academy at that time, responded to a request from the applicant to upgrade his AER. The commandant indicated that he had reviewed the documents submitted by the applicant and also his academic records maintained at the Academy. Based on this review, the commandant found that the applicant had failed three of the four common core tests at least once, and that he had failed the end-of-block III test twice. The applicant was counseled after each of these test failures, and received remedial training from the school staff prior to retesting. He further indicated that the applicant’s academic average for the core phase was 72.11 and for the technical phase it was 76.66, and his overall class standing was
30 out of 35. The commandant concluded that he found nothing in the school records that would support upgrading the AER in question from a marginally satisfactory rating.

On 6 April 1992, the commandant of the Quartermaster NCO Academy at that time, responded to a second rebuttal of the AER in question from the applicant. The commandant stated that the NCO Academy was only required to maintain records for six months. Therefore, it was impossible to respond to his rebuttal. In addition, the commandant indicated that based on the grade sheets available, it was clear that the applicant failed several tests and that his grade point average was below average. He further commented that the applicant’s performance and accomplishments before or after the report in question had nothing to do with the report evaluation, and only his performance at the school during the period in question had any impact on the evaluation. Finally, the commandant stated that nothing the applicant had submitted showed any error or injustice related to the AER in question and therefore, no action was required.

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On 7 March 1994, the applicant submitted a request to the CSM of the United States Army Quartermaster Center and School, Fort Lee, Virginia, asking that a review of his OMPF be conducted and that he be provided any information in regard to why he had not been promoted and/or any suggestions that would enhance his promotion potential before the convening date of the next promotion selection board.

On 11 April 1994, the CSM of the United States Army Quartermaster Center and School, responded to the applicant’s request for a records review. The CSM stated that he had reviewed the documents provided by the applicant and was unable to determine why he had not been promoted. The CSM further stated that he had sat on the last SFC/E-7 promotion selection board, but could not remember specifically why the applicant was not promoted. However, he did not believe that AER issue raised by the applicant would have alone caused his
non-selection for promotion. He commented that the last promotion selection board was very forgiving of any incidents that were over 4 or 5 years old. He concluded by reminding the applicant that promotions were based on numbers and that sometimes the Army could not promote all those who were qualified and deserving.

There is no indication that the applicant ever appealed the AER in question to the Deputy Chief of Staff, Personnel (DCSPER), Enlisted Special Review Board (ESRB) or that he ever requested promotion reconsideration by a Stand-By Advisory Board (STAB) based on a material error in his OMPF.

Army Regulation 623-1 prescribes the policies and procedures for preparing AER. Paragraph 1-15 provides guidance on the submission of AER appeals. It states, in pertinent part, that the appeal procedures outlined in Army Regulation 623-205 are applicable, and that enlisted personnel should submit their appeals to the Commander, U.S. Army Enlisted Records and Evaluation Center (EREC).

Army Regulation 623-205 prescribes the policy on the enlisted evaluation system. Paragraph 6-6 stipulates that a report accepted for filing in a NCOs record is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation. Paragraph 6-10 contains guidance on the burden of proof necessary for a successful appeal of an evaluation report that has already been accepted for filing in the OMPF. It states, in pertinent part, that in order to justify amendment or deletion of a report, clear and convincing evidence must be provided to show that the presumption of regularity should not be applied to the report in question and/or action is warranted to correct a material error, inaccuracy, or injustice.

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Army Regulation 600-8-19 provides the polices and procedures for enlisted promotions. Paragraph 4-3 contains guidance on the composition and criteria used by promotion boards. It states, in pertinent part, that promotion boards will select a specified number of soldiers, by military occupational specialty, from the zone of consideration, who in its best collective judgment will best meet the needs of the Army. Promotion selections are made based the entire service record after an extensive review of the entire OMPF. Paragraph 4-14 contains guidance on promotion reconsideration by a STAB. It states, in pertinent part, that promotion reconsideration may be authorized when it is determined that a material error existed in the OMPF of the soldier concerned when the file was reviewed by a promotion board.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The Board notes the applicant’s contention that he should be promoted based on his overall evaluation record and record of service, and because the AER in question unjustly prevented his promotion while he was on active duty. However, the Board finds insufficient evidence to support this claim.

2. By regulation, evaluation reports that are filed in the OMPF are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation. In order to justify amendment or deletion of a report that has been accepted for filing in the OMPF, clear and convincing evidence must be provided to show that this presumption of regularity should not be applied to the report in question and/or that action is warranted to correct a material error, inaccuracy, or injustice.

3. In the opinion of the Board, the applicant has failed to provide evidence to show that the AER in question contained a material error, was inaccurate, or was unjust. Although he did not appeal the report to the ESRB, his appeal and rebuttal was reviewed, considered, and denied by two NCO Academy commandants. The reviews produced information from his school record that appear to justify the evaluation rendered. Thus, the Board finds insufficient evidence to overcome the regulatory presumption of regularity in regard to the contested AER, which had been accepted for filing in the OMPF.

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4. In addition, by regulation, promotion boards are required to recommend a specified number of solders, by military occupational specialty, from the zones of consideration. These selections are based on the collective best judgment of promotion board members as to which soldiers are best qualified to meet the needs of the Army, and the selections are based on an extensive review of the entire OMPF. In order to justify promotion reconsideration, there must be evidence to show a material error existed in the OMPF of the soldier concerned when the file was reviewed by a promotion board.

5. The record provides no information showing that the applicant applied to Department of the Army for promotion reconsideration by a STAB based on some material error in his OMPF that was reviewed by promotion boards. However, he provides documentation that shows that his record was reviewed by the Quartermaster CSM, who found no material error in the applicant’s record that would have unjustly prevented his promotion selection.

6. Lacking independent evidence showing that there was a material error in the applicant’s OMPF at the time he was considered for promotion, the Board finds that it would not be appropriate to substitute its judgment for that of duly constituted promotion boards in regard to the applicant’s qualifications for promotion. Therefore, it concludes that the applicant’s promotion at this time is not warranted.

7. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

8. By law, applications for correction of military records must be filed within
3 years after discovery of the alleged error or injustice. Failure to file within the time allotted may be excused by a correction board if it finds it would be in the interest of justice to do so. In this case, the Board conducted an extensive review of the case and finds that relief is not warranted on the merits. Therefore, it concludes that the applicant has failed to explain or satisfactorily demonstrate by competent evidence that it would be in the interest of justice to excuse the failure to apply within the 3 year statute of limitations.

9. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The subject application was not submitted within the time required. The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__MHM__ __CLG _ __RJW __ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002074856
SUFFIX
RECON
DATE BOARDED	2003/02/04
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1994/11/30
DISCHARGE AUTHORITY	AR 635-200 C12
DISCHARGE REASON	Retirement
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 310	319.0000
2.
3.
4.
5.
6.