IN THE CASE OF:    

		BOARD DATE:  18 June 2015	  

		DOCKET NUMBER:  AR20140021608 


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 reconsideration of her previously denied request for removal of a DA Form 1059 (Service School Academic Evaluation Report (AER)) for the period 16 February through 17 June 2011 from her official military personnel file (OMPF) or in the alternative transfer of the AER in question to the restricted portion of her OMPF.

2.  The applicant states due to this document, she was non-select for promotion to captain (CPT).  The basis of her appeal is substantive inaccuracy, unjustness, and derogatory information that is unfounded and erroneous.  

3.  The applicant provides a self-authored statement.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140018340, on 18 November 2014.

2.  The applicant provides a self-authored statement.  The arguments contained in the statement were not previously considered by the ABCMR; therefore, it is considered new evidence and as such warrants consideration by the Board.
 

3.  Having prior enlisted service, on 20 August 2010, the applicant was appointed as a Reserve Commissioned Officer of the U.S. Army in the Military Intelligence (MI) Branch.  She was subsequently ordered to active duty and transferred to Fort Huachuca, AZ, to attend the MI Basic Officer Leadership Course (BOLC) on 16 February 2011.

4.  The AER in question was issued by the MI School indicating the applicant marginally achieved course standards receiving an unsatisfactory rating for leadership skills for the MI BOLC which was conducted from 16 February through 17 June 2011.  The comments portion of the report stated, in part:

   a.  she was the subject of a substantiated Criminal Investigation Division (CID) investigation in March 2011 for three counts of wrongful contact;

   b.  she was the subject of a 304th MI Battalion sponsored Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation and found in violation of the MI BOLC Student Evaluation Plan (SEP) on 16 May 2011; and
   
   c.  she had difficulty with training material throughout the course.  Repeatedly failed two of five major testing events in MI BOLC (Module Bravo Desert Lightning Battle Tracking Test – three iterations; and Module Charlie Desert Lightning II Test – two iterations).

5.  The AER was referred to her for comments.  It appears she elected to submit comments; however, there is no evidence in the available record which shows she did so.  The applicant authenticated the report with her signature on            21 February 2012.  A review of her OMPF failed to reveal a report of a commandant's inquiry.  The AER is contained in the performance section of her OMPF.

6.  The applicant provides a memorandum, issued by Colonel (COL) F______ the former brigade commander of the 111th MI Brigade, dated 1 April 2014, who states, in part:

   a.  As the brigade commander, she handled all disciplinary and unfavorable actions on all officers in the brigade, at her level, with the commanding general having final decision.  While the AER written on the applicant is mostly accurate, she wanted to put the unfavorable comments into perspective.

   b.  She reviewed all marginal AERs and could not and did not direct raters and senior raters to change any comments they wrote.  In the applicant's case, there were a number of underlying issues going on in her unit at the time of the rating.  She later discovered these issues and had to relieve the applicant's course manager, who was the reviewing officer on the AER in question, for having a hostile work environment, inappropriate behavior, and conduct unbecoming, all after the AER was written.
   
   c.  While the applicant did have some issues initially grasping the course material and keeping up because of her condition at the time, she did finally grasp them and complete the course.  The applicant is a bright young officer with great potential.  The findings in both investigations were not enough to warrant Uniform Code of Military Justice (UCMJ) action against the applicant, and she was allowed to graduate.
   
   d.  She was aware that questions were raised about the validity of the comments pertaining to the investigation into violating the SEP and a recommendation was made to remove the comment as it was inaccurate.  The recommendation was not taken and the comment remained as written.  
   
   e.  It is her assessment the AER is not totally accurate and does not completely reflect the officer the applicant is and will continue to be.

7.  The applicant provides a self-authored statement in which she states, in part:

   a.  The comment that she was the subject of a substantiated CID investigation for wrongful contact is inaccurate, unjust, or erroneous.  She claims the results of the investigation were not strong enough to warrant UCMJ, or any action.

   b.  The comment which states a 15-6 investigation found her in violation of the SEP is inaccurate, unjust, or erroneous.  She states the Commandant stated in her letter that this was not true, but she could not use her influence to tell the rater to change his comments.  However, it was recommended the rater change the comment because it was inaccurate.

   c.  She contacted the battalion that conducted the investigation and was told they no longer have it.  She also contacted Administrative Law at Fort Huachuca who could not find evidence that the 15-6 investigation ever existed, much less that it was substantiated or had action taken.
   
   d.  She did have difficulty with the training materials throughout the course; however, there were circumstances which contributed to the difficulty she had in the course that the Commandant can attest to.  In addition, she disagrees with the comments that mention she failed five major tests.  She had trouble with the first mentioned test, but she never failed the second mentioned test.
   e.  A targeting theme was discovered and cadre members were relieved from their positions after she left to include the course manager who was the signature authority on her AER and dictated what was placed on it.  He was relieved and is now out of the Army.  The applicant requests the Board contact COL F______ for clarity with regard to questions concerning her appeal.
   
   f.  The comments used to justify the marginal rating on the AER hold no ground.  An officer assigned to the U.S. Army Human Resources Command contacted the schoolhouse and confirmed no records exist.  Based on the fact that Admin Law at Fort Huachuca has no archived records means the investigation was never sent to them and was never adjudicated.  Therefore, there is a substantive inaccuracy or erroneous entry on the AER which should never have been filed in her OMPF.
   
   g.  The applicant notes that regulations allow rating officials who become aware of verified derogatory information which would have resulted in a lower evaluation of a rated Soldier to submit an addendum to the previous report.  She inquires, in effect, if the new information which surfaced that the reviewer of her AER was subsequently relieved for cause has bearing on her AER. 
   
   h.  Her career has suffered and she has been done a great injustice.  She has been an asset to every unit she has been in and she loves the Army, and being a leader and role model.  She fears if she cannot get the AER removed or moved to the restricted section of her OMPF it will all be taken away from her.  She further requests consideration of a Standby Advisory Board [sic] for promotion to CPT if the AER is removed or moved to the restricted section of her OMPF.

8.  Army Regulation 623-3 (Evaluation Reporting System) 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 or commandant will conduct an inquiry into the matter.  The commandant'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 commandant'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 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.  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 commandant 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 commandant.  If the commandant finds no fault with the evaluation, then the commandant'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.

9.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the OMPF.

	a.  The purpose of the OMPF 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, and any other personnel actions.

	b.  The "performance" folder contains performance related information to include evaluations, commendatory documents, and specific disciplinary information and training/education documents.  This regulation states the AER will be filed in the performance section of the OMPF.  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 contains documents that may normally be considered improper for viewing by selection boards or career managers.

10.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files.  Chapter 7 contains the policy for appeals and petitions for removal of unfavorable information from official personnel files.  It states once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.  It further stipulates only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder of the OMPF.

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 amendment or removal of the AER from her OMPF or to transfer the AER to the restricted portion of her OMPF.

2.  The applicant appears to contend based on the result of investigations not being strong enough to warrant punishment under the UCMJ and due to lack of administrative evidence at the source, the comments pertaining to the various investigations were unwarranted thereby invalidating her AER.  It is clear that she was investigated for potential wrongdoing.  The fact that she did not receive punishment under the UCMJ or that the investigations may have been subsequently lost or misplaced does not invalidate the comments placed on the report. 

3.  The applicant claims the comment which states a 15-6 investigation found her in violation of the SEP is inaccurate, unjust, or erroneous.  She further claims the commandant stated in her letter that it was untrue, but she couldn't use her influence to tell the rater to change the comments.  This is not entirely correct, approximately two years later COL F______ claimed in her letter that the comment was inaccurate; she did not say that the comment was untrue.  

4.  COL F______ acknowledges in her letter that the applicant's AER is mostly accurate and noted "although the findings in both investigations were not enough to warrant UCMJ action against the officer, she was allowed to continue in the course and graduate."  While the applicant may disagree with the comments which mention she failed five major tests she provides no evidence other than her dissatisfaction to support this contention.

5.  She contends a targeting theme was discovered after she left the course and cadre members were relieved from their positions to include the course manager who was the signature authority on her AER.  While this statement is vaguely supported in COL F______'s letter, it is unclear how long after the applicant's report was completed that the relief occurred or how it directly relates to her AER.  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. 

6.  The applicant claims the comments used to justify the marginal rating on her AER hold no ground.  However, it is evident and further supported by COL F______'s letter that the applicant had issues grasping the course material and she was investigated on more than one occasion.  The fact that the findings were not enough to warrant UCMJ action does not negate the comments placed on her AER.  Upon receipt of the contested report the applicant had options available to her to address the comments on the contested report.  There is insufficient evidence to show she exercised due diligence by engaging the commandant or her chain of command at the time to conduct an inquiry into the matter that the report may be illegal, unjust, or otherwise in violation of Army Regulation 623-3.

7.  The governing regulation states to justify deletion or amendment of a report, the applicant has the burden of proof to produce clear and convincing evidence showing the presumption of regularity should not be applied to the report under consideration.  In this case, the applicant has not provided sufficient evidence to support her request.  

8.  The performance folder should show a continuous record of a Soldier's performance throughout his/her Army service.  The removal of the contested AER from the applicant's performance history would leave an undocumented period of service and would not give promotion boards and assignment managers a totally accurate indication of the applicant's past performance and her abilities for future performance.  

9.  In addition, regulatory guidance states only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder of the OMPF.  Therefore, her DA Form 1059 is correctly filed and there remains an insufficient basis for which to grant 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 to amend the decision of the ABCMR set forth in Docket Number AR20140018340, dated 18 November 2014.

      __________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)                                         AR20140021608





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ABCMR Record of Proceedings (cont)                                         AR20140021608



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