MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            31 August 2000
	DOCKET NUMBER:   AR2000043004

	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. Carl W. S. Chun		Director	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. Joe R. Schroeder		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:  The deletion of an adverse Academic Evaluation Report (AER) and all supporting/allied documents from his Official Military Personnel File (OMPF). 

APPLICANT STATES:  That the AER ending on 17 March 1982 showing that he failed to achieve course standards for the Special Forces (SF) Qualification Course (SFQC) and the forwarding memorandum are factually inaccurate.  He goes on to state that he did not fail a graded physical training test, that he was in excellent physical condition after having just completed the Officer Candidate School (OCS), Infantry Officer Basic Course (IOBC), and Airborne training,  and that the AER was not referred to him for comment.  He continues by stating that he was denied his right to be heard on the matter, to comment, or to otherwise explain his termination from the course which is a violation of Army Regulations and the fundamental right to respond to adverse information being placed in a soldier’s OMPF.  Furthermore, the adverse information was sent to the wrong address and to a unit to which he was never assigned and as a result, his career is being harmed.  He also states that he should have been afforded the opportunity to comment on the circumstances surrounding his termination from the SFQC so that he could have prevented the AER from being issued and now it serves as a negative discriminator in his OMPF at a time when he is being considered for senior level assignments, schools, and promotions.  It was only after his non-selection for the War College that the presence of the AER was brought to his attention. 

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

He was commissioned as a United States Army Reserve (USAR) infantry Second Lieutenant with a concurrent call to active duty upon graduation from OCS on 18 September 1981.  He remained at Fort Benning to attend and complete the IOBC and airborne training and was transferred to Fort Bragg, North Carolina to attend the SFQC which began on 23 January 1981.

On 17 March 1982 he failed to achieve the course standards and was terminated from the SFQC due to his failure to successfully complete the graded physical training requirements.

The applicant was transferred to Germany and was assigned to an infantry unit in the Berlin Brigade at Army Post Office (APO) New York 09742.

On 31 March 1982 an AER was prepared which reflected his failure to complete the course standards and the AER was referred by letter to the applicant via Certified Mail for comment.  The letter was addressed to a Special Forces (SF) Group in APO New York 09030.

On 20 May 1982 the administrative officer of the SFQC prepared a form to be included with the AER and the referral letter which indicated that the applicant failed to respond or comment on the AER.  He also included the Certified Mail number.  Consequently, the AER was forwarded for processing and filing in the applicant’s OMPF. 

Meanwhile, the applicant was promoted to the rank of First Lieutenant on 18 March 1983 and he received five evaluation reports during his assignment, of which he was rated below center of mass by the senior rater on three of the reports.

Upon completion of his tour he was transferred to Fort Benning to attend the infantry officer advanced course (IOAC).  He achieved the course standards, was promoted to the rank of Captain on 1 May 1985, was assigned to Fort Benning as an S3 officer until he was released from active duty (REFRAD) on 1 October 1986 and was transferred to the USAR Control Group (Reinforcement). 

He subsequently accepted a commission in the National Guard and branch transferred to the Judge Advocate General Corps.  He was transferred to the USAR Control Group (Ready Reserve) and was promoted to the rank of major on 22 June 1992. 

At the time of his application to the Board he was serving as a Lieutenant Colonel in the Active Guard/Reserve (AGR) Program.

A review of the applicant’s records shows that the contested AER, the referral letter, and the letter indicating that the applicant did not respond to the Certified Mail which contained the AER, is filed in the applicant’s OMPF.  There is also no indication in the available records to show that the applicant ever appealed any of the information contained in the contested AER to the Officer Special Review Board (OSRB).

Army Regulation 623-1, in effect at the time, served as the authority for the preparation and processing of the AER.  It states, in pertinent part, that an AER will be referred to the student concerned when a report indicates that the individual failed to achieve course standards or if it indicates that the individual received a “FAIL” rating for the Army Physical Readiness Test (APRT).  After signing the referred report, the reviewing official will forward the report to the student, with a letter, for acknowledgment and comment.  Comments or statements by the student do not constitute an appeal as outlined in Army Regulation 623-105.  If the student has departed the school under circumstances that preclude immediate referral of a report to him, a copy will be forwarded by Certified Mail directly to the student or to his commander.  If the student fails to respond or acknowledge receipt of the report in the time period specified, the Certified Mail number will constitute acknowledgement.
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.  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 this requirement.

2.  The AER was properly prepared, referred to the applicant, and filed in accordance with the applicable regulation in effect at the time and the applicant has failed to show through the evidence submitted with his application or the evidence of record that the information contained in the AER is in error, is unjust, or that it is improperly filed in his OMPF.

3.  While the Board will concede that the applicant was not assigned to the unit in which the AER was mailed, it is reasonable to presume that the AER was forwarded to the unit in which he was ultimately assigned, which is the normal procedure and since the accountable mail was not returned to the originator.  

4.  In any event, the applicant’s contention that his inability to respond to the contested OER was a violation of his right to due process appears to be without merit.  Not only would his response to the AER not have prevented the AER from being prepared, the applicant had the right to respond to the AER through the appeals process and apparently did not choose to do so.  Furthermore, he had the opportunity to explain the circumstances in his appeal to the OSRB and to this Board as well and to date has not done so.

5.  The applicant’s contention that the AER is hindering his career is speculative at best on his part.  The applicant has been promoted four times since the AER was issued and it is a well-known fact that selection boards do not reveal their reasons for selection or nonselection.  

6.  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

___sac__  ___be___  ___jrs___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000042004	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2000/08/31	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  221	111.005/VOID AER	
2.  218	111.0200/AER	
3.		
4.		
5.		
6.