IN THE CASE OF:	  

		BOARD DATE:	    29 March 2012

		DOCKET NUMBER:  AR20120002968 


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, in effect:

	a.  item 11 (Performance Summary) of a DA Form 1059 (Service School Academic Evaluation Report) for the period 12 July 2007 through 1 August 2007 be corrected to show he achieved course standards;

	b.  the unfavorable and not evaluated entries in item 12 (Demonstrated Abilities) of this form be corrected to show "SAT" [satisfactory]; 

   c.  the comments in item 14 (Comments) of this form be removed; or 

   d.  the DA Form 1059 in its entirety be removed from his Official Military Personnel File (OMPF).  

2.  The applicant states:

	a.  while attending the First Sergeant Course he tore the meniscus ligament in his left knee which prevented him from passing the Army Physical Fitness Test (APFT).  He asked the course instructors if he could receive a medical drop and they informed him he could not.  

   b.  he went to sick call and received a profile for his knee.  He submitted the profile to his instructors.  The Chief instructor informed him that he had to take the next APFT.  This led to the failure of the second APFT which resulted in the marginal markings on his DA Form 1059.
	c.  when he returned to his duty station he had surgery to repair his knee on 12 February 2008.

	d.  after he returned to his unit from the First Sergeant Course he immediately began going on multiple unit temporary duties (TDYs), dealing with day-to-day First Sergeant duties, the birth of his daughter, and medical appointments for his knee.  This caused him to delay knee surgery for a year while dealing with another evaluation report discrepancy with his commander at the time.  

   e.  during his time as the First Sergeant he had several surgeries, multiple TDYs, planned for a unit move, and committed his time to the health and welfare and professional development of the Military and Civilian personnel at the command.  This demanded a lot of his time and caused him to submit a noncommissioned officer evaluation report appeal three years after it was posted to his records.  These actions did not allow him the time to properly prepare an Academic Evaluation Report (AER) appeal until now.        

3.  The applicant provides:

* DA Form 1059
* His AER appeal packet

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 13 August 1991 and has remained on active duty through continuous reenlistments.  

2.  He provided a DA Form 3349 (Physical Profile), dated 30 July 2007, which shows he was issued a temporary profile for left knee pain. 

3.  The DA Form 1059 in question shows he completed the First Sergeant Course on 1 August 2007.  The duration of this course was from 12 July 2007 through 1 August 2007.  The form shows in:

* Item 11 he marginally achieved course standards
* Item 12a (Written Communication) he was not evaluated
* Item 12b (Oral Communication) he was rated superior
* Item 12c (Leadership Skills) he was rated UNSAT [unsatisfactory]
* Item 12d (Contribution to Group Work) he was rated superior
* Item 12e (Evaluation of Student's Research Ability) he was not evaluated
* Item 14 the following comments:

* he failed to meet APFT standards
* he participated satisfactorily in group discussions in a positive and effective manner by sharing experiences and fostering a good-natured atmosphere for all group members
* he demonstrated unsatisfactory leadership skills by failing to meet the required APFT standards in accordance with Army Regulation 350-1 during the course
* he willingly shared experiences, actively participated in all group discussions, and thoroughly prepared for each lesson
* he was supportive of fellow noncommissioned officers and made many contributions to ensure the success of every group effort
* he did not demonstrate the physical attributes expected of a First Sergeant

4.  The DA Form 1059 was referred to the applicant on 31 July 2007.  He acknowledged receipt of the form and elected to make a statement.  In summary, he stated:

* He failed the run portion of the APFT because of a knee injury he sustained during the First Sergeant course
* Prior to the initial APFT he asked the Chief instructor about getting a temporary profile and a medical drop from the course
* The Chief instructor informed him that he could not stay in the course with a temporary profile and stated if the applicant got a profile he would be dropped from the course and still receive a marginal AER
* Because he could not get a medical drop he had to remain in the course despite his injury
* On 20 July 2007, the day after the initial APFT, he went to sick call and the doctor stated he had an injured meniscus ligament in his left knee
* Despite this injury he continued to do physical fitness and took the second APFT which he failed the run portion because of his knee injury
* He went to sick call on 30 July 2006 and the doctor informed him that he might have a possible torn meniscus ligament in his left knee
* The doctor issued him a temporary profile and submitted a referral for an MRI [magnetic resonance imaging] on his knee
* If it were not for his knee injury he would have passed the APFT, or if granted a medical drop, he could have returned to the course on a later date   
5.  He was promoted to master sergeant effective 1 August 2007. 

6.  On 12 February 2008, he underwent a left knee arthroscopy and arthroscopic partial medial meniscectomy.
7.  On 31 January 2012, the applicant submitted an AER appeal.  He stated:

* under the provisions of Army Regulation 623-3, chapter 6, he appealed the AER
* he is in the primary zone for the fiscal year 2012 Sergeant Major Board
* he has no pending personnel actions/third priority
* the basis for this appeal is substantive inaccuracy by the course instructor markings of "Marginally Achieved Course Standards" in the performance summary section, "UNSAT" rating in demonstrated abilities section, and inaccurate comments in item 14
* he reiterated the above-mentioned contentions for failing the APFT    

8.  On 3 February 2012, his appeal was returned without action because he did not submit his appeal within the appropriate time frame (within three years of the through date of the AER).   

9.  A review of the applicant's performance section of his OMPF on the interactive Personnel Electronic Records Management System (iPERMS) revealed a copy of the contested AER.

10.  Army Regulation 623-3 (Evaluation Reporting System) states an evaluation report accepted by Headquarters Department of the Army and included in the official record of a rated Soldier is presumed to be administratively correct; have been prepared by the properly designated rating officials; and represent the considered opinions and objective judgment of the rating officials at the time of preparation.  Requests that an evaluation report in a Soldier’s OMPF be altered, withdrawn, or replaced with another report will not be honored.  The regulation also states that the burden of proof rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant will produce evidence that clearly and convincingly establishes that:

	a.  the presumption of regularity referred to in paragraphs 3-39 and 6-7 will not be applied to the report under consideration and

	b.  action is warranted to correct a material error, inaccuracy, or injustice.

11.  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.

12.  Army Regulation 600-8-104, Table 2-1 states that DA Forms 1059 (Service School Academic Evaluation Report) will be filed in the performance section of the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his left knee injury prevented him from passing the APFT which resulted in the marginal markings on the AER.  

2.  The evidence of record supports his contention he tore the meniscus ligament in his left knee and he received a profile for his knee.  Evidence shows he was issued a temporary profile for left knee pain two days before the First Sergeant course ended.  He had surgery on his left knee on 12 February 2008.   

3.  His contention his First Sergeant duties demanded a lot of his time and filing a Noncommissioned Officer Evaluation Report appeal did not allow him the time to properly prepare an AER appeal until now was noted.  However, he had a responsibility to himself to look after his own career.  If he believed the AER was unjust, he should have filed an appeal as soon as possible, not 4 and 1/2 years after receiving the AER.

4.  There is insufficient evidence to show the markings and comments from his instructor/rater were inappropriate on the AER.

5.  The contested AER was prepared by the properly-designated rating officials and is properly filed in the applicant's OMPF in accordance with the governing regulation.  There is no evidence it was improperly prepared or filed.

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.







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)                                         AR20120002968





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ABCMR Record of Proceedings (cont)                                         AR20120002968



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