IN THE CASE OF:	  

		BOARD DATE:	    8 October 2013

		DOCKET NUMBER:  AR20120022429 


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:

* reinstatement of the original date of 15 March 2010 as the date he was discharged to accept a commission or appointment as a warrant officer (WO) in the Regular Army (RA)
* correction of his date of rank as a WO from 8 February 2012 to 16 March 2010
* promotion to chief warrant officer two (CW2) effective 16 March 2012

2.  The applicant states he attended the WO Basic Course (WOBC) 880A (Marine Deck Officer Course) from April to November 2010, but he failed the examination and he was dismissed from the course.  He submitted an appeal of his dismissal in January 2011, but his appeal was denied.  He was told he could "reenlist" in an enlisted status or face discharge action.  During this time, the U.S. Army Transportation School did not issue him a DA Form 1059 (Service School Academic Evaluation Report).  He enlisted and proceeded to Fort Lewis, WA.  After his reassignment, he applied and was re-selected to become a WO.  He attended the Electronic Warfare Technician WO Course.  Upon completion of this course, he was reassigned to Fort Dum, NY.  In November 2012, a document was uploaded to his records in the Interactive Personnel Electronic Record Management System (iPERMS).  When he checked his records, he was surprised that a DA Form 1059 indicating he passed course standards for the 880A course had been filed in iPERMS.  He had mixed emotions because he knew he had passed the course despite some struggle and knew he was mistreated and embarrassed.  Nevertheless, this new evidence shows he should have been promoted to CW2 effective 16 March 2012.

3.  The applicant provides a self-authored statement and his DA Form 1059.

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service in the U.S. Navy, the applicant enlisted in the RA in the rank/grade of staff sergeant (SSG)/E-6 on 22 October 2007 and he held military occupational specialty (MOS) 13F (Fire Support Specialist).  He reenlisted on 5 February 2009.

2.  After completing WO Candidate School in 2010, he was honorably discharged on 15 March 2010 to accept a commission/WO appointment.

3.  He was appointed as a Reserve WO of the Army and executed an oath of office on 16 March 2010.  On the same date, he was also ordered to active duty for a 6-year commitment upon successful completion of WOBC.

4.  He attended the Marine Deck Officer WOBC Number 002-10 from 9 April 2010 to 10 November 2010.

5.  On 19 November 2010, he was notified that he would be dismissed from the Marine Deck Officer WOBC Number 002-10 as a result of failing to meet academic course standards.  He acknowledged receipt of the notification and indicated he desired to submit an appeal.

6.  On 22 November 2010, his company commander counseled him.  He informed the applicant that he had been dismissed from the course and was ineligible to retest or be recycled due to his continuing struggle.  He was advised of his rights and given until 15 January “2010” to exercise one of the following options:

* release from active duty for the purpose of immediate reenlistment in his previous MOS
* request separation from the Army

7.  On 24 November 2010, he submitted an appeal of his dismissal.  He acknowledged he had failed multiple examinations and he was sent to an academic evaluation board.  However, he alleged that he did not receive a fair chance and he was discriminated against as not being a good candidate from the very beginning.  His appeal was denied.

8.  It also appears he filed an Inspector General (IG) complaint regarding his unfair criteria and/or dismissal from the course.

9.  The U.S. Army Training and Doctrine Command IG responded to his IG action request concerning unfair criteria for course recycle and a medical disclosure violation, dated 2 February 2011.  He stated that his office conducted a comprehensive inquiry into the applicant’s issue and determined that due process was conducted in the determination of his recycle recommendation.  A review of the Student Evaluation Plan determined he did not meet the criteria to graduate.  The decision not to recycle him based on the level of difficulty he had in the course was well within the commandant's authority.  No discrimination was found and no instance of medical disclosure was found.

10.  On 16 March 2011, the U.S. Army Human Resources Command (HRC), Fort Knox, KY, approved the applicant's request for separation (unqualified resignation) effective 1 April 2011.

11.  Headquarters, U.S. Army Garrison, Fort Monroe, VA, Orders 077-0003, dated 18 March 2011, discharged him effective 1 April 2011.

12.  HRC approved the applicant's request for enlistment.  He was authorized to enlist in the rank/grade of SSG/E-6 in MOS 13F for an indefinite term effective 2 April 2011.

13.  He was honorably discharged as WO on 1 April 2011 for the purpose of immediate enlistment or reenlistment.  He was issued a DD Form 214 for this period of service.

14.  He executed an indefinite enlistment in the RA in the rank/grade of SSG/E-6 on 2 April 2011.  He was ultimately reassigned from Fort Eustis, VA, to Fort Lewis, WA, around December 2011.

15.  On 7 February 2012, he submitted a DA Form 4187 (Personnel Action) wherein he requested early separation from his enlisted status for the purpose of acceptance into a WO program leading to a commission.

16.  Joint Base Garrison, Joint Base Lewis-McChord, Orders 038-0049, dated 7 February 2012, discharged him for the purpose of accepting an appointment as a WO effective 7 February 2012.  He was issued a DD Form 214 that captured this service.

17.  He was appointed as a Reserve WO of the Army and executed an oath of office on 8 February 2012.  This date became his DOR to the grade of WO1.

18.  He attended and successfully completed the Electronic Warfare Technician Course from 8 April 2012 to 24 July 2012.  He was subsequently assigned to Fort Drum, NY.

19.  He provides and his records contain a DA Form 1059, dated 9 November 2010, that shows he attended the Marine Deck Officer WOBC Number 002-10 from 9 April 2010 to 10 November 2010 and "Achieved Course Standards."

20.  Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes the officer transfers from active duty to the Reserve Component (RC) and discharge functions for all officers on active duty for 30 days or more.  It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support officer transfers and discharges.

	a.  Paragraph 2-33 states an RC commissioned officer with less than 5 years of commissioned service or an RC WO will be released from active duty and discharged from his or her U.S. Army Reserve (USAR) commission when the officer fails to meet the standards of service schools due to academic or leadership deficiencies.  Effective 1 October 1992, WO1's who are appointed contingent upon successful completion of WOBC will be released from active duty or discharged if eliminated from WOBC due to resignation from the course or for failure to meet the conduct, moral, physical, professional, academic, or leadership standards.

	b.  Paragraph 3-7 states an officer or WO on the Active Duty List who meets the criteria as stated in either b or c of this paragraph may submit a resignation for the purpose of enlistment or reenlistment in the RA.  The officer or WO must be counseled that if he or she enlists in the RA, the officer must submit a memorandum of resignation from his or her USAR officer or WO appointment.  The resignation will be sent to HRC.  A Soldier may not serve on active duty in an enlisted status and continue to hold a USAR officer or WO appointment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant attended the Marine Deck Officer WOBC from 9 April 2010 to 10 November 2010, but he did not achieve course standards.  He struggled academically and he was dismissed from the course as a result of failing to meet academic course standards.  His company commander counseled him on 22 November 2010 and informed him of his pending dismissal and ineligibility to retest or be recycled due to his continuing struggle.

2.  He was also advised of his rights and options of enlistment or separation.  It appears that the U.S. Army Training and Doctrine Command IG reviewed his circumstances and determined that due process was conducted in the determination of his recycle recommendation and that he was determined not to have met the criteria to graduate.  The applicant was properly discharged on 1 April 2011 and he was issued a DD Form 214 to capture his WO active service.

3.  Training centers habitually initiate the DA Forms 1059 for graduating students ahead of time.  This allows the final DA Form 1059 to be available for graduating students on the final day of the course.  It appears that the applicant was issued a prepared DA Form 1059 on 9 November 2010 that shows he achieved course standards.  However, the available evidence clearly shows the applicant did not complete the course due to academic reasons.  As such, his DA Form 1059 would have stated "Failed to Achieve Course Standards."

4.  The applicant knew he failed course standards as evidenced by his acknowledgement of the counseling on 22 November 2011, the resignation request he submitted, the IG finding, and his subsequent request for enlistment.  The fact that an erroneous DA Form 1059 is now filed in his iPERMS does not mean he completed and passed the course.

5.  The applicant enlisted on 2 April 2011 and served in an enlisted status through 7 February 2012.  He was reappointed as a WO on 8 February 2012.  This date, the date of his reappointment, is also his date of rank as a WO.  This is the correct DOR and there is no reason to change it.  Furthermore, since promotion to CW2 requires 2 years of time in service, the applicant does not qualify for promotion until February 2014.

6.  Although the applicant's DA Form 1059 is clearly in error and should not be filed in his AMHRR, it is not the Board's practice to change records when the end result will cause an applicant to be worse off than when he or she began the appeal process.  A DA Form 1059 that reads "Failed to Achieve Course Standards" is clearly more derogatory than an erroneous DA Form 1059 that reads "Achieved Course Standards"; therefore, the Board elects not to direct its removal.


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 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)                                         AR20120022429



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ABCMR Record of Proceedings (cont)                                         AR20120022429



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