IN THE CASE OF:	               

		BOARD DATE:	    1 March 2011

		DOCKET NUMBER:  AR20100018727 


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 an officer evaluation report (OER) for the period 1 January 2006 through 20 May 2006 be removed from his official military personnel file (OMPF).

2.  The applicant states:

	a.  the referred OER should be deleted/masked from his service record because it does not contain complete factual information, is not consistent with his service record, and does not accurately reflect his performance during the rating period or potential for further service.

	b.  the injustice occurred following a deployment (Pakistan) and temporary medical injury.

	c.  the rater failed to notify him of the close out date of the OER (20 May 2006) which resulted in his record Army Physical Fitness Test (APFT) being completed 4 days late (24 May 2006).  There is no record of an APFT failure during the rated period as indicated on the OER.  A diagnostic APFT was terminated in April 2006 by him and the APFT grader due to his temporary medical condition creating an inability to perform the event.

	d.  the fact he had a temporary medical profile is clearly mentioned on the OER.  He should have not been penalized for seeking medical care during the evaluation period.  

	e.  the referred OER is not consistent with the rater and senior rater comments on his performance or potential.  His potential and performance are clearly indicated in service records prior to and after this evaluation.  Even the referred report indicates a solid performance with the exception of the temporary medical issue that was resolved by seeking medical care and passing the alternate APFT.  He followed proper procedures for accessing healthcare and made every attempt to meet fitness standards as outlined in medical profiles by passing the alternate APFT.   

	f.  the submission of this request is over three years based on poor advice from senior leaders and a lack of knowledge of the record review process.  At the time of the OER he was told by multiple colonels that the referred report would not be significant based on the quality of his record.  They suggested that letters to the board would only "highlight the issue."  Following the 2009 AMEDD [Army Medical Department] lieutenant colonel selection board he was non-select and the chain of command suggested that the best action would be to "see what happens" on "AZ" look (2010) with additional OERs from deployment on the MiTT [Military Transition Team].  It was commonly believed that commanding an MiTT and above center of mass OERs would overcome the referred report.  Prior to the 2010 lieutenant colonel board the process of record review was not encouraged by Company C.  A sitting member of the 2010 lieutenant colonel board called him and told him he should pursue this review process.    

	g.  the OER in question is atypical of a referred report and the rater and senior rater (SR) both indicate outstanding performance, unlimited potential for schooling, promotion and command.

	h.  during the referred evaluation (5 months) he had recently returned from Pakistan where the medical condition manifested.  He sought medical care in theater, followed up after returning to Germany at the Ramstein Air Force Base Health Clinic and he received a temporary profile from Landstuhl Regional Medical Center.

	i.  at the time of the evaluation no record APFTs were taken, no failed APFTs were on record, and he was not counseled or placed on any remedial programs in regard to his profile or overall fitness.  The command understood the nature of his profile and the cause of the injury.  Following the delay in taking the alternate APFT he was advised that the rating period ended on 20 May 2006.  He, the rater, and the SR all remained at the organization following the evaluation period.

	j.  following the referred evaluation he continued to excel by receiving two additional evaluations at U.S. Army Medical Materiel Center, Europe, both above center of mass, and volunteered to serve on a Logistics Military Transition Team in Iraq as a combat advisor.     

3.  The applicant provides:

* Eight statements of support/letters of recommendation
* Officer Record Brief
* 19 OERs
* DA Form 3349 (Physical Profile), dated 18 April 2006
* DA Form 705 (APFT Scorecard)
* Orders for the Meritorious Service Medal and Army Commendation Medal
* Letter, dated 6 August 2010, from his rater at the time in question

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed a second lieutenant on 11 June 1993.  He was awarded area of concentration 70K (Health Services Materiel).  He was promoted to major on 1 February 2004.

2.  A DA Form 3349, dated 18 April 2006, shows he was issued a temporary profile of 311111 for low back pain.  Item 10 (Other e.g., Functional limitations and capabilities and other comments) of this form states "Low back pain x 3 months.  May do alternate APFT events.  Aerobic activities at own pace & distance."  

3.  The referred OER is a 5-month change of rater OER covering the period 
1 January 2006 through 20 May 2006.  It contains an entry of "FAIL" (in April 2006) in Part IVc (Performance Evaluation/APFT [Army Physical Fitness Test].  This OER was authenticated by the rater, the SR, and the applicant in Part II (Authentication) on 17 July 2006.  The applicant indicated that he did not wish to make comments to this OER.        

4.  This referred OER shows the applicant was rated "Outstanding Performance, Must Promote" in Part Va (Performance and Potential Evaluation – Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion) by his rater.  There were no unfavorable comments in Part Vb (Comment on Specific Aspects of the Performance and Potential for Promotion) by his rater.  Part Vb does state, in pertinent part, "He failed his APFT due to medical reasons and has subsequently been medically evaluated but was unable to take the alternate APFT prior to the end of this rating period."    

5.  He was rated "Best Qualified" in Part VIIa (Senior Rater – Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade) by his SR.  There were no unfavorable comments in Part VIIc (Comment on Performance/Potential) by his SR.  Part VIIc does state, in pertinent part, "While he failed his APFT due to an aggravated, temporary medical issue, this is not indicative of Major [his last name] capabilities or potential.  I am confident that he will pass the alternate APFT as specified in his temporary profile."

6.  A DA Form 705 shows he passed a record APFT on 24 May 2006.   

7.  A review of the applicant's performance section of his OMPF on the interactive Personnel Electronic Records Management System revealed a copy of the referred OER in question.

8.  The applicant provided eight statements of support.  The Deputy Assistant Chief of Staff for Logistics at Headquarters, U.S. Army Medical Command, Fort Sam Houston, Texas (the applicant's SR) highly recommended the referred OER be removed from the applicant's record.  He stated the referred OER likely resulted in his non-selection at the AMEDD lieutenant colonel board and that his consistent outstanding duty performance and value to the Army warrant the removal of the referred OER from his OMPF.  He also stated the applicant did take and pass a record APFT four days after the OER through date.  

9.  The other statements of support pointed out:

* The referred OER is not a representation of his performance or potential
* He has been a consistent and solid performer
* Since the referred OER he has continued to excel, he received two above center of mass evaluations and a solid evaluation during a combat tour in Iraq
* He is an outstanding officer who already operates at the lieutenant colonel level
* He was selected to lead an MiTT in Iraq
* He was wrongly represented by his rater in having to take the APFT
* He is an officer which the Army needs   

10.  His rater for the referred OER provided a statement on his behalf.  He stated:

* He fully supports the applicant's selection for promotion to lieutenant colonel
* He does not make this statement lightly, he has considered the matter in its entirety, and believes that the applicant's non-selection does harm to both the Army and to the applicant
* The language in the OER would have supported an above center of mass rating, which his performance during the rated period warranted
* The sole factor that caused the [referred] OER was the APFT, and now with hindsight it is clear that this was an isolated incident with several mitigating factors
* The applicant returned from a successful deployment to Pakistan where he sustained a significant back injury
* This back injury was not properly dealt with until much later and if it had been managed properly by all parties involved, it is his estimate that there would have been no issue with the APFT
* He feels comfortable that this issue was an anomaly which he bases on a review of all his OERs, both prior to and after the referred OER
* Further compounding this issue is that the applicant was improperly advised on the impact of the OER on his promotion possibilities and did not contest the OER 

11.  He also provided 19 OERs for the period April 1994 to September 2009 which show he received 12 above center of mass ratings and he received 
7 center of mass ratings.

12.  His OER covering the period 2 September 2009 through 1 September 2010 shows he received an above center of mass rating.

13.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, the military personnel records jacket, the career management individual file, and Army personnel qualification records.  Paragraph 2-4 states that once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the Army Board for Correction of Military Records, Department of the Army Suitability Evaluation Board, Army Appeals Board, Chief of Appeals and Corrections Branch of the Total Army Personnel Command, OMPF custodian when documents have been improperly filed, Total Army Personnel Command as an exception, Chief of the Appeals Branch of the Army Reserve Personnel Center, and Chief of the Appeals Branch of the National Guard Personnel Center.

14.  Table 2-1 of Army Regulation 600-8-104 states that an OER will be filed in the performance section of the OMPF.

15.  Army Regulation 623-105, in effect at the time, stated that an evaluation report accepted for inclusion in the official record of a rated Soldier's OMPF was presumed to be administratively correct, to have been prepared by the proper rating officials, and to have represented the considered opinion and objective judgment of the rating officials at the time of preparation.  The regulation also stated that the burden of proof rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that established clearly and convincingly that the presumption of regularity referred to in paragraphs 3-39 and 6-7 should not be applied to the report under consideration and action was warranted to correct a material error, inaccuracy, or injustice.  It listed the types of reports that would be referred to the rated officer by the SR for acknowledgment and comment before they are sent to Headquarters, Department of the Army, including any report with an entry of "FAIL" in Part IVc. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions and the supporting documentation were carefully considered.  However, there is insufficient evidence at this time for granting the requested relief. 

2.  There is no evidence to indicate when in April 2006 (before or after he received the 18 April 2006 profile) the failed APFT was taken or that it was just a diagnostic APFT as he contends.  

3.  No medical records are available or provided by the applicant.

4.  His otherwise excellent record, OERs, and comments on the referred OER are acknowledged.  However, because this OER indicated he failed the APFT it was properly referred to him.  

5.  The OER is properly filed in the applicant's military personnel records in accordance with the governing regulation.

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.



      _______ _  X _______   ___
               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)                                         AR20100010258



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ABCMR Record of Proceedings (cont)                                         AR20100018727



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