IN THE CASE OF:	

		BOARD DATE:	11 June 2009  

		DOCKET NUMBER:  AR20080018138 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that the DA Form 1059-2 (Senior Service College Academic Evaluation Report (AER)) for the period of 1 July 2001 through 16 December 2003 [herein referred to as the contested AER] and all related documents be removed from his official military personnel file (OMPF).

2.  The applicant also requests that any documents referring to his non-selection for promotion to colonel, O-6, be removed from his OMPF and that he be referred to a special promotion board in accordance with applicable Army regulations.

3.  The applicant contends that the basis for his appeal of the contested AER is both administrative and substantive errors.  The administrative error is that the contested AER was not referred to him for comment by the correct official as required by Army regulations nor in a timely manner.  The substantive errors are that due to the improper referral, no officer or official has actually considered his comments to the contested AER, and the denial of his request to defer the Distance Education Program (DEP) was an arbitrary and capricious act.  He also contends that the contested AER is materially erroneous, inaccurate, and has resulted in an injustice.

4.  The applicant also contends that the contested AER is the result of the arbitrary and capricious decision by U.S. Army Reserve (USAR) Command not to grant him a 1-year deferral of the Army War College DEP, which is the issue the Officer Special Review Board (OSRB) declined to act on.  He also contends that the OSRB did not comply with its own directives.  The applicant states that he submitted a request for deferment for the DEP which included a detailed factual basis.  His request cited changes in his professional and personal circumstances that arose after his enrollment in the DEP.

5.  The applicant referenced ABCMR Docket Number AR2001064528, dated 30 May 2002, in which the ABCMR recommended that an AER of another officer be removed from that officer's records.  He alleges that the facts of his case mirror the facts described in the case mentioned.  He contends that the contested AER was the determinative factor in his non-selection for promotion to colonel, O-6.

6.  The applicant provides an addendum and the following documents in support of his application:

	a.  Tab A - 11 enclosures in support of his appeal of the contested AER;

	b.  Tab B - memorandum from the Appeals Office, Evaluations Support Branch, U.S. Army Human Resources Command, St. Louis, MO (USAHRC-STL), dated 9 November 2007, subject:  Senior Service College Academic Evaluation Report Appeal (030701-031216), with the corrected contested AER;

   c.  Tab C - Department of the Army (DA), G-1, OSRB Case Summary AER Appeal;

d.  Tab D - DA Memorandum 600-1 (Evaluation Report Appeals); and

   e.  Tab E - ABCMR Proceedings, Docket Number AR2001064528, dated 30 May 2002.

CONSIDERATION OF EVIDENCE:

1.  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.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was appointed as a second lieutenant in the Regular Army (RA) on 25 May 1983.  He was promoted to captain on 1 May 1987 and to major on 1 April 1994.  He remained on active duty until he resigned and was discharged on 15 August 1997.

3.  On 25 August 1997, the applicant was appointed as a Reserve commissioned officer.

4.  He was promoted to lieutenant colonel on 8 February 2001.

5.  On 30 September 2003, the applicant submitted a request for deferment of his enrollment from the Army War College Distance Education Course for 1 year or that he be authorized to voluntarily disenroll with the option of applying to 
re-enroll the next year.  The applicant cited the reasons for his request.  He stated that he was assigned to the 153rd Legal Support Organization as a team leader and the size of his team had doubled; he and his family had purchased and moved into a new home; and he changed duty assignments with his civilian employer.

6.  In a 10 December 2003 electronic mail message from a Human Resources Specialist (Military), U.S. Army Reserve Boards Support Branch, USAHRC-STL, the applicant was informed that his request to defer/voluntarily withdraw from the Army War College DEP had been received.  The Human Resources Specialist (Military) informed him that his request to defer did not meet the requirements to receive a deferment and that he could request to be withdrawn from the course.

7.  In an 11 December 2003 electronic mail message, the applicant submitted his request to voluntarily withdraw from the Army War College DEP to the Chief, Administrative Branch, DEP, U.S. Army War College.

8.  In an undated memorandum from the Dean of Academics, U.S. Army War College, the applicant was notified that he had been disenrolled from the DEP Class of 2005.  He was advised that upon completion or termination from a Senior Service College, a DA Form 1059-2 must be completed in accordance with Army Regulation 623-1 (Academic Evaluation Reporting System), paragraph 4-1a.  He was informed that the original report was sent to USAHRC-STL with a copy of the disenrollment letter.

9.  On 16 December 2003, the contested AER was prepared at the U.S. Army War College.  The entry "NO" was checked in block 12 to reflect that the applicant did not successfully complete the U.S. Army War College DEP.  Block 16 of the contested AER states:  "The U.S. Army War College (USAWC) Distance Education Program (DEP) is a demanding Senior Service College distance learning curriculum completed on the student's own time.  This program requires great personal and professional commitment of time and energy.  Successful completion results in a Master of Strategic Studies degree and [Military Education Level] 1.  He has requested voluntary disenrollment from the USAWC DEP class of 2005."  The contested AER was signed by the appropriate preparing official and reviewing official.  Block 18 of the contested AER indicates a copy of the contested AER was forwarded to the applicant's official record and a copy was forwarded to him.

10.  In a 27 April 2004 electronic mail message from a Human Resources Specialist (Military), U.S. Army Reserve Boards Support Branch, USAHRC-STL, the applicant was informed that the Commander, USAHRC-STL, had been delegated the authority to approve/disapprove requests for deferment for the Army War College DEP by the Chief, Army Reserve (CAR).  The electronic mail message stated, "Due to the limited number of seats that we receive each year the guidelines set by the CAR are very stringent."

11.  In a 15 December 2004 memorandum, the applicant was notified that he was considered for promotion by a Department of the Army (DA) Reserve Components Selection Board (RCSB) on 13 July 2004, but he was not selected for promotion.  He was advised that if he remained eligible, he would be considered by the next mandatory selection board.  The memorandum indicated that selection boards do not record the reason for the selection or non-selection of individual officers.  This memorandum was filed in the service portion of his OMPF.

12.  On 2 June 2006, the applicant submitted an appeal to the contested AER.  He stated, in effect, that the contested AER neither reflected the changed circumstances that led to his initial request for deferment nor the arbitrary and capricious denial of that request.

13.  In a 7 July 2006 memorandum, the Chief, Evaluations Support Branch, USAHRC-STL, referred the contested AER to the applicant for comment.  At that time he was informed that any comments submitted must be factual, concise, and limited to matters directly related to the evaluation on the referred report.  He was advised that comments would not constitute a request for a Commander's Inquiry or Appeal which should be submitted separately under the provisions of Army Regulation 623-1, paragraphs 1-14 and 1-15, as appropriate.

14.  In a 6 September 2006 memorandum, the applicant informed the Commander, USAHRC-STL, that he believed the referral of the contested AER was an inadequate remedy because of its untimeliness and its not being referred to him by the proper official as required by Army Regulation 623-1, paragraph 
1-13a, in effect at the time.  He indicated that block 4 reflected his branch as "QM," but he was a Judge Advocate and that block should read "JA."  He requested a copy of the final report and any addendum.  He also requested to withdraw his 2 June 2006 appeal of the contested AER.

15.  In a 27 September 2006 memorandum, the Chief, Evaluations Support Branch, USAHRC-STL, notified the applicant that although his report had been administratively corrected to reflect "JA" in Part 4, the substantive portion of his appeal was returned without action.  The memorandum informed him that he must revise his referral comments before his appeal could be submitted to the Special Review Board for adjudication.  He was advised that enclosures to referral comments were not authorized.

16.  In a 31 October 2006 memorandum, the applicant was notified that he was considered for promotion by a DA RCSB on 7 August 2006, but he was not selected for promotion.  He was advised that if he remained eligible, he would be considered by the next mandatory selection board.  This memorandum was filed in the service portion of his OMPF.  The memorandum indicated that selection boards do not record the reason for the selection or non-selection of individual officers.

17.  On 2 December 2006, the applicant submitted comments to USAHRC-STL in reference to the contested AER.  He stated, in effect, that the contested AER neither reflected the changed circumstances that led to his initial request for deferment nor the arbitrary and capricious denial of that request.

18.  On 12 March 2007, the applicant submitted an appeal of the contested AER to USAHRC-STL.  At that time, he requested that the report be removed from his record and that his record be referred to a special promotion board.

19.  The OSRB reviewed the applicant's appeal packet on 30 October 2007.  The decision, by majority vote of the OSRB, was to partially approve the appeal.  The following actions were to be taken concerning the contested AER:

	a.  in block 12, remove the "X" in the "NO" block (leaving block 12 empty);

	b.  in block 16, remove the comments in their entirety;

	c.  in block 16, insert the following comment:  "The officer has requested and was granted voluntary disenrollment from the USAWC DEP Class of 2005";

	d.  remove the 3-page AER rebuttal from the AER record filed on the interactive Personnel Electronic Records Management System (iPERMS); and 
	e.  promotion reconsideration was warranted according to the procedures and guidelines established for the 2004 and the 2005 Reserve Components (RC) Colonel, Army Promotion List (APL), and by the 2006 Judge Advocate General (JAG) Corps USAR Components Promotion List for Colonel.

20.  The OSRB directed that the appeal documents be placed in the restricted portion of the officer's OMPF.

21.  The corrected copy of the contested AER was filed in the performance portion of the applicant's OMPF.

22.  In a 9 November 2007 memorandum, the Appeals Office, Evaluations Support Branch, USAHRC-STL, notified the applicant that the evidence he submitted justified partial modification of the contested AER.  He was informed that the contested AER would be obliterated and a copy of the modified report would be filed in the performance portion of his OMPF.  He was advised that he could either resubmit another appeal with additional evidence or make application to this board.  In addition, he was advised that promotion reconsideration was warranted for calendar year 2004 and 2005 RC Colonel, APL, and the 2006 JAG Corps RC List for Colonel.

23.  The applicant provided a copy of ABCMR Proceedings, dated 30 May 2002, of another officer's case (chaplain, captain).  The officer received an AER for the period 1 July 1997 through 12 June 1998 which showed that he marginally achieved course standards; satisfactory in written communication and student's research ability; unsatisfactory in oral communication, leadership skills, and contribution to group work; and a "NO" for demonstrated academic potential for selection to higher level schooling/training.  The ABCMR determined that the Commander's Inquiry was not conducted and forwarded to the appropriate authority; the inquiry was incomplete and inaccurate; the preparing officer failed to justify in detail by his comments on the AER all unsatisfactory ratings as required by the regulation; and the AER was not referred to the applicant for comment as required by regulation.  As a result, the ABCMR recommended that the AER for the period 1 July 1997 through 12 June 1998 and all related documents be removed; a statement be placed in the record to show this period as non-rated time without prejudice; reconsideration for promotion to major (chaplain) in the primary zone under the 2000 and 2001 criteria; and, if selected for promotion, promote him with back pay and allowances and return to active duty.

24.  Army Regulation 623-1 establishes the policies and procedures for the academic evaluation reporting system.  It provides, in pertinent part, that a DA Form 1059-2 is required for Active Army personnel attending the USAWC.  Paragraph 4-1 states the Senior Service College commandant is responsible for preparing the DA Form 1059-2 within 60 days after the officer graduates or terminates.

25.  Paragraph 1-13 (Referred Reports) of Army Regulation 623-1 listed the types of reports referred to the student by the reviewing official for acknowledgement and comment, to include any report with a "NO" response.  This regulation states, in part, that after signing the referred report, the reviewing official will forward the report to the student via a memorandum for acknowledgement and comment.  The reviewer will ensure that the provisions of this regulation have been followed.  The student will acknowledge receipt of the referred report and may enclose comments or a statement if he or she feels that the rating or remarks are incorrect.  The regulation also states, in pertinent part, that the student's statement must be factual.  The referral memorandum and acknowledgement are forwarded with the report.

26.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records), provides in Table 2-1 (Composition of the OMPF) that the AER will be filed on the performance section of the OMPF.  This regulation also provides that once filed such documents become a permanent part of the OMPF and may only be removed by one of several agencies, one of which is the ABCMR.

27.  Table 2-1 of Army Regulation 600-8-104 further provides that the letter of notification to officers considered for promotion but not selected will be filed in the service section (General Administration) of the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions regarding removal of the contested AER were carefully considered.  However, the applicant has not provided compelling evidence which indicates the contested AER was improperly filed in his OMPF.

2.  The applicant was issued the contested AER on 16 December 2003 which reflected he did not successfully complete the USAWC DEP Course in block 12.  In accordance with Army Regulation 623-1, paragraph 4-1a, a DA Form 1059-2 must be completed upon completion or termination from a Senior Service College.

3.  The contested AER was referred to the applicant.  Based on Army Regulation 623-1, the types of reports referred to the student by the reviewing official for acknowledgement and comment include any report with a "NO" response.

4.  The applicant submitted an appeal to the contested AER and it was reviewed by the OSRB in October 2007.  Based on the recommendations of the OSRB, the contested AER was amended to reflect the actions as listed in paragraph 19 under the Consideration of Evidence.  The OSRB did not remove the contested AER from the applicant's OMPF.

5.  The applicant's corrected copy of the contested AER was properly filed in the performance portion of his OMPF.

6.  The applicant provided a copy of the ABCMR proceedings of another officer's case.  However, in the previous case that officer actually attended the training and the AER was not referred to him at all, whereas the applicant declined to attend training and the AER was referred to him.  Each case is decided on its own merits; therefore, there is no basis for granting the applicant requested relief based on another Soldier's case.

7.  The applicant was considered for promotion to colonel, O-6, in July 2004 and August 2006, but he was not selected.  His non-selection for promotion memoranda were filed in the service portion of his OMPF.  There is no evidence of record which indicates these memoranda were improperly filed in his OMPF.  Therefore, there is no basis for removal of these documents.

8.  There is no record of other documents referring to the applicant's non-selection for promotion to colonel filed in his OMPF.

9.  The applicant contends that the contested AER was the determinative factor in his non-selection for promotion to colonel, O-6.  However, promotion boards do not reveal the basis for selection or non-selection of individual officers considered by DA RCSBs.  Therefore, it cannot be determined why the applicant was not selected for promotion to colonel, O-6.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ____X____  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________X______________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080018138



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ABCMR Record of Proceedings (cont)                                         AR20080018138



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