IN THE CASE OF: BOARD DATE: 8 September 2016 DOCKET NUMBER: AR20160009241 BOARD VOTE: ___x_____ __x____ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 8 September 2016 DOCKET NUMBER: AR20160009241 BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing from his Official Military Personnel File the DA Form 1059 (Academic Evaluation Report) for the period 4 January 2011 through 3 January 2012. ___________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: 8 September 2016 DOCKET NUMBER: AR20160009241 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 4 January 2011 through 3 January 2012 (hereafter referred to as the contested AER) from his Official Military Personnel File (OMPF). 2. The applicant states: a. The contested AER is inaccurate and unjust. The reasons stated in the AER pertaining to his removal from the Interservice Physician's Assistant Program (IPAP) are inaccurate and are the result of biased evaluators. The AER does not reflect his performance during IPAP and is the only negative discriminator in his file. After two successful commands he was a non-select for promotion by the fiscal year 2015 Major Selection Board. b. The contested AER was a result of a biased process that did not provide any due process to him as a student. There are no findings from his academic review board and none have ever been provided despite his request for it. All comments noted on the contested AER, with exception of the comment regarding unethical behavior, are derived from the same vague and minimally explained non-academic conduct. He was never counseled for not meeting standards. A 15-6 Investigation found that no patient safety reports were generated. He was never asked to leave a training site and his technical skills were never questioned by anyone other than Major B. All allegations were made after completing over two years of training without incident. c. Since there were no specific instances of non-academic performance cited in the bullet that references his relief from APAP, the only instances that could possibly support his finding are the two counseling statements contained in the AR 15-6 investigation. The counseling statements were from Major B claiming he violated testing and leave policy. He has provided statements from classmates agreeing that he had not violated the testing policy. Concerning the leave policy, he initially planned not to take leave; however, his mother became ill and he submitted a leave request. d. The Investigating officer (IO) of the Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers) investigation did not find fault with his access of his wife's records. When it was explained to him that he should not be accessing his wife's records even with permission, he stopped. The IO did not state that any unethical or inappropriate access of his wife's records occurred and there was not a malicious intent behind his actions. Because the finding does not actually state he committed any ethical violations, there is clear and convincing evidence that the comment "He was observed for unethical behavior as well during his Internal Medicine rotation" is inaccurate and should be removed from his AER. There was a clear perception of bias against him as evidence by statements from his wife and other students. 3. The applicant provides a copy of the contested AER, his appeal to the Officer Special Review Board (OSRB) with allied documents, Officer Evaluation Reports (OERs), Officer Record Brief ORB), a self-authored statement, and three letters of support. CONSIDERATION OF EVIDENCE: 1. Having had prior active enlisted service, the applicant was appointed as a Reserve commissioned officer on 18 August 2002. 2. A DA Form 4856 (Developmental Counseling Form), dated 2 December 2011, shows he was counseled for failing to follow instructions and failing to obey orders. 3. He provides a highly redacted Informal Army Regulation 15-6 investigation report, dated 12 December 2011; however there is no way to determine who was the subject of the report. 4. On 28 December 2011, he was notified of the Course Director's decision for Non-Academic Relief. He acknowledged receipt of the notification and indicated he would not appeal the decision. 5. On 20 January 2012, he signed the contested AER, a referred report, which covered the rated period 4 January 2011 to 3 January 2012 while he was a student in the IPAP. His rater was MAJ RB, Course Coordinator and the reviewing officer was MAJ PM, Medical Director. 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, in part, the statements "[The applicant] failed the professional attributes portion which fails this course. This failure renders him an academic failure for this rotation and the program." "He was observed for unethical behavior as well during his Internal Medicine rotation". "[The Applicant] had problems over the course of the year with his non-academic performance and abiding by the student evaluation plan for academic behavior. The behavior issues presented over the past year became more apparent and overt over the last two to three months of his clinical clerkship. These behaviors lead to counseling statements and a Non-Academic Review Committee, the result of which was relief from IPAP for cause" and "[The Applicant] was relieved for his non-academic performance over the past year." The applicant's rater signed the AER on 4 January 2012 and the applicant and the reviewer signed the AER on 20 January 2012. 6. On 20 January 2012, in a memorandum, the applicant was advised to write a memorandum for record with any rebutting comments to the contested AER within 7 days by his chain of command. He demonstrated understanding but declined to make further comments. 7. On 12 March 2014, 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. 8. On 23 April 2016, his appeal of the contested AER was returned without action from the Army Human Resources Command because it was not received within three years of the "thru" date. 9. The contested AER is currently filed in the performance folder of the applicant's OMPF. REFERENCES: 1. Army Regulation 623-3 (Evaluation Reporting System) 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 that when it is brought to the attention of a commander or commandant that a report rendered by a subordinate or by a member of a subordinate command may be illegal, unjust, or otherwise in violation of this regulation, that commander or commandant will conduct an inquiry into the matter. The commandant's inquiry will be confined to matters related to the clarity of the evaluation report, the facts contained in the report, the compliance of the evaluation with policies and procedures established by Headquarters, Department of the Army (HQDA), and the conduct of the rated Soldier and members of the rating chain. The official does not have the authority to direct that an evaluation be changed; command influence may not be used to alter the honest evaluation of a rated Soldier by a rating official. The results of the commandant's inquiry, however, may be provided to the rating chain and the rated Soldier at the appointing official's discretion. b. A commandant's inquiry is required to look into alleged errors, injustices, and illegalities in an AER. The primary purpose of a commandant's inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record. If, after looking into the allegations, no error, violation of the regulation, or wrongdoing is found, advise the individual requesting the inquiry and take no further action other than ensuring that the evaluation is forwarded to HQDA as expeditiously as possible. If an error, violation of the regulation, or wrongdoing has occurred and the evaluation has not been forwarded to HQDA, the commandant will return the evaluation with the inquiry results to the senior rater or reviewer as applicable. The commander or commandant will ask that the report be corrected to account for matters revealed in the inquiry. This will be done with regard for the restrictions on command authority and influence. When the report has been corrected, it will be sent to HQDA with no reference to the action taken by the commander or commandant (for example, the AER only is forwarded); the results of the inquiry remain with the commandant. If the commandant finds no fault with the evaluation, then the commandant's inquiry is filed locally and a copy given to the rated individual. c. Academic evaluations 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. d. 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. e. 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. f. 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. 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. 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, and any other personnel actions. b. The "performance" folder contains performance related information to include evaluations, commendatory documents, and specific disciplinary information and training/education documents. This regulation states the AER will be filed in the performance section 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 contains documents that may normally be considered improper for viewing by selection boards or career managers. 3. 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: 1. The applicant contends the contested AER is inaccurate and unjust. 2. He provides a highly redacted Informal Army Regulation 15-6 investigation report, dated 12 December 2011, as evidence to support his contentions and removal of comments from the contested AER; however there is no way to determine the subject of the report. 3. His supporting documents and letters of support have been noted; however, they do not serve to provide sufficient evidence which would establish clear and convincing evidence 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 to support removal of a duly authenticated AER from his OMPF. 4. The Army has an interest in maintaining records of Soldiers who attend formal courses of instruction and the applicant has failed to provide evidence showing the AER was issued erroneously or that it is unjust for it to remain in his OMPF. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160009241 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160009241 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2