IN THE CASE OF: BOARD DATE: 26 May 2015 DOCKET NUMBER: AR20150002498 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 the removal of a DA Form 1059 (Service School Academic Evaluation Report (AER)) for the period 1 April through 23 July 2013 (hereafter referred to as the contested AER) from his Official Military Personnel File (OMPF). As an alternative the AER should be moved to the restricted folder of his OMPF. 2. The applicant states: a. On 9 July 2013, he received the AER from the Counterintelligence Officers Course (CIOC) 3C-35E for "failed to achieve course standards" for alleged academic dishonesty. The comment that he committed academic dishonesty is the only comment supporting his performance summary and directly resulted in him receiving a failed to achieve course standards. On 11 April 2014, a Board of Inquiry (BOI) convened, listened to the testimony of six witnesses, reviewed all relevant documentation, and concluded he did not plagiarize another student's or engage in academic dishonesty. b. He has exhausted his administrative remedies. He submitted an appeal packet to the Army Officer Special Review Board (OSRB) and the OSRB denied his appeal based on his failure to meet the clear and convincing standard required under Army Regulation (AR) 623-3 (Officer Evaluation Reporting System). When he submitted his packet to the OSRB, he submitted only the BOI findings sheet because he did not realize there were different standards of proof between the BOI and the OSRB. While the standard of proof at a BOI is only a preponderance of the evidence, he "submits the evidence adduced at the BOI meets the clear and convincing standard." c. His chain of command supports the removal of the AER from his OMPF. He has enclosed a memorandum from Major General (MG) RPA, Commanding General (CG), U.S. Army Intelligence Center of Excellence (USAICE&FH), Fort Huachuca, AZ. MG RPA originally referred him to the BOI based on the allegations of academic dishonesty. Based on the BOI proceedings and the evidence adduced after the AER was forwarded to the U.S. Army Human Resources Command (HRC) and filed in his OMPF, MG RPA supports his appeal. Events leading up to the AER cast significant doubt on the propriety of the AER being in his OMPF. In accordance with AR 623-3, paragraph 4-7, evaluation reports that are unjust provide a separate and distinct basis for appeal. The filing of the AER in his OMPF is a significant injustice. d. Course guidelines pertaining to individual work, peer-to-peer work and group work are outlined in the CIOC Individual Student Assessment Plan (ISAP). The ISAP states evaluation (grading) criteria is based on individual effort and all related assignments/products will be of each student's own work/creation. With the exception of peer-to-peer review and group work as outlined, typing, reviewing, or editing another student's work, any student having their work reviewed or edited by another student or person outside of the CIOR, and/or a student utilizing another or prior student's product(s) in completing their own is considered an act of academic dishonesty. The ISAP states two exceptions are described as students are allowed to utilize peer resources to assist in learning specific CI tasks. Students are authorized to review and provide feedback on peer reports so long as the report in question is not an assessment and the original author maintains positive control over the report. Any student providing, transmitting or receiving a copy of another student's reports/products is guilty of academic dishonesty. Students are authorized to transmit or receive other students' work only within the constraints of the group project or assignment. Students transmitting, transferring or receiving student products outside the guidelines of the group assignment are guilty of academic dishonesty. e. Major (MAJ) EJ briefed them at the beginning of the course on individual and peer-to-peer work, that all reports must be the individual's work, and at times they would be able to collaborate, which consisted of sharing notes and reviewing each others reports. He stated they would be told when to collaborate and if there was any confusion they should consult with the cadre. The confusion was whether the Contact Report Practical Exercise was group work. He and two other captains (CPT) considered it group work; however, Chief Warrant Officer Three (CW3) TD, their small group instructor, provided a statement to the BOI that it was not group work. f. It was unclear how two students were to work together to complete the practical exercise and comply with the ISAB. Before the exercise, CW3 TD stated they could compare notes in order to complete the contact report. The ISAP stated any evaluation was based on individual effort unless peer-to-peer work was being done and then reviewing and providing feedback on a report was allowed. Despite MAJ EJ's guidance, nowhere in the ISAR could he find specific guidance that students sharing notes was allowed. His partner in the exercise, CPT AP testified at the BOI that she tried to get clarification from CW3 TD on the practical exercise but CW3 TD failed to clarify the instructions and her (CW3 TD's) response was to emphasize how partners must rely on each other to successfully complete the exercise. CPT AP also testified that CW3 TD was present during the conversation in which they agreed to share folders for each team to collaborate on the reports. Two other CPTs also testified that CW3 TD's instructions were confusing, not very clear, and she was incapable of giving good guidance. g. First, the assignment in question was not feasible. The assignment tasked partners with conducting a vehicle interview with a confidential informant. The primary duty of the student driver in the Contact Report Practical Exercise Number Two was to safely operate a motor vehicle. While he could hear segments of the interview, he had no ability to take notes or make a record of any portion of the interview in order to complete the required report. Second, the driver in such an exercise is incapable of completing a proper report while completing an interview. Further, a report in this fashion would never occur in the field due to logistical and safety concerns. Third, as a result of the confusion and exercise impracticalities implicit in the exercise, and as a result of his situation, the exercise was significantly altered for the next course by the subsequent course manager, CW3 JT. h. He did not intentionally commit academic dishonesty; he misunderstood the nature of the exercise. He thought the assignment was group work as partners were required to rely on each other for information and, as he was the driver, he was unable to effectively interview the informant during the assignment in question. His instructors and course manager testified at the BOI that the incident was most likely a misunderstanding. CW3 JT testified that he did not believe that he intentionally committed academic dishonesty and he believed it was a misunderstanding. Mr. DD stated he was a "fantastic" student and he would welcome him (the applicant) back to the course. i. The AER was forwarded to HRC and filed in his OMPF prior to the BOI. His chain of command referred the situation to a BOI to expeditiously resolve the problem. CPT EN, his company commander at the time, stated he recommended a show cause board in order to handle the situation at Fort Huachuca so he could put the issue behind him. CPT EN believed it was just an administrative process that he had to go through in order to be retained for continued service. Lieutenant Colonel (LTC) JP stated similar reasons for recommending a show cause board. Once the BOI results were released, his chain of command, including the CG, USAICE&FH, fully supported the removal of the AER from his OMPF. j. Further, the AER does not accurately reflect the opinions of his instructors or his chain of command. His instructors and course manager testified at the BOI that the incident was most likely a misunderstanding. Lastly, there are certain administrative procedures concerning the AER that were not followed. His rater was Sergeant First Class (SFC) JL. By instruction, he was to be an individual that "supervises and/or monitors his performance and compliance with academic standards." He did not have much interaction with SFC JL and dealt mainly with CW3 JT, CW3 TD, and SFC JB. As a result, he is unsure if SFC JL's duties formally included this supervision and monitoring task. Also, the rater was to be senior to him and “that person who directly oversees and is most responsible for directing and observing the Soldier’s progress." His AER was to contain facts justifying his relief from the course. No such facts were set forth; all that is present is the conclusion that he was relieved from the course for academic dishonesty. k. AR 623-3, paragraph 3-27 also specifies that a "failed to achieve course standards" rating requires the preparing official to address whether the deficiency reflects on the character or behavior of the rated Soldier. His AER only states that he was removed from the course. The rating official failed to reflect on his character. However, at the BOI, and in letters of support from the same chain of command that recommended a show cause board, it is evident that his instructors and chain of command do not believe this incident was reflective of his character. Also, his AER was to receive a mandatory review by the "first Army officer in the chain of command or supervision who was senior to the individual directing the relief." The individual directing his relief was the Commander, 111th Military Intelligence (MI) Brigade, who at the time was Colonel (COL) RM. His AER’s mandatory review was completed by MAJ EJ. 3. The applicant provides: * the contested AER with attachments * 16 statements of support, dated between 23 October 2014 and 21 January 2015 * OSRB Record of Proceedings (ROP) * his Officer Record Brief, dated 15 May 2014 * a self-authored memorandum to the OSRB, dated 29 April 2014 * DA Form 1574 (Report of Proceedings (ROP) by Investigating Officer (IO)/Board of Officers) * BOI Summary of Proceedings (SOP) * four memoranda, dated between 26 June 2013 and 4 November 2014 * 13 statements of support to the BOI and/or OSRB, dated between 22 August 2013 and 10 April 2014 * DA Form 4856 (Developmental Counseling Form) * CIOC ISAP, dated November 2012 CONSIDERATION OF EVIDENCE: 1. Having had prior active enlisted service, the applicant was appointed as a second lieutenant in the Regular Army MI Corps on 17 April 2008. He was promoted to the rank of CPT on 1 June 2011 and he held area of concentration (AOC) 35D (Intelligence, All Source). 2. The applicant provides a DA Form 4856, dated 3 July 2013, wherein it shows he was counseled on that date by Mr. JL, Senior Faculty Advisor, and notified of his administrative relief by the resident instruction. The counseling stated, in part: a. The brigade commander elected to relieve him from the CIOC for violations of the CIOC ISAP, specifically for engaging in academic dishonesty. He was notified he had the right to appeal the action, was required to acknowledge receipt of the notification within 2 days, had to submit an endorsement by 9 July 2013 and a written appeal by 16 July 2013. b. Failure to submit a timely written appeal constituted a waiver of his right to an academic review board. His administrative relief from the course could result in reclassification or the initiation of administrative separation. c. The applicant and Mr. JL signed the form on 3 July 2013. His record is void of any evidence that shows he appealed the elimination action and requested an academic review board be held. 3. On 9 July 2013, he received the contested AER, a referred report, which covered the rated period 1 April through 23 July 2013 while he was a student in the CIOC, USAIC&FH. His rater was SFC JL, Course Senior Faculty Advisor and the reviewing officer was Mr. DD, Course Manager. a. Item 11d (Performance Summary) of the AER shows that he failed to achieve course standards. b. Item 14 (Comments) contains a description of the course and the statements "[The Applicant] is administratively removed from the course due to academic dishonesty" and "[The Applicant] is not qualified as a CI Special Agent and will not be awarded 35E [CI Special Agent] AOC." The applicant, his rater, and the reviewer all signed the AER on 9 July 2013. 4. In a rebuttal memorandum to the contested AER, dated 15 July 2013, the applicant stated, in part: a. His removal from the CIOC for academic dishonesty was based on his lack of fully understanding the dynamics of the assignment and poor judgment and was not reflective of his character or integrity. In his 12 years in the Army, this was the first negative blemish he had ever faced. b. The CIOC ISAP established when cooperation between students was and was not allowed and sets out two exceptions to the rule against sharing work between students - peer to peer review and group work. It was his understanding that the work that he is accused of academic dishonesty was group work. However, the assignment was not group work and his misunderstanding of the guidelines set out in the ISAP, along with poor judgment, set the conditions for his removal from the course. c. The assignment in question took place on 20 June 2013. He and CPT AP set our on their route to conduct a vehicle interview with her source. She was tasked with interviewing the source while he was the assigned driver. He focused on driving safely and could not pay attention to the interview; however, the assignment required him to turn in a report of the interview - the implied task was to share their work. d. After the meet, CPT AP informed him that she saved her report on a share drive used by teams to share work with each other during group projects. He copied her report because she was the only one who could specifically recall the way the meet transpired and because he could not make a full assessment of the source's demeanor to fully meet the requirements for the report. His classmates submitted sworn statements that further supported the assignment necessitated sharing of information and a level of collaboration between partners. Without seeking cadre clarification, it was his assumption that the assignment met the guidelines in the ISAP under group work. e. During their evaluations in CIOC, the cadre made it clear they were not to share information; it was his belief that this assignment was not an evaluated or assessed event and therefore, he was taking the information his partner gathered to produce a report for an ungraded exercise. He now realized that he utilized poor judgment based on his assumptions of the assignment and he should have sought further clarification on the dynamics of the assignment. He never meant to commit academic dishonesty. It was his misunderstanding that the assignment was group work that led him to believe he was acting properly. 5. In a memorandum, dated 15 July 2013, subject: Supplementary AER Review as Required by AR 623-3, paragraph 2-17c, MAJ EJ, CIC Officer in Charge (OIC), stated an additional review of the contested AER was made by him. The AER was complete and correct; [The Applicant] was relieved for plagiarism in accordance with CIOC ISAP. 6. The contested AER, the applicant's rebuttal memorandum, and MAJ EJ's supplementary review are currently filed in the performance folder of the applicant's OMPF. 7. At the direction of MG RPA, a BOI convened at 0804 hours on 11 April 2014 to address the applicant's misconduct and moral/professional dereliction and for the applicant to show cause for retention in the Army. The applicant provides the BOI SOP wherein it shows, in part: a. CW3 JT testified that in June 2013 she was notified the applicant had cheated on a contact report. In the report, there were about 10 to 15 differences between his report and the Soldier he cheated off of. The incident stood out because it was the first time it happened in the CIOC. The course work was heavy and difficult. Considering what she knew of the applicant, his background, and the incident, she would recommend he continue to serve as an officer because it was a small mistake. He was very up front and did not try to make excuses. The instructions she gave were very clear that the reports were written separately and if the students needed to ask a question of their partner they were to ask her first. He was in CW3 TD's group and had no doubts her instructions were confusing. She was not aware of any students other than the applicant submitting identical reports in the class. b. Mr DD testified at the time of the incident he was on leave and returned afterwards. What stood out to him about the way the applicant handled what he was accused of was that he owned up to his actions. He had seen a lot of cheating and everyone likes to blame everyone else. Overall, the applicant was a fantastic student and based on what he knew of the applicant, he believed they would be losing a great officer if he was not retained. If retained, he would welcome him back to the course. Cheating was commonplace and they usually had one in each class. It was fairly rare for an incident like this where a report was copied almost word for word and submitted. He thought the applicant made a bad decision and what impressed him was the applicant stated he made a bad decision. The applicant's case was different from the others in that it was processed more quickly because admitted to it. c. CPT PS testified he was a classmate of the applicant's in the CIOC and was also in CW3 TD's small group. From his understanding, he thought the exercise in question was considered to be group work. d. CPT CW testified she was a classmate of the applicant's in the CIOC but was not in CW3 TD's small group. Although CW3 TD was not her group leader, she believed she gave unclear instructions. e. CPT AP testified she was the applicant's partner for the course and she considered the exercise in question was group work. She would not describe the applicant as someone who was trying to get away with less work than was required and thought he just misunderstood that particular assignment. f. The applicant testified that: (1) The reason he saw the exercise as group work was they relied on each other for information. After the exercise, he and CPT AD did not discuss the meet at all. The next morning they were to turn in the report but he had no recollection of the meet because he could not hear what was being said. He was not able to fully put the details of the meet in the report so he felt is was necessary to use CPT AP's report to meet the requirements. He understood the report to be a practical exercise, they would receive feedback on it, and they would not be graded on it. (2) After another exercise, CW3 TD put his report in from of him and asked if it was his. He told her it was and she asked why it looked just like CPT AD's report. He stated the reasons [in paragraph 8a] above and was told the assignment was not group work and was later notified he was being dropped from the course. He did not appeal or fight the fact he was being dropped and worked his way up through the cadre to the battalion and brigade commanders, talking about what he did and what his view of it was. His ultimate decision not to appeal was based on the fact that he felt the brigade commander gave him a fair assessment and he (the applicant) realized he made a bad assumption and a bad decision. (3) At 0800 hours the morning after the practical exercise, they were given 20 minutes to discuss the meet but they did not. They were not specifically told not to discuss the information during the drafting period of the report but CPT AP doesn't talk when she's working and he didn't insist that she help him. After 1100 hours, CPT AD told him the report was in the folder and he thought she told him she submitted it. (4) He only had an hour left to submit his report so he opened her report and highlighted section by section what he needed and pasted it into his report. He didn't just submit her report, he made a few changes and remembers making some grammar corrections, and he signed the signature block. It had to be written as if you were the lead agent so he had to swap their names in places. If he had attempted to reproduce the report without copying and pasting it, it would still have been exactly the same. He did not ask CPT AP's permission to do this and felt the information he got from her report was necessary for him to complete his report. Looking back, he would have done it differently and he believed that it was wrong. 8. At 1230 hours on 11 April 2014, the BOI completed its findings and recommendations and concluded that the applicant: * did not engage in academic dishonesty by plagiarizing another student's work and turning it in as his own * did not fail to complete the CIOC because he failed to exercise the necessary leadership of an officer of his grade * did not act in a manner rising to a level of conduct unbecoming an officer and gentleman by engaging in academic dishonesty * should be retained in the U.S. Army 9. On 25 April 2014, the applicant submitted an appeal to the OSRB to have the contested AER removed from his OMPF. 10. On 16 October 2014, the OSRB denied his request and stated, in part, the evidence presented did not establish clearly and convincingly that the presumption of regularity should not be applied to the contested AER or that action was warranted to correct a material error, inaccuracy, or injustice. The purpose of the BOI was to give the applicant a fair and impartial hearing to determine if he should be retained in the Army. The BOI recommendations were limited to either retention or elimination and the BOI findings had no bearing on whether he was guilty of academic dishonesty as noted in the contested AER. 11. He provides statements of support wherein, in part: a. Numerous officers, SFCs, and Department of the Army civilians stated the applicant was committed to the mission, led from the front and by example, epitomized the Army values, his integrity and loyalty were beyond approach, he could be trusted and counted on, was an absolute professional, was an asset to the Army, and recommended he be retained in the Army. b. Mr. DD stated he observed and interacted with the applicant for about 16 weeks while he was a student at the CIOC. He actively participated in class instructions and his contributions added to the collaborative learning environment. He performed very well during practical exercises/exams and would have gradated to become a 35E CI officer had it not been for a lapse of judgment in the latter portion of the course. He (Mr. DD) did not feel that the lack of judgment was indicative of his character as an officer. To the contrary, the applicant fully accepted responsibility for his actions. c. MG RPA stated he recommended the Board reverse OSRB's finding and grant the applicant's request to remove the contested AER from his OMPF. He further stated: (1) He referred the applicant to a BOI for academic dishonesty while he was a student at the CIOC and it was the responsibility of the BOI to make findings and recommendations regarding his separation or retention. Because newly favorable information was discovered, the BOI found the applicant did not engage in academic dishonesty by plagiarizing another student's work and turning it in as his own, did not fail to completed the CIOC because he failed to exercise the necessary leadership of an officer of his grade, did not act in a manner rising to a level of conduct unbecoming an officer and gentleman by engaging in academic dishonesty. (2) The applicant submitted an appeal to HRC to have the contested AER removed and the OSRB denied his appeal and stated the evidence presented did not establish clearly and convincingly that the presumption of regularity should not be applied to the contested AER or that action was warranted to correct a material error, inaccuracy, or injustice. The BOI recommendations were limited to either retention or elimination (3) The OSRB improperly ignored the factual findings that were mandatory part of the support for the recommendation for retention. The OSRB's implied determination that the factual findings were not necessary, and therefore did not rise to the lever of clear and convincing evidence of a factual mistake was in error. AR 15-6 requires such findings and these kind of findings are routinely used throughout the Army to conclusively establish facts necessary to make some of the most important decisions that all senior Army leaders make on a daily basis. 12. The applicant was honorably discharged on 1 April 2015 in the rank of CPT by reason of early separation. He completed a total of 14 years, 5 months, and 15 days of creditable active service. 13. AR 623-3 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System. It also provides instructions for preparing, processing, and using the DA Form 1059. a. It states AERs report the accomplishments, potential, and limitations of individuals while attending courses of instruction or training. The reporting official will be responsible for the accuracy of the information in the completed AER. b. Service school commandants are responsible for preparing the DA Form 1059 within 60 days after the student’s graduation or termination from the school. In preparing these reports, all significant information that can be evaluated will be reported. The same care and attention will be exercised in preparing this report as is exercised in preparing officer evaluation reports. c. It provides that an evaluation report accepted by 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 judgment of the rating officials at the time of preparation. d. It further states the burden of proof in an appeal of an evaluation report rests with the applicant. Accordingly, to justify deletion or amendment of an evaluation report under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted. This evidence may include the results of a commandant's inquiry. e. AER rating chains will be established by the commandant of the school. For AERs the reviewing official is a designated individual in the chain of supervision as determined by the school commandant. Rating officials provide candid assessments of rated Soldiers. The reviewing officer will be an official above the evaluating academic official. f. Paragraph 2-17 states AERs that reflect failed to achieve course standards require a supplementary review by the next individual above the reviewing officer in the chain of supervision. Supplementary reviews will go no higher than the school commandant. g. Paragraph 3-27 states AERs with the entry failed to achieve course standards is a referred report and the rated Soldier will be given the opportunity to submit comments. If block d of item 11 was checked the preparing official will address (in item 14) whether the deficiency reflected on the character or behavior of the rated Soldier or lack of aptitude in certain areas. All failed to achieve course standard AERs required an additional review. 14. Army Regulation 600-8-104 (Army Military Human Resource Record (AMHRR) Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR. a. The purpose of the OMPF is to preserve permanent documents pertaining to enlistment, appointment, duty stations, assignments, training, qualifications, performance, awards, medals, disciplinary actions, insurance, emergency data, separation, retirement, casualty, administrative remarks, and any other personnel actions. b. The performance folder maintains performance related information to include evaluations, commendatory documents, and specific disciplinary information and training/education documents. This regulation states the AER will be filed on the performance folder of the OMPF. The primary purpose of this folder is to provide necessary information to officials and selection boards tasked with assessing Soldiers for promotion, special programs, or tours of duty. c. The restricted folder maintains documents that may normally be considered improper for viewing by selection boards or career managers. 15. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files. Chapter 7 contains the policy for appeals and petitions for removal of unfavorable information from official personnel files. It states once an official document has been properly filed in the OMPF, 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 OMPF. It further stipulates only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder of the OMPF. DISCUSSION AND CONCLUSIONS: 1. The applicant's contends the contested AER should be removed from his OMPF, or as an alternative it should be transferred to the restricted folder of his OMPF. 2. The governing regulation states to justify deletion or amendment of a report, the applicant has the burden of proof to produce clear and convincing evidence showing the presumption of regularity should not be applied to the report under consideration. However, in this case, the applicant has not provided sufficiently compelling evidence to justify removal of the contested AER from his OMPF. 3. The evidence of record confirms, on 9 July 2013, he received the contested AER, a referred report, for failing to achieve course standards as he was removed from the CIOC for academic dishonesty. In a rebuttal to the AER, he stated his removal for academic dishonesty was based on his lack of fully understanding the dynamics of the assignment and poor judgment and was not reflective of his character or integrity. A supplemental review of the AER confirmed he was relieved from the course for plagiarism. 4. Notwithstanding the applicant's and MG RPA's contentions that the BOI found he did not commit academic dishonesty by plagiarizing another student's work and turning it in as his own, and therefore the contested AER should be removed from his OMPF, the evidence the applicant provided showed: a. The BOI heard testimony from several individuals that the applicant had cheated on a contact report, he was up front and did not try to make excuses for cheating, no other students had submitted identical reports, it was rare that a report was copied almost word for word and then submitted, his case was different from the others because he admitted to it and stated he made a bad decision. b. The applicant himself testified he copied CPT AD's report, swapped their names in places, made some grammatical corrections, signed the report and submitted it as his own, he did not ask CPT AD's permission to copy her report, and looking back he knew what he did was wrong. c. The BOI also heard testimony that what he did was a small mistake, he was a fantastic student, and he made a bad decision; however, he was a good officer and he should be retained on active duty. 5. While the testimony the BOI heard clearly showed the applicant did plagiarize another student's work, it appears the BOI found there were extenuating circumstances for him doing so and found he did not commit academic dishonesty in order support the recommendation that he be retained on active duty. However, the BOI findings and recommendation does not support the contention that the contested AER contained a factual error, material error, or inaccuracy, as he was relieved from the course for committing plagiarism, regardless if he thought he was justified in doing so. 6. It is noted that item 14 of the contested AER did not contain a statement on the applicant's character; however, the failure to do so would constitute an administrative error and does not rise to the level of a material error. In addition, unlike OERs, the rating chain for AERs is determined by the school commandant and raters do not have to outrank the students they rate. The supplementary reviewer is required to be the next individual above the reviewing officer in the chain of supervision and has no correlation to the rank of the individual that released the student from the course. 7. The contested AER appears to be correct, represents the valid reason the applicant failed to achieve course standards and it was completed by the proper rating officials. The evidence of record does not show and the applicant did not provide compelling evidence that shows the contested AER was in error, inaccurate, unfair, or unjust. 8. With respect to the transfer of the contested AER to the restricted folder of his OMPF, regulatory guidance states only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder of the OMPF. The contested AER is properly filed in the performance folder of his OMPF. 9. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______ _ _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) AR20150002498 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150002498 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1