IN THE CASE OF:	  

		BOARD DATE:	  6 August 2013

		DOCKET NUMBER:  AR20130011323 


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 the removal of a DA Form 1059 (Academic Evaluation Report (AER)) for the period 14 July through 4 December 2008 from her Official Military Personnel File (now known as the Army Military Human Resources Record (AMHRR)) or in the alternative transfer of the AER in question to the restricted portion of her AMHRR.

2.  The applicant states the commandant's inquiry determined the basis used for assigning the "marginally achieved course standards" of rating on the AER in question was unfounded.  Since the allegations were unfounded she was directed by the commandant to redo the assignment, which she did and she received an 88 percent passing grade.  She trusted her small group leaders who advised her that signing the AER in question did not mean she agreed or disagreed with the contents.  She was further advised the report would not adversely impact her career in any way.  She believes this report to be unjust because of the findings of the inquiry and the fact that the assignment was redone as a remedy for the unfounded allegation.  She further states on 6 March 2012 her career manager informed her that the report had an adverse impact on her career.

3.  The applicant provides:

* her application to the Department of Army Suitability Evaluation Board (DASEB)
* five letters of support 


CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve commissioned officer in the rank of second lieutenant on 8 May 2004.  She was promoted to the rank of captain on 1 July 2007 and she was serving on active duty in that rank at the time of her application.

2.  The AER in question was issued by the Adjutant General (AG) School indicating the applicant (a captain at the time) marginally achieved course standards for the AG Captain's Career Course that was conducted from 14 July through 4 December 2008.  The comments portion of the report stated she earned a grade point average of 83.4 percent; however, she received an unsatisfactory rating in written communication and a failing score on her professional reading assignment for violating the standards set forth in the AG School regarding plagiarism.  The AER was referred to her for comments.  She did not comment.  A review of her AMHRR failed to reveal a report of a commandant's inquiry.  The AER is contained in the performance section of her AMHRR.

3.  The applicant provides five letters supporting removal of the AER in question.  The letters were written by a commander, a subordinate, and peers attesting to her moral character, competency, and abilities.

4.  The applicant submits a copy of her request to the DASEB, dated 12 April 2013.

	a.  She stated a commandant's inquiry was conducted and in accordance with Army Regulation 623-3 (Evaluation Rating System), paragraph 4-4(a), the primary purpose of a commander's or commandant's inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record.  Army Regulation 623-3, paragraph 4-5(e) states that after the commandant's inquiry is completed, the rating chain or official conducting the inquiry will not use the inquiry AER provisions to forward derogatory information to the rated Soldier.  There is no letter in her files signed by the commandant to support this AER including the findings of the commandant's inquiry because he determined the paper should be rewritten for a passing grade and that she should continue on with her career.  This AER is unjust and immoral based on the guidelines of the regulation.  Contrary to the commandant's intent, this AER has remained in her file for 5 years.


	b.  She stated that other than the contested AER she has never been the subject of any adverse administrative or Uniform Code of Military Justice action.  Every Officer Evaluation Report (OER) she received before and after 17 June 2008 evidence excellent performance in all areas of leadership and competence.  She was recognized with award of the "Officer of the Year for Fiscal Year 2011," a battalion commander's coin, the Pacesetter Award for two consecutive years, and a Certificate of Appreciation.  Her awards and skills reflect the time and dedication she has provided the Army for the past 9 years.  As a professional, she understands and supports accountability for one's actions.  She asked that the context under which she received the AER and how it has impacted her career and thereby served its intended purpose be considered.

5.  Army Regulation 623-3 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  It also provides instructions for preparing, processing, and using the DA Form 1059. 

	a.  It states that when it is brought to the attention of a commander or commandant that a report rendered by a subordinate or by a member of a subordinate command may be illegal, unjust, or otherwise in violation of this regulation, that commander will conduct an inquiry into the matter.  The commander’s inquiry will be confined to matters related to the clarity of the evaluation report, the facts contained in the report, the compliance of the evaluation with policies and procedures established by Headquarters, Department of the Army (HQDA), and the conduct of the rated Soldier and members of the rating chain.  The official does not have the authority to direct that an evaluation be changed; command influence may not be used to alter the honest evaluation of a rated Soldier by a rating official.  The results of the commander’s inquiry, however, may be provided to the rating chain and the rated Soldier at the appointing official’s discretion.

	b.  A commandant's inquiry is required to look into alleged errors, injustices, and illegalities in an AER.  The primary purpose of a commander’s inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record.  If, after looking into the allegations, no error, violation of the regulation, or wrongdoing is found, advise the individual requesting the inquiry and take no further action other than ensuring that the evaluation is forwarded to HQDA as expeditiously as possible.  If an error, violation of the regulation, or wrongdoing has occurred and the evaluation has not been forwarded to HQDA, the commander will return the evaluation with the inquiry results to the senior rater or reviewer as applicable.  The commander or commandant will ask that the report be corrected to account for matters revealed in the inquiry.  This will be done with regard for the restrictions on command authority and influence.  When the report has been corrected, it will be sent to HQDA with no reference to the action taken by the commander or commandant (for example, the AER only is forwarded); the results of the inquiry remain with the commander.  If the commander finds no fault with the evaluation, then the commander’s inquiry is filed locally and a copy given to the rated individual.  

	c.  Academic evaluations report the accomplishments, potential, and limitations of individuals while attending courses of instruction or training.  The reporting official will be responsible for the accuracy of the information in the completed AER.

	d.  Service school commandants are responsible for preparing the DA Form 1059 within 60 days after the student’s graduation or termination from the school.  In preparing these reports, all significant information that can be evaluated will be reported.  The same care and attention will be exercised in preparing this report as is exercised in preparing officer evaluation reports.

	e.  It provides that an evaluation report accepted by HQDA and included in the official record of an officer is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.

	f.  It further states the burden of proof in an appeal of an evaluation report rests with the applicant.  Accordingly, to justify deletion or amendment of an evaluation report under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.  This evidence may include the results of a commandant’s inquiry.

6.  Army Regulation 600-8-104 (AMHRR Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR.

	a.  The purpose of the AMHRR is to preserve permanent documents pertaining to enlistment, appointment, duty stations, assignments, training, qualifications, performance, awards, medals, disciplinary actions, insurance, emergency data, separation, retirement, casualty, administrative remarks, and any other personnel actions.

	b.  The "performance" folder maintains performance related information to include evaluations, commendatory documents, and specific disciplinary information and training/education documents.  This regulation states the AER will be filed on the performance section of the AMHRR.  The primary purpose of this folder is to provide necessary information to officials and selection boards tasked with assessing Soldiers for promotion, special programs, or tours of duty.

	c.  The "restricted" folder maintains documents that may normally be considered improper for viewing by selection boards or career managers.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions regarding removal or transfer of the AER in question were carefully considered.  However, she has not provided compelling evidence to justify removal of the AER from her AMHRR or transfer of the AER to the restricted portion of her AMHRR.

2.  The AER in question which was issued to the applicant upon completion of the AG Captain's Career Course shows she received an unsatisfactory rating in written communication and a failing score on her professional reading assignment for violating the standards set forth in the AG School regarding plagiarism.  It reflects that she marginally achieved course standards.  Though not available, a commandant's inquiry would have determined if there was anything illegal, unjust, or otherwise in violation of this regulation in the contested AER and requested correction within his authority.  Though the AER may adversely impact her career there is no available argument that it should not help to distinguish her from other officers who achieved or exceeded the AG Captain's Career Course standards.

3.  Based on the five letters of support and her statement to the DASEB, it appears her current performance is satisfactory.  However, the Army has an interest in maintaining records of Soldiers who attend formal courses of instruction and she has failed to provide sufficient evidence to show that the AER was issued erroneously or that it is unjust for it to remain in her AMHRR.

4.  According to the governing regulation, the AER in question is properly filed in her AMHRR where it serves to protect the interests of both her and the Army.

5.  Therefore, in the absence of evidence to show that an error or injustice exists in her case, there appears to be no basis to grant her 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 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)                                         AR20130011323



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ABCMR Record of Proceedings (cont)                                         AR20130011323



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