MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            20 April 2000
	DOCKET NUMBER:   AR2000038972

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. Roger Able		Member	
	Ms. Margaret V. Thompson		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A -  Application for correction of military 
                             records
	Exhibit B -  Military Personnel Records (including
	                  advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that an Academic Evaluation Report (AER) he received for the period 6 April 1996 through 12 March 1997 be removed from his records.

APPLICANT STATES:  In effect, that in March 1997, after completing 
9 months of the 11 month United States Navy Test Pilot School (USNTPS)  program, he received a dismissal letter and was advised that he would receive a referred AER.  He contends that receipt of the AER is unfair as Navy pilots who attend this school receive a fitness report (FITREP), this is coded “non-observed” and simply allows evaluators to account for the period of the course of instruction.  He also claims there are substantial inaccuracies in the contested AER.  He also refers to a Naval Inspector General (IG) investigation report, which substantiated his allegation that report grading was arbitrary and reflected conflicting and contradictory feedback.  The applicant has provided an extensive statement, which is enclosed, in which he elaborates on the arguments supporting his contentions.  In addition, he has included the following enclosed documents in support of his application:  a Probationary Review Board (PRB) appointment letter; the PRB results; his dismissal letter; the AER referral notification; his rebuttal statement of the AER; the PRB recommendation; the IG investigation request and report; an excerpt from Army Regulation 621-1; USN Bureau of Personnel directive 1610.10 (Navy Performance, Evaluation, and Counseling System); a QE1 report; Department of the Army (DA) Circular 
351-90-1; a copy of the contested AER; and his voluntary statement to the IG.

EVIIDENCE OF RECORD:  The applicant's military records show:

He is currently a major serving as an aviator with the United States Army Operational Test Command at Fort Hood, Texas.  

In 1996, he applied for and was accepted by an Army selection board to attend the USNTPS in Patuxent River, Maryland.  He was one of eight pilots chosen to attend the course from an applicant pool of approximately 140 applicants.  The Army selection board who chose the applicant for attendance to the course waived the flight time pre-requisite of 1,000 hours based on their collective judgement that the applicant’s flying skills would allow him to successfully complete the course.  He began classes at the USATPS in July 1996.

On 27 November 1996, a memorandum was issued by the executive officer of the USNTPS which contained the performance standards.  In this memorandum the applicant was notified that he was being placed on “report writing probation”.  The probation was based on his unsatisfactory grade on both his Qualification Evaluation One and his Mechanical Characteristics/Flight Control Description reports, which dropped his overall individual report average below 2.7% (the minimum standard for graduation).  

At the time he was placed on probation, the applicant was informed of the problems related to his report writing, which included poor grammar; inaccurate and incomplete analysis and descriptions; and general difficulty making a logical coherent argument.  He was also advised that to be removed from probation he would have to satisfactorily complete his three remaining report writing requirements and raise his individual report average score to 2.7%.  This would require him to score an average of 2.9% for the three reports he had left to complete.

On 18 February 1997, the commanding officer of the USNTPS published a memorandum appointing members to a PRB to review the applicant’s case and to determine his suitability to continue test pilot instruction.  The memorandum also contained information about the requirements of the applicant’s initial probation and indicated that, on 14 February 1997, he had received an unsatisfactory grade on one of the three reports, which under the terms of his probation necessitated the convening of a PRB.

On 21 February 1997, the findings and recommendations of the PRB were published.  The PRB published specific findings in the personal issues area.  They included comments that indicated that the applicant was an excellent Army officer and that he was a hard worker who was dedicated, enthusiastic, and motivated.  Also, that as a student he displayed positive reactions and wanted to succeed.  They also indicated that he was respected by his classmates who found him professional and personable.  However, they did comment that his personal situation at the time had caused him a dramatic and continuing distraction, which frequently veered in one direction or the other.  But the applicant felt that he had set aside his personal problems, and that it would be a lesser factor in the future.  In the areas of personal abilities, the PRB found that the applicant lacked detailed understanding and needed a very structured process within which to work.

The PRB also rendered findings in the areas of airmanship and curriculum issues.  Their comments on airmanship issues stated, in effect, that while his classmates were comfortable with the applicant in flight, staff pilots indicated there was a problem with flying in some fight test situations.  In the curriculum issues area, they indicated that although it was a fact that some report reviewing is not standardized and instructors periodically presented conflicting information, which caused him some confusion, this did not affect the boundary between a satisfactory and unsatisfactory report.   

After deliberating, the PRB concluded that the applicant should be allowed another opportunity to demonstrate his ability to recover to a satisfactory level of performance.  They recommended that the extent of his problem areas be unambiguously conveyed to him and that this should be done in a briefing with at least two senior Rotary Wing flight instructors.  In addition, they recommended he stay on probation and continue with the syllabus.  They also defined specifically what tasks the applicant needed to accomplish in order to attain success in the course.

On 26 February 1997, the commander of the USNTPS concurred with the findings and recommendations of the PRB.  He restated the recommendations of the PRB and indicated that the applicant’s failure to complete the recommended flight and reporting requirements would be grounds for his dismissal from the course.

On 12 March 1997, the commanding officer of the USNTPS published a dismissal memorandum pertaining to the applicant.  The commander indicated the applicant’s test flying skills, airsense and adaptability, and ability to analyze and report results were not meeting the standards required of a future test pilot and his progression was not sufficient to ensure he would be ready to safely execute a critical flight test program at graduation.  The commander attributed the applicant’s shortcomings to the fact that he had low total pilot time and extremely low pilot-in-command time prior to reporting to for test pilot training.  The commander also cited the specific task failings that contributed to the applicant’s dismissal action. 

In March 1997, the contested AER was rendered on the applicant based on his failure to achieve the course standards for the USNTPS in Patuxent, Maryland while attending this Navy school for training and certification as a test pilot.  Block 13 (performance summary) of the contested report indicated that the applicant ‘failed to achieve course standards”.  He also received, in block 14, an unsatisfactory evaluation in the area of “written communication”.  

The comments contained in block 16 of the AER state, in effect, that the applicant was enrolled in a rigorous course of instruction at the USNTPS and always maintained a positive attitude.  It further indicated that, although unfortunate, the applicant’s test flying skills; airsence and adaptability; and ability to analyze and report results were not meeting the standards required of a future test pilot, nor was his progression sufficient to ensure he would be ready to safely execute a critical flight test program at graduation. 

Block 16 of the contested report included comments that indicated that the AER and the School Dismissal action on the applicant were the direct result of his low total pilot time and his extremely low pilot-in-command time prior to reporting for test pilot training, both factors that the applicant was unable to control.  Finally, the specific dismissal criteria, cited in block 16 of the AER, were his receipt of an unsatisfactory grade while on probation; his failure to achieve the improved performance standards prescribed during his period of probation; and his failure to achieve the report grades required for graduation.  The evaluator completes his comments by indicating that the applicant remains a highly professional and competent Army Officer who has a bright future in other aviation specialties of the Army.

As required by regulation, on 18 March 1997, the USNTPS commander forwarded the applicant a memorandum “Subject: Adverse Academic Evaluation Report (AER) USNTPS Rotary Wing Flight Mechanics Course, Class 111”, for his acknowledgement.  In this memorandum, the applicant was also advised that he could make any comments or statements he deemed appropriate if he felt the AER was factually incorrect.  

On 2 May 1997, the applicant submitted a statement of rebuttal to the AER.  He stated that his dismissal from the USNTPS was unjustified, unfair, and with prejudice.  He commented, in effect, that he could not understand how after completing 9 months of an 11 month rigorous test flight training program, just 
2 months prior to the completion date of the course, he could be told his flying skills, airsense and adaptability did not meet course standards.  He also stated that if he lacked these attributes, it should have been discovered and brought to his attention much earlier in the training program, rather than being held in abeyance and surfaced near the end of the course.  He also provided a point by point argument to the findings which resulted in his dismissal.

In addition, the applicant concluded, in his rebuttal statement, that the dismissal action and accompanying AER were detrimental to his career and future career goals.  These actions, he contented, would basically destroy his 10 year career and would prevent his future attendance to any other career enhancing programs.  He also stated that he was a highly qualified and trained Army pilot as attested to by his selection to the course.  In addition, he commented that he possessed the skills and capabilities to successfully complete the USNTPS, if given the same fair and equal opportunity as other students, which he felt he had not been denied.  

On 12 June 1997, the applicant requested that the Navy IG conduct an investigation into his dismissal from the USNTPS.  In this request his basic contention was that he was improperly dismissed from the course and he included several allegations and questions in regard to the dismissal action.

On 26 October 1997, the applicant provided a voluntarily statement and answered questions from the IG.  In his statement, he introduced an allegation that he was the subject of racial discrimination and was in fact targeted for elimination from the course by the rotary wing staff.  He supports this claim by indicating that there were other students in his class and other classes that had encountered difficulty with their test flying skills and report writing; however, for reasons unknown to him, the rotary wing instructors managed to find ways and means to get these white students through the program.  He also stated that when he solicited meaningful feedback in these areas, he was given vague and ambiguous replies.

On 19 June 1998, the results and findings of the IG investigation into the applicant’s allegations were published.  The IG conclusion was that the applicant’s primary allegation, that he was improperly dismissed from the USNTPS, was unsubstantiated.  The IG found that the applicant was dismissed from the course based on the criteria established by the USNTPS and there was no information to support his claim that he was treated differently from his classmates.  The IG did conclude that various statements made by the applicant to support his complaints were in fact substantiated; however, they did not constitute any violation of the policies and procedures established by the USNTPS.  

The allegations substantiated by the IG investigation included the following:  that the applicant was not provided with any adverse flying grade cards or told after an evaluated flight by an instructor that any of his flights were unsatisfactory; that his request for training in another area was denied; and that rotary wing instructors present confusing and conflicting information and what is satisfactory to one instructor is often unsatisfactory to another instructor.  As a result of these substantiated allegations the IG recommended that the USNTPS take the following actions:  institute procedures to document student acknowledgement of receipt of information that indicates less than desired performance; determine if it would be advantageous to them and to students to have graders assigned in advance for the rotary wing curriculum; and that a policy be instituted to require written documentation of information conveyed to the students at the mid-year review. 

In February 1999, the applicant appealed the contested AER to the Officer Special Review Board (OSRB).  On 19 March 1999, this appeal was returned to him without action.  The reason cited was that the applicant had failed to provide sufficient evidence to warrant consideration of his case by the OSRB.  It was also indicated that his allegation of racial discrimination was not borne out in the submitted evidence.  Further, the OSRB commented that the report of the Navy IG failed to substantiate his allegation that the comments of rating officials’ in the AER were either unjust, inaccurate, or unfair.  The OSRB opined that the applicant had failed to meet burden of proof required to overcome the regulatory presumption of regularity in regard to filed evaluation reports.  

Navy Bureau of Personnel Instruction 1610.10 provides an overview of the Navy performance evaluation and counseling system.  Annex G (Not Observed Reports) provides information needed to complete wholly not observed (NOB) reports.  It specifically calls for a NOB report in cased where officers are under academic instruction of any length which requires a member’s complete independence from any appearance of command influence.  Instructions on item by item preparation of NOB reports states, in pertinent part, that comments may include academic grade and class standing.

Army Regulation 623-1 (Academic Evaluation Reporting System) prescribes the policies and procedures for preparing AER’s.  It states, in pertinent part, 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.  Paragraph 1-15 contains guidance on AER appeals and states that the appeal procedures outlined in Army Regulation  623-105 is applicable. 

Army Regulation 623-105 (Officer Evaluation Reporting System) prescribes the officer evaluation function of the military personnel system.  Chapter 
6, Section III, contains guidance on the appeals process.  Paragraph 6-6 provides information in regard to the presumption of regularity pertaining to reports accepted for filing in the official record.  It states, in pertinent part, that an evaluation report accepted for inclusion in the official record of an officer is presumed to: be administratively correct; 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. 

Paragraph 6-10 (Burden of Proof and Type of Evidence) states, in pertinent part, that 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 referred to in paragraph 6-6 should not be applied to the report under consideration.  Further, it indicates that this 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:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. After carefully evaluating the contentions of the applicant, and reviewing the evidence of record, the Board concluded that there was no basis for granting the requested relief. 

2.  The Board determined that the applicant was a volunteer for the USNTPS and was a full participant in the Army’s selection process for the course.  More importantly he was aware of and concurred in the waiver granted for his lack of the necessary flying time required to attend the course.  The applicant, as well as the Army, determined that he possessed the necessary skills to successfully complete the course.  Therefore, his subsequent failure to meet course standards, and the comments contained in the contested report, that his failure was the result of his not having the necessary flying time or pilot in command time, does not provide sufficient mitigation to modify or remove the contested AER.

3.  In conducting its independent analysis and considering the entire record, the Board determines the preponderance of the evidence clearly supports the dismissal action taken by the commanding officer of the USNTPS, which was based on the applicant’s failure to meet the standards required of a future test pilot.  There is no evidence to suggest that this action was taken for any reason other than those stated by the commander in his dismissal action, which were the applicant’s failure to achieve course standards and his failure to demonstrate that he would be ready to safely execute a critical flight test program upon his graduation.

4.  The Board concurs with the finding of the OSRB that the applicant has failed to meet burden of proof required to overcome the regulatory presumption of regularity in regard to the contested OER. The contested AER was issued to the applicant in accordance with applicable Army regulations and there is no evidence to support his  claim that the AER contains substantial errors.  The Board found the evaluation and comments contained in the AER were an accurate reflection of the applicant’s performance at the USNTPS.  

5.  Further, the Board concluded that the applicant’s claim, that because he was a member of the Army he was treated more harshly than his Navy counterparts who attended the same course, has no merit.  Navy evaluation report standards have no bearing in this case.  The applicant was issued the contested AER in accordance with applicable Army regulatory policy.  Therefore, removal or modification of the contested report is not warranted.

6.  The Board is extremely concerned whether racial prejudice played any role in this case and takes seriously its responsibility to fully evaluate any allegation of racial prejudice.  However, upon careful review, the Board is satisfied that applicant’s dismissal from the USNTPS was the result of his failure to meet course standards and was not because he is a minority.  This conclusion is supported by the results of the Navy IG investigation, which found that “the applicant was dismissed from the course based on the criteria established by the USNTPS and there was no information to support his that he was treated differently from his classmates”.  

7.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

8.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___ra___  ___wtm__  __mvt___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR2000038972	
SUFFIX		
RECON		
DATE BOARDED	2000/04/20	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 218	111.0200	
2.		
3.		
4.		
5.		
6.