BOARD DATE: 7 February 2020 DOCKET NUMBER: AR20170003263 APPLICANT REQUESTS: correction to a 2013 DA Form 1059 (Academic Evaluation Report) to show it was not a referred report and upon correction of his DD Form 1059, submission of his promotion record to a special selection board. On 29 January 2020, by email the applicant clarified his application. He now only seeks correction to his 2013 DA Form 1059 as he was promoted to major on 1 August 2018. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 1059 dated 24 May 2013 * Letter of Recommendation from Major General (MG) JGF dated 3 February 2017 * Letter of Recommendation from Lieutenant Colonel (LTC) PKJ dated 13 January 2017 FACTS: 1. The applicant did not file within the 3 year time frame provided in Title 10, United States Code (USC), section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) 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 requests, in effect, that Block 9 (This is a referred report, do you wish to make a comment?) be corrected to show nothing (a blank entry) instead of what it currently shows which is "Yes." At the time of the academic evaluation report he was a student at the U.S. Marine Corps (USMC) Expeditionary Warfare School. This error occurred due to a simple misinterpretation of an Army form by his USMC leadership. Block 9 was incorrectly marked because the USMC course leadership read the block information header as a literal instruction. a. He states at the time the academic report was prepared it was believed that the box had to be checked in order to fill in the subsequent commentary on his performance and accomplishments during the course. He asserts the checked box was nothing more than an administrative error by a sister Service, and was not meant to indicate anything poor or derogatory regarding his academic course completion status or performance. He states he successfully fulfilled all of the standards and requirements of the course and completed the course in good standing. He continues by stating the remaining section of the form, as well as his evidence from two senior military officers, substantiates his request to correct his 2013 DA Form 1059. b. He believes this error on his 2013 DA Form 1059 was the key discriminator in his non-selection status during the Fiscal Year (FY) 2016 Major Army Competitive Categories Selection Board. He feels that once the form is corrected, along with the strength of his remaining professional record, warrants his selection to major. This opinion is also held by the leadership of the Functional Area 49 (Operations Research and Systems Analysis Functional Area) community as noted by MG JGF memorandum. With the correction of his 2013 DA Form 1059, he requests a special review of his promotion record by a special selection board using the FY 2016 standards for promotion consideration to major. 3. At the time of his application to the Board, the applicant was a captain in the Regular Army having been promoted to that rank (and pay grade O-3) on 1 May 2010 by Order Number 111-058, dated 21 April 2010, issued by Headquarters, U.S. Army Human Resources Command (HRC). 4. The applicant provided and his official military personnel record contains a DA Form 1059, dated 24 May 2013, showing he attended the USMC Expeditionary Warfare School from 15 July 2012 to 24 May 2013. a. In block 9 the rating official LTC PKM (USMC), serving as the faculty advisor for the course, checked the block "YES" indicating the academic evaluation report was a referred report under the provisions of Army Regulation 623-3 (Evaluation Reporting System). This form is signed by the applicant, the rater and reviewing officer. b. Block 11 (Performance Summary) shows he achieved course standards. c. Block 12 (Demonstrated Abilities) contains the following information: * Written communication – superior * Oral communication – satisfactory * Leadership skills – satisfactory * Contribution to group work – superior * Evaluation of student’s research ability – satisfactory d. Block 13 (Has the student demonstrated the academic potential for selection to higher level schooling/training?) – The rating official marked the "YES" box. e. Block 14 (Comments) contains a course description and in pertinent part the following evaluative comments: * learned, adapted, and applied instruction emphasizing combined arms operations, warfighting skills, tactical decision-making and expeditionary operations * participated in numerous practical exercises and discussion, and passed comprehensive examinations in specified subjects * showed tactical knowledge and the ability to apply many new concepts * recognized by his peers as a valuable resource with real-world information * completed and exceeded all requirements of the oral and written communications program * wrote eight professional papers including an argumentative research paper on nanosatellite technology * received the Lieutenant General John A. Yeosock writing award * concurrently graduated from the USMC Advanced Communications Officer Course completing over 320 hours of instruction * completed the Certified Information Systems Security Professional course * cumulative grade point average was 93.10 percent * strong work ethic and dedicated to learning * exceptional contribution to the conference group, none exceeded his capabilities * unlimited potential to serve in higher levels 5. On 1 August 2018 the applicant was promoted to the rank of major in the Regular Army by Order Number 191-015, dated 10 July 2018, and published by HRC. The United States Senate confirmed his promotion on 22 March 2018. 6. The applicant provided two referral letters. a. LTC PKJ was the applicant’s faculty advisor at the USMC Expeditionary Warfare School in academic year 2013. He states, "[The applicant’s] DA Form 1059 should not have been marked as a referred report. Section 9 of the DA Form 1059 was checked YES due to an unintentional misinterpretation of the form, and represents an administrative error rather than a reflection of [the Applicant’s] performance or potential. There should have been no blocks checked within this section." He continues by stating the comments within the academic report show the applicant was in good standing throughout the course and successfully met all of the trainings standards and requirement. He states, [the applicant] is a fine officer who demonstrated superb performance and unlimited potential to service at higher levels." He concludes by asking the Board to correct the applicant’s 2013 DA Form 1059. b. MG JGF wrote on 3 February 2017 he personally recommends the retention of the applicant on active duty in the Regular Army with promotion to major. He serves as the Functional Area 49 proponent who selected the applicant and funded his graduate education at the University of Michigan. He believes the applicant was not promoted because of the incorrectly completed DA Form 1059. He surmises (the FY 2016 promotion board) did not read the narrative comments and acted on the notation the academic evaluation report was a referred report. From his review, the narrative certainly did not warrant a referred report. He has reviewed the applicant’s (personnel) file and he sees a very strong performer. He states the U.S. Army made tremendous investments in the applicant. He knows the applicant is the type of officer needed to be an enterprise learner. He concludes by stating, "I ask that you look at the details of his [academic evaluation report (AER)] AER like we have in the [Functional Area (FA)] FA49 functional area and you will see that he is deserving of this promotion and continued service in our Army." 7. On 29 January 2020 a staff member of the ABCMR contacted the applicant requesting clarification of his application as he was promoted to major in 2018. By email he responded stating in FY 2017 he sent a letter to the promotion board members who were reviewing his record in the "above-the-zone" promotion category because he was passed over for promotion by the FY 2016 major promotion board. He explained the administrative error on his DA Form 1059 and that he had an application before this Board. He believes he was successful in that the promotion board recommended him for promotion to major. He states he does not want his (captain) promotion record sent before a special selection board because 3 years have passed since his initial application to the Board. He states, "…it’s easier to let things continue as is." However, he still requests administrative correction to his 2013 DA Form 1059 so future promotion boards are not hindered when reviewing this specific academic evaluation report. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was warranted. Based upon the submitted letters from course cadre, the Board concluded that there was an error which warranted correction. For that reason, the Board recommended removing the annotation in Block 9 that the applicant’s 1059 was a referred report for the Expeditionary Warfare School dated 20120715 thru 20130524. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of Army records of the individual concerned be corrected by removing the annotation in Block 9 of the applicant’s DA Form 1059 dated 20210715 thru 20130524 noting that the report was a referred report from the Expeditionary Warfare School. 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, USC, 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 Army Board for Correction of Military Records (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 policy and tasks for the Army's Evaluation Reporting System, including academic evaluation reports (AER) focused on the assessment of performance and potential. a. Paragraph 3-27 (Referred DA Forms 1059) stated an AER with the following entries are referred or adverse evaluation reports. Such evaluation reports will be referred to the rated Soldier or student by the reviewing official for acknowledgment and an opportunity to comment before being submitted to Headquarters, Department of the Army: * any "NO" response * any "UNSAT" rating * a "Marginally Achieved Course Standards" rating * a "Failed to Achieve Course Standards" rating * any comments so derogatory that the AER may have an adverse impact on the Soldier's career b. Paragraph 3-28 (Referral Process for DA Forms 1059) stated the referral process ensures the rated Soldier knows the AER contains negative or derogatory information and affords the Soldier an opportunity to sign the AER and submit comments, if desired. If referral is required, the senior rater will ensure an "X" is placed in the appropriate box in the completed AER (Block 9). c. Paragraph 4-8 (Timeliness) stated that because evaluation reports are used for personnel management decisions, it is important to the Army and the rated Soldier that an erroneous evaluation report be corrected as soon as possible. As time passes, people forget and documents and key personnel are less available; consequently, preparation of a successful appeal becomes more difficult. Substantive appeals will be submitted within 3 years of an evaluation report "THRU" date. Failure to submit an appeal within this time will require the appellant to submit his or her appeal to the ABCMR. d. This regulation states the ABCMR is part of the evaluation report redress program under the provisions of Army Regulation 15-185 (ABCMR). The ABCMR is the highest level of administrative review within the Department of the Army and acts for the Secretary of the Army. The ABCMR will determine a final decision, or, when required, forward the decision to the Secretary of the Army for a final decision. 3. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes policies governing the Army Military Human Resource Records Management Program. The Army Military Human Resource Record (AMHRR) includes, but is not limited to, the OMPF, finance related documents, and non-service related documents deemed necessary to store by the Army. a. Paragraph 3-6 provides that once a document is properly filed in the AMHRR, the document will not be removed from the record unless directed by the ABCMR or other authorized agency. b. Appendix B (Documents Required for Filing in the Army Military Human Resource Record and/or Interactive Personnel Electronic Records Management System) states service school AERs are required for filing the AMHRR. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170003263 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1