ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  21 June 2019

	DOCKET NUMBER:  AR20170007623


APPLICANT REQUESTS: through counsel,

* remove or alternatively correct his DA Form 1059 (Service School Academic Evaluation Report (AER)) for period 7 February 2013 to 11 March 2013, hereafter shown as the “contested AER” in his Army Military Human Resource Record (AMHRR)
* if corrected, corrections are as follows:
* Block 9, remove the X for “Referred Report"
* Block 11d, remove the X for “FAILED TO ACHIEVE COURSE STANDARDS"
* Block 12c, “LEADERSHIP SKILLS," remove the X for “UNSAT” and place an X for “SAT”
* Block 14, “COMMENTS," delete all comments from this block

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* applicant letter to the Board
* contested academic evaluation report (AER) appeal to the Human Resources Command (HRC)
* contested AER Appeal HRC denial letter
* two police citations
* contested AER
* TRADOC Regulation 350-16
* SC vs Love - status of charges 
* seven memorandums of support

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), 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 states he submitted an appeal of his contested AER.  Although the appeal was drafted inside the 3 year limit for appealing an AER, he was unaware of the deadline to submit an AER appeal within 3 years of the thru date.  The appeal was denied by HRC due to not being timely filed.  The memorandum, a copy of which is provided, further states that his option now is to apply to the ABCMR.  Below are the summary of his facts:

	a.  On 10 March 2013, he was cited in Columbia County, SC for drunkenness (case 64587GH) and having an open container (case 64588GH).  The next day he received an AER stating that he was being removed from the drill sergeant school program (DSSP) for violation of TRADOC (Training and Doctrine Command) Regulation 350-16, chapter 2-5c (7).  The report also included derogatory information regarding his leadership, judgment and discipline attributes which appear to be related to the alleged violation of the TRADOC regulation.  On 5 April 2013 (i.e. 25 September 2013), the charges against him were dropped (“nolle prosequi") and the cases were dismissed by the 5th Judicial Circuit of Richland County, SC.

	b.  Permitting the contested AER to remain in his AMHRR constitutes error.  AR 
15-185 (ABCMR), paragraph 2-2a permits the ABCMR to direct or recommend correction of military records “to remove an error or injustice.”  AR 623-3 (Evaluation Reporting System), governs evaluation reports, including AERs such as the one that is the subject of this petition.  Paragraph 4-11a (2) states that in order to prevail on an evaluation report appeal, the burden of proof rests with the appellant to prove “Action is warranted to correct a material error, inaccuracy, or injustice.”

	c.  The AER in question is erroneous, inaccurate and/or unjust in important respects. Accordingly, removing and/or modifying the AER in question is necessary to correct this error.  The disenrollment from the drill sergeant course and resulting contested AER in question was based solely on the citation received on 10 March 2013.  As stated above and shown in the documents he provided, the charges were dropped and the case dismissed.  This clearly shows that he did not commit the offenses which were the basis for the negative comments on the contested AER, and the contested AER is erroneous as a result.

	d.  Additionally, it is important to note that the contested AER has effectively created a roadblock.  He has served in his career progression in the Army for 14 years.  This is the one and only negative incident in his military career, and his career accomplishments are substantial, including the following:

* successfully completing 2 deployments to Kuwait in 2003 and 2004-2005, as 
   well as a deployment to Iraq in 2010-2011
* receiving multiple awards and medals, including the Army Commendation Medal 7 times, the Army Achievement Medal and the Army Good Conduct Medal 4 times,
* successfully completing the Basic Leaders Course, Advanced Leaders Course, Court Reporter School and Advanced Law for Paralegal NCO Course

	e.  He provided a detailed letter (detailed letter enclosed in packet).

3.  The applicant provides:

	a.  AER appeal through HRC.  On 16 April 2016, HRC returned his request without action in accordance with (IAW) AR 623-3, paragraph 4-8b, the appeal was not received within 3 years of the contested AER thru date.

	b.  Police citations - cited in Columbia County, SC, on 10 March 2013, case 64587GH for drunkenness and case 64588GH for having an open container.

	c.  Contested AER dated 11 March 2013, from the DSS course (DSSC).

	d.  TRADOC Regulation 350-16, paragraph 2-5 (removal of DS candidates from the DSSC), subparagraph 2-5c (7) states, infractions of training policies or violations of the uniform code of military justice (UCMJ).

	e.  SC vs Love - status of charges from Richland County 5th Judicial Circuit Public index states, on 25 September 2013, case 64587GH for drunkenness and case 64588GH for having an open container were expunged.

	f.  Seven memorandums of support stating that he is a natural leader and has overcome the circumstances necessitating the adverse information in his AMHRR and he has fully rehabilitated himself to a position of good standing within the Army and the Judge Advocate General's Corps.  As a relevant example, he recently earned the distinguished honor graduate at the JAG Corps Senior Leaders Course that concluded on 22 November 2016.  He is unquestionably one of those rare leaders who instantly earns the respect of his followers and transforms any environment.  His complete dedication to duty and service to his Soldiers, family, and country have been shown in his everyday actions.  He was technically proficient and extremely diligent.  He put in extra time and effort to ensure the mission was accomplished to a high standard.  Our obligation as leaders and Soldiers is to correct deficiencies and facilitate growth and rehabilitation following those corrections.  All agree that the contested AER should be removed.  Additional comments may be reviewed (detailed letters enclosed in packet).

4.  A review of the applicant’s service record shows:

	a.  He enlisted in the Regular Army on 26 February 2002.

	b.  At the time of his application to this Board, the applicant was a staff sergeant.  He was promoted to sergeant first class on 1 August 2018.

	c.  His contested AER is in his AMHRR.  He was enrolled in the DSSP, class 503-13, duration of course was 2 February thru 11 March 2013.  His contested AER shows he failed the course due to not achieving the course standards.  His contested AER was referred and he was released from the DSSP.  His leadership skills were rated unsatisfactory.  His rater stated the applicant failed to achieve course requirements lAW the DSSP of instruction.  [Applicant] is released from the DSSP IAW TRADOC Regulation 350-16, Chapter 2-5c, (7) Infractions of training policies or violations of the UCMJ (ref 11d).  [Applicant] completed all basic rifle marksmanship periods, qualifying with 24 hits, marksman.  [Applicant] passed the phase 1 test with a score of 80 percent.  [Applicant] displayed satisfactory overall communication skills by successfully presenting five of the seven assigned methods of instructions 9ref 12b.  [Applicant] displayed unsatisfactory leadership attributes, lack of sound judgement and self
discipline (ref 12c).  He consistently encouraged teamwork which played a role in the platoon's unity since the beginning of the course (ref 12d).  Recommend that [applicant] is removed from the DSP.

	d.  AER, dated 18 November 2016, shows he was enrolled in the SLC class 001-17, duration of course was 17 October to 22 November 2016.  This AER shows he exceeded course standards.  His oral communication, leadership skills, contribution to group work and evaluation of student’s research ability were rated as superior.  He earned the DHG through demonstrated academics abilities and professionalism and was placed on the Commandant's List.  His unmatched research ability and drive led to an incredible overall academic average of 100%.

5.  By regulation, AR 623-3, advised that appeals based on substantive inaccuracy must include the basis for the belief that the rating officials were not objective or had an erroneous perception of the performance.  A personality conflict between the appellant and a rating official does not constitute grounds for a favorable appeal; it must be shown conclusively that the conflict resulted in an inaccurate or unjust evaluation.

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined relief is not warranted.  The applicant’s contentions through counsel, and the letter of support was carefully considered.  The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity.  The Board determined the AER is an accurate picture of his service, and there is insufficient evidence that shows the entire AER was due to a later dismissed alcohol related charge.  


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.


	 
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.


ADMINISTRATIVE NOTE(S):

Not Applicable

REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  Army Regulation (AR) 600-8-104 (Army Military Human Resources Records Management (AMHRR)), in effect at the time, prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR, formerly known as the official military personnel file (OMPF).  Folders and documents previously authorized for filing in any part of the OMPF (reference appendix B) will remain in the AMHRR.

	a.  Paragraph 1–17 (Official records custodian), paragraph 1-17h, correcting duplicate, inverted, erroneous, or incorrectly filed documents per requests received from record managers and their subsequent Soldiers with the exception of DA Forms 67–9 (Officer Evaluation Report), DA Forms 2166–8 (Noncommissioned (NCO) Evaluation Report), and DA Forms 1059 (Service School Academic Evaluation Report).  (Chief, Appeals and Corrections Section of the Evaluations, Selections, and Promotions Division is responsible for the correction and management of DA Form 67–9, DA Form 2166–8, and DA Form 1059 appeals).

	b.  Paragraph 3-6, the AMHRR is reflective of an individual Soldier record and is stored in iPERMS.  Within the AMHRR there are various folders that house information regarding an individual military career.  Not every Soldier and subsequent AMHRR will have the same number and type of folder.  The type and number of folders contained within the AMHRR differ based on career path and status.  For a complete listing of folders authorized for inclusion in the AMHRR see table 3–1.

	c.  Table 3-1 (AMHR) contains the performance, service, restricted , medical, other, and state/territory folders.  The performance folder maintains performance related information to include evaluations, commendatory documents, and specific disciplinary information and training/education documents.  The service folder maintains general, administrative, and service documents.

2.  AR 623-3 (Evaluation Reporting System), in effect at the time, prescribed the policies and tasks for the Army's Evaluation Reporting System.

	a.  Paragraph 3–14 (Service school academic evaluation report (AER or DA Form 1059), active duty personnel:

	(1)  Commandants of Army (or other DOD branch) schools (also known as “Service schools”) and NCO academies will be responsible for preparing DA Form 1059 and submitting them to HQDA (or appropriate headquarters) to arrive no later than 90 days after the student’s graduation or termination from the school or academy (see paragraphs 3–33 and 3–49).  In preparing these reports, all significant information that can be evaluated will be reported.  The same care and attention will be exercised in preparing AERs as is exercised in preparing officer evaluation reports and noncommissioned officer evaluation reports.

	(2)  School commandants or training division or brigade commanders (BDE CDRs) will ensure that AER comments are based on observation of a student’s qualities, strengths, weaknesses, deficiencies, and overall performance.

	(3)  Appropriate evaluation reports will be submitted for Soldiers assigned a principal duty.

	b.  Paragraph 3-19 (Unproven derogatory information) any mention of unproven derogatory information in an evaluation report can become an appealable matter if later the derogatory information is unfounded.  Paragraph 3-19c states, this restriction is intended to prevent unverified derogatory information from being included in evaluation reports.  It will also prevent unjustly prejudicial information from being permanently included in a Soldier’s OMPF, such as—

	(1)  Charges that are later drooped.

	(2)  Charges or incidents of which the rated Soldier may later be absolved.

	c.  Paragraph 3-36 (Modifications to previously submitted evaluation reports) states an evaluation report accepted by Headquarters, Department of the Army (HQDA), 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 who meet the minimum time and grade qualifications, and represent the considered opinions and objective judgment of the rating officials at the time of preparation.

	d.  Paragraph 4-7 states an appeal will be supported by substantiated evidence (paragraph 4-11).  An appeal that alleges an evaluation report is incorrect, inaccurate, or unjust without usable supporting evidence will not be considered.  The determination regarding adequacy of evidence may be made by HQDA, Evaluation Appeals Branch (AHRC–PDV–EA), NGB–ARP–C (Appeals Section), or the appropriate State Adjutant General (Army National Guard)

	e.  Paragraph 4-11 (Burden of proof and type of evidence) states the burden of proof in the appeal process rests with the appellant.  Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  

	(1)  For a claim of administrative error, appropriate evidence may include a substantive type, evidence may include statements of military personnel officers or other persons who know about the situation pertaining to the report in question, results of a commanders (CDR) or Commandant’s Inquiry or other documents bearing on the point of question.

	(2)  For a claim of inaccuracy or injustice of a substantive type, evidence will include statements from third parties, rating officials, or other documents from official sources. Third parties are persons other than the rated officer or rating officials who have knowledge of the appellant’s performance during the rating period.  Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the appellant’s performance as well as interactions with rating officials.  Statements from rating officials are also acceptable if they relate to allegations of factual errors, erroneous perceptions, or claims of bias.  To the extent practicable, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered.  The results of a CDR’s or Commandant’s Inquiry may provide support for an appeal request.

	f.  Paragraph 4-13 (Appeals based on substantive inaccuracy) a decision to appeal an evaluation report will not be made lightly. Before deciding whether or not to appeal, the prospective appellant will analyze the case dispassionately. This is difficult but unless it is done, the chances of a successful appeal are reduced.

	(1)  Once the decision has been made to appeal an evaluation report, the appellant will state succinctly what is being appealed and the basis for the appeal.  For example, the appellant will state—

(a)  Whether the entire report is contested or only a specific part or comment.

(b)  The basis for the belief that the rating officials were not objective or had an 
erroneous perception of his or her performance.  Note that a personality conflict between the appellant and a rating official does not constitute grounds for a favorable appeal; it will be shown conclusively that the conflict resulted in an inaccurate or unjust evaluation.

      (2)  Most appellants will never be completely satisfied with the evidence obtained.  A point is reached, however, when the appellant will decide whether to submit with the available evidence or to forgo the appeal entirely.  The following
factors are to be considered:

(a)  The evidence must support the allegation.  The appellant needs to remember 
that the case will be reviewed by impartial board members who will be influenced only by the available evidence.  Their decision will be based on their best judgment of the evidence provided.
(b)  Correcting minor administrative errors or deleting one official’s rating does 
not invalidate the report.

3.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	AR20170007623


5


1