IN THE CASE OF: 

		BOARD DATE: 16 February 2022

		DOCKET NUMBER: AR20210007890


APPLICANT REQUESTS: removal of the DA Form 1059 (Service School Academic 
Evaluation Repot (AER)) covering the period 20 July 2017 through 10 August 2017 from 
his 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)

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 he received a referred AER for "failure to encourage the 
promotion of dignity and respect in regard to the policies and procedure[s] outlined in 
the Army SHARP [Sexual Harassment/Assault Response and Prevention] [Program]."

	a.  He was removed 5 days before graduating from the Senior Leaders Course 
(SLC) (presumed to mean the Advanced Leaders Course (ALC)) based on two 
allegations of assault initiated by two of his classmates. In an initial interview with the 
U.S. Army Criminal Investigation Command (CID), the allegations of assault were not 
supported by a preponderance of the evidence but were a form of twisting of the facts, 
which was also pointed out to the CID agents during their investigation by several 
witnesses and from openly hostile opinions expressed by both alleged victims. In a 
videotaped statement from one victim, he demonstrated various positions of "assault" 
on his person, neither one that would have constituted "unlawful touching." During their 
initial interviews with CID, both victims expressed their "dislike" of him but could not 
define the reason for their dislike.

	b.  He was unjustly accused of an offense he did not commit, and was forced to 
leave the course. It should be noted that his unit believed in him, as they resent him to 
the ALC Phases 1 and 2 Class 19-001, as a U.S. Army Reserve troop program unit 
Soldier, which he completed successfully. He graduated from the SLC Class 003-19 on 
20 May 2019.

3.  Following enlisted service in the Regular Army, he enlisted in the U.S. Army Reserve 
on 28 June 2013. He was promoted to the rank/grade of staff sergeant/E-6 effective 
1 December 2014.

4.  U.S. Army Human Resources Command Orders R-08-689959, 10 August 2016, 
ordered him to active duty in an Active Guard Reserve status for a period of 3 years 
effective 15 September 2016.

5.  His DA Form 1059 shows he attended the Military Police ALC Class 006-17 from 
20 July 2017 through 10 August 2017 and failed to achieve course standards. This form 
shows in:

	a.  item 9 (This Is a Referred Report, Do You Wish to Make Comments?), a 
checkmark in the "Referred" box and a checkmark in the "No" box for comments 
attached;

	b.  item 12 (Demonstrated Abilities), a checkmark in item 12c (Leadership Skills) an 
"X" in the "Unsatisfactory" box; and

	c.  item 14 (Comments), the Course First Sergeant commented: "[Applicant] was 
dismissed from the course IAW [in accordance with] AR [Army Regulation] 350-1 [Army 
Training and Leader Development], chapter 3, paragraph 3-16(a). Soldiers may be 
removed from course consideration or course selection lists for disciplinary reasons or 
substandard performance of duty. The specific reason for this action is, a flag was 
initiated by the individual's chain of command IAW AR 600-8-2 [Suspension of 
Favorable Personnel Actions (Flag)]. [Applicant] did not encourage the promotion of 
dignity and respect in regards to the policies and procedure outlined in the Army 
SHARP."

6.  A second DA Form 1059, 25 October 2018, shows he attended the Military Police 
ALC Phase I Class 19-001 from 13 October 2018 through 26 October 2018 and 
achieved course standards.

7.  A third DA Form 1059, 7 November 2018, shows attended the Military Police ALC 
Phase II Class 19-001 from 26 October 2018 through 9 November 2018 and achieved 
course standards.

8.  His AMHRR contains all three AERs. His records do not contain evidence of an 
investigation being conducted during his course of instruction.

9.  His records contain a DA Form 1059, 20 May 2019, that shows he attended the 
Military Police SLC Class 003-19 from 4 April 2019 through 21 May 2019 and achieved 
course standards.

10.  He appealed the contested AER to the Army Special Review Board. On 23 March 
2021 in Docket Number AR20210005483, the board, by unanimously vote, determined 
the overall merits of the evidence presented did not warrant removal of the contested 
AER.

11.  In connection with the processing of this case, an advisory opinion was obtained on 
28 April 2021 from the Chief, Evaluations Appeals and Corrections Office, U.S. Army 
Human Resources Command. After a thorough review of all documents submitted to 
the ABCMR, the Evaluations Appeals and Corrections Section determined relief is not 
warranted. The Section Chief further noted

	a.  A review of the contested AER reveals that the appellant was dismissed for 
disciplinary reasons or substandard performance of duty when a flag was initiated by 
the appellant's chain of command. He did not encourage the promotion of dignity and 
respect regarding Army SHARP policies and procedures.

	b.  The appellant's counsel, in his memorandum, contends that the appellant was 
dismissed for an allegation of two counts of assault. Although counsel states the 
allegations were not supported by a preponderance of the evidence, no evidence was 
presented to support that claim nor was any evidence provided that these allegations 
were false, dismissed, or that the appellant was cleared of the charges.

	c.  Army Regulation 623-3 (Evaluation Reporting System), paragraph 1-9, states 
Army evaluation reports are independent assessments of how well the rated Soldier met 
duty requirements and adhered to the professional standards of the Army's 
Noncommissioned Officer Corps within the period covered by the report. The fact that 
the Soldier later successfully completed both the ALC and the SLC has no bearing upon 
the report being appealed.

	d.  A review of the appellant's AMHRR indicates the appellant received a general 
officer memorandum of reprimand, 21 May 2018. This general officer memorandum of 
reprimand was received well after the date the appellant was removed from the ALC in 
August 2017. His subsequent retention by the Qualitative Management Program does 
not negate the AER being appealed.

12.  The applicant was provided a copy of the advisory opinion via electronic mail on 
25 January 2022 to provide him an opportunity to comment and/or submit a rebuttal. He 
did not respond.

13.  The applicant is currently serving on active duty in an Active Guard Reserve status 
in the rank/grade of sergeant first class/E-7 at Fort Eustis, VA.


BOARD DISCUSSION:

1.  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 Board carefully considered the applicant's record of service, documents submitted 
in support of the petition and executed a comprehensive and standard review based on 
law, policy and regulation. Upon review of the applicant’s petition, available military 
records and the Chief, Evaluations Appeals and Corrections Office, U.S. Army Human 
Resources Command opinion, the Board concurred with the advising official finding the 
applicant dismissed for disciplinary reasons or substandard performance of duty when a 
flag was initiated by the appellant's chain of command. The board determined the 
applicant did not demonstrate by a preponderance of evidence that procedural error 
occurred that was prejudicial to the applicant and by a preponderance of evidence that 
the contents of the AER are substantially incorrect to support removal of the 
DA Form 1059 (Service School Academic Evaluation Repot (AER)) covering the period 
20 July 2017 through 10 August 2017 from his Army Military Human Resource Record 
(AMHRR). Furthermore, the Board agreed there does not appear to be any evidence 
the contested AER was unjust or untrue or inappropriately filed in the applicant's 
AMHRR. Therefore, relief was denied.

2.  The purpose of maintaining the Army Military Human Resource Record (AMHRR) is 
to protect the interests of both the U.S. Army and the Soldier.  In this regard, the 
AMHRR serves to maintain an unbroken, historical record of a Soldier's service, 
conduct, duty performance, and evaluations, and any corrections to other parts of the 
AMHRR.  Once placed in the AMHRR, the document becomes a permanent part of that 
file and will not be removed from or moved to another part of the AMHRR unless 
directed by an appropriate authority.  

?
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 600-8-2 (Suspension of Favorable Personnel Actions (Flag)) 
prescribes Army policy for the suspension of favorable personnel actions function of the 
military personnel system. Paragraph 2-1 (General Policy) states the suspension of 
favorable actions on a Soldier is mandatory when military or civilian authorities initiate 
any investigation or inquiry that may potentially result in disciplinary action; financial 
loss; or other loss to the Soldier's rank, pay, or privileges.

3.  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 Official 
Military Personnel File (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.

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 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 3-14e (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 officer 
evaluation reports and noncommissioned officer evaluation reports.

		(2)  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.

		(3)  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 Soldier's OMPF.

	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 3-19 (Unproven Derogatory Information) stated any mention of 
unproven derogatory information in an evaluation report can become an appealable 
matter if later the derogatory information is unfounded.

		(1)  Paragraph 3-19(c) stated 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 charges that are later dropped or charges or incidents of which the rated 
Soldier may later be cleared.

		(2)  Paragraph 3-19(d) stated any verified derogatory information may be entered 
on an evaluation report. This is true whether the rated Soldier is under investigation, 
flagged, or awaiting trial.

	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 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, in accuracy, 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.

//NOTHING FOLLOWS//