IN THE CASE OF:	  

		BOARD DATE:	    1 November 2011

		DOCKET NUMBER:  AR20110015921 


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, in effect, amendment of the DA Form 1059 (Service School Academic Evaluation Report (AER)), dated 18 August 2006, that is filed in his Official Military Personnel File (OMPF).

2.  The applicant states he attended the Advanced Noncommissioned Officer Course (ANCOC).

   a.  The AER he was issued shows he had an overall performance rating of 95.8% and that he passed the Army Physical Fitness Test (APFT); however, item 11 (Performance Summary) indicates he "failed to achieve course standards."

   b.  The course manager accused him of lying and mentioned that in item 14 (Comments) of the AER.  He asserts that this is in violation of Army Regulation 623-3 (Evaluation Reporting System), paragraphs 3-23 and 3-24.

   c.  He states the course manager was biased in her assessment of the events surrounding his arrival and his request for early release from ANCOC.  He attempted to explain everything to her; however, she wouldn't listen to him.

   d.  He has served in the rank of sergeant first class (SFC)/pay grade E-7 since December 2007.  However, he cannot be considered for promotion to master sergeant (MSG)/pay grade E-8 without successful completion of ANCOC.

3.  The applicant provides copies of his AER and AER appeal with supporting documents.
CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve on 18 January 2000.  He was awarded military occupational specialty (MOS) 97B (Counterintelligence Agent) and promoted to staff sergeant (SSG)/pay grade E-6 on 1 December 2004.

2.  A DA Form 1059, dated 18 August 2006, shows the applicant attended 
ANCOC at the 6th Military Intelligence Battalion, 3rd Brigade (Combat Support), 95th Division (Institutional Training), San Antonio, TX.  The duration of the course was from 5 - 18 August 2006.  It shows in:

   a.  item 9 (This is a referred report, do you wish to make comments?) an "X" in the "Yes" block;

	b.  item 11 an "X" in block d - "Failed to Achieve Course Standards";

   c.  item 12 (Demonstrated Abilities), line c (Leadership Skills), an "X" in the "Unsatisfactory" block; and

   d.  item 13 (Has the student demonstrated the academic potential for selection to higher level schooling/training?) an "X" in the "Yes" block.

   e.  Item 14 (Comments), in pertinent part, shows he passed the APFT on
6 August 2006 and had an overall performance average of 95.8%.  It also shows the rater referenced item 11d and documented that the applicant failed to achieve course standards due to characteristics unbecoming a noncommissioned officer (NCO).  The rater also noted the applicant received written counseling for two substantiated cases of lying about incidents related to his reporting late for ANCOC and his request for early dismissal from ANCOC due to an upcoming mission.  The rater concluded the applicant failed to demonstrate characteristics commensurate with his rank, and that his behavior constituted poor leadership and a lack of good judgment.

   f.  The DA Form 1059 contains the signatures of the rater (SSG Darrel J.
W----, Senior Instructor) and reviewing officer (MSG Teresa L. B---, Director of Instruction); however, the signature of the rated Soldier (i.e., the applicant) is not on the document.  It shows the entry "Soldier unavailable for signature."

3.  A written statement shows the applicant commented on matters relating to the report date and his early dismissal from ANCOC.


   a.  He states the Army Training Requirements and Resources System (ATRRS) email message he received had a reporting date to ANCOC of Sunday, 6 August 2006.  He notified an NCO, who was part of the cadre, that he would be arriving on 6 August, but he didn't receive any response.  He adds he didn't receive a counseling statement regarding this until the last day of the course.  He maintains that if he knew the class start date was 5 August, he would have made travel plans to arrive on that date.

   b.  He states he asked the cadre if he could be released early from ANCOC (on 17 August) due to a mission his unit wanted him to participate in starting
22 August.  The mission required him to receive anti-malaria medication not later than 19 August.  The cadre instructed the applicant to have his unit first sergeant (1SG) email them requesting his early release from ANCOC, which the applicant states the 1SG did.  The applicant also states he asked the 1SG to request the early release based on the mission and to allow him "family time"; however, he acknowledges he forgot to mention to his 1SG the requirement regarding the anti-malaria medication.  The applicant concludes that he believes he had a legitimate reason to ask for early release from ANCOC.

4.  An ATRRS email message, dated 12 July 2006, shows a valid reservation for the applicant to attend ANCOC, Class 174, at the 6th Military Intelligence Battalion, 3rd Brigade (Combat Support), San Antonio, TX, with a report date of
6 August 2006.

5.  The DA Form 1059 (with attached written rebuttal and email message) are filed in the performance section of the applicant's OMPF. 

6.  The applicant was promoted to SFC (E-7) on 1 December 2007.

7.  A memorandum to the U.S. Army Human Resources Command (USA HRC), St. Louis, MO, dated 14 March 2008, subject:  Evaluation Report Appeal
(6-18 August 2006, ANCOC), is filed in both the performance and restricted sections of the applicant's OMPF.  The applicant's AER appeal, written statement, date-stamped 8 August 2008; email message, dated 12 July 2006; and a memorandum dated 2 April 2007, are filed in the restricted section of the applicant's OMPF.

   a.   In his appeal, the applicant provides essentially the same argument he provided in his written rebuttal to the AER.  Regarding the request for early dismissal, the applicant states he contacted his noncommissioned officer in charge (NCOIC) and asked him to email the cadre.  He also states he offered to go into the office to do some work to help prevent a backlog from accruing during his extended absence.
   b.  He states he passed every aspect of ANCOC with an overall performance rating of 95.8%, passed the APFT, and also participated in class discussions.

   c.  He requested amendment of the DA Form 1059, as follows:
   
* item 11 from block d to block b - "Achieved Course Standards"
* item 12, block c, from "Unsatisfactory" to "Satisfactory"
* item 14 to read, "Successfully participated in class discussions"

   d.  A Wiesbaden Health Clinic, memorandum, dated 2 April 2007, subject:  Medical requirement for Niger, Africa, shows the Public Health Nurse confirmed that the applicant was notified of an impending mission to Niger, Africa while in attendance in a military school.  She states the applicant's travel would have required that he be available at least three days prior to travel to ensure he was properly vaccinated.  She acknowledges she is not aware of the capabilities of the local medical treatment facility to fulfill the requirements.

8.  Headquarters, USA HRC, St. Louis, MO, memorandum, dated 25 November 2008, subject:  AER Appeal (060805-060818), shows the Army Enlisted Special Review Board (ESRB) determined that the evidence submitted by the applicant does not justify altering or withdrawing the subject AER.

9.  Army Regulation 623-3 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  Chapter 3 (Army Evaluation Principles) provides in:

   a.  paragraph 3-23 (Unproven derogatory information), in pertinent part, that no reference will be made to an incomplete investigation (formal or informal) concerning a Soldier.  References will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting the evaluation to Headquarters, Department of the Army. Verified derogatory information may be entered on an evaluation.  This is true whether the rated Soldier is under investigation, flagged, or awaiting trial; and

   b.  paragraph 3–24 (Prohibited comments), in pertinent part, that the use of inappropriate or arbitrary remarks or comments that draws attention to differences relating to race, color, religion, gender, age or national origin is prohibited.  Subjective evaluation will not reflect a rating official's personal bias or prejudice.

   c.  The instructions for the DA Form 1059, item 14 (Comments), show that it is intended that a word picture will portray the student's academic performance, intellectual qualities, and communication skills and abilities.  The narrative should also discuss the student's potential, leadership capabilities, moral and overall professional qualities.

10.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) provides policies, operating tasks, and steps governing the OMPF.

   a.  Only those documents listed in Table 2-1 (Composition of the OMPF) and Table 2-2 (Obsolete or No Longer Used Documents) are authorized for filing in the OMPF.
   
   b.  Depending on the purpose, documents will be filed in the OMPF in one of the three sections:  performance, service, or restricted.  Once placed in the OMPF, the document becomes a permanent part of that file.  

   c.  Table 2-1 shows the DA Form 1059 is filed in the performance section. The memorandum denying an appeal is filed in the performance section and the allied documents are filed in the restricted section.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the entries in items 11, 12, and 14 of the
DA Form 1059 he was issued on 18 August 2006 should be amended because he had an overall performance rating of 95.8% and passed the APFT, but the course manager was biased in her assessment of the events surrounding his arrival and his request for early release from ANCOC and, as a result, she rendered an improper evaluation.

2.  The rater documented the applicant's academic performance average for ANCOC of 95.8% and that he passed the APFT on 6 August 2006 in item 14 of the DA Form 1059.

3.  The rater assessed the applicant's leadership skills as unsatisfactory.  He based his assessment on two substantiated cases [emphasis added] that the applicant had lied about both reporting late to ANCOC and his request for early dismissal from ANCOC.  The rater also provided comments in item 14 of the
DA Form 1059 about the applicant's leadership capabilities and overall professional qualities and details about the two incidents that served as the basis for his evaluation in support of the entry in item 12c.  Based on this, the rater determined that the applicant's performance summary [emphasis added] was that he failed to achieve course standards.  Accordingly, he entered his rating in item 11d.

4.  The DA Form 1059 was referred to the applicant for comment and the applicant provided written comments regarding the evaluation.

5.  The applicant subsequently appealed the AER.  On 25 November 2008, the Army ESRB determined that the evidence he submitted did not justify altering or withdrawing the AER.

6.  The applicant has failed to show there was any personal bias or prejudice by either of the rating officials.

7.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption.  The applicant fails to provide such evidence.

8.  In view of all of the foregoing, there is insufficient evidence to support 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)                                         AR20110015921



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ABCMR Record of Proceedings (cont)                                         AR20110015921



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