BOARD DATE:	  13 November 2014

		DOCKET NUMBER:  AR20140013563 


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 correction of his DA Form 1059 (Service School Academic Evaluation Report (AER)) for the period 16 May 2011 through 15 July 2011 in item 12c (Leadership Skills) to change his rating/block mark from unsatisfactory "UNSAT" to "SUPERIOR" and deletion of any block marks indicating his AER was a referred report.  Additionally, if his request is approved he would like consideration by a Special Selection Board (SSB) under the Fiscal Year (FY) 2014 Chief Warrant Officer Four (CW4) Promotion Board criteria. 

2.  The applicant states his AER for the period ending on 15 July 2011 contains an "UNSAT" block mark for leadership skills because he failed the initial Army Physical Fitness Test (APFT) at the Warrant Officer Advanced Course (WOAC) for WO military occupational specialty (WOMOS) 919A (Engineer Equipment Maintenance Warrant Officer).  This made his AER a referred report even though he achieved course standards.  

	a.  Army Regulation 350-1 (Army Training and Leadership Development), dated 18 December 2009, and Training and Doctrine Command (TRADOC) Regulation 350-10 (Institutional Leader Training and Education), dated 12 August 2002, which was the applicable regulation covering his time at WOAC states a second test is authorized if initial APFT is failed.  He passed the APFT retest, which is in accordance with the above regulations.  His research and evidence will show that his AER should have never been a referred report and he should have received a "SUPERIOR" in leadership based on the Program of Instructions (POI) in the leadership annex.

	b.  His initial counseling outlines the APFT standards and the "UNSAT" in Leadership was not addressed in the counseling.  The APFT standard is included in the Student Evaluation Plan (SEP) but there was not a signed version of the Course Management Plan (CMP) validating the SEP (appendix I in CMP).  He has an email sent from his classmate requesting a signed version of the 2011 919A CMP; the email states the Instructor Branch does not have one.  The draft version of the CMP APFT Standard (appendix I-5) reflects Army Regulation 
350-1 and TRADOC Regulation 350-10.  The APFT is also not included with the Leadership Annex as a POI associated with the Leadership Annex.  It is labeled as an Administration Annex in the Warrant Officer Basic Course (WOBC) on page number 11 of the (SEP) and it is not identified with any Annex of the WOAC on page number 12 of the SEP.  His score average in the Leadership Annex was a 98.3 percent (%).  He should have received a Superior rating in Leadership.  He has a DA Form 4856 (Developmental Counseling Form) stating he performed satisfactorily in the leadership role and lists all his scores according to the scoring standards listed on page number 12.

	c.  The error in this AER constitutes a substantive inaccuracy which has caused him to be passed over for promotion to CW4 by the  9 July 2014 FY14 CW4 Promotion Board.

3.  The applicant provides:

* self-authored statement, dated 14 July 2014
* Memorandum for Record, dated 18 July 2014
* DA Form 4856, dated 17 May 2011
* SEP, dated 17 May 2011
* CMP
* DA Forms 4856, dated 13 July 2011
* AER referred report statement, dated 13 July 2011
* DA Form 1059 for the period ending on 15 July 2011
* statement of support, dated 17 July 2014
* email transmission, dated 17-18 July 2014
* Army Regulation 350-1, page 56
* TRADOC Regulation 350-10, page 10

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 was appointed as a Reserve warrant officer on 8 December 2004.  He holds WOMOS 919A and was promoted to chief warrant officer three (CW3) on 1 September 2010.

3.  He attended WOAC for WOMOS 919A, which commenced on 16 May 2011.

4.  He provided a DA Form 4856, his initial counseling, dated 17 May 2011, which shows he was assigned to C Company, 554th Engineer Battalion, and that his rater, CW4 FCL, issued an initial counseling which covered academic, physical training (PT), conduct, and safety requirements.  This counseling stated "You are required to pass the APFT and meet height/weight standards outlined in [Army Regulation] 600-9 [The Army Body Composition Program] and [Army Regulation] 350-1.  A failure of a retest APFT will result in a "Marginally Achieved Course Standards" [block mark] on the DA [Form] 1059."  This counseling also referred him to the WOAC SEP.  The applicant agreed with this counseling statement and signed and dated this form on 17 May 2011.

5.  His record contains a second DA Form 4856, an event-oriented counseling for failing the initial APFT, dated 17 May 2011.  This form shows he was assigned to C Company, 554th Engineer Battalion, and that his rater, CW4 FCL, issued a counseling statement wherein he stated he was counseling the applicant for his failure of the following school standard regulation and policy violation of Army Regulation 350-1.  The applicant failed the APFT (sit-up and walk events).  The applicant's minimum allowed repetitions for sit-ups was 42 to pass the sit-up event but he only did 32 repetitions and scored 48 points.   Additionally, he was allowed 35:30 minutes/seconds on the alternate walk event, which he exceeded by a time of 35:50 minutes/seconds.  His rater stated he was required to pass the APFT and meet the height/weight requirements outlined in Army Regulations 600-9 and 350-1.  Soldiers who fail to meet the APFT standards will be considered an academic course graduate, but item 11c of their DA Form 1059 will show a "Marginally Achieved Course Standards" mark and item 14 will be contain the statement "Failed to Meet APFT Standards."  WOAC students take the APFT on training day 2.  One retest is allowed and will be administered no earlier than seven days and no later than 14 days.  Students must be able to pass the APFT. Failure of the retest will result in a marginal DA Form 1059.  However, if any APFT is failed the DA Form 1059 will reflect "UNSAT" in leadership; leaders do not fail APFTs.  The applicant agreed with this counseling statement and signed and dated this form 17 May 2011.

6.  The U.S. Army Engineer School SEP for 919A Courses, which was initialed and dated by the applicant on 17 May 2011, states:

	a.  The first paragraph on the first page of the SEP is entitled introduction.  The introduction states that under the heading:

		(1)  Purpose - that "This plan establishes students’ responsibilities and course training graduation (pass/fail) criteria."

		(2)  Note - that "Unless otherwise specified, test scores will be used by the course proponent to determine if students demonstrated a sufficient level of competency to pass the course [in accordance with] IAW the… (SEP) as described in [TRADOC Regulation] TR 350-70 [Army Learning Policy and Systems]."  

		(3)  Scope - that "This [SEP] applies to all students enrolled in the resident courses."

	b.  General Policies, paragraph 1-1 (All 919A Warrant Officer Courses, (Active and Reserve)), states the course requirements to graduate from Warrant Officer Courses are successful completion of WOBC and successful completion of WOAC.

	c.  Paragraph 1-2a(2) and (6), listed on page 2 of the SEP state that active component: 

		(1)  WOAC "students will take the APFT on training day 2.  One retest is allowed and will be administered no earlier than seven days and no later than 14 days.  Students must be able to pass the APFT.  Failure of the retest will result in a marginal DA Form 1059.  If any APFT is failed, the DA Form 1059 will reflect "UNSAT" in leadership; leaders do not fail APFTs.  The DA Form 1059 is filed as part of your official military performance file.  (No APFT is required for courses less than 60 days in length.)"

		(2)  WOAC "students will be screened [height/weight] upon arrival.  One rescreening is allowed and will be administered no earlier than seven days and no later than 14 days.  Failure of the rescreening will result in a marginal DA Form 1059.  If any screening is failed, the DA Form 1059 will reflect "UNSAT" in leadership; leaders do not fail APFTs.  The DA Form 1059 is filed as part of your official military performance file."
		(3)  The applicant initialed page two of the SEP indicating he read and understood the paragraphs listed thereon.  He and his rater placed their signatures on the last page of the SEP on 17 May 2011.

7.   His record contains a third DA Form 4856, an intermediate/midpoint counseling to discuss his performance in the course and personal growth, dated 17 June 2011.  This form shows he was assigned to C Company, 554th Engineer Battalion, and that his rater, CW4 FCL, issued a counseling statement wherein he stated the applicant failed his first APFT and passed the APFT on the second attempt.  However, his failure of the initial APFT would result in a block mark of "UNSAT" in the leadership block of his DA Form 1059.  He concurred with this counseling statement and affixed his signature.  

8.  The applicant provided a portion of the U.S. Army Engineer School CMP for 919A, which contains a version of the SEP which is different from the SEP he signed, initialed, dated, and reviewed with his rater on 17 May 2011, in that this version does not state "If any APFT is failed the DA Form 1059 will reflect "UNSAT" in leadership; leaders do not fail APFTs."

9.  He provided a DA Form 4856, dated 13 July 2011, showing he was assigned to C Company, 554th Engineer Battalion, and that his rater, CW4 FCL, indicated the applicant received a 94% grade average and his research ability skill level was indicated as satisfactory.  His performance in a leadership position as class leader was satisfactory.  He failed his first APFT with a score of 168 and passed the APFT on the second attempt with a score of 198.  “However, his failure of the initial APFT would result in a block mark of "UNSAT" in the leadership block of his DA Form 1059.”  He concurred with this counseling statement and affixed his signature.  

10.  His record contains a DA Form 1059 for the period ending on 13 July 2011 which shows he received a referred AER and that the applicant wished to make comments.  His AER also shows in:

	a.  Item 11d (Performance Summary) a block mark showing he "Achieved Course Standards."  His rater stated he achieved course standards and completed the required tactical training for assignment as a Senior Warrant Officer in MOS 919A.  The rater further stated the applicant was well skilled for any maintenance management position at Brigade level and demonstrated the potential to succeed in the most demanding assignments.

	b.  Items 12a (Written Communication), 12b (Oral Communication), and 12d (Contribution To Group Work) he received a block marking of "SUPERIOR."  His 
rater stated the applicant completed all assignments of the Common Leader Training and Technical Certifications Modules.  He excelled in performing research, writing decision briefs and oral presentations for Battalion and Brigade Commanders.  He participated in community events that improved post and local community relations and worked effectively in small group research projects.  His team work was outstanding.

	c.  Item 12c he received a block marking of "UNSAT."  His rater stated that the applicant failed his initial APFT and that leaders should never fail APFTs.

	d.  Item 12e (Evaluation of Student's Research Ability) he received a block marking of "SAT" (satisfactory).  His rater stated the applicant approached all situational exercises in a decisive and tactical manner.  He displayed satisfactory research skills and outstanding technical skills in over 50 hands-on practical exercises.  

11.  His record contains a memorandum for record (AER Referred Report Statement), dated 13 July 2011, wherein the applicant stated, in effect, he received an "UNSAT" rating in leadership because he failed the initial APFT; however, he passed the retest in accordance with TRADOC Regulation 350-10, paragraph 2-6b, which states attendees of Commissioned Officer and Warrant Officer courses will pass the APFT prior to the graduation date.  He also argued that his failure of the initial APFT was not a reflection of his leadership ability, and that the course did not have any criteria regarding how leadership would be rated.  He also stated there was not a signed copy of the CMP providing for an "UNSAT" rating in leadership for initial failure of the APFT.

12.  He provided a supporting statement, dated 17 July 2014, from an individual who identified himself as an instructor at the 919A WOBC during the same time the applicant was attending 919A WOAC.  The individual stated, in effect, that he was familiar with the SEP and CMP and that the SEP did not lay out the criteria for giving a student an "UNSAT" rating in leadership because of an APFT failure. This individual also stated the applicant should have received a "SUPERIOR" rating for leadership based on his overall scores.

13.  He provided various email transmissions, dated from 17 to 18 July 2014, showing personnel from the Officer Leader Development Branch, Ordnance Division contacted the 919A instructor Branch and were unable to locate a copy of the CMP for the applicant due to the fact that the 919A training developer was currently in a training course until sometime in August 2014.

14.  The 919A at Warrant Officer Education System (WOES) website includes a copy of a welcome letter/memorandum issued by the Company Commander, C Company, 554th Engineer Battalion to all new 919A WOES students.  This memorandum/letter was dated 17 April 2013, this represents the most current welcome letter which is currently being issued to new students.  

	a.  Paragraph 3c(1) states "Charlie Company conducts in-processing on course start day morning, 0530 in APFT Uniform… You will be weighed and taped to ensure compliance with [Army Regulation] 600-9 (The Army Body Composition Program)]. Standards are strictly enforced!  Failure to report in compliance with height/weight/APFT standards may result in dismissal from course and/or negative DA Form 1059."

	b.  Paragraph h(1) states "Warrant Officer Advanced Course students will take the Army Physical Fitness Test on training day 2.  Students must pass the APFT.  One retest is allowed and will be administered no earlier than seven days and no later than 24 days.  Failure of the retest will result in removal from course and DA Form 1059 will be annotated in block 11d as "Failed to Achieve Course Standards."  If APFT is failed the DA Form 1059 will reflect UNSAT in leadership; leaders do not fail APFTs.  The DA Form 1059 is filed as a part of your official military performance file."

15.  Army Regulation 350-1, paragraph 3-12, in effect at the time, states Soldiers attending professional military education and functional training courses beyond initial military training that are beyond 8 weeks or longer will be administered the APFT as a course requirement.  Courses less than 8 weeks may require the APFT at the discretion of the commandant or commander.  One retest is allowed. It will be administered no later than 7 days after the initial APFT failure.  

16.  TRADOC Regulation 350-10, paragraph 2-6 states, attendees at WOES will pass the APFT prior to their course graduation.  Those who fail this initial test will be given one retest to be administered sometime between academic day 7 and day 14.  Without exception, students must pass the APFT prior to the end of the course or phase to graduate.

17.  Department of the Army Pamphlet 632-3 (Evaluation Reporting System (ERS)) chapter 4 (AER Forms and Preparation) states AERs are prepared for Soldiers who take part in resident and nonresident training at service schools.  A DA Form 1059 is required for Active Army and Reserve Component personnel taking courses at Army service schools, Department of Defense (DOD)-sponsored schools, NCO academies, allied nation schools, and Reserve 
Component chaplain candidates.  A DA Form 1059 is used to document an Army service member’s participation in courses.

	a.  Paragraph 4–2 (Administrative data (Items 1–10)) states Part I is for administrative data and for identifying the rated officer, the type of course attended, the period of the report, the reason for submitting the report, and explanation of non-rated periods.  Part I is completed by rating official or rating official’s designated representative.

	b.  Table 4–1 (Administrative data) states item 9 is for referred reports.  If the report is a referred report in accordance with Army Regulation 623–3 (ERS), chapter 3–35, then the rater will mark the first box in Part 9.  The report will then be given to the rated Soldier for signature/validation and placement of an "X" in the appropriate box.  ("NO" if the rated Soldier does not wish to make comments or "YES" if the rated Soldier is going to attach comments).

	c.  Paragraph 4–3 (Performance summary (Item 11)) states that this item must be completed for all officer courses except for students released from a course for no fault of their own, approved retirement, or resignation from a course for no fault of their own, approved retirement, or resignation from the service, which will be explained in item 14.  The performance summary is intended to measure the level of performance of each student against the course standards.  The rating official will identify each student’s level of performance by placing an "X" beside the most appropriate entry as described below.  The block mark "Achieved course standards" will be indicated for those students who achieved the overall acceptable course standards.

	d.  Paragraph 4–4 (Demonstrated abilities (Item 12)) states this item must be completed for all officer courses.  

		(1)  This item indicates the level of performance by placing an "X" beside the appropriate entry as described below:

			(a)  A "superior" rating indicates the student has demonstrated an ability that is significantly above the standard.

			(b)  A "satisfactory" rating indicates the student has demonstrated an acceptable level of proficiency.

			(c)  An "unsatisfactory "rating is self-explanatory.

			(d)  A "not evaluated" rating is self-explanatory.

		(2)  Comments are required for "superior" and "UNSAT" ratings and must be in detail to justify the level of proficiency indicated.  If "UNSAT" is checked see Army Regulation 623–3, paragraph 3–35.
18.  Army Regulation 623-3 (ERS) states in paragraph 3–35 (Referred reports (AERs)), that any report with an "UNSAT" rating will be referred to the student by the reviewing official for acknowledgment and comment. 

19.  Army Regulation 623-3, chapter 6 contains the policies and procedures pertaining to managing the redress program.  Section III contains guidance on appeals.

	a.  Paragraph 6-7 provides the basic rules applicable to modifications of previously submitted evaluation reports.  It states that an evaluation report accepted by Headquarters, Department of the Army, 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 opinions and objective judgment of the rating officials at the time of preparation.  It also states that requests that a report that has been accepted for filing in an officer's record be altered, withdrawn, or replaced with another report will not be honored.

	b.  Paragraph 6-11 outlines the burden of proof that must be met to support a successful appeal.  It states the burden of proof rests with the appellant.  Accordingly, 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 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 evidence of records shows that new WOAC 919A students receive a welcome letter before they arrive.  This welcome letter clearly states that any APFT failure will result in an "UNSAT" rating in the leadership block.

2.  He reviewed and signed the course SEP with his rater on 17 May 2011.  He initialed every page.  This SEP clearly states any APFT failure will result in an "UNSAT" rating in the leadership block.

3.  He was counseled on 17 May 2011 for failing his initial APFT.  He was informed at this time that a failure of any APFT would result in an "UNSAT" rating in the leadership block.  He agreed with this counseling statement.

4.  The applicant has not provided sufficient evidence or argument to show he was unaware that a failed APFT would result in an "UNSAT" block mark in leadership on his AER.  

5.  Based on the foregoing, there is insufficient evidence to justify 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)                                         AR20140013563





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ABCMR Record of Proceedings (cont)                                         AR20140013563



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