IN THE CASE OF:	  

		BOARD DATE:  14 January 2014

		DOCKET NUMBER:  AR20130018860 


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 a referred DA Form 1059 (Service School Academic Evaluation Report (AER)) from his Army Military Human Resource Record (AMHRR).  

2.  He states:

* after he received the referred AER, he was allowed to return to the U.S. Army Human Resources Command (HRC) - Alexandria, and he enrolled in and graduated from the Force Management Course
* he was promoted to lieutenant colonel (LTC)/O-5 and served over 4 years at the 1st Sustainment Command (Theater) and in the Office of the Deputy Chief of Staff, G-8, Headquarters, Department of the Army 
* he was deployed while at the 1st Sustainment Command (Theater)
* he is on his second deployment, for which he volunteered as the Headquarters, Department of the Army, G-8 Liaison Officer to the Combined Forces Land Component Command
* while at G-8, he became the System Synchronization Officer for a program valued at over $36 billion
* a Board of Inquiry determined he should be retained on active duty and an elimination action against him was closed favorably
* the referred AER was the basis for him appearing before a board for elimination 
* any derogatory information in his AMHRR reduces opportunities for favorable action by future Army boards

3.  He provides:

* memorandum, subject:  Closing of Elimination Action
* DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag))
* DA Form 1059
* Certificates of Training
* Meritorious Service Medal (MSM) Certificate
* Officer Record Brief (ORB)
* four memoranda recommending his retention 

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior enlisted service.  On 15 December 1989, he accepted an appointment as a Reserve commissioned officer in the grade of second lieutenant/O-1.  He has served continuously as a commissioned officer since that date in the U.S. Army Reserve, Army National Guard, and Regular Army (RA).  He is currently serving in the RA as a LTC/O-5.

2.  He was promoted to captain (CPT)/O-3 on 22 November 1996 and to major (MAJ)/O-4 on 17 July 2003.  His Officer Evaluation Reports show he consistently received ratings of "outstanding performance, must promote" and "best qualified" while serving as a CPT and MAJ.

3.  A referred AER, dated 11 March 2009, shows he was involuntarily disenrolled from the Basic Strategic Art Program (BSAP) because of failure to maintain academic integrity due to plagiarism.  The form shows he failed to achieve course standards.  This was a referred report, and he indicated he wished to make comments.  

4.  In a memorandum for record (MFR), dated 10 April 2009, the applicant appealed the decision of the Academic Review Board to disenroll him from the BSAP.  He stated he was a good officer who made a careless mistake; he accepted full responsibility for his actions and the consequences.  He asked that his failure not be permitted to ruin the remainder of his Army career, and he stated he realized the error of his ways.  

5.  The referred AER and his MFR are filed in the performance portion of his AMHRR.  

6.  On 1 September 2009, he was promoted to LTC/O-5.  Since his promotion to LTC/O-5, he has consistently received ratings of "outstanding performance, must promote" and "best qualified" on his Officer Evaluation Reports.

7.  An AER, dated 3 September 2009, shows he achieved course standards for Force Management Qualification Course 02-09.  

8.  On 17 July 2013, a Board of Inquiry convened to determine whether the applicant should be separated for misconduct (moral or professional dereliction).  The board found:

* the allegation of failure to maintain integrity due to plagiarism in the U.S. Army War College Basic Strategic Art Program was supported by a preponderance of the evidence
* the allegation of conduct unbecoming an officer was supported by a preponderance of the evidence
* the findings did not warrant the applicant's separation
* that the applicant should be retained in the U.S. Army

9.  On 23 August 2013, the Commander, U.S. Army Military District of Washington, determined the applicant would be retained without reassignment.  

10.  He provides, in part:

	a.  a Certificate of Training showing he successfully completed the Advanced Force Management Course on 26 June 2009; 

	b.  an MSM Certificate showing he received the MSM for service in support of Operation Iraqi Freedom during the period 1 October 2009 to 1 September 2011; and

	c.  memoranda from a major general, two brigadier generals, and a retired colonel recommending his retention, praising his job performance, and attesting to his character and integrity.

11.  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.  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.  

	c.  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.

	d.  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.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support the applicant's request for removal of a referred AER, dated 11 March 2009, from his AMHRR.

2.  The applicant has not provided evidence that clearly and convincingly establishes that the presumption of regularity should not be applied to the AER in question.  It is noted that a Board of Inquiry found the negative information in the AER is accurate.  

3.  While the applicant's duty performance certainly played a role in the decision to retain him, neither his duty performance nor the decision to retain him is evidence of material error, inaccuracy, or injustice in the AER in question.  

4.  In view of the foregoing, there is no basis for granting the 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)                                         AR20130018860



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ABCMR Record of Proceedings (cont)                                         AR20130018860



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