MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  19 August 2003 
	DOCKET NUMBER:  AR2003087989

	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. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. John T. Meixell		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:  That his DA Form 1059 (Service School Academic Evaluation Report [AER]), dated 4 January 2000, for the period 20 September to 24 November 1999 was prepared in error and placed on his Official Military Personnel File (OMPF) and should be replaced with his DA Form 1059, dated 24 November 1999.  

APPLICANT STATES:  He proves copies of both AERs without further comment or supporting documentation. 

EVIDENCE OF RECORD:  The applicant's military records show he enlisted on 21 September 1982, as a unit supply specialist.  He continued to serve until he was honorably discharged on 1 December 1990, in order to accept a warrant officer (WO) appointment.  On 12 December 1990, he was appointed as warrant officer (W-1) in the USAR with concurrent active duty.  

He was promoted to chief warrant officer three (CW3/W-3) in the Regular Army effective 1 December 1998. 

On 24 November 1999, an AER was prepared on the applicant, which evaluated him on his attendance at the Property Accounting WO Advanced Course, for the period 20 September 24 November 1999.  Item 13 (Performance Summary), shows that the applicant achieved course standards.  The remarks entered in item 16 (Comments) indicate that the applicant:  displayed lack of judgment; that his behavior was not consistent with that of a warrant officer in the United States Army; performed extremely well in an academic environment; achieved course standards; satisfactory performed duties as Physical Fitness Training Officer; and tactically and technically certified to serve as a Warrant Officer in MOS 920A.  This AER is not on the performance portion of his OMPF.

A memorandum, dated 23 November 1999, shows that the AER was referred to him for acknowledgement and possible rebuttal.  It appears that the applicant acknowledged receipt but did not sign it or indicate if he did or did not wish to submit a written rebuttal.  This memorandum is not on the performance portion of his OMPF.

The applicant submits a copy of another AER for the same course, dated  4 January 2000.  Item 13 shows that the applicant failed to achieve course standards.  The remarks entered in item 16 indicate that the applicant: was relieved from the course due to honor code violation (officer will not cheat or steal); displayed lack of judgement; substandard ethics; unprofessional conduct; performed satisfactorily in the classroom; his behavior off duty was unbecoming of a WO; and satisfactorily performed duties as Physical Fitness Training Officer. 
This AER is posted on the performance portion of his OMPF. 

A memorandum, dated 9 February 2000, shows that the AER was referred to him for acknowledgement and possible rebuttal.  The applicant signed but did not date the acknowledgement and shows that he did wish to submit a written rebuttal.  This memorandum is on the performance portion of his OMPF.             

The applicant's records revealed that he has not submitted an appeal of his AER, dated 4 January 2000, for the period 20 September to 24 November 1999 in accordance with Army Regulation 623-205, Officer Evaluation Reporting, chapter 6.  

Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the Official Military Personnel File, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records.  Paragraph 2-4 of this regulation states that once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation.  

Table 2 of the regulation pertains to the composition of the OMPF.  It states, in pertinent part, that the DA Form 1059 will be filed on the OMPF, Performance Data Section.

Army Regulation 623-105 governs the policies and procedures for the officer evaluation reports (OER) systems.  Chapter 6 manages the Redress Program.  It provides the opportunity to request a Commander’s Inquiry or to appeal disputed reports. It states, in pertinent part, that an AER accepted by Headquarters, Department of the Army (HQDA), and included in the official record of an officer, is presumed to be administratively correct, and to have been prepared by the properly designated rating officials at the time of preparation and represent the considered opinions and objective judgement of the rating officials at the time of preparation.  

Paragraph 6-7 of the same regulation states administrative appeals will be considered regardless of the period of the report and a decision will be made in view of the regulation in effect at the time the report was rendered.  

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's DA Form 1059, dated 4 January 2000, for the period 20 September to 24 November 1999, was properly filed on the Performance (P) fiche of his OMPF in accordance with applicable regulations.  

2.  The Board notes the applicant’s request to have his DA Form 1059, dated 4 January 2000, with associated documents, removed from his OMPF and replaced with his DA Form 1059, dated 24 November 1999.   However, the applicant has not shown that his DA Form 1059, dated 4 January 2000, was filed in error or was unjust.

3.  The Board also notes that the applicant's records failed to show that he submitted an appeal of his AER, dated 4 January 2000, for the period 20 September to 24 November 1999 in accordance with Army Regulation.         

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 this requirement.

5.  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

__fe___  __jm____  ___mt___  DENY APPLICATION

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

INDEX

CASE ID	AR2003087989	
SUFFIX		
RECON		
DATE BOARDED	20030819	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	267	
2.		
3.		
4.		
5.		
6.