IN THE CASE OF:	  

		BOARD DATE:	        3 March 2009

		DOCKET NUMBER:  AR20080018961


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:

1.  The applicant requests that his DA Form 67-9 (Officer Evaluation Report, or OER) for the 10-month period 20030819 – 20040623 be corrected in Part VIb [sic] to reflect "Pass May 2004," and that any derogatory statements pertaining to a failed Army Physical Fitness Test (APFT) be removed.  His undated request was received on 1 December 2008.

2.  The applicant states, in effect, the subject OER is adverse solely because of substantively inaccurate statements claiming he failed the APFT during the rating period – in October 2003 – when, in fact, he passed the APFT in May 2004.

3.  The applicant provides:

	a.  a copy of the subject OER for the period 20030819 – 20040623;

	b.  a copy of a DA Form 705 (Army Physical Fitness Test Scorecard) showing he passed a self-requested diagnostic APFT, without height and weight measurements, on 11 May 2004;

	c.  a copy of a DA Form 5500-R (Body Fat Content Worksheet), dated 12 May 2004, a body fat content of 20.4 percent when he was authorized a body fat content of 24.0 percent;

	d.  a copy of DA Form 3349 (Physical Profile), dated 16 June 2004, showing a 1-month temporary profile against running, jumping, and marching, and prohibiting him from performing an APFT for 1 month;
	e.  a copy of a memorandum through the Commander, 412th Engineer Command, Vicksburg, MS, to U.S. Army Human Resources Command (HRC), St. Louis, MO, dated 26 July 2004, appealing the subject OER;

	f.  a copy of a memorandum to the Commander, 412th Engineer Command, dated 2 August 2004, requesting a commander’s inquiry (CI) into the subject OER; and

	g.  a copy of a memorandum from Headquarters, 412th Engineer Command, to U.S. Army Personnel Command (now U.S. Army HRC), Alexandria, VA, dated 19 October 2004, forwarding the results of the CI.  The results state, "the [adverse] information in block Va is not supported.  The rater and senior rater’s sole basis for their assessment of [applicant’s] performance and potential is his APFT failure, which is a strong indication of a lack of objectivity or fairness.  The lack of evidence to support the [applicant’s] rating of 'Below Center of Mass – Retain' again demonstrates a lack of objectivity or fairness."  The CI recommended, "The rater and senior rater did not provide any documents to support their claim that there were performance reasons other than the failure of the APFT and therefore blocks Va and VIIa and b should be changed and blocks Vb and VIIc should be made more accurate."

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 was born on 24 April 1966.  He is a U.S. Army Reserve Active Guard Reserve captain, Corps of Engineers (CE), with a date of rank of 17 March 2003.  During the period 19 August 2003 through 23 June 2004, he served as a plans officer with the 412th Engineer Command (Forward) in the Republic of Korea.  On 4 October 2003, the unit conducted a semiannual APFT for record.  The applicant failed.

3.  DA Form 67-9 is an integral part of the Officer Evaluation System (OES) designed to identify officers who are best qualified for promotion and assignment to positions of higher responsibility.  It also identifies officers who should be kept on active duty, those who should be retained in grade, and those who should be eliminated.  Under the OES, an officer is evaluated on his or her performance and potential.  The OER is used for duty evaluations for a specific rating period.

4.  Part IV (Performance Evaluation – Professionalism) of the OER is completed by the rater.  The rated officer is evaluated on adherence to Army values and the dimensions of leadership doctrine that define professionalism in the officer corps.

	a.  In Part IVb (Leader Attributes/Skills/Actions) of the subject OER, the applicant received a rating of "No" for "Physical – maintains appropriate level of fitness and military bearing."

	b.  In Part IVc (APFT) of the subject OER, it shows the applicant failed the APFT in October 2003 and, at 73 inches in height and 223 pounds in weight, he met the Army's height/weight standards based on body fat content, not his overall weight.  Army standards require that a male Soldier of the applicant’s age and height to weigh no more than 205 pounds.

5.  Part V (Performance and Potential Evaluation) is also completed by the rater.  The rated officer's performance and potential for promotion is compared with that of his or her contemporaries.

	a.  Part Va (Performance and Potential) evaluates the rated officer’s performance and potential for promotion.  Four block checks are available – Outstanding Performance-Must Promote, Satisfactory Performance-Promote, Unsatisfactory Performance-Do Not Promote, and Other.  On the subject OER, the applicant received a rating of "Other."

	b.  In Part Vb (Comments) of the subject OER, the rater provided two paragraphs.  In the first paragraph, he was extremely praiseworthy of the applicant’s overall performance of his duties.  However, in the second paragraph, he stated:  "[Applicant] was unable to pass a record Army Physical Fitness Test (APFT) administered on 4 October 2003, two months after his arrival to the unit.  Due to physical injuries, he has been on medical profiles and unable to take a second record APFT during this rating period…Limited potential for future advancement or positions of increased responsibility until he achieves the minimum standards on a record APFT."

6.  Part VII (Senior Rater) evaluates the rated officer's potential for promotion to the next higher grade, potential compared with other officers rated by the senior rater (SR), and offers comments on performance and potential.

	a.  Part VIIa (Promotion Potential) offers four block checks on promotion potential – Best Qualified, Fully Qualified, Do Not Promote, and Other.  On the subject OER, the SR checked "Do Not Promote."

	b.  In Part VIIb (Comparison With Other Officers), the senior rater makes an assessment of the rated officer’s overall potential in comparison with all other officers of the same grade the SR has senior rated or has currently in his or her senior rater population.  This potential is evaluated in terms of the majority of officers in the population.  If the potential assessment is consistent with the majority of officers in that grade the senior rater will "x" the "Center of Mass" box.  If the rated officer’s potential exceeds that of the majority of officer’s in the senior rater’s population, the senior rater will "x" the "Above Center of Mass" box.  The intent is for the senior rater to use this box to identify their upper third in each grade; however, in order to maintain a credible profile, the senior rater must have less than 50% of the ratings of a grade in the top box.  Fifty percent or more in the top box will result in a "Center of Mass" label.  If the rated officer’s potential is below the majority of officers in the senior rater’s population for that grade and the senior rater believes the rated officer should be retained for further development, the senior rater will "x" the "Below Center of Mass-Retain" box.  If the rated officer’s potential is below the majority of officers in the senior rater’s population for that grade and the senior rater does not believe the rated officer should be retained on active duty the senior rater will "x" the "Below Center of Mass-Do Not Retain" box.  In the subject OER, the SR rated the applicant "Below Center of Mass-Retain."

	c.  In Part VIIc (Comments) of the subject OER, the SR stated, "[Applicant] is a highly resourceful plans officer with extraordinary skills in systems communications and information management.  He was the principal architect for the voice and data communications systems installed in our dedicated exercise facilities at Camp Carroll, and responsible for activating all circuits in support of the JCS exercise Reception, Staging, Onward Movement and Integration (RSO&I) 2004.  He needs to complete the Captains Career Course.  Do not promote until he passes a record Army Physical Fitness Test."

7.  The subject OER was signed by the rater and SR on 15 June 2004 and referred to the applicant on the same date.  The applicant signed the subject OER on 15 June 2004 and indicated that he would provide a statement.  The subject OER was forwarded to Headquarters, Department of the Army (HQDA) and accepted on 26 July 2004.
8.  The applicant appealed the subject OER to HRC-St. Louis, by memorandum dated 26 July 2004.  The appeal was received by HRC, but was not processed due to lack of supporting evidence.  Instead, it was returned to the applicant with instructions on what to do in order to resubmit it.  HRC-St. Louis did not receive the appeal again.

9.  On 2 August 2004, the applicant requested a commander’s inquiry (CI).  In his request, he stated:

   a.  The subject OER was incorrect when it said he failed his last APFT on 4 October 2003; he passed a "diagnostic" APFT on 11 May 2004.  However, he contended the test was administered by Eighth U.S. Army Troop Command in accordance with Field Manual 21-20 (Physical Fitness Training) and was witnessed by his SR, who used the occasion to take a record APFT the same day, thus it was, in fact, a "record" APFT.  The applicant added he sprained his ankle taking the diagnostic test and was never able to take a test for record before departing Korea.

	b.  The applicant argued Field Manual 21-20 made no distinction between a "record" and a "diagnostic" APFT.  Following the October 2003 record APFT, the 412th Engineer Command was next scheduled for a record test on 4 April 2004; however, many Soldiers could not take the test because of medical issues arising from a road march on 2 April 2004.  These personnel simply took their "record" APFTs at various times, as did his SR on 11 May 2004.

	c.  The applicant concluded his request for a CI by stating he had a grating personality and that some people did not like him.  In essence, he contended that personal animus on the part of his rater and SR led them to seize on the APFT issue in order to "show failure and negatively impact [his] career."

10.  On 19 October 2004, the Commanding General, 412th Engineer Command, inserted the results of his CI into the applicant’s OER.  He determined the following:

   a.  Checking "Other" in block Va was inappropriate.

	b.  In his narrative (block Vb), the rater should have noted the applicant’s progress toward passing the APFT, specifically that, on 11 May 2004, he took and passed a diagnostic APFT, but injured himself in the process.

	c.  The rater’s narrative comments were mainly very positive, but the overall assessment is based solely on the applicant’s APFT failure.

	d.  The SR’s comments were generally very positive, but he used the APFT failure as the sole justification for  recommending the applicant not be promoted.

	e.  Other than an "incomplete recitation of [applicant’s] APFT history," there is no evidence to justify the "Below Center of Mass – Retain" rating in block VIIb.

	f.  The Commanding General recommended changing blocks Va and VIIa and b to make them "more accurate."

11.  The CI was forwarded to HRC-Alexandria and included in the applicant’s Integrated Personnel Electronic Records Management System (iPERMS) record.

12.  Army Regulation 623-105 (Officer Evaluation Reporting System) establishes the policies and procedures for the OER system.  Pertinent paragraphs provide that an OER accepted by HQDA, and included in the official record of an officer, is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Furthermore, the burden of proof in an appeal of an OER rests with the applicant.  Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.  It also provides, in pertinent part:

	a.  Alleged errors, injustices, and illegalities in a rated Soldier's evaluation report may be brought to the commander's attention by the rated individual or anyone authorized access to the report.  The primary purpose of a Commander's Inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record.  A secondary purpose is to obtain command involvement in clarifying errors or injustices after the evaluation is accepted at HQDA.  However, in these after-the-fact cases, the Commander’s Inquiry is not intended to be a substitute for the appeals process, which is the primary means of addressing errors and injustices after they have become a matter of permanent record.

	b.  The results of a Commander’s Inquiry, if forwarded to HQDA, will include the findings, conclusions, and recommendations in a format that could be filed with the evaluation in the rated individual's file for clarification purposes.  The results, therefore, will include the commander's or commandant's signature, will stand alone without reference to other documentation, and will be limited to one page.  Sufficient documentation, such as reports and statements, will be attached to justify the conclusions.  If no errors are found, the results of the CI will be filed locally.

	c.  OER appeals must be timely filed.  Because evaluation reports are used for personnel management decisions, it is important to the Army and the rated individual that an erroneous report be corrected as soon as possible.  As time passes, people forget and documents and key personnel are less available; consequently, preparation of a successful appeal becomes more difficult.  Substantive appeals will be submitted within 3 years of an OER "thru date."  Failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant this exception.

13.  Field Manual 21-20 provides that all Soldiers in the Active Army, Army National Guard, and Army Reserve must take the APFT twice a year regardless of their age.  The APFT is a three-event physical performance test used to assess muscular endurance and cardiorespiratory (CR) fitness.  The records of Soldiers who fail a record APFT for the first time and those who fail to take the APFT within the required time period must be flagged in accordance with Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions).  Soldiers who fail any or all of the events must retake the entire APFT.  In case of test failure, commanders may allow Soldiers to retake the test as soon as the Soldiers and commanders feel they are ready.  Soldiers without a medical profile will be retested not later than 3 months following the initial APFT failure.

14.  Information obtained from former Soldiers working at the ABCMR revealed that typical unit physical training standard operating procedures should provide the following information:

	a.  All APFTs will be designated to be either "diagnostic" or "for record," and will be so annotated in the comments section of DA Form 705 prior to execution of the first event.  A passing score on a diagnostic APFT cannot count towards meeting the record APFT requirement, nor can the score be used for an OER or NCOER.  APFTs can be considered "for record" as long as sufficient notice has been provided to individuals being tested, and at least four months separate the test from the previous record APFT.

	b.  A diagnostic APFT is used as a training tool to assess physical fitness.  It is useful in determining an individual's readiness for a record APFT.  Scores for diagnostic APFTs will be recorded on the Soldier’s DA Form 705, and will be annotated " diagnostic " in the comments section prior to execution of the first event.  At no time will diagnostic APFTs be changed to a record APFT.  A failing score for a diagnostic APFT cannot be subject to flagging action or separation; however, the individual may still be counseled and mandated to participate in remedial physical training.

	c.  A record APFT is the only category of test that will fulfill the biannual APFT requirement.  An APFT will be determined to be "for record" prior to execution of the first event. and will be annotated in the comments section on the Soldier’s DA Form 705.  At no time will an APFT designated as "for record" be changed to a diagnostic test.  A record APFT will be the only APFT that is subject to negative administrative actions, such as flagging or removal from service.  A record APFT score will be entered into personnel systems (e.g., Regional Level Application Software for USAR) and will replace the last APFT score entered into the system.  Individuals who fail a record APFT will be counseled and mandated to perform remedial PT.

DISCUSSION AND CONCLUSIONS:

1.  The applicant seeks to correct the subject OER which was referred to him as adverse because of his failure to pass a record APFT.

2.  The applicant arrived in Korea on/about 19 August 2003 for his assignment with Headquarters, 412th Engineer Command (Forward).  During the month of October 2003 the applicant participated in a record APFT and failed.

3.  When his chain of command rendered the subject OER, both the rater and SR made mention of the applicant’s APFT failure and marked down his performance and potential in the OER.

4.  The subject OER is decidedly adverse because:

	a.  The rater gave the applicant a rating of "No" in block IVb12 (Attributes – Physical), and while the rater praised the applicant’s duty performance as a plans officer, he found him to be of "limited potential" for promotion or positions of increased responsibility based on his failure to achieve minimal fitness standards.

   b.  The SR checked "Do Not Promote" in block VIIa and stated, in effect, the ban on his promotion should not be lifted until he meets minimum fitness standards.  The SR gave the applicant an evaluation of  "Below Center of Mass – Retain" in block VIIb.



5.  The applicant stated he passed a diagnostic APFT in May 2004 and contends this should have been used as the APFT data on the subject OER.  A diagnostic APFT is not a record APFT.  The applicant could have declared his May 2004 test as being for the record, but he chose not to do so.  The results were properly not included in block IVc.

6.  The applicant, in his 2 August 2004 request for a CI, alludes to his "grating personality" and a less than cordial "professional relationship," presumably with his rating chain.  Assuming arguendo that such was the case with the applicant and his superiors, the applicant should have done more to remove the APFT failure as a detractor from his performance.  He did not do so.

7.  The applicant alludes to medical problems which prevented him from completing a record APFT between October 2003 and the "thru date" on the subject OER.  There is no evidence the applicant attempted to take a modified record APFT using events which would have accommodated his alleged physical problems.

8. The appearance is that the applicant sought to manipulate the system to avoid a record APFT rather than work within it to achieve Army fitness standards.  That he was marked down on his OER is completely appropriate, and he has not shown otherwise.

9.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20080018961



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ABCMR Record of Proceedings (cont)                                         AR20080018961



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