MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 1 May 2003
         DOCKET NUMBER: AR2002082566

         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. Thomas B. Redfern		Chairperson
Ms. Linda D. Simmons		Member
Mr. John T. Meixell		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APPLICANT REQUESTS: In effect, that his honorable discharge from the United States Army Reserve (USAR) be rescinded, and that he be promoted to captain (CPT), effective 18 January 2002.

APPLICANT STATES: In effect, he wants his 13 October 2002 discharge from the USAR rescinded. He also claims that he should be a CPT on active duty serving with his USAR unit. However, due to the inaction of the Army Reserve Personnel Command (ARPERSCOM), he is still home. He claims that he received a response from the United States Army Reserve Command (USARC) that is quite disturbing. This response sets a dangerous precedent of inaction and lack of leadership, which he was taught in the Army National Guard (ARNG) Officer Candidate School (OCS) are traits that lead to soldiers dying needlessly.

The applicant indicates that he is providing information regarding the Uniformed Services Employment Reemployment Rights Act (USAERRA) . He claims that the staff of the Military Intelligence Officer Basic Course (MIOBC) were aware of his former employer’s hostility to him during his extended military leave, which is verified by his USAEERA claim, and this is why he was out-processed from the MIOBC early. He claims that his separation document (DD Form 214) shows that he completed the MIOBC. However, now ARPERSCOM and USARC have discharged him, which is a gross failure in leadership. He states that these commands received his DD Form 214 in March 2001, but they chose to do nothing about resolve this minor personnel matter. He states that the Army generates orders daily to send soldiers to schools to meet military education requirements. There is no reason why ARPERSCOM could not have resolved this issue between March 2001 and October 2002, and he requests that the command be held responsible for its failure to do so.

The applicant also contends that ARPERSCOM should be required to address why he was issued a DD Form 214 without ever having been issued an Academic Evaluation Report (AER) at the time he was released from active duty. He claims the failure on the part of the school to issue him an AER from his MIOBC within the prescribed timeframe of 60 days is a violation of regulations. He states that MIOBC personnel have now issued an AER almost four months after he was released from the MIOBC. He concludes that the commands responsible in this case should be held accountable for the flagrant disregard of Army Regulations in his case, and the fact that he has been kept out of the war on terrorism and unjustly denied him promotion to CPT.

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COUNSEL STATES: In effect, that the applicant had previously provided information on the USERRA as it related to a dispute between the MIOBC staff and his civilian employer. Counsel claims that the record shows that the applicant’s civilian employer was hostile to the applicant’s extended military service obligation to attend the MIOBC, and conflict between the MIOBC staff and the civilian employer led to the applicant’s early out-processing. He further states that when the applicant out-processed from the MIOBC, he was issued a DD Form 214 that indicated that he had completed the MIOBC. Counsel claims that the higher headquarters involved received this DD Form 214 in March 2001 yet took no further action to resolve the personal and training matter. Further, the commands failed to address why the applicant was issued a DD Form 214 without being issued the mandatory AER. He states that the regulation requires that the DA Form 1059 be issued within 60 days of leaving the course, and the applicant’s AER was not completed until more than four months after he left the MIOBC. Counsel states that the applicant is eager to return to his unit and serve in the war on terror. Further, since he would have attained the rank of CPT had his service been continuous since his summary discharge, the applicant believes he is entitled to the rank of CPT. Counsel concludes by stating that the applicant is a fine gentleman and it would be a stain on the service to allow his service to end on account of a procedural snafu. Counsel states that he is confident that the Board will make the only proper decision and rescind the applicant’s discharge as soon as possible.

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

On 2 August 1998, the applicant was appointed a second lieutenant in the USAR. He attended MIOBC class 01-01, at Fort Huachuca, Arizona, which was scheduled for the period 18 January 2001 through 24 May 2001. However, on
9 March 2001, he was released from the course for failing to achieve course standards.

On 14 March 2001, he was released from active duty (REFRAD) and returned
to his USAR unit. The DD Form 214 issued to the applicant at that time shows that he completed 1 month and 28 days of active military service. Item 14 (Military Education) contains an entry “Military Intelligence Officer Basic Crs,
18 weeks, 2001, Nothing Follows”, which gives the indication that he completed the MIOBC.

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An AER (DA Form 1059), dated 12 July 2001, prepared by MIOBC school officials confirms that the applicant was released from the course on 9 March 2001, as a result of his failure to achieve course standards. Comments contained in the AER indicated that the applicant was a first time failure on four separate examinations. It also shows that he failed the Map Reading/Symbology examination on two subsequent retests, and he failed the Threat Tactics examination on one subsequent retest. In addition, the comments indicate that the applicant failed the run event on his diagnostic Army Physical Fitness Test (APFT).

On 13 October 2002, orders were published by USARC that directed the applicant’s honorable discharge, effective 13 October 2002.

In connection with the processing of this case, an advisory opinion was obtained from the USARC. It recommends that the applicant’s discharge orders not be rescinded. It further indicates that the applicant failed to complete the MIOBC within 36 months of his basic date of appointment, which by regulation required his discharge. It further indicates that the DD Form 214 issued to the applicant upon his REFRAD in March 2001 contains an error in Item 14 (Military Education), which indicates the applicant completed the 18 week MIOBC. However, it is clear from Item 12 (Record of Service) that the applicant completed only eight weeks and 4 days of active military service, and not the
18 weeks required to complete the MIOBC as is indicated in Item 14.

USARC officials further state that while the applicant was released from student status for a unit recall, he was not a mobilization asset for his unit because he had not completed the MIOBC, and was failing the course at the time of his departure. It also states that the applicant was given ample opportunity to attend the MIOBC, and when he finally attended, he was unable to complete the course. In conclusion, it indicates that the applicant properly notified and discharged based on valid published orders.

The applicant was provided a copy of the USARC advisory opinion in order to have the opportunity to respond, which he did on 5 April 2003. He stated that
the commands involved are flagrantly attempting to submit a document
(DA Form 1059), which they know is null and void. This is an attempt to end his career, and he has repeatedly informed these commands that they have violated the governing regulation and the persistence to defend the submission is a continuance of an illegal action. He claims that basing their slanderous statements against him on a void DA Form 1059, and as a result the DA Form 1059 and the USARC opinion are moot. He states that he should be participating in Operation Iraqi Freedom, but USARC is unjustly keeping him out of the fight. Therefore, he requests this Board rescind the USAR orders effective his discharge.

Army Regulation 135-175 prescribes the policy, criteria, and procedures governing the separation of Reserve Officers of the Army. Chapter 4 contains guidance on the discharge of Army Reserve officers. It states, in pertinent part, that officers appointed on or after 1 December 1969 who fail to complete a branch course within 36 months of the effective date of their appointment will be discharged for failure to complete a basic branch course.

Army Regulation 623-1 prescribes the policies and procedures for preparing AERs. Paragraph 1-4 outlines responsibilities in the AER process. It states that commandants will ensure that a copy of this regulation is available to the student and rating officials, each rating official is fully qualified to meet his or her responsibilities, reports are properly prepared, each rating official knows how the students he or she evaluates have performed, each student is provided a copy of his or her completed AER, referred reports are provided to the student for acknowledgment and comment before being sent to Headquarters, Department of the Army (HQDA), and completed reports arrive at HQDA not later than
60 calendar days after the "Thru" date of the report. Paragraph 2-3 contains guidance on submitting reports on USAR personnel who attend service school resident courses. It states, in pertinent part, that the service school commandant is responsible for preparing AERs for personnel upon successful course completion, termination of enrollment, or unsatisfactory course completion.

Army Regulation 623-105 (Officer Evaluation Report System) prescribes the policy for the Officer Evaluation Reporting System (OERS). It also provides guidance regarding redress programs including commander inquiries and appeals. Paragraph 3-57 outlines the regulatory presumption of regularity states on reports on file in the Official Military Personnel File (OMPF). It states, in pertinent part, that an evaluation report accepted by HQDA and included in the officer’s official record is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation. It further indicates that requests that an accepted report be altered, withdrawn, or replaced with another report will not be honored.

Chapter 6 provides guidance on the evaluation appeals process. It states, in pertinent part, that the burden of proof rests with the appellant. Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that establishes that the presumption of regularity should not be applied to the report under consideration, and that action is warranted to correct a material error, inaccuracy, or injustice. It further states that clear and convincing evidence must 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 must include statements from third parties, rating officials or other documents from official sources.

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

1. The Board notes the applicant’s contention that the AER issued based on his attendance at the MIOBC is null and void because it was not submitted within the 60 days allowed by the governing regulation; and as a result, his honorable discharge from the USAR should be rescinded, and he should be promoted to CPT, effective 18 January 2002. However, the Board finds insufficient evidence to support these claims.

2. By regulation, an officer who fails to complete a basic branch officer course within 36 months of his/her appointment date will be discharged from the USAR. The evidence of record confirms that the applicant failed to complete the MIOBC within the prescribed timeframe. Further, the entry made in the applicant’s
DD Form 214 that erroneously indicates that he completed the MIOBC is not a basis for granting him basic branch course credit for a course he obviously did not successfully complete. Therefore, the Board concludes that the applicant was discharged in accordance with the applicable law and regulation, and it finds no error or injustice related to the discharge process.

3. Although the evidence of record supports the applicant’s claim that his AER was not completed within the 60 day timeframe outlined in the governing regulation, the Board does not find this administrative error is a fatal flaw that would support voiding the AER in question or removing it from the applicant’s OMPF.

4. The evidence of record confirms that he failed to achieve course standards as a result of failing first time examinations in four subjects; failing two subsequent retests in one subject; failing one retest in another subject; and failing the run portion of his diagnostic APFT. The Board finds that the applicant has failed to provide sufficient evidence or argument to show that the evaluation or supporting comments contained in the contested AER were in error or unjust.

5. In the opinion of the Board, the fact that the AER was not submitted within the prescribed timeframe does not constitute a fatal flaw that would render the evaluation contained therein moot. Therefore, lacking any independent evidence showing the report in question contained a substantive error, the Board concludes that the requested relief is not warranted in this case.

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6. 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.

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

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

___jm___ ___lds___ ___tbr___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002082566
SUFFIX
RECON
DATE BOARDED	2003/05/01
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	2002/10/13
DISCHARGE AUTHORITY	AR 135-175
DISCHARGE REASON	Failure to complete basic branch course
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 310	131.0000
2. 1023	106.0010
3.
4.
5.
6.