PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:                    1 August 2000
	DOCKET NUMBER:           AR1999031236

	I certify that hereinafter is recorded the true and complete record of the proceedings 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:

	Ms. Deborah S. Jacobs		Chairperson	
	Mr. Ernest W. Lutz		Member	
	Ms. Karol A. Kennedy		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests removal of his Service School Academic Evaluation Report (AER) covering the period 3 November 1994 through 11 April 1995 from his official military personnel file (OMPF).

3.  The applicant states that, upon failing his first examination, he was not afforded the opportunity to retest.  He also states that according to the Army Logistics Management College policy, students are allowed to retest only after initially failing an examination.  He further states the College Chaplain requested that he be allowed to retake his final examination; however, his request was denied.  In support of his application he submits a copy of an AER covering the period 19 September 1997 to 7 April 1998, copy of an AER appeal, dated 14 May 1997, copy of an AER appeal packet, dated 2 May 1997, and a copy of a memorandum by the chaplain for the US Army Logistics Management College, dated 12 April 1995, subject:  Re-test final Examination for Phase III.

4.  The applicant's military records show he was commissioned as a second lieutenant in the Regular Army on 29 June 1990 in the Ordnance Corps.  

5.  The applicant was a student at the Combined Logistics Management College attending the Combined Logistics Officer Advanced Course (CLOAC) for the
academic year (AY) 94-95.  

6.  On 11 April 1995 the applicant was officially dismissed from the CLOAC for 
failure to achieve a score of 70% or higher for phase III.  A DA Form 1059 (Service School AER) was issued on that date indicating that he had failed to achieve the academic standards of the CLOAC and that he had earned a grade point average of 69% during Phase III of the CLOAC.  This AER was referred to the applicant for comment.  

7.  The applicant acknowledged receipt of the AER and indicated that he desired to make a statement on his behalf.  He also indicated that he understood that he could appeal the AER under the procedures outlined in Army Regulation
623-105.

8.  On 12 April 1995, the College Chaplain prepared a memorandum requesting that the applicant be allowed to retake his final examination for Phase III of the CLOAC.  The chaplain indicated that the applicant had maintained contact with him on a routine basis since arriving at Fort Lee, Virginia, and that he had shared come of the struggles experienced while trying to maintain academic standards of the advanced course.  The applicant also informed the chaplain of the most recent family related problems, which devastated him at a critical time of study.  

The chaplain further indicated that the applicant had a 69 average for Phase III,
only 1 point away from meeting the standard.  He strongly recommended that 
the college make an exception to policy and allow the applicant to retake his last Phase III test.  However, this request was denied.

9.  On 17 April 1995, the applicant submitted a rebuttal to his AER.  He indicated that he nonconcurred with the remarks in block 16 (Comments) of his DA Form 1059.  He also stated that he failed to achieve a score of 70% for Phase III, but 
that he was qualified to command or serve in a multifunctional position.  He further indicated that officers have successfully commanded and/or served in multifunctional staff positions without attending an advanced course.  He concluded by stating that the real test is his ability to lead and train soldiers.

10.  In April 1995, the AER with its attachments was forwarded to Headquarters, Department of the Army (HQDA).  The AER with its attachments was accepted and placed in the applicant’s performance (P) fiche of his OMPF.

11.  On 2 May 1997 the applicant appealed the contest AER to the Chief, Appeals and Correction Branch of the U.S. Total Army Personnel Command 
(PERSCOM). The applicant requested that the AER be removed from his OMPF and that this original correspondence be returned to him in the event that his appeal is denied.

12.  On 14 May 1997 the Chief of Appeals and Corrections Branch denied consideration of the applicant’s case due to lack of clear and convincing evidence to support his claim.  The Chief also indicated that the Office of the Deputy Chief of Staff for Personnel (ODCSPER) Officer Special Review Board (OSRB) was the agency that approves these types of appeals.  The Chief of Appeals and Corrections Branch further indicated that the OSRB would not accept an appeal for adjudication unless there is “clear and convincing” evidence that supports the claim of the appellant.  He goes on to state that the problems that the applicant was encountering during attendance at the school are unfortunate; however, they are not grounds to invalidate the AER.  The Chief of Appeals and Correction Branch concluded by stating that the only recourse available to the applicant was to return to the school and request that they reconsider their evaluation based on the problems that he was experiencing at the time and that the school submit a “corrected” report to this officer for filing in his official record.

13.  In the processing of this case, a staff advisory opinion (COPY ATTACHED) was obtained from the OSRB.  

14.  On 30 November 1999, as requested of the Army Board for Correction of Military Records (ABCMR), the OSRB reviewed the appeal of the AER for the period 11 July 1994 to 11 April 1995.  The AER was not previously adjudicated under the provisions of Army Regulation 623-1 and 623-105.  The OSRB opined that the deletion of this AER was not warranted.

15.  The OSRB stated that deletion of the AER was requested because the applicant contended that, after failing his first examination, he was not allowed to retest in accordance with school policy and that he believed the evaluation stating he “failed to achieve course standards” was both inaccurate and unjust.  The OSRB also indicated the evidence presented did not substantiate that the report was either incorrect or that the rating officials failed in their prescribed duties.  As a result, the request was denied.

16.  The OSRB also opined that it is guided by Army Regulation 623-105 (OER System) and Army Regulation 623-1 (AER System).  Paragraphs 9-7a and b of 
Army Regulation 623-105 place the burden of proof on an applicant to provide clear and convincing evidence to justify deletion or amendment of an OER.  Sufficient evidence was not found in the applicant’s case to warrant deletion of the contested AER.

17.  A case summary was prepared by the OSRB which indicated that the applicant’s appeal was returned without action due to insufficient evidence.  The summary indicated that a memorandum was prepared by the Course Director of the CLOAC, dated 28 October 1999.  The director indicated his support for removing the contested AER from the applicant’s record as he has subsequently retaken the advanced course and successfully achieved course standards in 1998. 

18.  The OSRB contacted the small group instructor (an Army captain and the rater for the AER) and two other officials.  They were informed of the applicant’s contentions and a need for further information, and each agreed to comment on the applicant’s performance.  The small group instructor was asked by the OSRB on what had caused him to rate the applicant as he did on the AER.  The small group instructor indicated that Phase III was that portion of the advanced course that made it a combined logistics course.  He also recalled that Phase I was the general portion of the course, applicable to all advanced courses and that Phase II was branch specific. He further stated that all students were required to achieve a 70% average and, as stated in the AER, the appellant had failed to achieve that average.  

19.  The OSRB asked the small group instructor if he had counseled the applicant about the course standards that had to be met.  He stated that he had and, as the applicant’s small group leader for Phase III, he had counseled the applicant after each examination failure.  He indicated that the applicant failed a number of tests.  When asked about the retest policy at the time, he stated that he could not remember the specific policy regarding retests.  He also stated that he did recall that the course director or the course director’s supervisor would have decided any exceptions to policy regarding retesting.  

20.  The small group instructor was also asked if the applicant had ever indicated that he was having any personal problems that might impact on his performance.
He stated “no”.  He was also asked if he knew of the wife’s medical problems at 
the time.  He could not specifically remember the appellant ever indicating that his wife’s health problems were the cause of his failures.  The rater continued that he did learn during his preparation for his counseling sessions with the applicant that he had not done well on Phase II of the course, but the issue of any personal problems was never discussed or brought to his attention.  

21.  The OSRB contacted the current course director of CLOAC, an Army major, on 15 November 1999.  The course director was asked about the applicant’s 
statement that he was not allowed to retest contending this was not per Training and Doctrine Command (TRADOC) regulation.  The course director responded that current TRADOC regulation governing the officer advanced course, allows an officer to retest for each test that they fail. However, the course director added
that, when the applicant took the course in Academic Year (AY) 94-95, students were not allowed to retake any of the tests they failed.  

22.  The course director was asked how the applicant could have two AERs on his OMPF, he stated that the applicant had again been sent to the course and was a successful recycle who had achieved course standards and graduated in April 1998.

23.  The course director was also asked how the applicant had again attended the advanced course in AY 97-98.  He indicated that only the school commandant would have authorized the recycling of an officer who had failed
the advanced course.  He was also asked to explain how the applicant who had failed the course initially could retake the course several years later.  He indicated that it is currently normal procedure for the PERSCOM assignment branches to allow officers who fail the advanced course to stay and retake the course immediately.  In this way, the officer only receives one AER, which indicates that the officer passed the course.

24.  The OSRB was unable to contact the reviewing official.  

25.  The OSRB spoke with the Director (a civilian) of the Combined Logistics Captains Career Course on 16 November 1999.  The director stated that she was at the Logistics Management College when the applicant was attending the advanced course, but she is familiar with both his situation and the policies governing the College at the time.

26.  The director recalled that in AY 94-95, the applicant attended one of the initial courses of the CLOAC.  At that time, the policy was that students had to receive a passing score of 70% on each of he three phases of the course.  Students could fail a test but still pass the course by attaining a cumulative score of 70% or higher.  Retesting of failed examinations was not allowed at the time.  

27.  The director was also asked if this was in accordance with TRADOC guidance.  She stated that it was at the time the applicant attended the course.  However, TRADOC Regulation 351-10 was published and became effective in May 1995.  Sometime later the college realized that its policy on retesting for AY 95-96 was not in compliance with TRADOC regulations. (The OSRB notes that appellant completed the course in mid-April 1995).

28.  The director was further asked if there could have been any confusion for students on the course requirements and re-testing policies for AY 94-95 to which she stated ”no”.  The college policy on re-testing prior to that date (May 95) had always been made clear to students and was included in their student course handbook.

29.  The director was asked if the applicant had only failed one exam.  She indicated that he had failed more than one test and was counseled following each failure in accordance with course policy.

30.  The director was queried if she was ever aware of the applicant’s personal problems during the course.  She noted that the applicant did not raise the issue of his wife’s health until he had already failed the course and was then attempting to appeal his case at the school and obtain redress.  At that point, the health issue seemed like an excuse. 

31.  The director was later asked about the applicant’s recent attendance at the advanced course.  She indicated that during this second session he performed very well.  It was obvious that he had matured and could be considered an asset to the Army.

32.  The OSRB noted that the burden of proof is on the applicant to provide clear and convincing evidence to justify deletion of amendment of an AER.  Such evidence was not found in this case in accordance with paragraph 9-7a of Army Regulation 623-105.  The OSRB also indicated that there is no evidence that the rating officials failed to execute their responsibilities at the time the contested AER was rendered in accordance with paragraph 4-2 of Army Regulation 
623-105.

33.  The applicant’s contention that the contested report was substantively inaccurate and unjust, specifically because he failed to pass his first examination and was not afforded the opportunity to re-test in accordance with school policy is not substantiated.  The applicant admits in both his rebuttal and his self-authored statements that he failed examinations.  According to school officials, the applicant and all students were aware of the retesting policy when he attended the advanced course.  His rater confirmed that the applicant was counseled each time he failed a test and there was no indication that his inability to achieve a 70% average was due to personal problems in relation to his wife’s health until after he had failed to achieve a cumulative course average of 70%.  Although, the health problems may have been significant, even in the applicant’s rebuttal to his referred report, he did not raise the issue so it is not reasonable to fault CLOAC officials for insensitivity at the time.  

34.  The OSRB notes that the applicant, in his rebuttal, is not concerned about failing the course as much as the rater’s assessment that he had not demonstrated that he is ready for company command or staff positions of greater responsibility.  The fact that the applicant has been given a second chance to attend the course and has successfully met course standards is positive and will assist him in future duty positions.  The OSRB opines that the applicant has provided no evidence that invalidates the contested report, which he received for this demonstrated performance and potential at the time.  The school academic records speak for themselves – he “failed to achieve course standards”.  He has 
offered no justification for deleting the contested AER other than his subsequent successful completion of the course.  The AER in question is a valid indicator of
the applicant’s performance, even if during a period of extreme stress, and therefore the OSRB opines it should remain a part of the permanent OMPF.

35.  The OSRB notes that third party statements speak highly of the applicant’s 
performance.  The memorandums provided by the applicant’s spouse and supervisors/observers all recognize the applicant’s duty prior to and after the applicant’s attendance at the advanced course.  However, none of these individuals were in a position to fully understand or appreciate the expectations of the rating officials or the school for the applicant at the time the AER was rendered.  As such, none of these statements substantiate any evidence sufficiently compelling to overcome the presumption of regularity referred to in paragraph 5-32 of Army Regulation 623-105.
36.  The OSRB notes that the burden of proof for the contentions presented in the applicant’s request for relief rest squarely with the applicant.  Accordingly, to justify either deletion of amendment of this report, the applicant must produce evidence that clearly and convincingly nullifies the presumption of regularity.  
Paragraph 9-7b of Army Regulation 623-105, succinctly articulates that: “Clear and convincing evidence must be strong and compelling in nature, not merely proof of the possibility or administrative error or factual inaccuracy.”

37.  In summary, the applicant did not provide, nor did the OSRB find elsewhere the necessary evidence to delete the contested AER.  The presumption of regularity referred to in paragraph 5-32a is applicable to the report.

38.  In conclusion, the OSRB stated that there is not sufficient convincing evidence that the contested AER is inaccurate, unjust and does not adequately reflect the applicant’s demonstrated performance and potential during the rating period.  Therefore, the report should not be deleted.  The OSRB denied the applicant’s appeal and recommended that the appeal correspondence be filed on the restricted (R) fiche.

39.  On 6 December 2000, the staff of the ABCMR provided the applicant an opportunity to submit comments on the OSRB advisory opinion.  The applicant was provided 30 days to submit matters in rebuttal to this opinion.  However, the applicant did not respond within the stated suspense.

40.  Army Regulation 623-105 governs the policies and procedures for the officer evaluation reports (OER) systems.  It provides the opportunity to request a Commander’s Inquiry or to appeal disputed reports.  Paragraph 5-32 provides 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.  Requests that an accepted report be altered, withdrawn or replaced will not be honored.  An exception is granted only when information which was known or unverified when
the AER was prepared is brought to light or verified and the information is so significant that it would have resulted in a higher or lower evaluation had it been known at the time the OER was prepared.

41.  Paragraph 4 of Army Regulation 623-105, defines the role of the rating officials. Rating officials have the responsibility to balance their obligation to the rated officer with their obligations to the Army.  Rating officials must make fair and honest evaluations of the officer under their supervision.  They are likewise obligated to the Army to be discriminating in the evaluations so that DA selection
boards and career managers can make intelligent assignments and career management decisions.  
42.  Paragraph 9-2 of Army Regulation 623-105 provides that an AER/OER accepted by Headquarters, Department of the Army (HQDA) and included in the official record of an officer is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgement of the rating officials at the time of preparation.  This is known as a “presumption of regularity”.  Accordingly, to justify deletion or amendment of the report, the appellant must produce evidence that clearly and convincingly overcomes the presumption referred to above and that action to correct an apparent material error or inaccuracy is warranted.

43.  Paragraph 9-7a of Army Regulation 623-105, places the burden of proof on the appellant to provide clear and convincing evidence to justify deletion or amendment of an AER.  

CONCLUSIONS:

1.  The Board noted the applicant’s contention that, upon failing his first examination, he was not afforded the opportunity to retest and that students are allowed to retest after initially failing an examination.  Contrary to this contention, the course director for CLOAC stated retesting was not allowed during AY 94-95. She also stated that the college policy on retesting prior to May 1995 had always been clear to students and published in the student course handbook.

2.  The Board noted the health problems of the applicant’s wife during the period in question.  CLOAC officials stated the applicant did not inform them of this matter until he was in the appeal process.  

3.  As a result of not meeting the required course grade standard, an adverse AER was tendered to the applicant.  It was referred to him for rebuttal and he responded.  The rebuttal was considered and the AER was forwarded to HQDA.  The AER was accepted and placed in his records.

4.  Based on the foregoing the dismissal of the applicant from the CLOAC was accomplished in compliance with applicable regulations and policies in effect at the time.  The AER was properly processed in accordance with regulations.  
There is no evidence of any violation of the applicant’s rights in either of these processes. 

5.  The Board also noted that the applicant returned to CLOAC and achieved course standards and that the course director noted that “he did very well and that it was obvious that he had matured and would be considered an asset to the Army.”

6.  The Board also noted the statement by the current course director of CLOAC that it is normal procedure for PERSCOM assignment branches to allow an officer who fails the advanced course to stay and retake the course immediately. 

7.  The Board also noted the statement by the current course director to the effect that a failing student retook the advanced course immediately so that he or she will “only receive one AER, which indicates that the officer passed the course.”

8.  In view of the foregoing, the Board determined that the applicant should have been allowed to retake the advanced course immediately after he had failed as other officers have been allowed to do.

9.  Based on the factors in this case, the Board has determined as a matter of equity that partial relief is in order.  The applicant failed the course through his own actions and, as an officer, he is accountable for his actions.  However, it is clear that other officers in the same situation have been treated differently.  In recognition of both facts the Board concludes that the applicant’s AER with attachments for the period 3 November 1994 through 11 April 1995 should be removed from his performance (P) fiche and placed on his restricted (R) fiche.

10.  In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records, but only as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected: 

a.  by removing the applicant’s AER covering the period 3 November 1994 through 11 April 1995 with attachments from his performance (P) fiche of his OMPF and placing the AER with attachments on his restricted (R) fiche of his OMPF; 

b.  that an appropriate nonprejudicial explanatory note be placed in his records; and

c.  that the Proceedings of this Board in the applicant’s case be placed on the applicant’s restricted (R) fiche of his OMPF.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

DSJ_____  EWL____  KAK____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__DEBORAH S. JACOBS____
		        CHAIRPERSON

INDEX

CASE ID	AR1999031236	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000801	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	ACTIVE DUTY	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  206		
2.		
3.		
4.		
5.		
6.