IN THE CASE OF:	  

		BOARD DATE:	  4 June 2013

		DOCKET NUMBER:  AR20130005407 


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 removal of the DA Form 1059 (Service School Academic Evaluation Report (AER)), dated 15 March 2012, from his Army Military Human Resource Record (AMHRR) showing he marginally achieved course standards for the Command and General Staff College (CGSC) and adding the DA Form 1059, dated 11 April 2012, showing he achieved course standards.

2.  The applicant states while preparing his board file for consideration for promotion to colonel (COL)/O-6 last year, it was noted that the DA Form 1059 documenting his completion of CGSC on 29 December 2004 was missing.  The DA Form 1059 was reissued by the Program Manager, CGSC.  The copy he received was incorrectly marked "marginally achieved course standards" and signed on 15 March 2012.  When he contacted the CGSC staff, the error was confirmed and a corrected DA Form 1059 was issued.  He thought the issue had been resolved until his board file opened again and the incorrect DA Form 1059 was in the file.  He was informed that, due to the dates involved, he must apply to this Board to request the correct DA Form 1059 be placed in his record.  

3.  He continues by stating the incorrect DA Form 1059 was present in his file for the Chaplain COL Selection Board that met in March 2012.  He was not selected by that board.  He recently discovered the corrected document had not been placed in his file.  He states it is important that the incorrect DA Form 1059 be replaced before the above-the-zone board tentatively scheduled for June 2013 convenes.   

4.  He provides:

* self-authored memorandum to the Commander, U.S. Army Human Resources Command (HRC), subject:  Evaluation Report Appeal [Applicant], dated 13 March 2013
* DA Form 1059, dated 11 April 2012
* memorandum for record (MFR), subject:  Correction of AER for [Applicant], dated 13 March 2013
* Academic Transcript

CONSIDERATION OF EVIDENCE:

1.  On the date of his application, the applicant was serving as a chaplain in the rank/grade of lieutenant colonel/O-5.  

2.  His AMHRR contains a reissued DA Form 1059, dated 15 March 2012, documenting his completion of CGSC during the period 2 October 2001 through 29 December 2004.  The form shows in:

	a.  item 11 (Performance Summary), the box is marked for 11c "marginally achieved course standards";  

	b.  item 12 (Demonstrated Abilities), all satisfactory ratings with two areas not evaluated; and

	c.  item 14 (Comments), in part, "student officer has achieved the course standards of the core curriculum."

3.  He provides a reissued DA Form 1059, dated 11 April 2012, signed by the Deputy Director, Department of Distance Education (DDE), CGSC, and the Director, DDE, CGSC.  The form shows he completed CGSC on 29 December 2004.  In item 11, the box for "achieved course standards" is marked.  

4.  He provides an official CGSC Academic Transcript showing he attended Intermediate Level Education from 2 October 2001 to 29 December 2004.  The transcript shows he received passing or higher grades in each course he took.  

5.  He provides an MFR, subject:  Correction of AER for [Applicant], dated 13 March 2013, signed by the Registrar, CGSC.  The Registrar states:

"[Distance learning (DL)] students were provided a generic, boiler plate AER and rating was based on student grades.  It is clear in this case that the grades were not checked prior to completing the rating for [the applicant].  Transcript enclosed indicates there were no marginal grades that would lead to the [performance summary] Marginally Achieved Course Standards." 

"During the rating period of the AER in question the Department of [Distance] Education (DDE) DL and [The Army School System (TASS)] students were rated by the Deputy Director and Director of DDE who had no contact or visibility of the students or their material.  The grades were the only indication of the student's performance.  It is clear that [the applicant's] grades were not checked prior to the rating or [it is possible] that he was confused with another student.  It is clear that [the applicant's] grades clearly indicate that he Achieved Course Standards.'

"The [Leader Development and Education] Registrar now has over site [sic] of all student records, Resident, DL, and TASS students.  DL students now have 'instructors' who rate the students based on performance and interaction with DL instructors.  TASS students are rated by the instructors during active duty training for Phase III.  DDE no longer issues a 'Boiler Plate' AER to non-resident students."

6.  He provides a self-authored memorandum to the Commander, HRC, Subject:  Evaluation Report Appeal ([Applicant]), dated 13 March 2013.  In the memorandum, he stated he wished to appeal his AER for the period ending 29 December 2004 based on administrative errors that resulted in the AER showing he "Marginally Achieved Course Standards" when it should have been marked "Achieved Course Standards."  

7.  On 22 May 2013, in a telephone conversation with a Board analyst, a staff member of the Evaluation Appeals Branch, HRC, stated their office had not received a request from the applicant.  The staff member further stated appeals related to the entry in item 11 of a DA Form 1059 are generally considered to be substantive appeals.

8.  Army Regulation 623-3 (Evaluation Reporting System (ERS)) prescribes the policy for completing evaluation reports and associated support forms that are the basis for the Army’s ERS, including the AER.  It also provides for the Evaluation Report Redress Program.  

	a.  An evaluation report accepted for inclusion in the official record of a rated Soldier’s AMHRR is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.

	b.  Appeals based solely on statements from rating officials claiming administrative oversight or typographical error of an OER, Noncommissioned Officer Evaluation Report, or AER will normally be returned without action unless accompanied by additional substantiating evidence.

	c.  The rated Soldier or other interested parties who know the circumstances of a rating may appeal any report that they believe is incorrect, inaccurate, or in violation of the intent of this regulation.  

	d.  Appeals based on administrative error only will be adjudicated by the Evaluation Appeals Branch.  Appeals based on administrative error are considered regardless of the time that has elapsed since the period of the report.  

	e.  Substantive appeals will be submitted within 3 years of an AER “THRU” date.  Failure to submit an appeal within this time will require the appellant to submit his or her appeal to the ABCMR.

	f.  When an appeal is granted, in whole or in part, resulting in the removal or substantive alteration of an evaluation report that was seen by one or more promotion boards that previously failed to select the appellant, a determination will be made with regard to whether promotion reconsideration by one or more special boards is justified.

	g.  The burden of proof rests with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that clearly and convincingly establishes that the presumption of regularity will not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

9.  Army Regulation 600-8-29 (Officer Promotions) provides that a Special Selection Board (SSB) may be convened under Title 10, United States Code, section 628, to consider or reconsider commissioned or warrant officers for promotion when Headquarters, Department of the Army, discovers one or more of the following: 
  
   a.  An officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error (an SSB is required).

   b.  The board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (an SSB is discretionary).
   c.  The board that considered an officer from in or above the promotion zone did not have before it some material information (an SSB is discretionary).

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record clearly shows an error in the DA Form 1059 dated 15 March 2012 filed in the applicant's AMHRR.  He has provided substantial evidence that clearly and convincingly establishes that the entry in item 11 of this AER is incorrect.

2.  The issuing authority has reissued a DA Form 1059, dated 11 April 2012, which shows he achieved course standards.  Based on his official Academic Transcript, this is an accurate summary of his performance.  In light of the available evidence, it would be appropriate to replace the DA Form 1059 dated 15 March 2012 with the DA Form 1059 dated 11 April 2012.

3.  He indicates the incorrect DA Form 1059 was in his record when he was considered by a promotion board.  The corrected DA Form 1059 is material information that would justify an SSB.  Therefore, he is entitled to consideration by an SSB under the criteria for any applicable promotion boards that viewed the incorrect DA Form 1059.  

BOARD VOTE:

____x___  ____x___  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing the DA Form 1059 dated 15 March 2012 currently filed in his AMHRR and adding the DA Form 1059 dated 11 April 2012.  




2.  As a result of this correction, his record should be placed before a duly-constituted SSB for promotion consideration under the criteria for any applicable promotion boards that viewed the incorrect DA Form 1059.


      
      _______ _   _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)                                         AR20130005407



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ABCMR Record of Proceedings (cont)                                         AR20130005407



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