IN THE CASE OF:	  

		BOARD DATE:	    17 October 2013

		DOCKET NUMBER:  AR20130013608 


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 item 11 (Performance Summary) of a DA Form 1059 (Service School Academic Evaluation Report) for the period 9 July 2008 through 18 December 2008 be corrected to show he achieved course standards; or, the DA Form 1059 in its entirety be removed from his Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File).

2.  The applicant states:

	a.  during the Engineer Captains Course, he was suffering from reoccurring left knee pain.  He sought medical treatment to identify the cause of the pain, but he was told it was just from lack of conditioning.  He was told that if he continued to run, the pain would subside.  He took the two required Army Physical Fitness Tests (APFTs) during the course, but having failed both, he went back to the clinic and requested a magnetic resonance imaging (MRI) to diagnose his pain.

	b.  after the MRI was completed, it was discovered he had a horizontal tear of the posterior horn of the medial meniscus with an associated cyst.  He was referred to an orthopedic consult and was informed surgery would be required to remove the tear in the meniscus and the cyst.  The soonest this surgery could be conducted was April 2009.

	c.  following surgery, he was given a permanent profile for his left knee pain.  After attending physical therapy for several months, he was still suffering from knee pain.  He was again referred to an orthopedic consult and was informed he had a linear signal within the posterior horn of the medial meniscus consistent with a horizontal cleavage tear.  He required a second surgery that occurred in January 2010.

	d.  the AER should have been a referred evaluation due to the "Marginally Achieved Course Standards" rating.  He was not informed of the referral process.  If the opportunity had been provided to him to make comments at the time he would have informed the raters of his left knee issues.   

3.  The applicant provides:

* DA Form 1059
* Health records
* Operative report, dated 9 January 2010
* DA Forms 3349 (Physical Profile)

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve commissioned officer in the rank of second lieutenant on 23 May 2004.  He was promoted to captain on 
1 February 2008.  

2.  He provides medical documentation which shows a routine MRI of his left knee was performed in August 2008.  Impression:  chronic left knee pain, no known injury, x-ray in August negative. 

3.  The DA Form 1059 in question shows he completed the Engineer Captains Career Course on 18 December 2008.  The duration of this course was from 
9 July 2008 through 18 December 2008.  The form shows in:

* Item 9 (This is a referred report, do you wish to make comments?) – no entry
* Item 11 he marginally achieved course standards
* Item 12a (Written Communication) he was rated superior
* Item 12b (Oral Communication) he was rated "SAT" (satisfactory)
* Item 12c (Leadership Skills) he was rated "SAT"
* Item 12d (Contribution to Group Work) he was "SAT"
* Item 12e (Evaluation of Student's Research Ability) he was not evaluated

4.  Item 14 (Comments) of this form shows the comment "11c. Captain [applicant's name] marginally achieved the course standard.  He had no difficulty achieving solid results in practical tests and exercises and scored in the top third of the class academically.  He contributed to group work and was a valued team member.  He is in unsatisfactory physical condition, failing the Army Physical Fitness Test with a score of 216.  He is best suited to command a Combat Effects Engineer Company or Headquarters and Headquarters Company."

5.  He provides a DA Form 3349 which shows he was issued a temporary profile for left meniscus tear on 24 December 2008.

6.  He provides medical documentation which indicates he underwent surgery on his left knee in April 2009.

7.  He provides a DA Form 3349, dated 12 June 2009, which shows he was issued a permanent profile for left knee pain. 

8.  Medical records provided by the applicant show he underwent a left knee medial meniscal debridement in January 2010.

9.  A review of the applicant's performance section of his AMHRR 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.  Paragraph 3-27 (Referred AERs (DA Form 1059 and DA Form 1059-1)) of Army Regulation 623-3 states AERs with a "Marginally Achieved Course Standards" or any report with a "FAIL" for the APFT ratings are referred, or adverse, evaluation reports.  Such reports will be referred to the rated Soldier or student by the reviewing official for acknowledgment and an opportunity to comment before being submitted to Headquarters, Department of the Army.
12.  Paragraph 4-3 (Performance summary) of the Department of the Army Pamphlet 623-3 (Evaluation Reporting System) states:

   a.   Soldiers attending, in either a permanent change of station or a temporary duty status, AER-producing military schools and institutional training courses that are 60 days or more in length will be administered the APFT and height and weight screening as a mandatory course requirement.  
   
   b.  Soldiers who meet academic course requirements but fail to meet the APFT or height and weight standards will complete training and their DA Form 1059 will not be annotated to reflect their performance.  
   
   c.  Soldiers who fail to meet APFT standards will be marked "Marginally Achieved Course Standards" (block 11c) and will include the comment, "Failed to meet APFT standards" (block 14).    

13.  Army Regulation 600-8-104 (AMHRR Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR.  It provides that the purpose of the AMHRR is to preserve permanent documents pertaining to enlistment, appointment, duty stations, assignments, training, qualifications, performance, awards, medals, disciplinary actions, insurance, emergency data, separation, retirement, casualty, administrative remarks, and any other personnel actions.

14.  Army Regulation 600-8-104, Appendix B (Documents Authorized for Filing in the Army Military Human Resource Record and/or Interactive Personnel Electronic Records Management System), states DA Forms 1059 will be filed in the performance and service sections of the AMHRR.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his left knee pain 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, following completion of the Engineer Captains Career Course:

* he was issued a temporary profile for left knee meniscus tear on 
      24 December 2008
* he had surgery on his left knee in April 2009 
* he was issued a permanent profile for left knee pain in June 2009
* he had surgery on his left knee in January 2010   
3.  It is acknowledged the contested AER should have been referred to the applicant.  However, the applicant could have appealed the AER once he learned of his knee condition.  The comments in item 14 of the form clearly indicate he had no academic difficulties in the course even though he failed a mandatory course requirement (APFT).  

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 AMHRR 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)                                         AR20130013608





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130013608



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1