IN THE CASE OF:	  

		BOARD DATE:	       23 JULY 2009

		DOCKET NUMBER:  AR20080018070 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

The applicant defers to counsel.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's records to show he completed the Army Medical Department (AMEDD) Officer Basic Course (OBC) Class Number 01-00 at Fort Sam Houston, TX and to confirm his commission as a second lieutenant (2LT) in the U.S. Army Medical Service Corps.  

2.  Counsel gives a brief factual background of the applicant's attendance at the AMEDD OBC, Class Number 01-00.  He states that the applicant was appointed a 2LT and ordered to active duty for training (ADT) to attend AMEDD OBC, Class Number 01-00 during the period 11 October 1999 to 20 December 1999.  The applicant completed all aspects of the AMEDD OBC, except the run portion on the Army Physical Fitness Test (APFT).  Counsel states that it was not possible for the applicant to re-take the APFT prior the end date of his AMEDD OBC; therefore, he was not issued an OBC graduation certificate.  The applicant was counseled by the AMEDD OBC Program Director and was advised that he would be given one month to retest and complete an APFT with his home unit in the Texas Army National Guard (TXARNG).  The applicant was advised that upon submission of a true copy of the record to the AMEDD Center and School showing a passing score on the APFT, his academic record would be revised to reflect his successful completion of the AMEDD OBC.

3.  Counsel states that the applicant timely completed the APFT on 4 December 1999.  The applicant requested that his TXARNG unit submit the required documentation to the Army National Guard Liaison at the AMEDD Center and School for processing.  Counsel alleges that the TXARNG failed to immediately forward proof of his passing score on the APFT retest.  On 13 December 1999, the applicant inquired on the status of his graduation certificate and learned that his APFT record had not been received by the ARNG Liaison.  Counsel states that the applicant continued to inquire about the status of the correction of his academic record and he also requested that his TXARNG unit submit a memorandum explaining the delay in the initial submission of his APFT scores.  The ARNG Liaison told the applicant that everything would be taken care of and his academic record would be amended.  

4.  Counsel also states that the applicant sought advice from the AMEDD OBC Program Director who recommended he send a letter explaining the situation to the Associate Dean of Academics at the AMEDD Center and School.  On 17 May 2006, the applicant received correspondence from the Associate Dean of AMEDD Center and School denying his request to amend his academic records.  Counsel outlined information contained in the memorandum, dated 17 May 2006, from the Associate Dean of AMEDD Center and School.  

5.  Counsel references an affidavit, dated 3 July 2008, from a retired colonel who strongly urged approval of the applicant's request to correct his records to reflect his satisfactory and successful completion of the AMEDD OBC.  Counsel listed key points mentioned in the memorandum from the retired colonel to include the following: (1)  the applicant was unnecessarily penalized as a result of inaction; (2)  the Army National Guard Liaison failed to support the applicant; (3)  the leaders of the AMEDD academic system failed to make a reasonable attempt to make things right in the applicant's case; (4)  this kind of academic problem occurs frequently enough at the AMEDD Center and School and should not take over 7 years to correct; (5)  the applicant followed up in a timely fashion and personally hand-carried a copy of his APFT record to the Army National Guard Liaison for processing; and (6)  the applicant has the judgment, integrity, and qualifications, through both education and experience, to function superbly as a commissioned officer in the U.S. Army Medical Service Corps.  The retired colonel noted that the applicant was the only student in his OBC with a Degree of Master of Science in Health Care Administration.  In conclusion, counsel states the applicant previously exhausted his other administrative remedies via his attempts to correct his academic records through the AMEDD Center and School at Fort Sam Houston, TX.  



6.  Counsel provides the following documents in support of the applicant's application:  

a.  Exhibit A - Appointment Orders, dated 5 March 1999;

b.  Exhibit B - Orders to Active Duty for Training, dated 30 September 1999;

c.  Exhibit C - DA Form 705 (Army Physical Fitness Test (APFT) Scorecard), 
dated 4 December 1999;

d.  Exhibit D - Memorandum, Subject Validation of Army APFT, dated 9 April 
2003;

e.  Exhibit E - Orders Terminating Appointment, dated 1 July 2003;

f.  Exhibit F - Request to Amend Records, dated 28 December 2005;

g.  Exhibit G - Memorandum from Associate Dean of the AMEDD Center and 
School, dated 17 May 2006;

h.  Exhibit H - Affidavit from a Retired Colonel, dated 3 July 2008; and 

i.  Exhibit I - Degree of Master Science, Health Care Administration, dated 
31 January 1986.

CONSIDERATION OF EVIDENCE:

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 Army Board for Correction of Military Records (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.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant is currently serving in the TXARNG in the rank of sergeant.


3.  After having prior enlisted service, the applicant was appointed as a 2LT in the TXARNG on 1 June 1999 in the Medical Service Corps.

4.  Orders published by the State of Texas, Adjutant General's Department on 30 September 1999 show the applicant was ordered to ADT to attend the AMEDD OBC at Fort Sam Houston, TX during the period 11 October 1999 to 20 December 1999.  The additional instructions state, in part, "(h) You are responsible for reporting to your next duty station school in satisfactory physical condition, able to pass the Army Physical Fitness Test and meet weight standards." and "(i) Soldiers who encounter problems should contact the ARNG Liaison OFF/NCO assigned to the training site."

5.  In November 1999, the applicant failed the run portion of the APFT.  

6.  The applicant provided a copy of a DA Form 705 which indicates he passed the APFT on 4 December 1999.  The scorecard indicated he had passed the 
push-up portion of the APFT (35 push-ups/66 points), the sit-up portion 
(34 sit-ups/62 points), and passed the 2-mile run portion (18 minutes and 1 second/65 points) for a total of 193 points.  He met height and weight standards.  The scorecard was signed by an unknown person.  There is no indication that the 3-event APFT or the height and weight standards were validated.

7.  The applicant was honorably released from active duty on 17 December 1999.  On the following day, he was transferred to a TXARNG unit.

8.  On 29 December 1999, the applicant received an adverse DA Form 1059 (Service School Academic Evaluation Report (AER)) and the preparing official marked the block "failed to achieve course standards" in item 13 (Performance Summary).  In item 16 (Comments), the preparing official indicated that the applicant did not successfully complete the requirements for the AMEDD OBC and included the entry "FAIL 9912 66/176 YES."  His DA Form 1059 also indicates he failed both the diagnostic and record APFTs.  In accordance with the Student Evaluation Plan, it is a requirement to pass the APFT prior to graduation.  

9.  The applicant was separated from the ARNG on 25 June 2000 and was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) on the following day.

10.  In a 9 April 2003 memorandum, a Battalion Operations Officer from the TXARNG indicated that the applicant was administered and passed the APFT on 4 December 1999.  The Battalion Operations Officer indicated that the person 
who was supposed to verify the applicant's test departed the unit prior to forwarding the APFT card and that the delay in sending the APFT card was through no fault of the applicant.  

11.  The applicant was discharged from the USAR on 1 July 2003.

12.  In a 28 December 2005 memorandum, the applicant submitted a request to the Commander, AMEDD Center and School, Fort Sam Houston, TX, to correct his OBC records.  

13.  On 26 April 2006, the applicant enlisted in the TXARNG in pay grade E-5.  

14.  In a 17 May 2006 memorandum from the Associate Dean, AMEDD Center and School, the applicant was informed that his request for correction of his academic records was denied.  The denial was based on the following criteria: (1)  he did not meet the course requirement of successfully passing the APFT prior to graduation per the dictated requirement in the published Student Evaluation Plan for the OBC and (2)  he did not provide the necessary documentation regarding the re-testing of his APFT to the school in a timely manner.  After a legal review conducted by the Administrative Law Branch, Office of the Judge Advocate General (JAG), the recommendation was to deny his request.  The applicant was advised to seek relief through this Board.  

15.  In the processing of this case, a staff advisory opinion was obtained from the Acting Chief, Personnel Division, National Guard Bureau (NGB).  The NGB advisory official recommended disapproval of the applicant's request for a change to his military records to reflect successful completion of the OBC and to reappoint him as a second lieutenant.  The opinion indicated that the applicant did not satisfy the requirement to successfully pass the required APFT prior to graduation from the OBC.  It was pointed out that the applicant provided a DA Form 705 showing he successfully passed the APFT on 4 December 1999.  However, the form was not delivered to the OBC staff prior to the completion of the course and the test was administered by someone other than the OBC staff while he was enrolled in the resident course.  The opinion referenced Army Regulation 350-1, chapter 3, paragraph 9d, which states, in part, "Those who fail to pass the standard or approved alternate APFT will not graduate."  

16.  On 28 January 2009, a copy of the advisory opinion was forwarded to the applicant's counsel for information and to allow him the opportunity to submit comments or a rebuttal.  As of 17 March 2009, neither counsel nor the applicant had responded.

17.  Army Regulation 350-1 (Army Training and Leader Development), chapter 3, paragraph 3-9 governs physical fitness and height and weight requirements for military institutional training.  This regulation states that Soldiers attending other professional development courses not mentioned in paragraph 3-9b of this regulation, in either a permanent change of station (PCS) or temporary duty (TDY) status, must take and pass the APFT to graduate.  This includes Reserve Component in annual training (AT), ADT, and/or inactive duty (IDT) status.  Those who fail to pass the standard or approved alternate APFT will not graduate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was ordered to ADT to attend the AMEDD OBC during the period 11 October 1999 to 20 December 1999.

2.  It is evident that the applicant failed the run portion of the APFT in November 1999.  Counsel states that the applicant was counseled by the AMEDD OBC Program Director and was advised that he would be given one month to retest and complete an APFT with his home unit in the TXARNG.  

3.  It is noted that, during the applicant's counseling session with the AMEDD OBC Program Director, he was advised that upon submission of a true copy of the record to the AMEDD Center and School showing a passing score on the APFT, his academic record would be revised to reflect his successful completion of the AMEDD OBC.

4.  Although the applicant provided a copy of a DA Form 705 showing he passed the APFT on 4 December 1999, this scorecard did not include a certification from the appropriate authority and his height and weight were not verified.  

5.  Additionally, the applicant did not submit a verified copy of the DA Form 705 to the appropriate personnel at the AMEDD Center and School prior to the completion date of AMEDD OBC (20 December 1999).  As a result, he did not receive a graduation certificate from AMEDD OBC and he was separated from active duty.  

6.  The facts of this case show the applicant’s separation from the AMEDD OBC, Class Number 01-00 was accomplished in accordance with applicable law and regulation.

7.  There is no evidence which shows an error or injustice exists in this case.  Therefore, there is no basis on which to grant the relief requested.  

BOARD VOTE:

________  ________  ________  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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________XXX____________
               CHAIRPERSON
      
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.

ABCMR Record of Proceedings (cont)                                         AR20080018070



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ABCMR Record of Proceedings (cont)                                         AR20080018070



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