IN THE CASE OF:	

		BOARD DATE:	 20 April 2010 

		DOCKET NUMBER:  AR20090019721 


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 correction of his records to show he graduated from Officer Candidate School (OCS) and that he be commissioned as an officer in the U.S. Army.

2.  The applicant states he was ostracized and discriminated against by his Platoon Trainer (PT), Captain L---, and as a result this led to his ultimately being recycled to a day 1 restart despite his making it to week 11 of a 12-week OCS program.  He states he filed an equal opportunity (EO) complaint against his Platoon Trainer and Echo Company.  He states that he managed to survive to week 5 in his second company, but was targeted by the First Sergeant (1SG) who admitted to being "good friends" with the Echo Company cadre.  He also states that the appeals hearing board was loaded and a sham, so he had no fair chance to win.

3.  The applicant provides a self-authored "Statement of Facts," a copy of a DA Form 7279 (Equal Opportunity Complaint Form), dated 30 September 2008; a letter to Senator Bishop, dated 25 November 2008; two DA Forms 4856-E (Developmental Counseling Form), dated 11 September and 17 September 2008; two DA Forms 705 (Army Physical Fitness Test Scorecard), a personnel data sheet; a Platoon Peer Evaluation; a Leadership Evaluation Report; three letters of recommendation; an e-mail to COL S------, dated 5 November 2008; a memorandum, subject: Appeal of Relief from OCS to Restart Day One, dated      1 October 2008; and three peer letters regarding cadre behavior/actions.


COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the Board review the applicant's file.

2.  Counsel states the Faculty Board was a sham because a close friend of the applicant's commander was on that Faculty Board and would not entertain any evidence of impropriety.  He states, "His mind was made up; and, it's clear beyond any doubt that the other members were infected by his bias."

3.  Counsel provides the applicant's request to remain in OCS; a copy of the applicant's letter to Senator Bishop; three DA Forms 4856; a DD Form 689 (Individual Sick Slip); a DA Form 2823 (Sworn Statement); applicant's letter to CPT M-----; counsel's letter to Brigadier General (BG) M----; a Memorandum for Record, RE: Faculty Board Hearing - 05 December 2008, Officer Candidate [OC] (applicant's name), dated 16 January 2009; a Memorandum for Record, subject:  05 December 2008 Faculty Board Hearing, dated 8 December 2008; BG M-----' appeal denial letter, dated 12 January 2009; a memorandum, subject: Legal Review of Faculty Board Proceedings, re: OC (applicant's name and social security number), dated 6 January 2009; a memorandum, subject: Relief from Officer Candidate School, dated 12 December 2008; a memorandum, subject: Advisement of Appellate Rights, dated 12 December 2008; the applicant's memorandum electing to appeal, dated 16 December 2008; Report of Faculty Board Proceedings; Summation of Testimony for U.S. Army Infantry School (USAIS) Faculty Board Relative to OCS Class 03-06 Pertaining to OC (applicant's name); a memorandum, subject: Appointment of USAIS Faculty Board, dated 24 November 2008; and a memorandum, subject: Referral to the USAIS Faculty Board, dated 24 November 2008.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the Regular Army on 1 May 2008.  The applicant states the OCS course start date was 13 July 2008.

2.  Available documents show that while in OCS, the applicant received developmental counseling for substandard performance, negative peer reviews, and violations of OCS Operating Procedures, which include:

	a.  while he was assigned to his first [Echo] company:

		(1)  he received developmental counseling on 11 September 2008 for failure to maintain property accountability.

		(2)  On 17 September 2008, for substandard performance in that he failed all of his field leadership evaluations during Field Leadership Exercise (FLX) II.  During this counseling session the counselor indicated he saw numerous areas in which the applicant lacked the required skills, leadership traits, and discipline to be an officer.  He stated that despite numerous counseling sessions he did not see that the applicant had the leadership attributes to become an officer in the U.S. Army.  He continues by stating that the applicant failed to show the required skills in the areas of initiative, responsibility, attention to detail, selfless-service, military bearing, and motivation.

		(3)  A Platoon Peer Evaluation sheet indicates he had a low ranking among his peers with 70 percent of them ranking him in the bottom 10 percent.  While peer comments included some positive input, they also included an extensive list of very negative input.  Peer descriptions of the applicant's areas for improvement included laziness, lacking motivation, poor work ethic, not a team player, not always responsible or reliable, uncooperative, needs to be more group oriented, and poor military bearing among others.

		(4)  During this same counseling session, the counselor stated he was recommending the applicant be administratively dropped from OCS.

	b.  On 18 September 2008 (week 10 of the course), the applicant was informed that he would be recycled back to day 1 in OCS training.

		(1)  On 1 October 2008, the applicant submitted an appeal wherein he requested that he not be recycled back to day 1 in OCS, but rather be reinstated to a later point in OCS training.  The applicant submitted four statements from other OCS candidates who essentially stated that the cadre of the class were singling the applicant out and treating him harsher than other cadets.

		(2)  Evidence indicates that after failing to successfully meet all the course requirements at about week 10 of the 12-week course the applicant was restarted in week one in another [Bravo] company on about 5 October 2008 to give him the opportunity to gain and successfully demonstrate the skills required for graduating from OCS.

		(3)  In October 2008, after being recycled to Bravo Company he was counseled on various occasions for infractions such as a security violation, violation of study time, and failure to follow guidance from the student chain of command for proper uniform wear, and for showing disrespectful and insubordinate gestures, all inappropriate behavior for future Army officers.
 
3.  The applicant was referred to a faculty board for consideration of whether he should be recycled or relieved from the USAIS course of instruction because of misconduct, failure to adapt to the military, and leadership deficiencies while attending OCS.  Specifically, he made a false statement to the 1SG and commissioned officers, in addition to displaying disrespectful and insubordinate gestures toward the 1SG.  In determining findings and recommendations, the faculty board was instructed to conduct its evaluation using the "whole-person" concept.  The board was instructed to consider the applicant's academic performance, leadership, attitude, motivation, demonstrated potential, conduct, and any other matters concerning the applicant's qualifications.

4.  The faculty board convened on 5 December 2008.  Its findings were that the applicant did commit misconduct, demonstrated a failure to adapt to the military, and did demonstrate leadership deficiencies while enrolled in OCS.  In addition, the board considered his academic performance, attitude, motivation, demonstrated potential, and his leadership qualities.  In view of the above findings, the board recommended the applicant be relieved from the course and declared a non-graduate.  In its comments, the board indicated the applicant had potential to be a Soldier.  It recommended he attend advanced individual training and gain some experience and then he could be groomed into a leader.

5.  A legal review of the Faculty Board Proceedings was completed and the provided materials related to the applicant's faculty board were found to be legally sufficient to support the board's recommendation that he be relieved from OCS.  The reviewing official states that the Course Convening Authority followed all procedural and notification requirements and additionally, there was sufficient evidence presented to support the board's findings and that the findings supported the recommendation.

6.  On 12 December 2008, the applicant was relieved from the OCS course.

7.  The applicant appealed the decision to relieve him from OCS.  On 12 January 2009, the applicant's appeal of his relief from OCS was denied.

8.  The applicant's records show he reenlisted for three years on 22 May 2009 and voluntarily extended this 3-year reenlistment an additional 2 months to meet the service remaining requirement for service school in military occupational specialty (MOS) 68P (Radiology Specialist).

9.  Army Regulation 350-51 (United States Army Officer Candidate School), paragraph 5-10, states:

	a.  candidates who clearly show a lack of aptitude or qualification for commissioned status, as determined under procedures established by the school commandant, will be relieved from OCS.  Procedures to determine if the candidate lacks aptitude or qualification for commissioning will be consistent with requirements in Army Regulation 351-1 (Individual Military Education and Training), paragraph 3–13b.  These procedures will include notice of the deficiency and an opportunity to respond before a decision is made on relief from OCS.

	b.  The school commandant, or a named representative, may relieve a candidate whenever a lack of aptitude or qualification for commissioning has been determined.  The decision may be for –

		(1)  Disciplinary reasons
		(2)  Academic deficiencies
		(3)  Disqualifying physical conditions
		(4)  Leadership deficiencies
		(5)  Security reasons
		(6)  Lacking motivation
		(7)  Falsifying or omitting facts on application
		(8)  Violating the honor code
		(9)  Misconduct

10.  In the processing of this case, on 17 December 2009, an advisory opinion was obtained from the Office of the Deputy Chief of Staff (ODCS), G-1.  The advisory official stated that after a careful review of the applicant's request for a commission as a second lieutenant, he found no evidence that the applicant has satisfactorily completed the pre-commissioning training and evaluation, nor demonstrated the necessary leadership qualities required for a commission in the Regular Army.  He states that while the applicant alleged he was the victim of discrimination and that the Faculty Board convened by the Commander, 199th 
Infantry Brigade was not impartial, he has not presented evidence that he has completed the training or received constructive credit for his experience.  He further states the applicant has shown no reason why his failure to meet course standards should be excused and until such time as the applicant can demonstrate that he has met all pre-commissioning requirements, he is ineligible for appointment.

11.  The advisory official indicated that his office could not administer any administrative corrections in favor of the applicant.

12.  The advisory opinion was forwarded to the applicant and to his counsel for information and to allow them the opportunity to submit comments or a rebuttal.  In counsel's 15 January 2010 letter in response to the advisory opinion, he states that they disagree with the advisory opinion and request that the Army Board for Correction of Military Records (ABCMR) not adhere to the ODCS, G-1's position.  He continues by stating that a simple review of the documents will show the applicant has well-documented letters of recommendation from a wide variety of individuals including a United States Senator.  He states that the applicant is consistently described as a "likable character" with positive evaluation from his peers.

13.  Counsel continues by stating the applicant has basically completed the OCS course.  He states that although the applicant did have a number of infractions for which he was counseled and admonished, he did complete all but the last week of OCS, which week was devoted to administrative matters and not training.  He states that, in addition, the "lying" incident was admitted by him and is not, under the OCS regulations, in and of itself, grounds for dismissal.

14.  Counsel further states that "one fundamental point is clear, which the advisory opinion appears to gloss over, the Faculty Board Hearing on December 2008 was a sham."  He states that it is absolutely clear that one voting Board Member, CPT K--- was a personal friend of Captain L---.  He finally states that they urge the ABCMR to overturn the recommendations of ODCS, G-1 and commission the applicant; that he deserves no less.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant contends he completed 11 of 12 weeks of OCS and should be permitted to graduate and be commissioned as an officer, he did not complete or show that he successfully completed the course requirements for graduation.  Evidence clearly shows the applicant had numerous infractions during the approximately 10 weeks he attended OCS with Echo Company.  His counseling documents indicate that despite numerous counseling sessions the counselor did not see that the applicant had demonstrated the leadership attributes to become an officer in the U.S. Army.  He continues by stating that the applicant failed to show the required skills in the areas of initiative, responsibility, attention to detail, selfless-service, military bearing, and motivation.  These documents also indicate the applicant failed all of his field leadership evaluations during Field Leadership Exercise (FLX) II.  Evidence indicates he had a low ranking among his peers during this time with 70 percent of them ranking him in the bottom 10 percent.

2.  Despite the applicant's numerous documented deficiencies while assigned to Echo Company, he was given an opportunity to recycle/restart to acquire the skills required (which go beyond training alone) and graduate from the course and receive a commission, if otherwise qualified.  However, it appears he did not choose to fully take advantage of this opportunity to succeed after being recycled to another [Bravo] company, rather he continued to receive negative counseling statements for things such as a security violation, violation of study time, and failure to follow guidance from the student chain of command for proper uniform wear, and for showing disrespectful and insubordinate gestures, all inappropriate behavior for future Army officers.

3.  The applicant was then referred to a faculty board to determine whether he should be relieved and declared a non-graduate from OCS for misconduct, failure to adapt to the military and leadership deficiencies while enrolled in OCS.  The faculty board found he committed misconduct, demonstrated failure to adapt to the military and demonstrated leadership deficiencies.  The faculty board considered his academic performance, attitude, motivation, demonstrated potential, and his leadership qualities.  In view of the above findings, the board recommended the applicant be relieved from the course and declared a non-graduate.  On 12 December 2008, he was relieved from the course.

4.  As indicated in the advisory opinion, there is no evidence the applicant satisfactorily completed the pre-commissioning training and evaluation, nor demonstrated the necessary leadership qualities required for a commission in the Regular Army.  Although the applicant alleged he was the victim of discrimination and that the Faculty Board was not impartial, neither he nor his counsel has presented compelling evidence that this was the case or that the applicant's substantial rights were otherwise not afforded.  As such, the applicant has shown no reason why his failure to meet course standards should be excused.

5.  In view of the foregoing, there is insufficient basis for granting the applicant's requested relief.

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)                                         AR20090019721



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ABCMR Record of Proceedings (cont)                                         AR20090019721



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