IN THE CASE OF: 
		BOARD DATE: 25 January 2022

		DOCKET NUMBER: AR20210007432


APPLICANT REQUESTS: removal of the DA Form 1059 (Service School Academic 
Evaluation Report (AER)), 16 March 2017, from her Army Military Human Resource 
Record (AMHRR).

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)
*	Civilian Business Certificate, 1 July 2016
*	AER, 16 March 2017
*	Army Reserve Medical Management Center (ARMMC) – Profile Request, 6 April 
2019
*	Civilian Business Certificate, 5 April 2020
*	Military Personnel Message Number 20-273 (Fiscal Year 2021 (FY21) Cyber 
Branch Transfer Eligibility Panel for U.S. Army Reserve (USAR) Officers and 
Warrant Officers), 26 August 2020

FACTS:

1.  The applicant did not file within the 3-year time frame provided in Title 10, 
U.S. Code, 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 states she was never counseled that she could contest her referred 
AER.

	a.  She has been receiving physical therapy and has been advised that she can no 
longer run due to an ankle injury. It has been 4 years since the report, she has 18 years 
of service, and she had never received a negative report before.

	b.  When reviewing her records based on her desire to branch transfer to the Cyber 
Security Branch, which correlates with her civilian career, she noticed the unfavorable 
report. She is passionate about the cyber security field and would like to continue her 
career in the military as a cyber security officer.

3.  Following a period of enlisted service in the USAR, she was appointed as a Reserve 
commissioned officer in the Quartermaster Corps on 6 February 2013. She was 
promoted to the rank/grade of first lieutenant/O-2 effective 5 August 2014.

4.  Her DA Form 1059, 16 March 2017, shows she attended the Reserve Component 
Logistics Captains Career Course from 6 March 2017 through 17 March 2017 and failed 
to achieve course standards. Her DA Form 1059 shows it was a referred report and she 
did not want to make any comments. Item 14 (Comments) of this form shows the 
following entries:

	a.  "[Applicant] failed to complete the APFT [Army Physical Fitness Test] 
requirements IAW [in accordance with] AR [Army Regulation] 350-1 [Army Training and 
Leader Development], Army Directive 2012-20 [Physical Fitness and Height and Weight 
Requirements for Professional Military Education], and the academic course standards 
outlined in the LOG-C3 [Logistics Captains Career Course] Student Handbook. 
[Applicant] will be disenrolled from the course, and allowed to return to her unit."

	b.  "03 MAY 17 [should read 10 MAR 17] APFT – Failed 2 mile run: 58 points 
(22:00)."

	c.  "10 MAY 17 [should read 10 MAR 17] APFT – Failed 2 mile run: 59 points 
(21:51)."

5.  The ARMMC – Profile Request, 6 April 2019, shows a temporary physical profile 
rating was initiated for the applicant. The packet contains several medical documents 
that show she was assigned a temporary physical profile rating for 90 days effective 
6 April 2019 for left Achilles tendonitis, and left bursitis. These documents note she 
could perform the APFT except the 2-mile run; however, she was able to execute the 
6.2-mile timed stationary bicycle or 800-yard timed swim as an alternate event; and

6.  She provided two civilian business certificates, 1 July 2016 and 5 April 2020, 
showing her certifications in business and project management;

7.  Military Personnel Message Number 20-273, 26 August 2020, provided the 
procedural guidance for USAR officers and warrant officers applying for a Cyber 
Operations Branch transfer for FY21. The message states officers/warrant officers who 
have received a referred officer evaluation report (OER) or referred AER are ineligible.

8.  Her Official Military Personnel File (OMPF) does not contain another DA Form 1059 
showing she was rescheduled and successfully passed the Reserve Logistics Captains 
Career Course to date.

9.  She was promoted to captain/O-3 effective 24 January 2018. She is currently 
assigned to the 353d Civil Affairs Command, Homewood, IL.

BOARD DISCUSSION:

After reviewing the application, all supporting documents, and the evidence found within 
the applicant's military records, the Board found that relief was not warranted. The 
applicant's contentions, her military records, and regulatory guidance were carefully 
considered. Board members noted that the academic evaluation report is presumed to 
be administratively correct, to have been prepared by the properly designated and 
qualified rating officials, and to represent the considered opinions and objective 
judgment of the academic rating officials at the time of preparation. Board members 
determined that there is no evidence the ratings and comments are not the true 
assessments or judgement of the rating officials. As such, Board members found 
insufficient evidence to remove the contested AER. 

?
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.

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 15-185 (Army Board for Correction of Military Records) prescribes 
the policies and procedures for correction of military records by the Secretary of the 
Army acting through the ABCMR. The ABCMR considers individual applications that are 
properly brought before it. The ABCMR will decide cases on the evidence of record; it is 
not an investigative body. The ABCMR begins its consideration of each case with the 
presumption of administrative regularity. The applicant has the burden of proving an 
error or injustice by a preponderance of the evidence.

3.  Army Regulation 623-3 (Evaluation Reporting System), in effect at the time, 
prescribed the policy for completing evaluation reports and associated support forms 
that are the basis for the Army's Evaluation Reporting System.

	a.  Paragraph 3-14 (DA Form 1059) stated the AER is used to document the 
performance, accomplishments, potential, and limitations of Soldiers while attending 
military schools and courses of instruction or training.

		(1)  Paragraph 3-14c (Army Physical Fitness Test and Height and Weight 
Entries) stated Soldiers attending institutional training courses (including officer and 
NCO Educational System courses and functional courses in Army Regulation 350-1) 
are expected to meet the Army's physical fitness and body composition standards.

		(2)  Paragraph 3-14e (Active Duty Personnel) stated that 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 OERs 
and noncommissioned officer evaluation reports.

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

		(4)  Schools will submit AERs to Headquarters, Department of the Army (HQDA) 
(or the appropriate headquarters), by mail or e-mail, until electronic submission 
capability is available, for inclusion in the Soldiers' OMPFs.

	b.  Paragraph 3-17 (Comments) stated that in preparing their comments, rating 
officials will convey a precise but detailed evaluation to communicate a meaningful 
description of a Soldier's performance and potential. In this manner, both HQDA 
selection boards and career managers are given the needed information on which to 
base a decision.

	c.  Paragraph 3-27 (Referred DA Form 1059 and DA Form 1059-1) stated AERs with 
the following entries are referred or adverse reports. Such AERs will be referred to the 
rated Soldier or student by the reviewing official for acknowledgment and an opportunity 
to comment before being submitted to HQDA.

		(1)  A "Failed to Achieve Course Standards" rating: If item 11d (DA Form 1059) is 
checked, the preparing official will address (in item 14) whether the deficiency reflects 
on the character or behavior of the rated Soldier or lack of aptitude in certain areas. All 
"Failed to Achieve Course Standards" DA Forms 1059 require an additional review.

		(2)  Any AER with a "FAIL" for the APFT indicating noncompliance with the 
standards of Army Regulation 350-1 and/or a "NO" entry after the height and weight 
indicating noncompliance with the standards of Army Regulation 600-9 (The Army Body 
Composition Program) (if entries are applicable).

	d.  Paragraph 3-36 (Modifications to Previously Submitted Evaluation Reports) 
stated an evaluation report accepted by HQDA and included in the official record of a 
rated Soldier is presumed to:

		(1)  be administratively correct,

		(2)  have been prepared by the properly designated rating officials who meet the 
minimum time and grade qualifications, and

		(3)  represent the considered opinions and objective judgment of the rating 
officials at the time of preparation.

	e.  Paragraph 4-7(f) (Policies) stated an appeal will be supported by substantiated 
evidence. 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 the HQDA Evaluation Appeals Branch, National 
Guard Bureau Appeals Section, or the appropriate State Adjutant General.

	f.  Paragraph 4-11 (Burden of Proof and Type of Evidence) stated the burden of 
proof rests with the appellant. Accordingly, to justify deletion or amendment of an 
evaluation report, the appellant will produce evidence that establishes clearly and 
convincingly that:?
		(1)  the presumption of regularity referred to in paragraphs 3-36a and 4-7a will 
not be applied to the evaluation report under consideration; and

		(2)  action is warranted to correct a material error, inaccuracy, or injustice.

	g.  Paragraph 4-13 (Appeals Based on Substantive Inaccuracy) stated 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. The prospective 
appellant will note that:

		(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, and

		(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.

4.  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.

5.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) 
prescribes Army policy for the creation, utilization, administration, maintenance, and 
disposition of the AMHRR. The AMHRR includes, but is not limited to, the OMPF, 
finance-related documents, and non-service related documents deemed necessary to 
store by the Army. 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. Table 3-1 (Composition of the OMPF) shows a 
DA Form 1059 is filed in the performance folder of the OMPF.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20210007432


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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