IN THE CASE OF:   

		BOARD DATE:  17 December 2013

		DOCKET NUMBER:  AR20130012108


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 12 July 2004 (hereafter referred to as the contested AER).  Specifically, he requests amendment of the contested AER:

* to show his grade point average (GPA) as 86.1
* to show he received letters of recommendation during his tenure at the Military Intelligence Captains Career Course (MICCC)
* to redact all comments suggesting he was recycled, as this comment implies failure on his part

2.  The applicant states:

* he seriously refutes the validity of the contested AER - the AER was frivolously generated without any supporting documentation to substantiate the negative evaluation
* the AER was submitted 17 months after he graduated from the MICCC (note the 9 August 2004 submission date on the contested AER) - it is a requirement that all military personnel in a student status receiving an AER be counseled and sign the AER; this did not occur
* on numerous occasions over a 17-month period following his graduation from the course he contacted the 304th MI Battalion Operations Officer-in-Charge (OIC) and Noncommissioned Officer-in-Charge (NCOIC) in order to obtain a valid AER
* on all of these occasions he was given an erroneous story about the whereabouts of his AER - on several occasions the staff in the operations section openly admitted to losing his records and information
* his rater on the contested AER was not his immediate small group instructor/supervisor and was not in a valid supervisory role that would authorize him to write his AER
* the contested AER was intentionally sent to U.S. Army Human Resources Command (HRC) in August of 2004 while he was deployed to Iraq; because of this he was not able to effectively appeal it
* the contested AER fails to annotate his GPA, which should be 86.1, or the letters of recommendation that were placed into his records during his tenure at the MICCC
* the contested AER states he was recycled, implying failure, but the reason he was recycled was because of his wife's medical condition

3.  The applicant provides:

* a memorandum, dated 25 July 2013, subject: AER Appeal
* a memorandum, dated 10 March 2005, subject: AER Appeal
* DA Form 67-9 (Officer Evaluation Report (OER)), for the period 2 May 2001 through 9 November 2001
* DA Form 1059, MI Officers Transition Course, dated 15 January 2002
* copies of email messages and extracts of excel spreadsheets, labeled as grade sheets
* a memorandum from the Deputy G3, Installation Operations, Chief, Plans and Operations, Headquarters, U.S. Army Garrison, Fort Huachuca, AZ, dated 18 July 2003, subject: Letter of Continuity
* a memorandum from the S3, 112th MI Brigade, U.S. Army Intelligence Center, Fort Huachuca, AZ, dated 3 March 2003, subject: Letter of Continuity
* a letter from the Registrar, Non-Resident Studies, U.S. Army Command and General Staff College, Fort Leavenworth, KS, dated 20 August 2003, subject: Certification of Course Completion
* several memoranda concerning his wife's medical condition, dated in the years 2002 and 2003
* other email messages concerning his appeal of the contested AER
* an extract of the MICCC syllabus
* DA Form 4037-E (Officer Record Brief (ORB)), dated 12 June 2013
* a copy of his MICCC graduation certificate
* the contested AER


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 is currently serving in the U.S. Army Reserve (USAR) Active Guard Reserve Program, in the rank/grade of lieutenant colonel (LTC)/O-5.

3.  On 17 December 1994, after previous enlisted service, he was appointed as a Reserve commissioned officer of the Army, in the rank of second lieutenant. 

4.  On 30 December 1996, he was promoted to the rank of first lieutenant.

5.  On 20 March 2001, he was promoted to the rank of captain (CPT).

6.  He attended the MI Officers' Transition Course (MIOTC) at the U.S. Army Intelligence Center (USAIC), Fort Huachuca, AZ, during the period 5 December 2001 through 15 January 2002.  His course AER shows he achieved course standards.

7.  He attended the MICCC at USAIC, Fort Huachuca, AZ, during the period 16 January 2002 through 17 July 2003, where he received the contested AER.  This report contains the following comments and/or entries:

   a. Item 13 (Performance Summary) contains an X in block c., indicating the applicant was considered to have "Marginally Achieved Course Standards."

   b. Item 14 (Demonstrated Abilities), block d. (Contribution to Group Work) contains an X in the "UNSAT" block.

   c. Item 14, block e. (Evaluation of Student's Research Ability) contains an X in the "UNSAT" block.

   d. Item 15 (Has the Student Demonstrated the Academic Potential for Selection to Higher Level Schooling/Training?) contains an X in the "NO" block.  

e. Item 16 (Comments) contains the following bullet comments:

* CPT [Applicant] marginally graduated MIOAC [MICCC] after being recycled from [Classes] 02-002, 02-003, and 02-004 for failure to meet minimum course requirements
* CPT [Applicant] struggled with Military Intelligence preparation concepts since the Officer Transition Course (OTC)
* CPT [Applicant] was sited [sic] by his Small Group Instructor to have difficulty working well as a group member and was also sited [sic] for questionable research methods regarding a group Intelligence Estimate in which he was responsible for the final product 
 
   f. The contested AER was prepared on 12 July 2004.  The preparing and reviewing officers signed the report; however, the applicant did not, as his signature was not required for this version of the DA Form 1059.  The contested AER was sent electronically to the applicant for his review on 30 September 2004.  After he failed to respond with acknowledgments and/or comments by the required suspense date, HRC accepted the report for processing and filing in his Official Military Personnel File (OMPF), now referred to as the Army Military Human Resource Record (AMHRR).

8.  On 13 June 2007, he was promoted to the rank of major.

9.  On or about 30 January 2008, the Officer Special Review Board (OSRB) considered his request for appeal of the contested AER.  The board voted to grant partial relief.  In doing so, it ordered HRC to correct the beginning date of his report period to read 16 January 2002 (the day after he completed the MIOTC); however, the board chose to deny that portion of his appeal request concerning the correction or redaction of any other part of the AER.

10.  On 14 February 2008, the contested AER was filed in the performance section of the applicant's AMHRR, then known as the OMPF.

11.  On 1 October 2013, he was promoted to the rank of LTC.

12.  He provides numerous documents that constitute his appeal packet.

   a. His appeal letter, dated 10 March 2005, which was considered by the OSRB on 30 January 2008.

   b. His OER for the period 2 May 2001 through 9 November 2001, which shows his previous performance ratings as a Transportation Officer in the 5025th Garrison Support Unit, a Troop Program Unit (TPU) of the USAR.

c. His AER from the MIOTC, which shows he achieved course standards.

   d. Copies of email messages and extracts of excel spreadsheets, labeled as grade sheets.  None of the submitted grade sheets contain an official seal or signature from a school registrar.  Additionally, they were not produced on documents containing the USAIC's official letterhead.

e. Memoranda of Continuity and a Certificate of Course Completion;

   f. Several memoranda concerning his wife's medical condition, dated in the years 2002 and 2003;

g. Other email messages concerning his appeal of the contested AER;

h. An extract of the MICCC syllabus;

i. DA Form 4037-E, dated 12 June 2013; and

j. A copy of his MICCC graduation certificate.

13.  Army Regulation 623-1 (AER System (AERS)), the regulation then in effect, established the policies and procedures for the AERS and provided instructions for preparing, processing, and using the DA Form 1059.

   a. Paragraph 1-6 (Submission of Academic Reports) provides that academic reports will explain the accomplishments, potential, and limitations of individuals while attending courses of instruction or training.  

   b. Paragraph 1-13 (Referred Reports), sub-paragraph a, provides for the referral of any report to the student by the reviewing official for acknowledgment and/or comment, when: (1) the report contains a "NO" rating, an "UNSAT" rating, a "marginally achieved course standards" rating, or a "failed to achieve course standards" rating; (2) the report contains 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; or (3) any report with an entry of "FAIL" for the Army Physical Fitness Test (APFT) or "NO" for height and weight indicating noncompliance with Army Regulation 600-9. 

   c. Paragraph 1-13, sub-paragraph c, provides that after signing a referred report the reviewing official will forward the report to the student, via a memorandum, for acknowledgment and comment.  The reviewer will ensure the provisions of this regulation have been followed.  The student will acknowledge receipt of the referred report and may enclose a comment or statement if he or she feels that the rating or remarks are incorrect.  The student's statement must be factual.  The referral memorandum and acknowledgment are forwarded with the report. 

		(1)  Comments or statements by the student do not constitute an appeal.  Appeals are filed and processed separately as outlined in Army Regulation    623-105 (OER System) for officers. 

		(2)  If the student has departed the school under circumstances that preclude immediate referral of a report to him or her, a certified copy will be forwarded by return mail directly to the student marked "Personal in Nature," or a copy will be sent to the student's commander for acknowledgment and comment. If the student fails to acknowledge receipt of the report in the time period specified (a reasonable suspense period), the certified mail number will constitute acknowledgment. 

   d. Paragraph 2-1, sub-paragraph a, provides that service school commandants are responsible for preparing the DA Form 1059 within 60 days after the student's graduation or termination from the school or academy.  In preparing these reports, all significant information that can be evaluated must be reported.  The same care and attention must be exercised in preparing this report as is exercised in preparing officer and NCO evaluation reports.

   e. Figure 2-1 provides by-item instructions for the preparation of the           DA Form 1059.  With regard to item 16 (Comments), the instructions state:

		(1)  Comments are required concerning the capabilities, potential, or limitations of the student to include achievements and awards.  Explain entries requiring further description and enter additional comments. 

		(2)  In particular, comments should be made if the student:

			(a)  Displayed exceptional potential, demonstrated any exceptional capabilities, aptitudes, or limitations which should be considered in future selection/assignments. 

			(b)  Lacked ability or motivation. 

			(c)  Demonstrated moral or character deficiencies. 

			(d)  Failed to respond to recommendations for improving academic or personal affairs. 

			(e)  Was released from student status through no fault of his own (e.g., medical, compassionate) and is recommended for reinstatement in the course.  

			(f)  Was released for student status based on an approved retirement or resignation. 

			(g)  Was required to appear before an academic board. 

			(h)  Is on dual component status. 

		(3)  If appropriate, comments should also be made if the student has demonstrated the potential to be a service school instructor.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of the contested AER was carefully considered; however, there is insufficient evidence to support his request. 

2.  The applicant makes several contentions:

   a. The contested AER should be amended to show his GPA as 86.1.  He submitted grade sheets to substantiate this contention; however, none of the submitted grade sheets contain an official seal or signature from a school registrar.  Additionally, they were not produced on documents containing the USAIC's official letterhead.  Consequently, in this respect, he has not shown a legitimate error or omission that warrants correction. 

   b. The contested AER should be amended to show he received letters of recommendation during his tenure at the MICCC.  In support of this contention, he submitted 2 Letters of Continuity from senior officers at Fort Huachuca who were familiar with aspects of the applicant's duty performance during the period of the contested AER.  Despite these positive letters of support, the governing regulation in effect at the time did not require the inclusion of comments reflecting these letters.  

   c. The contested AER should be amended to redact all comments suggesting he was recycled, as this comment implies failure on his part.  The applicant acknowledges he was recycled; however, he cites his wife's medical issues as the reason he was recycled.  He failed to submit any evidence that shows he didn't fail to meet minimum course requirements, the stated reason he was recycled.  Consequently, he has not shown that the statement in question is in error and should be redacted.

   d. The AER was submitted 17 months after he graduated from the MICCC, despite the requirement that all military personnel in a student status receive and sign an AER in a timely manner, which did not occur.  It appears there were significant delays in completing his AER; however, these delays do not invalidate the content of the contested AER.  

   e. His rater on the contested AER was not his immediate small group instructor/ supervisor and was not in a valid supervisory role that would authorize him to write his AER.  He failed to submit any evidence that shows the preparing officer was not qualified to write the contested AER.

3.  The AER was referred, but there is no evidence that shows he acknowledged receipt and/or submitted comments by the required suspense date.  He appealed the contested AER in 2005; however the OSRB denied that portion of his appeal that concerned any alterations to the comments contained in item 16.

4.  In the absence of evidence to the contrary, it must presumed that what the Army did was procedurally correct and in accordance with applicable laws and regulation.

5.  With respect to the contested AER, the governing Army regulation clearly states an evaluation report included in the official record of a rated Soldier is presumed to be administratively correct, to have been prepared by the properly-designated rating officials who meet the minimum time and grade qualifications, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.

6.  The contested AER appears to be correct and appears to represent a fair, objective, and valid appraisal of the applicant's demonstrated academic performance and moral qualities during the period in question.  By regulation, to support removal or amendment of a report, there must be evidence that establishes clearly and convincingly that this presumption of regularity should not be applied 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.

7.  The applicant did not provide any evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the AER under consideration and that action is warranted to correct a material error, inaccuracy, or injustice.  Therefore, there is insufficient evidence to grant this portion of the requested relief.

8.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20110015921



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ABCMR Record of Proceedings (cont)                                         AR20130012108 



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