IN THE CASE OF:	  

		BOARD DATE:	    25 October 2012

		DOCKET NUMBER:  AR20120016887 


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 removal of the DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) covering the period 1 October 2010 through 17 June 2011 from his Army Military Human Resource Record (AMHRR) or, in the alternative, the "Needs Improvement" rating for "Physical Fitness and Military Bearing" in the report be modified. 

2.  The applicant states: 

	a.  he was serving in a combat zone in Afghanistan and he volunteered to take a non-command Army Physical Fitness Test (APFT).

	b.  he was under medical evaluation but he declined to take a profile because he wanted this test to be his final APFT of his career.

	c.  he was getting ready to transfer to another unit for the last 60 days of his combat tour prior to retirement and because he had been with the losing unit for over 100 days and they wanted to give him a change of rater evaluation because three days prior.  He had missed the APFT run by two minutes which resulted in a "Needs Improvement" rating.    

3.  The applicant provides:

* Medical documents
* Emails
* Undated letter to a sergeant major at the U.S. Army Human Resources Command (HRC)
* NCOER appeals
* Memorandum, dated 12 April 2012, from HRC, Fort Knox, KY

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service in the Army National Guard, the applicant served on active duty in the Regular Army from 23 September 1987 to 1 September 2001, at which time he was honorably discharged.  He enlisted in the U.S. Army Reserve (USAR) and was assigned to a troop program unit.  He was promoted to master sergeant on 1 July 2008.  

2.  He was ordered to active duty on 1 November 2009 in support of Operation Enduring Freedom.  He served in Afghanistan from 15 November 2009 to 
10 October 2010.  He was released from active duty on 28 January 2011.

3.  The contested NCOER is a 4-month change of rater NCOER covering the period 1 October 2010 through 17 June 2011.  He was rated as "Needs Improvement (Some)" for "Physical Fitness and Military Bearing" by his rater with bullet comments:
  
* failed 2-mile run on his last APFT
* Sr (senior) NCO continues to improve his run time; still has room for improvement in order to pass APFT; currently running on a regular basis working towards success
* Presented himself as a professional Soldier at all times

4.  He provided an email, dated 13 July 2011, that he sent to a command master chief wherein he attempted to address the issue at the command level.  The email states:

   a.  after his orders were cut for Afghanistan and he was cleared for deployment he was diagnosed with osteoarthritis in his knees.  He did not say anything because he still wanted to deploy and make the best of his last assignment in his career.  He had been under medical evaluation since his arrival in theater but he pleaded with the doctors not to give him a profile.
   
   b.  he was told on his arrival he would not be required to take a PT in theater.  The day prior to his APFT he had taken steroid shots in one of his knees but because of calcium spurs the doctor could not get under the knee cap to inject the other knee.  He did not breathe a word about this to anyone in his command.  During the PT run the pain started and he failed to meet the standard by two minutes.   Because of this, this constituted a "Needs Improvement" on his NCOER, which is the first in his career.  He also states the rating chain says he volunteered to take the APFT, which is not true.  He was told he had to have it so it could be annotated on the NCOER.
   
   c.   he should have taken the profile or at least told his command he was under evaluation.  In the wake of the failure he did get a profile but that was after the fact.  Had he been on a profile there would not have been a negative mark on the evaluation.  

5.  On 14 July 2011, the command master chief responded to his email by stating:

* The applicant requested to take the PFT prior to his transfer to Bagram Air Field (BAF) for his NCOER
* The fact he "waited" until after he failed the PFT to state he now had a medical issue was unsatisfactory
* In his professional opinion, the applicant should have mentioned that before he requested to take the PFT
* They would not be discussing this issue if the applicant had passed the PFT but he waited to inform him about a medical condition after he failed the PFT
* Bottom line, the applicant requested to take the PFT and the PFT will not remain in his NCOER
* For future guidance if the applicant has any medical issue, then as a master sergeant in the U.S. Army he needs to inform the chain of command so it alleviates any negative issues that may arise    

6.  On 1 October 2011, he was retired and placed on the Retired list.

7.  On 19 March 2012, he appealed the NCOER to HRC, Fort Knox, KY.  He pointed out the NCOER suffered substantive error in that Part IVc states "FAIL" on APFT, dated 15 June 2011, "Needs Improvement (Some)" was checked and "failed 2-mile run on his last APFT."  He requested the NCOER be removed from his records.

8.  In his appeal, he stated:

* All of the marks standing alone were unjust and lack support for their inclusion
* Prior to his deployment he was diagnosed with, and undergoing intensive treatment for, osteoarteriatius in his knees
* The day prior to the APFT he could only receive one of his two required calcium shots because of calcium spurs
* When he took the APFT he was not informed it would be a record APFT
* He was under the assumption because the APFT was voluntary, instead of command directed, his NCOER would read "APFT not required" by command as a result of combat operations
* He has a statement from a Command Master Chief clearly reiterating that the APFT was voluntary
* He would have reconsidered his decision to take the test had he been properly informed that the APFT would be for record  

9.  On 12 April 2012, HRC returned his appeal with action.  HRC informed him:

	a.  the evidence provided did not warrant removal of the contested report.

	b.  his self-authored statement that the APFT, administered on 15 June 2011, was voluntary and would not be recorded on his NCOER does not substantiate his claim.

	c.  his attached email, dated 14 July 2012, does not reveal the APFT would not be recorded on his NCOER, even though he volunteered to take it.     

10.  A review of the applicant's AMHRR on the interactive Personnel Electronic Records Management System revealed a copy of the contested NCOER.

11.  He provides medical documentation which shows:

* he had a MRI (magnetic resonance imaging) of the left knee in June 2006
* he was diagnosed with osteoarthritis knee in June 2011

12.  Army Regulation 600-8-104 (Army Military Human Resources Record Management), formerly known as "Military Personnel Information Management/
Records," prescribes the policies governing the AMHRR, the military personnel records jacket, the career management individual file, and Army Personnel Qualification Records.  Table 2-1 of the regulation provides, in pertinent part, that an NCOER will be filed permanently in the performance section of the AMHRR. 

13.  Army Regulation 623-3 (Evaluation Reporting System) states, in effect, that an evaluation report accepted for inclusion in the official record of a rated Soldier’s AMHRR 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 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 establishes clearly and convincingly that (1) the presumption of regularity referred to in paragraphs 3-39 and 6-7 will not be applied to the report under consideration and (2) action is warranted to correct a material error, inaccuracy, or injustice.

DISCUSSION AND CONCLUSIONS:

1.  Evidence shows the applicant volunteered to take an APFT, he failed the 
2-mile run, and he was rated "Needs Improvement (Some)" for "Physical Fitness and Military Bearing" by his rater on his NCOER.  He requests the "Needs Improvement (Some)" rating be modified.  However, he has not provided sufficient evidence to show the "Needs Improvement (Some)" for "Physical Fitness and Military Bearing" on the NCOER was inaccurate.  As a senior NCO, he had a responsibility to get evaluation and get his physical profile before taking the APFT.  Therefore, there is insufficient evidence on which to base amending this entry on his NCOER.  

2.  The applicant requests the NCOER in question be removed from his AMHRR.  However, the governing regulation states NCOERs will be filed in the performance section of the AMHRR.  The NCOER in question is properly filed in the applicant's military records in accordance with the governing regulation.  Therefore, there is insufficient evidence on which to remove the NCOER from the applicant's AMHRR.

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)                                         AR20120016887





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ABCMR Record of Proceedings (cont)                                         AR20120016887



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