ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 April 2019 DOCKET NUMBER: AR20160018054 APPLICANT REQUESTS: through counsel: a. correction of the DA Form 1059 (Service School Academic Evaluation Report (AER)) for the period 21 August 2010 through 19 November 2010 to show: * he achieved course standards in block 11 (Performance Summary) * "Satisfactory" ratings in blocks 12(a)-(e) (Demonstrated Abilities) * "Yes" rating for academic potential for selection to higher level schooling/training in block 13 (Has the Student Demonstrated the Academic Potential for Selection to Higher Level Schooling/Training?) b. removal of all comments from block 14 (Comments) of the DA Form 1059; c. issuance of a backdated graduation certificate for the course; and d. removal of any adverse documentation regarding his dismissal from the course. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Article, Military Intelligence Professional Bulletin, Human Intelligence (HUMINT) Training – Joint Center of Excellence (HT-JCOE), dated October-December 2010, titled: "A Short History of HT-JCOE" * Memorandum, Applicant, dated 18 November 2010, subject: Rebuttal to Recommendation for Relief of (Applicant) from Advanced Source Operations Course (ASOC) * DA Form 1059, dated 18 November 2010 * Memorandum, Applicant, dated 4 June 2012, subject: Additional Evidence Supporting Claim (Department of Defense Inspector General) * Memorandum, Defense Intelligence Agency, dated 16 January 2013, subject: Report of Inquiry, Defense Intelligence Agency, Office of the Inspector General, Referral of Complaint * Letter, Inspector General, Department of Defense, dated 24 September 2013 * * Letter, Defense Intelligence Agency, dated 24 November 2014 * Letter, Inspector General, Department of Defense, dated 30 December 2014 FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant's counsel states: * despite overall satisfactory performance, the applicant was dismissed from the ASOC on the final day of the course * the ASOC committed regulatory violations in its action do dismiss the applicant from the course * the applicant was troubled by what he perceived as a multitude of regulatory violations with respect to training standards and handling of classified information * the ASOC explained to the applicant that he was being dropped from the course because he had not met course standards due to a perceived lack of counterintelligence and security awareness * the applicant submitted a rebuttal memorandum to his dismissal, making several arguments that the dismissal was based on partial facts, biased viewpoints, violation of joint standards of academic training, and general inequity * the ASOC violated regulatory guidance by dismissing the applicant without placing him on academic probation and without providing retraining and retesting * the applicant's DA Form 1059 is procedurally deficient and facially erroneous * the DA Form 1059 does not contain the required signature by the applicant's reviewing officer 3. At the time of the contested AER for the period 21 August 2010 through 19 November 2010, the applicant was serving in the rank of first lieutenant in the U.S. Army Reserve, attending the ASOC. 4. The applicant received the contested AER on 18 November 2010. The AER shows in: a. block 9 (This is a Referred Report, Do You Wish to Make Comments?), the rater did not check the block indicating the report as being referred and checked the "NO" block indicating the applicant did not wish to submit comments; b. block 12 (Demonstrated Abilities), the rater marked "UNSAT [Unsatisfactory]" for Written Communication, Oral Communication, Leadership Skills, Contribution to Group Work, and Evaluation of Student's Research Ability; a. c. block 13 (Has the Student Demonstrated the Academic Potential for Selection to Higher Level Schooling/Training?), the rater marked "NO"; d.block 14 (Comments), the rater entered the comment: "[Applicant] did not successfully complete requirements for graduation from the Advanced Source Operations Course (ASOC). [Applicant] was relieved from the course for poor Operational Suitability and Operational Judgement. [Applicant] is eligible to return to ASOC"; and e. block 15 (Authentication): * the rater signed the report on 18 November 2010 * the reviewing officer did not sign the report * the applicant signed the report on 18 November 2010 5. On 18 November 2010, the applicant submitted a rebuttal to the recommendation for relief from the ASOC to the commander of HT-JCOE. He stated the recommendation for relief was an incorrect determination based on partial facts and biased viewpoints, was not sound with joint standards of academic training, and formed a generally inequitable determination when considering the totality of all the circumstances surrounding the events in question. The applicant's records contain no evidence of the commander's response to his appeal. 6. The applicant provided evidence of his Inspector General complaints obtained through the Freedom of Information Act from the Department of Defense Inspector General and the Defense Intelligence Agency. With regard to his complaints pertaining to not graduating from the ASOC. The Defense Intelligence Agency responded on 18 April 2013, stating: a. There was no evidence the applicant was singled out by course instructors or held to a higher standards. b. The evidence did show the applicant struggled with basic concepts and practices of counter-intelligence and security. c. There was no evidence of an unofficial pass/fail quota system. d. There was evidence that clearly shows the instructors went out of their way to provide additional mentorship and opportunities for the applicant to successfully complete the course, albeit without success. e. The applicant had an opportunity to return to the course within 12 months of his release, which he did not accept. a. f. The HT-JCOE will not graduate the applicant and retroactively issue him a certificate of completion. The applicant failed significant portions of the course despite repeated attempts to provide additional training, mentoring, and opportunities to pass specific portions of the course. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the documentary evidence presented by the applicant and found within the military record, the Board found insufficient evidence to show that the applicant was removed from the course improperly. The record shows that applicant was not meeting course standards in many areas. For that reason, the Board recommended denying the applicant’s request. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 5/1/2019 CHAIRPERSON Signed by 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. REFERENCES: 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 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. 2. Army Regulation 623-3 (Evaluation Reporting System) in effect at the time, prescribed the policies and tasks for the Army's Evaluation Reporting Systems. These included reporting systems for officers and academic performance and potential. a. Paragraph 2-3 (Rating Chain Information) stated the AER rating chain will consist of the authorized academic advisor and authentication official as designated by the commandant or appropriate civilian academic authorities. a. Paragraph 2-8c (AER Reviewer Eligibility and Responsibility) stated the authorized reviewer for rated Soldiers who achieve course standards on the AER is the individual designated by the military. This individual will be the commandant, academic dean, or an official designated above the evaluating officer or academic official. b. Paragraph 3-35 (Referred Reports) stated referred reports will be referred to the student by the reviewing official for acknowledgment and comment. The following type of reports will be referred: any report with a "NO" response; any report with an "UNSAT" rating; and any report with a "Failed to achieve course standards" response. If block "NO" is checked in block 13, the preparing official will address whether the deficiency reflects on the character/behavior of the student or lack of aptitude in certain areas in block 14 (Comments). c. Paragraph 3-52 (Academic Evaluation) stated a DA Form 1059 (AER) is used to report the performance of students attending Army service schools, Department of Defense schools, U.S. Army Reserve schools, NCO academies, allied nation schools, and Reserve Component chaplain candidates for training, as well as formal schools. 3. Department of the Army Pamphlet 623-3 (Evaluation Reporting System), in effect at the time, prescribed the procedures for completing Army evaluation reports for officers. It included both performance evaluations and academic evaluations. Chapter 4 covered the AER form and preparation. 4. Army Regulation 600-8-104 (Military Personnel Information Management/Records), in effect at the time, prescribed the policies governing the OMPF. Appendix C (Forms References) stated Service School Academic Evaluation Reports are authorized for filing in a personnel record.