IN THE CASE OF: BOARD DATE: 7 July 2016 DOCKET NUMBER: AR20160008292 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ___x____ ____x___ ___x ____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 7 July 2016 DOCKET NUMBER: AR20160008292 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is 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 removing the DA Form 1059, dated 20 May 2011, for Engineer Basic Officer Leader Course 501-11 during the period 24 January 2011 through 20 May 2011 that shows he failed to achieve course standards for the Engineer Basic Officer Leader Course from the performance folder of his OMPF. 2. The Board further determined the evidence presented is 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 amending his DA Form 1059, dated 18 July 2011, for Engineer Basic Officer Leader Course 501-11 during the period 24 January 2011 through 25 May 2011. _____________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. IN THE CASE OF: BOARD DATE: 7 July 2016 DOCKET NUMBER: AR20160008292 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: a. removal of the DA Form 1059 (Service School Academic Evaluation Report), dated 20 May 2011, for Engineer Basic Officer Leader Course 501-11 for the period 23 January 2011 through 20 May 2011 from his Official Military Personnel File (OMPF); b. correction of item 11 (Performance Summary) of the DA Form 1059, dated 18 July 2011, for Engineer Basic Officer Leader Course 501-11 for the period 24 January 2011 through 25 May 2011 to show he achieved course standards; and c. removal of the comment: "2LT [Applicant] received a marginal rating due to the findings of a BN [battalion] [Army Regulation] 15-6 [Procedures for Investigating Officers and Boards of Officers] investigation" from item 14 (Comments) of the DA Form 1059, dated 18 July 2011. 2. The applicant states: a. This appeal is based on both administrative and substantive errors. b. The administrative error is the DA Form 1059, dated 18 July 2011, showing he marginally achieved course standards. It should show he achieved course standards. c. The substantive errors are: * the DA Form 1059, dated 20 May 2011, should be permanently omitted from his OMPF * the entry "2LT [Applicant] received a marginal rating due to the findings of a BN [battalion] [Army Regulation] 15-6 investigation" in item 14 of the DA Form 1059, dated 18 July 2011, should be removed d. The substantive errors should be omitted because of the Department of the Army Suitability Evaluation Board (DASEB) decision which states: "Full relief was granted as described in the enclosed DASEB Record of Proceedings." Additional supportive information in these proceedings state: "The Board further directed that the decision memorandum and allied documents, as well as the appeal documentation will not be filed in the appellant's AMHRR." These documents directly reflect the outcome of the Army Regulation 15-6 investigation that led to the now omitted general officer memorandum of reprimand (GOMOR). e. He could not submit requests for corrections to the DA Forms 1059 until the GOMOR was omitted from his OMPF. He did not receive notification of the GOMOR removal until 9 September 2015. However, after receiving the DASEB decision he was confident his 19-month long fight was over since both these documents are considered allied documents associated with the Army Regulation 15-6 investigation that led to the GOMOR. f. After not being selected for promotion to captain via a special selection board (SSB), these documents still remain in his OMPF and have caused another time lapse in his career progression. 3. The applicant provides: * DASEB decision and Record of Proceedings * DA Forms 1059, dated 20 May 2011 and 18 July 2011 * evaluation report appeal, dated 11 April 2016 CONSIDERATION OF EVIDENCE: 1. The applicant is currently serving on active duty in the Regular Army in the rank of first lieutenant. 2. He provided a DA Form 1059, dated 20 May 2011, showing he attended Engineer Basic Officer Leader Course 501-11 from 24 January 2011 through 20 May 2011. Item 11 of this form shows he failed to achieve course standards. He was disrenrolled from the course for a pending investigation for integrity violations. 3. He provided a second DA Form 1059, dated 18 July 2011, showing he attended Engineer Basic Officer Leader Course 501-11 from 24 January 2011 through 25 May 2011. This form shows in: * item 11, he marginally achieved course standards * item 14, the comment: "2LT [Applicant] received a marginal rating due to the findings of a BN [battalion] [Army Regulation] 15-6 investigation" 4. A review of the performance folder in his OMPF in the interactive Personnel Electronic Records Management System revealed copies of the DA Form 1059, dated 20 May 2011, and DA Form 1059, dated 18 July 2011. 5. He provided a DASEB decision, dated 12 February 2015, showing his request for reconsideration to remove a GOMOR from his OMPF due to errors in the prior DASEB decision, dated 24 July 2014, was granted. The DASEB directed: a. removal of the GOMOR, dated 24 June 2011, and DASEB decisional document, dated 24 July 2014, from his OMPF; and b. that the decision memorandum and allied documents, as well as the appeal documentation, would not be filed in his OMPF. 6. He also provided an evaluation report appeal to the U.S. Army Human Resources Command, Fort Knox, KY, dated 11 April 2016, which states: a. He appeals the DA Forms 1059, dated 20 May 2011 and 18 July 2011. He spent over 19 months appealing an unjust/untrue GOMOR. He was not promoted to captain via an SSB due to these negative documents still remaining in his OMPF even though he received a favorable judgment by the DASEB. b. He reiterated his contentions provided with his application. He contends the changes and deletion will ensure he is able to receive a fair and unbiased SSB and finally progress with career. He requests an SSB for his nonselection for promotion to captain. REFERENCES: 1. Army Regulation 623-3 (Evaluation Reporting System) states an evaluation report accepted by Headquarters, Department of the Army, and included in the official record of a rated Soldier is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation. Requests that an evaluation report in a Soldier's OMPF be altered, withdrawn, or replaced with another report will not be honored. The regulation also states the burden of proof rests with the applicant. Accordingly, to justify deletion or amendment of a report, the applicant will produce evidence that clearly and convincingly establishes that: a. the presumption of regularity referred to in paragraphs 3-39 and 6-7 will not be applied to the report under consideration and b. action is warranted to correct a material error, inaccuracy, or injustice. 2. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the OMPF. It states 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. The regulation states DA Forms 1059 will be filed in the performance folder of the OMPF. DISCUSSION: 1. In 2015, the DASEB directed removal of a GOMOR, dated 24 June 2011, from the applicant's OMPF. 2. He contends the DA Form 1059, dated 20 May 2011, should be removed from his OMPF and the comment: "2LT [Applicant] received a marginal rating due to the findings of a BN [battalion] [Army Regulation] 15-6 investigation" in item 14 of his DA Form 1059, dated 18 July 2011, should be removed based on the DASEB decision because they are allied documents and directly reflect the outcome of the Army Regulation 15-6 investigation that led to the now omitted GOMOR. The DASEB directed that the decision memorandum and allied documents (documentation provided with his request for reconsideration) would not be filed in his OMPF. 3. In order to justify deletion or amendment of a report, the burden of proof rests with the applicant to produce evidence that establishes clearly and convincingly that action is warranted to correct a material error, inaccuracy, or injustice. 4. The performance folder of his OMPF in the interactive Personnel Electronic Records Management System contains two DA Forms 1059 for Engineer Basic Officer Leader Course 501-11. The DA Form 1059, dated 20 May 2011, shows he failed to achieve course standards. The DA Form 1059, dated 18 July 2011, shows his academic evaluation report for this course was revised to show he marginally achieved course standards. 5. It appears that his DA Form 1059 was revised and reissued based on a determination by the DASEB. The original DA Form 1059 should have been voided and removed from his OMPF when the revised report was reissued. 6. His request to amend his DA Form 1059, dated 18 July 2011, to show he achieved course standards and removal of the comment: "2LT [Applicant] received a marginal rating due to the findings of a BN [battalion] [Army Regulation] 15-6 investigation" from item 14 was noted. However, there is insufficient evidence to show the markings and comments in this DA Form 1059 from his instructors/raters constitute a material error, inaccuracy, or injustice. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160008292 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160008292 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2