IN THE CASE OF:	  

		BOARD DATE:	  8 May 2014

		DOCKET NUMBER:  AR20140006355 


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 the DA Form 1059 (Service School Academic Evaluation Report (AER)) for the period from 5 through 13 January 2000 (hereafter referred to as the contested AER) from his Army Military Human Resource Record (AMHRR). 

2.  The applicant states:

	a.  The contested AER is unjust because it stated he failed to pass the Army Physical Fitness Test (APFT).  He actually was on a medical profile for his wrist at the time and was forced by the U.S. Army Element (USAE), Supreme Headquarters Allied Powers Europe (SHAPE), Belgium, to attend the course with 2 days notice.  The first sergeant knew he was on profile and said if he declined the school he would lose his promotable status.  Knowing the consequences, he agreed to attend, and with the failure of the course he lost his promotable status.  

   b.  Once he became promotable again, he passed the course and would have graduated with honors if he hadn't previously been enrolled.  His performance at all the Noncommissioned Officer Education System (NCOES) courses he has attended since then shows he is a top performer.  He graduated with honors at both the Advanced Leader Course and Senior Leader Course (SLC). 

3.  The applicant provides five DA Forms 1059 and a memoradum.



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 an active duty Regular Army (RA) Soldier.  At the time of the contested AER, he was assigned to USAE, SHAPE, Belgium, and he held the rank/grade of specialist (SPC)/E-4.  

3.  On 13 January 2000, he received the contested AER which covered the rated period from 5 through 13 January 2002 while he was a student at the Primary Leadership Development Course (PLDC), 7th Army NCO Academy, Germany.  The duration of the course was from 5 January through 4 February 2000.

4.  The contested AER contains in:

* item 13 (Performance Summary) an "X" in the block to denote he failed to achieve course standards
* item 15 (Comments) the comments "released academically" and "received a two time no-go on the APFT"  

5.  In a memorandum, dated 13 January 2000, he was advised the AER was an adverse report that may have an adverse impact on his career and he could submit a statement/comments.  He chose not to submit any comments to the report.

6.  The applicant provides four additional AERs that show he attended and successfully completed PLDC on 27 April 2001, the Basic NCO Course (BNCOC) on 30 October 2002, the Net Switching System Operator/Maintenance Course on 17 December 2002, and the SLC on 29 August 2011.  He currently holds the rank/grade of sergeant first class (SFC)/E-7.

7.   Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System, including the DA Form 1059.  

	a.  Paragraph 3-2i states rating officials have a responsibility to balance their obligations to the rated Soldier with their obligations to the Army.  Rating officials will make honest and fair evaluations of Soldiers under their supervision.  

	b.  Paragraph 3-39 states evaluation reports accepted for inclusion in the official record of a Soldier are 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 of preparation.  To justify deletion or amendment of a report, the appellant 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 an administrative error or factual inaccuracy.  The burden of proof rests with the appellant.

8.  Army Regulation 600-8-104 prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR.  Paragraph 1-6 states, in part, the AMHRR is an administrative record as well as the official permanent record of military service.  The purpose is to preserve permanent documents pertaining to enlistment, appointments, training, performance, awards, disciplinary actions, and any other personnel actions.  Table B-1 (Authorized Documents) states a DA Form 1059 will be filed in the performance folder of the AMHRR.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the contested AER should be removed from his AMHRR as it was unjust because it stated he failed to pass the APFT when he was actually on profile at the time.

2.  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.

3.  There is no evidence and the applicant has not provided any evidence that shows the contested AER contains any administrative deficiencies or that it was not prepared in compliance with applicable regulations and policy.  Furthermore, he acknowledged that he failed the APFT and was released from PLDC due to the failure.  

4.  Almost 15 years later, he contends that he had a profile at the time he attended the school; however, he did attend the school, took the required APFT, and subsequently failed the APFT.  He has not provided any evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice.  Therefore, there is insufficient evidence to grant him 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)                                         AR20140006355





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ABCMR Record of Proceedings (cont)                                         AR20140006355



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