IN THE CASE OF: BOARD DATE: 11 July 2013 DOCKET NUMBER: AR20120017559 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests that his Infantry Basic Officer Leader Course (IBOLC) Academic Evaluation Report (AER) and the related Memorandum for Record (MFR) be transferred to the restricted portion of his Army Military Human Resource Record (AMHRR). 2. The applicant states: * his AER was marked "marginally achieved course standards" because he was charged with a driving under the influence (DUI) for which a General Officer Memorandum of Reprimand (GOMOR) was issued * the Department of Army Suitability Evaluation Board (DASEB) transferred the GOMOR to the restricted portion of his AMHRR after his second appeal * he was never convicted of DUI and he met all of his academic requirements as the comments clearly state * when the AER was prepared, he had not been to court and the AER was never referred * he was never given the chance to make comments and/or to defend himself * he never signed any memorandum acknowledging receipt * the rating chain tried to "get around" this requirement by preparing a second AER and mailing it to his commander instead of his home of record * in the second AER the phrase DUI was substituted with "alcohol-related incident" but it was not changed to read "achieved course standards" * the AER clearly violates Army Regulation 623-3 (Evaluation Reporting System), and since it was never processed or profiled by Headquarters, Department of the Army, it should not be in his record * Department of the Army Pamphlet 623-3 (Evaluation Reporting System), states "Referred AERs that have not been provided to the rated Soldier for signature and an opportunity to comment will be rejected." 3. The applicant provides: * President, DASEB Memorandum for the Chief, National Guard Bureau, dated 3 September 2010 * President, DASEB notification letter, dated 3 September 2010 * DASEB Record of Proceedings (ROP), dated 19 August 2010 * MFR (Appeal of Unfavorable Action), dated 18 June 2010 * Referral of AER Memorandum, dated 3 September 2008 * DA Form 1059 (Service School AER), dated 6 June 2008 * DASEB ROP, dated 5 April 2012 * United States District Court Judgment in a Criminal Case, dated 14 August 2008 * IBOLC Graduation Requirements * United States Postal Service Delivery Confirmation Receipts * MFR, dated 11 September 2012 (AER Appeal) * Contact Information * Illegible DD Form 214 (Certificate of Release or Discharge from Active Duty) * interactive Personnel Electronic Records Management System (iPERMS) Email, dated 11 September 2012 * DA Form 4037 (Officer Record Brief) CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant is an Army National Guard commissioned officer. On 6 April 2008, he was arrested by military police for DUI, as determined by a properly-conducted test on 15 April 2008. 3. On 6 June 2008, the applicant signed a DA Form 1059 showing that he marginally achieved course standards in IBOLC from 10 March 2008 through 9 June 2008. In item 9 (This is a referred report. Do you wish to make commends?), the block is not marked. In item 14 (Comments) the statement was entered that he "failed to meet the graduation requirements to comply with Army standards of conduct and discipline in that he demonstrated poor judgment during this course by receiving a DUI." 4. On 14 August 2008, the applicant pled guilty and was found guilty of reckless driving. He was ordered to pay the criminal monetary penalties: * $25.00 Assessment Fee * $200.00 Fine * $25.00 Processing Fee 5. A memorandum from the applicant's commander dated 3 September 2008 shows that a DA Form 1059 dated 4 September 2008 was referred to him for acknowledgement. In a memorandum to his commander, dated 3 September 2008, he acknowledged receipt of his marginal AER concerning his attendance at IOBLC. 6. On 4 September 2008, a second DA Form 1059 was prepared for the applicant for the period 10 March 2008 through 9 June 2008. This DA Form 1059 shows that he marginally achieved course standards in IBOLC. In item 9, the block is marked. In item 14 the previous comment "failed to meet the graduation requirements to comply with Army standards of conduct and discipline in that he demonstrated poor judgment during this course by receiving a DUI" was changed to read "failed to meet the graduation requirement to comply with Army standards of conduct and discipline IAW [in accordance with] AR 600-25 and AR “635-100” during the course because of his involvement in an alcohol-related indiscipline incident." This DA Form 1059 was not signed by the applicant; however, both are contained in the performance section in iPERMS. Also contained in the performance section of iPERMS are United States Postal Service Delivery Confirmation Receipts which show delivery of information to a captain at Fort Wayne, Indiana, whom the applicant identifies as his commander. 7. The applicant submits an MFR dated 11 September 2012, reiterating the contentions he made in his application to this Board. 8. Army Regulation 600-37 (Unfavorable Information) sets forth the basic authority for the filing of unfavorable information in the AMHRR. It states that once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the AMHRR. 9. Department of the Army Pamphlet 623-3 prescribes the policies and procedures for preparing AERs. It states that a DA Form 1059 is required for personnel taking courses at Army service schools. Any reports with a “No” response, “UNSAT” rating, a “Marginally Achieved Course Standards” response, a “Failed to Achieve Course Standards”, a “FAIL” entry for the Army Physical Fitness Test or a “NO” entry for height and weight will be referred to the individual Soldier. If the report is a referred report in accordance with Army Regulation 623–3, paragraph 3–27, then the rater will mark the first box in item 9. The report will then be given to the rated Soldier for signature/validation and placement of an “X” in the appropriate box ("NO" if the rated Soldier does not wish to make comments or "YES" if the rated Soldier is going to attach comments). The Soldier may enclose a comment or statement if he or she believes that the rating or remarks are incorrect. The comments or statement must be factual. The referral memorandum and acknowledgment are forwarded with the report to Headquarters, Department of the Army. If the rated Soldier has departed the school under circumstances that preclude immediate referral of a report a copy will be sent by certified return mail directly to the student marked “Personal in Nature,” or a copy will be sent to the Soldier’s commander for acknowledgment and comment. If the Soldier fails to acknowledge receipt of the referred AER by a reasonable suspense date, the certified mail number or commander’s acknowledgment of receipt will constitute proper referral of the report. 10. Army Regulation 600-8-104 (Military Personnel Information Management/Records) prescribes policies and procedures governing the AMHRR. It provides that the AER will be filed in the performance section of the AMHRR in the proper date sequence of the course attendance date. DISCUSSION AND CONCLUSIONS: 1. The applicant's contentions have been noted. His supporting evidence has been considered. 2. The evidence shows that the applicant initially received an AER which he signed on 6 June 2008 and the referral block was not marked. A second AER was prepared for him after his departure from IBOLC on 4 September 2008 and the referral block was marked. 3. According to Department of the Army Pamphlet 623-3, if the rated Soldier has departed the school under circumstances that preclude immediate referral of a report a copy will be sent by certified return mail directly to the student marked “Personal in Nature,” or a copy will be sent to the Soldier’s commander for acknowledgment and comment. If the Soldier fails to acknowledge receipt of the referred AER by a reasonable suspense date, the certified mail number or commander’s acknowledgment of receipt will constitute proper referral of the report. 4. United States Postal Service Delivery Confirmation Receipts show delivery of information to a captain at Fort Wayne, Indiana, whom the applicant identifies as his commander. He has not shown that the AER dated 4 September 2008 is improperly filed. 5. According to Army Regulation 600-8-104, the AER will be filed in the performance section of the AMHRR. Both AERs and the MFR are currently filed in the performance section in iPERMS; however, the AER he signed on 6 June 2008 should be expunged from his record. 6. In view of the foregoing, the applicant's records should be corrected as recommended below. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ____X____ ____X____ ___X_____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by expunging from the applicant's official records the IBOLC AER he signed and dated on 6 July 2008. 2. The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to transferring the IBOLC AER dated 4 September 2008 and related MFR to the restricted portion of his AMHRR. _______ _ X_______ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20120017559 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120017559 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1