IN THE CASE OF:	  

		BOARD DATE:  21 June 2012

		DOCKET NUMBER:  AR20120006500 


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:

* correction of his DA Form 1059 (Service School Academic Evaluation Report (AER)), dated 20 January 2004, to show that it is no longer considered a referred report
* removal of the AER Referral Memorandum from the Chief of Evaluation and his rebuttal statement from his official military personnel file (OMPF)
* promotion reconsideration to major (MAJ) by a Special Selection Board (SSB) under the Fiscal Year 2012 (FY12) criteria

2.  The applicant states:

* the 2004 AER should be corrected based on Item 16 (Comments), paragraph 14c, of the AER 
* there were no documents to include counseling statements or disciplinary action to support the statement on his AER indicating he lacked leadership or that he demonstrated any other disruptive behavior
* the comment was subjective
* the then-rater has submitted a memorandum to help rectify this serious misunderstanding
* the Referred Report is non-favorable in accordance with Army Regulation 600-8-29 (Officer Promotions); therefore, he would like to be considered for promotion to MAJ by an SSB under the FY12 criteria


3.  The applicant provides:

* 2004 DA Form 1059 (AER)
* AER Referral memorandum
* his rebuttal statement
* two memoranda in support of his request

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's military record shows he was appointed in the U.S. Army Reserve as a second lieutenant on 15 May 2003 with prior enlisted service.  He was ordered to active duty and entered an active duty status on 4 April 2004.  

3.  A DA Form 1059, dated 20 January 2004, shows he attended the resident Engineer Officer Basic Course at the U.S. Army Engineer School from 15 September 2003 through 29 January 2004.  

   a.  Item 13 (Performance Summary) of the AER shows "Achieved Course Standards" is annotated with an "X."

   b.  Item 14 (Demonstrated Abilities) shows the following items are annotated with an "X."
   
* Written Communication, "Not Evaluated" 
* Oral Communication, "Satisfactory"
* Leadership Skills, "Satisfactory"
* Contribution to Group Work, "Satisfactory"
* Evaluation of Student's Research Ability, "Not Evaluated" 

   
c.  Item 15 (Has Student Demonstrated The Academic Potential For Selection To Higher Level Schooling/Training) "Yes" is annotated with an "X."

	d.  Item 16 (Comments) contains the following remarks:

* item 13a - (the applicant) maintained a marginal academic record completing the course with a 77% average, with a rank of 64 of 64 students 
* this officer is in satisfactory physical condition earning a score of 
248 points on the final Army Physical Fitness Test
* item 14c - (the applicant) is totally lacking in leadership ability
* he was constantly late and his military bearing was non-existent
* he could not manage his own shortcomings much less those of a platoon 
* (the applicant) set an extremely poor example for his classmates, lacked motivation, and made no improvement during the course
* item 14c – (the applicant) is recommended to attend the next available Sapper Leader Course
* (the applicant) has the potential to be a good officer and an effective platoon leader
* although he had trouble with academics he was able to work extra hard to overcome his challenges

	e.  The DA Form 1059 contains the signatures of the preparing officer, 
CPT Txxxxx C. Cxxxx, Platoon Trainer, and the reviewing officer, CPT Jxxx D. Cxxxxx, Company Commander.  

4.  The AER was referred to the applicant on 5 October 2004.

5.  In his rebuttal, dated 5 November 2004, the applicant stated, in effect:

   a.  The only negative comments that he interpreted from the AER was bullet number 14c.  The platoon trainer was very inaccurate in writing this statement.  If he lacked leadership ability and had no military bearing he would not have graduated or been recommended for the Sapper Leader Course from which he did graduate.
   
   b.  The battalion commander does not even tolerate that type of behavior, nor were any disciplinary actions taken against him for his so-called reluctant behavior because it was non-existent.  He fulfilled leadership roles as they were given to him from team leader to platoon sergeant throughout the entire course with no confrontations with any of his peers.  Granted the platoon trainer came in the middle of his class rotation (around the 7th week), "he had made a complete contradictive as sement [sic] of character."  

6.  The DA Form 1059, the applicant's rebuttal statement, and the supporting documents are in the performance section of his OMPF. 

7.  He was promoted to CPT on 1 July 2006. 

8.  In an undated memorandum, the AER preparing officer, the platoon trainer, currently serving in the rank of MAJ, stated:

	a.  It had been brought to his attention that the applicant's AER, dated 20 January 2004, was being considered as a Referred Report.  Although at the time the applicant lacked some motivation during the course, he did adapt and overcame to meet the course standards, and at no time was he close to being recycled or kicked out of the course due to academic or disciplinary actions; therefore, the report should not be considered as referred.

	b.  Both he and the applicant attended the Sapper Leader Course (03-04) together.  The applicant did successfully finish the course.  He believes that course was the turning point in the applicant's Army career.  The applicant needed to challenge his intestinal fortitude to motivate him more to be a successful Army officer.  Since then, the applicant has gone on to complete three combat tours, held a successful company command at the U.S. Army Airborne School, and currently works for the Corps of Engineers as a Project Manager on the largest mega-million dollar project in his district.  The applicant is the only "uniformed employee" assigned to the field office out of his district making his role critical.  His performance during his entire Army career should be considered when making considerations for actions that will affect his ability to continue to serve as a leader in the military.

9.  In a memorandum, dated 12 April 2012, the Director of Operations, XVIII Airborne Corps and Fort Bragg, NC, stated, in effect:

	a.  The applicant is an outstanding officer.  He has personally witnessed the applicant's performance during multiple assignments and he highly recommended that the applicant continue to be promoted to the highest levels.  The applicant worked within the 1st Battalion, 507th Parachute Infantry Regiment, under his command, for nearly 2 years.  He was consistently impressed with the applicant's performance and demonstrated potential.  He also worked with the applicant nearly a year after leaving command while completing Operation New Dawn - again, the applicant was impressive and stood out from his peers.

	b.  While serving in the 1st Battalion, 507th Parachute Infantry Regiment, the applicant was eager to seek and accept any challenge.  He was an assistant operations officer initially and singlehandedly planned, coordinated, and supervised execution of an overseas deployment for a significant portion of the unit.  He worked tirelessly with every level of command from the Brigade to the Unified Combatant Command as their single point of contact.  The results were outstanding and the deployment was executed without flaw.  The applicant commanded Company B with distinction.  He was charged with executing high risk training on a daily basis and managing risk without incident.  His maturity was obvious and his desire to excel was unbounded.
   
   c.  The applicant is the total package.  He is what they are looking for in field grade and senior officers within the Army.  The applicant is talented, intelligent, energetic, and a gifted leader who easily relates to those around him, subordinates, peers, and superiors.  The applicant has committed himself to a lifetime of contribution to Soldiers and he firmly believes the Soldier would suffer without the applicant's leadership.

10.  On 6 June 2010, a staff member of the Army Human Resources Command, Officer Promotions, Fort Knox, KY, advised that the applicant's first and only board of consideration for promotion to major was the FY12 board.  He was considered by that board which was held between 18 October 2011 and 10 November 2011.  He was not selected.  There was no way of telling why he was not selected, as reasons are not recorded by the board.  There was no educational requirement for this board so his non-selection was not based on not having the appropriate level of education (military or civilian).

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

	a.  Paragraph 3-35 states the following types of reports will be referred to the student by the reviewing official for acknowledgement and comment:

		(1)  any report with a "NO" response;

		(2)  any report with an "UNSAT" rating;

		(3)  any report with a "marginally achieved course standards" response;

		(4)  any report with a "failed to achieve course standards" response.  If this block in Item 13 is checked, the preparing official will address (in Item 16) whether the deficiency reflects on the character/behavior of the student or lack of aptitude in certain areas;

		(5)  any report with comments that in the opinion of the reviewing official are so derogatory that the report may have an adverse impact on the student's career; and 

		(6)  any report with an entry of "FAIL:  for APFT or "NO" for height and weight indicating noncompliance with Army Regulation 600-9 (The Army Weight Control Program).

	b.  The instructions for the DA Form 1059, Item 16, 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.

12.  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.

13.  Army Regulation 600-8-29 (Officer Promotions) states an officer who discovers a material error existed in their file at the time they were non-selected for promotion may request reconsideration by an SSB.  Material error in this context is one or more errors, to include an evaluation report deleted from the OMPF or modified, of such a nature that, in the judgment of the reviewing official (or body), it caused an individual’s non-selection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the entries contained on his 2004 DA Form 1059 should be corrected.  The evidence of record shows the applicant was issued an AER on 20 January 2004 in which the rater provided comments in Item 16 addressing Item 13a concerning the applicant's leadership capabilities and overall professional qualities during the duration of the course.  

2.  The rater also assessed the applicant's leadership skills as "totally lacking."  The AER was referred to the applicant for comment and the applicant provided a written rebuttal.  There is no indication he appealed the report.  The rater subsequently submitted a memorandum wherein he stated the applicant lacked some motivation during the course; however, he did adapt and overcame to meet the course standards, therefore the report should not be considered referred.

3.  The AER shows the rater stated the applicant lacked leadership ability.  The applicant was constantly late, his military bearing was non-existent, and he set a poor example for his class mates.  He also assessed the applicant as having the potential to become a good officer and effective platoon leader.  The rater subsequently stated in a memorandum the Sapper Leader course, not the basic course, was the turning point in the applicant's career.  His performance during the later Sapper Leader course had no bearing on the AER being properly considered a referred report.  

4.  The applicant has provided no evidence to show the 2004 AER was inaccurate, unjust, flawed, or improperly imposed at the time.  He also has not shown that the narrative comments were inaccurate, unjust, flawed, or that there was personal bias or prejudice by either of the rating officials on the 2004 AER.  It is concluded that he did not provide sufficient evidence or a convincing argument to support his requests.  

5.  Based upon the above, there is no basis on which to grant him promotion reconsideration to MAJ by an SSB under the FY12 criteria.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined 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)                                         AR20120006500



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ABCMR Record of Proceedings (cont)                                         AR20120006500



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