MEMORANDUM OF CONSIDERATION

           IN THE CASE OF:       

	BOARD DATE:            04 JUNE 2002
	DOCKET NUMBER:   AR2002068531

	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	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Ms. Regan K. Smith		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:  That an academic evaluation report (AER) for the period 4 January 1996 through 21 February 1996 be expunged from his OMPF (Official Military Personnel File).

APPLICANT STATES:  In effect, that retention of the report in his OMPF creates a permanent injustice.  He states that he has been passed over twice for promotion to pay grade E-7.  He notes that the "deficiency that constituted removal from BNCOC (Basic Noncommissed Officer Course) has been brought up to standards."  He notes that he completed BNCOC in 1997 and was promoted to pay grade E-6.  He states that "continued penalty for a non-judicial act/reason that was immediately corrected is unjust and unfair and should not be used to judge [his] overall military potential."  In support of his request he submits copies of statements which were used to support his retention in the 1996 BNCOC and statements from his chain of command which recommended he be allowed to attend a later course.

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

He entered active duty in January 1990, was promoted to pay grade E-5 in May 1993, and is currently serving on active duty.

In January 1996 the applicant entered the Automated Logistical Management BNCOC course at Fort Lee, Virginia.  He was academically relieved from the course in February 1996 as a result of "consecutive academic failures."  

Included with the applicant's petition to this Board was a copy of his appeal to the commandant of the NCO Academy at Fort Lee, and copies of statements submitted by members of the applicant's 1996 BNCOC supporting the applicant's retention in the course.  In spite of his appeal, the applicant was academically relieved and an academic evaluation report was rendered for the period 
4 January 1996 through 21 February 1996.  The report is filed in the performance portion of the applicant's OMPF.

In the summer of 1996 the applicant's chain of command supported a recommendation that the applicant be allowed to return to BNCOC.  Statements from his chain of command, which were also included with the applicant's petition to this Board, indicated that the applicant had completed several hours of additional training in the deficient subject, which led to his academic release from the 1996 BNCOC. 

The applicant successfully completed BNCOC in September 1997 by achieving course standards.  An academic evaluation report for the period 11 July 1997 

through 25 September 1997, which is also filed in the performance portion of the applicant's OMPF, confirms completion of the course.

In November 1997 the applicant was promoted to pay grade E-6.

The applicant initially submitted a petition to this Board in October 2001 to have the 1996 AER expunged.  In processing that request, the applicant was advised to appeal the evaluation report via the appropriate administrative avenues.  The applicant attempted to appeal the report in January 2002.  However, officials at the U.S. Army Enlisted Records and Evaluation Center in Indianapolis, Indiana forwarded the appeal to this Board, noting that because the AER was more than 5 years old, the Board should consider the applicant's petition.

Army Regulation 623-1, which establishes the policies and provisions for preparation and submission of AER states that an AER is required for all active Army personnel attending resident and nonresident courses or training scheduled for 60 calendar days or more.  They are also required for all enlisted personnel taking resident and nonresident NCO education system (NCOES) courses, regardless of length or component.  The original copy of the AER will be filed in the individual's OMPF for all TDY (temporary duty) or PCS (permanent change of station) courses of less than 20 weeks.

Army Regulation 623-205, which establishes the policies and procedures for appealing academic evaluation reports, notes that an evaluation report accepted for inclusion in the official record of an enlisted soldier is presumed to be administratively correct, prepared by the proper rating officials, and represents the considered opinion and objective judgment of the rating officials at the time of preparation.  It states that the burden of proof on an appeal 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 and that action is warranted to correct a material error, inaccuracy, or injustice.  That regulation also suggests that reports be appealed within 5 years of completion to ensure that relevant facts and statements are fresh.

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.  The applicant has not shown that the contested report contains any serious administrative deficiencies, was not prepared in compliance with applicable 

regulations, or that it was not a valid appraisal of the applicant’s failure of the Automated Logistical Management BNCOC.  

2.  The Board notes that while the applicant may have successfully completed the course at a later date, but that accomplishment does not invalidate the failure of the initial course, nor serve as justification to expunge the AER.

3.  The Board concludes that the evidence indicates that the AER was completed in accordance with appropriate regulations with no indication of procedural errors, which would tend to jeopardize his rights.

4.  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 that requirement.

5.  The actions by the Army in this case were appropriate and there is no doubt to be resolved in favor of the applicant.

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

__JLP___  __AAO __  __RKS__  DENY APPLICATION

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

INDEX

CASE ID	AR2002068531	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020604	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	111.02	
2.		
3.		
4.		
5.		
6.