BOARD DATE: 10 November 2015 DOCKET NUMBER: AR20150015999 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, in effect, correction of his military personnel records by removal of the DA Form 1059 (Service School Academic Evaluation Report [AER]) covering the period 27 March 2014 through 28 May 2014 (hereafter referred to as the contested AER) from his Official Military Personnel File (OMPF). 2. The applicant states that he attended Drill Sergeant School twice. The commandant of the Drill Sergeant Academy told him that the contested AER would "go away" once he passed the course and that it would not hurt his promotion eligibility. a. He successfully completed the Drill Sergeant School course. He has been a successful drill sergeant and serving in a platoon sergeant positon for one year. He adds that he is fully qualified for promotion to sergeant first class (SFC)/pay grade E-7. b. He was not selected by the 2015 SFC Promotion Selection Board. He adds that removal of the contested AER will allow him to apply for consideration by an SFC Standby Advisory Board. 3. The applicant provides copies of: * the contested AER * an AER covering the period 10 July 2014 through 10 September 2014 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 11 February 2004. Through a series of reenlistments he has continued to serve in the Regular Army. He was promoted to staff sergeant (SSG)/pay grade E-6 on 1 May 2007 in military occupational specialty (MOS) 12B (Combat Engineer). 2. A review of the applicant's military personnel records shows, in pertinent part, that the two AERs are filed in the performance folder of his OMPF. * The contested AER shows in: * item 6 (Course Title): Drill Sergeant School Course, Class 506-14 * item 7 (Name of School): U.S. Army Drill Sergeant School, Fort Jackson, SC 29207 * item 9 (This is a referred report, do you wish to make comments?), an "X" in the "No" box * item 10 (Duration of Course): 27 March 2014 through 28 May 2014 * item 11 (Performance Summary), an "X" in block d (Failed to Achieve Course Standards) * item 14 (Comments), in pertinent part, "APFT [Army Physical Fitness Test]: Fail, 28 March 2014" * item15 (Authentication), the form was signed on 29 March 2014 by the: * Rater:  SFC A___ J. P____, Drill Sergeant Leader * Reviewing Officer: Command Sergeant Major (CSM) M___ S. M____, Commandant * Rated Soldier [Applicant] * The subsequent AER shows in: * item 6: Drill Sergeant School Course, Class 512-14 * item 7: U.S. Army Drill Sergeant School, Fort Jackson, SC 29207 * item 9: is blank (no entries) * item 10: 10 July 2014 through 10 September 2014 * item 11, an "X" in block b (Achieved Course Standards) * item 14, in pertinent part, "APFT: Pass, 25 August 2014" * item15, the form was signed on 10 September 2014 by the: * Rater:  SFC A___ B. C____, Drill Sergeant Leader * Reviewing Officer: CSM L___ C____, Commandant * Rated Soldier [Applicant] 3. A review of the applicant's OMPF failed to reveal any evidence that he submitted an appeal for transfer, removal or correction of the contested AER from his OMPF to the Army Special Review Board through the U.S. Army Human Resources Command (HRC). 4. Army Regulation 623-3 (Evaluation Reporting System) prescribes the policy for completing evaluation reports that are the basis for the Army’s Evaluation Reporting System. This regulation emphasizes the fact that an erroneous evaluation report should be corrected as soon as possible. Substantive appeals must be submitted within 3 years of the evaluation report “THRU” date. Appeals must be processed through the HRC, Evaluations and Appeals Branch prior to submission to the Army Special Review Board. The burden of proof rests with the appellant to produce evidence that clearly and convincingly refutes the presumption of administrative regularity and that action is warranted to correct a material error, inaccuracy, or injustice in the evaluation report. Failure to submit an appeal within this time frame will require the appellant to submit his appeal to the ABCMR. 5. Army Regulation 600-8-104 (Army Military Human Resource Records Management) provides policies, operating tasks, and steps governing the OMPF. Depending on the purpose, documents will be filed in the OMPF in one of three folders: performance, service, or restricted. Once placed in the OMPF, the document becomes a permanent part of that file. a. The Authorized Documents list provides guidance for filing documents in the OMPF. It shows the DA Form 1059 will be filed in the performance folder of the OMPF. b. A review of the additional filing instructions for the form fails to show that a DA Form 1059 documenting a course failure will be transferred to the restricted folder of the OMPF upon subsequent successful completion of the course or that the DA Form 1059 will be removed from the OMPF. 6. 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; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. Chapter 7 (Appeals and Petitions) provides the policies and procedures for appeals and petitions for removal of unfavorable information from the OMPF. Paragraph 7-2 (Appeals for removal of OMPF entries) shows that 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. DISCUSSION AND CONCLUSIONS: 1. The applicant contends the contested AER for the period 27 March 2014 through 28 May 2014 should be removed from his OMPF because he subsequently successfully completed the Drill Sergeant School course, the commandant of the Drill Sergeant Academy told him that the contested AER would be removed from his OMPF, and its removal will allow him to apply for consideration by an SFC Standby Advisory Board. 2. It is noted that the applicant did not submit an evaluation appeal to the HRC, Evaluations and Appeals Branch (Army Special Review Board) to remove or correct the contested AER from his OMPF within that board’s 3 year filing guidelines, presumably because the applicant does not contest the validity of the contested AER, but instead challenges the fact that the AER remains filed in his OMPF. 3. The purpose of the OMPF is to permanently maintain historical records and data pertaining to the Soldier's military service and also assist commanders, personnel managers, and selection boards in the management of Soldiers. 4. The contested AER is properly filed in the performance folder of the applicant's OMPF. 5. An evaluation report accepted for inclusion in the rated NCO's OMPF is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation. 6. The governing Army regulation does not provide for the transfer or removal of an AER from the OMPF upon subsequent successful completion of the course. 7. By regulation, in order to remove a document from the OMPF, there must be compelling evidence to support its removal. The applicant failed to submit evidence to show that the contested DA Form 1059 filed in the performance folder of his OMPF is untrue, in error, or unjust. The evidence does not support removing this document from his OMPF. 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) AR20150015999 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150015999 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1