MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:         

	BOARD DATE:           15 August 2000                  
	DOCKET NUMBER:   AR1999031022

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Thomas D. Howard, Jr. 		Chairperson	
	Mr. Arthur A. Omartian 		Member	
	Ms. Gail J. Wire 		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:  Removal of his academic efficiency report (AER) of 19 July 1996 from his official military personnel file (OMPF).   

APPLICANT STATES:  That remedial training was not conducted prior to his last test on the MARKS (Modern Army Record Keeping System), in accordance with the provisions of TRADOC (Training and Doctrine Command) Regulation 351-10, and Army Regulation 623-205.

He states that the TRADOC regulation provides for remedial training and that trained, qualified, and experienced trainers will conduct remedial training and appropriate reevaluation to students who fail to achieve course standards.  After remedial training, the Commandant will retest soldiers who fail to achieve school minimum academic test scores.  He states that his small group leader (SGL) admitted that she did not conduct remedial training.  

In a 12 May 1996 (The date is obviously wrong, as the actions he describes took place after that date), letter to this Board he also requested retroactive promotion to Sergeant First Class, back pay and allowances, and a retest on the MARKS.  He stated that his remedial training was not reviewed prior to the retest.  His SGL left remedial training up to one of his (the applicant) classmates.  He studied with a group, which concerned itself only with classified documents.  That study group had nothing to do with his remedial training for the MARKS retest.  Army Regulation 351-1 and the TRADOC regulation state that remedial training will be conducted by the NCO Academy.  He stated that his SGL claimed that she (the SGL) waited for him at the NCO Academy until 2100 hours.  He went to the study group at 2140 hours and she did not stop by his room.  An NCO stated that the SGL was looking for him earlier, but that was all he said.

He stated that his DA Form 1059 (AER) was not signed by the reviewer and is not valid.  He stated that when he re-tested he was not afforded the opportunity to decline the test, nor was he ever asked if he was mentally or physically capable of taking the retest, even though he had three tests to take that morning.  
He stated that the NCO Academy showed that he had taken three MARKS test, even though he only took two tests.  The NCO Academy lied to his company commander, telling her that he was given a third test, which was the same as the first test, and that he failed all three.  The NCO Academy Commandant also lied to a member of congress (MC), telling him that he had less than a 70 percent average, when his average was well above 70 percent.         

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

The applicant’s AER for the period 17 June 1996 through 25 July 1996, while at the Advanced NCO Course (ANCOC) at Fort Jackson, South Carolina, shows 
that he failed to achieve course standards.  That report shows that he was academically eliminated due to multiple test failures on MARKS, and that he demonstrated poor research ability by failing to extract answers from regulations, handouts, and notes.  That report was prepared and signed by his SGL, and reviewed and signed by the first sergeant at the NCO Academy.  On                   23 July 1996 a letter was forwarded to him at his unit in Oklahoma affording him the opportunity to comment on the AER.  He acknowledged receipt of the AER on 31 October 1996.

In a 31 July 1996 letter to a MC, the applicant iterated that he had not received the required remedial training, took only two MARKS tests, not three, and he and others, in fact, did not have the opportunity to take a third MARKS test.  He stated that Army Regulation 351-1 stated that soldiers were entitled to one test and two retests.  He also stated that the students in his class only received        50 minutes for the test; whereas, students in another class received 65 minutes.  

In a 28 August 1996 memorandum, the applicant’s SGL stated that the applicant had always been assigned a peer instructor for all the tests that he failed.  She stated that on the day prior to the MARKS retest she attempted to locate the applicant in order to conduct a review.  She waited at the NCO Academy until 2100, but he never showed up.  She stated that there was always a review after each class and before each test.  She afforded all her students the opportunity to contact her at anytime.  She was always available.  They had her home phone number, her cellular phone number, and were always told her location.

In a 5 September 1996 letter to a MC, the Commandant of the NCO Academy stated that Army Regulation 351-1 had been changed in 1989 to reflect that all soldiers would receive one test and one retest, but that regulation did allow the Commandant of each NCO Academy to grant a third test as an exception to policy.  He stated that the applicant failed to substantiate grounds for a third test. He also stated that the Review Correspondence test lesson guide indicated that the test is 65 minutes; however, the program of instruction (POI) called for a     50-minute test period.  The AG School, which was responsible for the test, agreed to adjust the POI, but not until the arrival of the 22 July 1996 class.  However, one small group SGL was not aware of this information, and afforded a 65-minute test period for his class.  However, each person who failed that test was given the test again, and afforded 65 minutes to complete it.  He stated that  no student would be processed for elimination for a second test failure, regarding Reviewing Correspondence, but would be given a third test.  He stated that the applicant failed to meet minimum standards for graduation for failing the MARKS examination on two occasions.  He also stated that he failed five of his required nine academic examinations resulting in less than a 70 percent average.  

On 3 October 1996 the applicant was notified that he had been removed from the list for promotion to Sergeant First Class because of his ANCOC failure.

In a 9 November 1996 letter to the Commandant of the NCO Academy, the applicant’s commanding officer recommended that the applicant be allowed to return to the ANCOC.  He stated that the applicant had made him aware of the circumstances concerning his past ANCOC attendance, and that the applicant did not receive his AER report until it was faxed to him on 31 October 1996.  He stated that the applicant was on the Sergeant First Class promotion list for two years, and deserved the right to be promoted and to graduate from ANCOC, since he basically passed all the other class material, but only failed the MARKS examination by one point.  He stated that the applicant was an outstanding solider, who deserved a second retest.  He stated that the applicant’s research ability has been demonstrated and proven time and time again.  He stated that the applicant did not have any problem passing any other retest until his remedial training on MARKS was conducted by his classmates.  In response, the Commandant stated that the applicant had been conditionally promoted to Sergeant First Class, and reduced to Staff Sergeant when he failed to graduate from the ANCOC.  He also stated that the applicant’s AER was mailed to the applicant’s organization within 48 hours of his release from the NCO Academy, but were returned by the organization, as “attempted unknown.”  He stated that the applicant could still appeal the AER.  He also informed that officer that the applicant had been given three opportunities to pass the MARKS examination and had failed on each occasion.  He also stated that the third test was the exact test that he had initially taken.

The applicant then wrote the Commandant, stating again that he did not receive the required remedial training, which should have been conducted by the School Commandant, or his designated representative, the SGL.  He was never asked the mandatory question whether or not he was mentally and physically capable of taking the second MARKS examination.  He stated that his average was well above 70 percent.  On 4 December 1996 the applicant again wrote his MC, and reiterated his previous complaints and concerns.  Additionally, he stated that he did not take a third test, that the Fort Jackson Inspector General lied about talking with other students who were released with him, and that the first sergeant did not sign his AER. 

On 7 April 1997 the Deputy Commander of the Soldier Support Institute at Fort Jackson informed the MC that the applicant’s AER was prepared in accordance with the governing regulation, that his dismissal from the ANCOC was proper, and that correct procedures in effecting this dismissal were followed.

In a 26 September 1997 letter to this Board, the applicant alleges that his AER was changed to show that the reviewer did sign it, but only after it was brought to their attention that her signature was missing.  He also stated that his SGL admitted in her statement that she did not review his remedial training, and that she failed to conduct training according to the TRADOC regulation.  He also stated that the test statement was not given to him before he took the test.  He stated that the Commandant lied about him [the applicant] taking three tests, when in fact, he only took two; and also lied when he told the MC that he had less than a 70 percent average.  He stated that the NCO Academy made the mistakes, and he is paying for it.

In a 31 March 1999 notarized statement, a former class mate of the applicant stated that she and five other class mates studied with the applicant on the evening prior to taking the MARKS examination; and that as far as she knew, another class mate conducted remedial training with the applicant for the MARKS retest, and that no one from the NCO Academy ever reviewed his remedial training before he took the retest.  She stated that the NCO Academy failed to do its job.  She stated that neither the SGL nor anyone from the academy attempted to contact the applicant for any type of remedial training.

Information obtained from the Enlisted Records and Evaluation Center
on 4 August 2000 revealed that the applicant has appealed his AER on three occasions in 1999, and that on each occasion, he was requested to provide information and/or evidence to support his appeal, but failed to do so.  

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 Board does not dispute the regulatory attributes voiced by the applicant pertaining to training, in that the TRADOC regulation states that trained, qualified, and experienced trainers will conduct and supervise student training.  And trainers/evaluators will provide self-study and/or trainer-conducted remedial training and appropriate reevaluation to students who fail to achieve course standards.  It appears from the statement of the applicant’s small group leader that she did not conduct remedial training prior to the applicant’s scheduled MARKS retest.  She acknowledged this, and the applicant does not dispute her statement.

2.  Nonetheless, it is also apparent that the SGL was ready and willing to help him, that she made an attempt to contact him, and she was available at the NCO Academy until 2100 hours on the day before the retest.  He was not available.  Thus, the Board believes that any fault concerning lack of remedial training for the MARKS retest rests with the applicant.  The Board has considered the        31 March 1999 statement from a fellow NCO and class mate, in which she stated that the applicant underwent MARKS remedial training with another class mate (although the applicant stated that the study group he was with did not concern itself with remedial training for the MARKS retest), but that no one from the academy helped him [the applicant] or tried to contact him.  Again, the evidence shows that the SGL tried to contact him.  The applicant so acknowledges in his statement to this Board.  
3.  The Board notes the applicant’s statements concerning the number of MARKS tests that he took, his statements concerning his academic average, and his statements concerning the missing signature of his reviewer on his AER when he first received it.  The applicant has not provided any information, other than his statements, that any of the information contrary to his statements in these matters are untrue.  Nor are these matters germane to his request, which is, removal of the AER from his OMPF because remedial training for his MARKS retest was not conducted.      

4.  The Board also has taken cognizance of the information the applicant has furnished concerning the time period of his MARKS retest.  This information is not relevant to the issue at hand.   

5.  The Board notes the applicant’s statement that he was not asked the mandatory question whether or not he was mentally or physically capable of taking the MARKS retest.  

6.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

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

___tdh___  ___gjw__  ___aao__  DENY APPLICATION

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

INDEX

CASE ID	AR1999031022	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000815	
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.  328	111.00	
2.		
3.		
4.		
5.		
6.