IN THE CASE OF:	  

		BOARD DATE:  31 December 2013

		DOCKET NUMBER:  AR20130007926 


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) for the period 3 through 17 August 2003 from his Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File) and replace it with the DA Form 1059 "Corrected Copy."

2.  He states upon completion of the 56M (Chaplain Assistant) course he was elected the Distinguished Honor Graduate.  He believes that the selection for honor graduate was not made prior to printing the DA Form 1059 that resulted in a generic form being produced.  He offers that the correct DA Form 1059 was placed in his file and removed after he requested removal of the erroneous one.

3.  He provides the "Corrected Copy" of his DA Form 1059.

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 record show he is currently a master sergeant in the U.S. Army Reserve, Active Guard Reserve.

3.  His record shows that on 17 August 2003 he received a DA Form 1059 for the period 3 through 17 August 2003 in the rank of specialist while attending the 56M10 Chaplain Assistant Reclassification Phase II Class 001-03 Resident Course.  The DA Form 1059 shows:

* Item 13 (Performance Summary) Achieved Course Standards
* Item 14 (Demonstrated Abilities) –

* Written Communication, Not Evaluated
* Oral Communication, Satisfactory
* Leadership Skills, Satisfactory
* Contribution to Group Work, Satisfactory
* Evaluation of Students Research Ability, Satisfactory

* Item 16 (Comments) –

* Selfless dedication to team accomplishments
* Assisted fellow students in problem areas during land navigation
* Exceptional leadership traits
* Height/Weight, 65/161 Yes (indicating he was in compliance with the Army Weight Control Program)

4.  There are no certificates or other evidence in his AMHRR that shows he was designated as the "Distinguished Honor Graduate" of his class.  Additionally, he has failed to provide a letter from the school officials confirming the "Corrected Copy" DA Form 1059 is accurate.

5.  His record contains an Army Achievement Medal (AAM), dated 22 December 2005, from his battalion that shows he was awarded an AAM from 4 to 17 August 2003 for exceptional meritorious achievement while attending the Chaplain Assistant Course.  The certificate failed to mention that he exceeded course standards or graduated as "Distinguished Honor Graduate."

6.  There are significant differences in the DA Form 1059 "Corrected Copy" vice the original DA Form 1059 filed in his AMHRR.  The DA Form 1059 "Corrected Copy" changes include:

* Item 13 Exceeded Course Standards
* Item 14 –

* Oral Communication, Superior
* Leadership Skills, Superior
* Contribution to Group Work, Superior
* Evaluation of Students Research Ability, Superior

* Item 16 (Comments) –

* Made Distinguished Honor Graduate
* Selfless dedication to team accomplishments
* Assisted fellow students in problem areas during land navigation
* Exceptional leadership traits
* Accepts responsibility willingly and always displayed a "Can-Do" attitude
* No height and weight information

7.  Army Regulation 623-205 (Noncommissioned Officer Evaluation Reporting System), in effect at the time, set forth policies and procedures for the Enlisted Evaluating Reporting System.  

   a.  The regulation stated that an evaluation report accepted for inclusion in the official record was presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time.  To justify deletion or amendment of a report, the applicant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or 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.  The burden of proof rests with the applicant.  Additionally, the regulation stated that requests that an accepted report be altered, withdrawn, or replaced with another report would not be honored. 

	b.  An exception to paragraph "a" was granted only when information which was unknown or unverified when the report was prepared is brought to light or verified and is so significant that it would have resulted in a higher or lower evaluation had it been known or verified when the report was prepared.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to have his DA Form 1059 replaced with the "Corrected Copy" was considered.  However, the regulation in effect at the time stated that requests that an accepted report be replaced with another report would not be honored unless new information was discovered that would have resulted in an improved evaluation had it been known at the time.  

2.  His AMHRR is void of any evidence to show he was the "Distinguished Honor Graduate" of his class.  Further, he has failed to provide evidence such as a letter from the school verifying the "Corrected Copy" as the accurate version.  The evidence of record shows he was issued a DA Form 1059 in 2003 where he was rated as "Achieved Course Standard."  Therefore, he should have been aware that there was a problem with this form at the time of issuance instead of waiting 10 years to raise his concern.  In the absence of more compelling evidence which clearly and convincingly shows the presumption of regularity should not be applied, his argument implying he received a generic DA Form 1059 is not sufficiently compelling to conclude that an error or injustice occurred.

3.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20130007926



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ABCMR Record of Proceedings (cont)                                         AR20130007926



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