RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            24 August 2004
      DOCKET NUMBER:   AR20040005173


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Melvin H. Meyer               |     |Member               |
|     |Mr. Patrick H. McGann             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that her Officer Evaluation Report (OER) for the
period 1 December 1999 through 25 May 2000 be amended to show it was not
referred; to remove the referral attachments to the OER from her records;
and, in Part Vb that the sentences, "1LT ___ failed to take the APFT,
administered twice during the rating period (1 Apr & 6 May).  Although
seeing an orthopedic doctor and physical therapist, the officer failed to
obtain a temporary profile until 2 Jun 00" be deleted from the OER.

2.  The applicant states that the basis for the referral was her alleged
failure to complete the Army Physical Fitness Test (APFT).  Her rater knew
of her medical condition and her physical therapy appointments.  Her
condition was so serious that she could not stand erect and her major
concern was to be well enough to attend the Combined Logistics Captains
Career Course.  She and her physical therapist discussed her profile being
issued as close as possible to her reassignment to give her the maximum
amount of time (30 days) to recover.  The 77th Regional Support Command
(RSC) validated her profile, rendering her medically incapable of taking
the APFT.

3.  The applicant also states that while assigned to the 301st Area Support
Group for the purpose of a compassionate assignment, the command saw fit to
place her in a troop program unit (TPU) company commander position.  Her
raters did not conduct performance evaluation or developmental counseling.
She was never provided a copy of her senior rater's support form.

4.  The applicant provides the contested OER with the referral memorandum;
a document from the applicant, unaddressed, dated 14 February 2001; a
memorandum dated 8 August 2003 from the Officer Special Review Board
(OSRB); a memorandum dated 11 September 2000 from the Command Surgeon, 77th
RSC; and a letter dated 16 April 2001 from the 77th RSC Office  of the
Inspector General (IG).

CONSIDERATION OF EVIDENCE:

1.  The applicant's records are not available.  The information contained
herein was obtained from documents provided by the applicant plus her
Officer Record Brief.

2.  The applicant was commissioned a second lieutenant in the U. S. Army
Reserve on 21 May 1993, Quartermaster Corps, specialty 92A (Quartermaster,
General).  Her assignments included Supply Management Officer, Executive
Officer of a Headquarters and Headquarters Detachment, and Supply and
Services Officer.  She was promoted to first lieutenant on 28 May 1996.

3.  The available contested OER is the version as revised by the OSRB.  The
contested OER is a 5-rated month permanent change of station report for the
period 1 December 1999 through 25 May 2000.  Her principal duty assignment
was Company Commander and she was assigned to Headquarters and Headquarters
Company, 301st Area Support Group, Fort Totten, NY, 77th RSC (Active Guard
Reserve).

4.  In Part IVb (Leader Attributes/Skills/Actions), the rater checked the
"no" block in subpart b.1.2 (Physical, maintains appropriate level of
physical fitness and military bearing).  In Part Vb, the rater commented in
part, "1LT ___ failed to take the APFT, administered twice during the
rating period (1 Apr & 6 May).  Although seeing an orthopedic doctor and
physical therapist, the officer failed to obtain a temporary profile until
2 Jun 00."  (A correction to Part IVc (APFT entry) was made by the OSRB.
The original entry is not known.)

5.  The applicant was promoted to captain on 28 May 2000.

6.  On 5 July 2000, the senior rater referred the contested OER to the
applicant.  He noted that the specific reason was the "No" entry in Part
IVb, subpart b.1.2.  He also stated that the applicant's disregard of Army
Physical Fitness standards resulted in a lack of an APFT for over a seven-
month period and it was a completely unacceptable performance for an Active
Guard Reserve officer and set the wrong example for her command.  Although
she was given a suspense date of 20 July 2000, she acknowledged receipt of
the referral on 13 December 2000.

7.  A memorandum dated 11 September 2000 from the 77th RSC Command Surgeon
stated that the applicant was evaluated on 28 March 1999 and the Sick Call
Consultation Report was noted "Low back pain," "No heavy lifting," and "no
PT until evaluated by Orthopedist."  The Command Surgeon noted that doctor
notes dated 5 April 2000 and 16 May 2000 indicated the applicant was having
problems with her back and left foot.

8.  The 77th RSC Command Surgeon noted that even though there was no formal
DA Form 3349 (Profile Form) provided until 2 June 2000, there was
sufficient evidence to validate that the applicant was medically incapable
of taking the APFT.  The Command Surgeon noted that Army regulatory
guidance and 77th RSC guidance was that medical limitations/conditions not
expected to last more than 30 days could be documented utilizing a Sick
Slip or doctor notes. The Command Surgeon also noted that, as a Company
Commander, the applicant should have known that a DA Form 3349 was required
when a soldier was not going to participate in a scheduled APFT.

9.  The applicant provided a document from her, unaddressed, dated
       14 February 2001.  This document stated that her chain of command
neglected to annotate on the contested OER that she provided them with a
valid DA Form 705 (Army Physical Fitness Test Scorecard) which reflected
that she successfully completed an APFT on 2 October 1999.  The regulatory
requirement was only that a valid APFT must be conducted within 12 (not 6)
months of the OER's through date.  She stated that due to recurring medical
problems associated with a recent back injury she was on a medical profile
during the latter part of her rated period, which prohibited her from
taking the APFT.  She provided her rater with the medical profile.  She
also received extensive physical therapy until her departure from the 301st
Area Support Group, of which her rater was also aware.

10.  The applicant filed an IG complaint on an unknown date.  By letter
dated     16 April 2001, the 77th RSC IG informed the applicant that two of
her allegations against a member of the 301st Area Support Group were
substantiated and four allegations were not substantiated.  An allegation
concerning the unit improperly maintaining accountability of property and
equipment was well founded.

11.  The applicant appealed the contested OER on an unknown date.  The OSRB
case summary is not available.  In August 2003, the OSRB corrected Part IVc
(APFT) to show she passed the APFT in October 1999.

12.  Army Regulation 623-105 (Officer Evaluation Reporting System) states
that an OER accepted for inclusion in the official record of an officer is
presumed to be administratively correct, to have been prepared by the
proper rating officials and to represent the considered opinion and
objective judgment of the rating officials at the time of preparation.  The
burden of proof in appealing an OER rests with the applicant.  Accordingly,
to justify deletion or amendment of a report, the applicant must produce
evidence that clearly and convincingly nullifies
the presumption of regularity.  Clear and convincing evidence must be of a
strong and compelling nature, not merely proof of the possibility of
administrative error or factual inaccuracy.

13.  Army Regulation 623-105, paragraph 3-19b(2) states that the rater will
place an "x" in either the "yes" or "no" box for each
attribute/skill/action.  Comments are mandatory for each "no" entry.
Paragraph 3-19.1b(2) states that if the APFT has not been taken within 12
months of the through date of the report, the APFT data entry will be left
blank and the rater will explain the absence of an APFT entry in Part Vb.

14.  Army Regulation 623-105, paragraph 3-32 states that OERs will be
referred to the rated officer by the senior rater for a number of reasons
including – any report with negative remarks about the rated officer's
Values or Leader Attributes/Skills/Actions in the rating official's
narrative evaluation(s); any report with a rating of "no" in Part(s) IVa-c;
and any report with negative comments in Parts Vb, VI, or VIIc.

15.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical
fitness standards for appointment, retention, and separation.  Chapter 7
discusses physical profiling.  Paragraph 7-6b of the version in effect at
the time stated that a physical therapist could award a temporary profile
for a period not to exceed 30 days.  Any extension of a temporary profile
beyond 30 days had to be confirmed by a physician.  Paragraph 7-8c stated
that a temporary profile written on a DD Form 689 (Individual Sick Slip)
could not exceed 30 days.  Temporary profiles written on a DA Form 3349
would not exceed 3 months.  Paragraph         7-4 stated that a temporary
profile could be extended for a period not to exceed 12 months.

16.  Field Manual 21-20 (Physical Fitness Training), chapter 14 states that
a soldier with a temporary profile must take the regular three-event APFT
after the profile has expired.  If a normally scheduled APFT occurs during
the profile period, the soldier should be given a mandatory make-up date.
A soldier with a permanent profile must perform all the regular APFT events
his or her medical profile permits.

DISCUSSION AND CONCLUSIONS:

1.  It is acknowledged that the "specific reason" listed on the 5 July 2000
referral memorandum was the "no" entry in Part IVb, subpart b.1.2 of the
contested OER. However, it is noted that any report with negative remarks
about the rated
officer's Leader Attributes/Skills/Actions in the rating official's
narrative evaluation(s) and any report with negative comments in Part Vb
will also be referred to the rated officer.  Even if the entry in Part IVb,
subpart b.1.2 were "yes", the negative remarks as were entered on the
contested OER still required it to be referred.

2.  Taken in conjunction with the 77th RSC Command Surgeon's memorandum,
the applicant's explanation of the date she received a profile is not
clear.

3.  The 77th RSC Command Surgeon stated the applicant was evaluated on
28 March 1999 and the Sick Call Consultation Report was noted "Low back
pain," "No heavy lifting," "no PT until evaluated by Orthopedist."  The
next mentioned dates were in doctor notes dated 5 April 2000 and 16 May
2000.  He went on to note that even though there was no formal DA Form 3349
provided until 2 June 2000, there was sufficient evidence to validate that
the applicant was medically incapable of taking the APFT.

4.  However, the 77th RSC Command Surgeon's memorandum implies that the
applicant was incapable of taking the APFT from March 1999 until she
received a DA Form 3349 in June 2000.

5.  The applicant provides no explanation as to why she did not receive a
profile in March 1999.  Her explanation (she and her physical therapist
discussed her profile being issued as close as possible to her reassignment
to give her the maximum amount of time (30 days) to recover) is not
reasonable.  If the applicant was incapable of taking an APFT on 5 April
2000, she should have been given a profile on that date.  If she was still
incapable of taking an APFT after 30 days     (5 May 2000, the day before
the 6 May 2000 APFT), she could have gotten a physician to extend the
profile.

6.  The applicant was a senior first lieutenant, a company commander who
had had a prior assignment as a detachment executive officer.  It is
difficult to conceive that she would have failed to take two APFTs without
knowing that she needed the appropriate form to document her profile.

7.  The rater appears to have committed no error in checking the "no" entry
in Part IVb, subpart b.1.2.  There is no regulatory requirement that "yes"
be checked if the officer has a valid profile.  The rater appears to have
adequately and properly explained the "no" entry in Part Vb as required by
regulation by using the two sentences the applicant requests be deleted.

8.  The applicant's contentions that while assigned to the 301st Area
Support Group in a company commander position her raters did not conduct
performance evaluation or developmental counseling and she was never
provided a copy of her senior rater's support form are noted.  However, the
relevance of these contentions to her request for amendment of the
contested OER is not clear.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__mkp___  __mhm___  __phm___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




            __Margaret K. Patterson
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040005173                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040824                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |111.01                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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