BOARD DATE:	  29 May 2014

		DOCKET NUMBER:  AR20140006997 


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 correction of item 11 (Performance Summary) of his DA Form 1059 (Service School Academic Evaluation Report (AER)), dated 26 June 2009, herein referred to as the contested AER, to show "Achieved Course Standards" instead of "Marginally Achieved Course Standards."  He also requests removal of comments from item 14 (Comments) pertaining to item 11c; specifically, "Soldier met academic requirements, but failed to meet APFT [Army Physical Fitness Test] standards IAW [in accordance with] AR 350-1 [Army Regulation 350-1 (Army Training and Leader Development)] during the course."  In the alternative, he requests removal of the contested AER from his Army Military Human Resource Record (AMHRR).

2.  He states:

	a.  The contested AER has a marginal rating due to an APFT failure.

	b.  He was issued a temporary physical profile on 30 April 2009 after he injured his left knee on a company run which included a knee brace and physical therapy for a period of 30 days.

	c.  Field Manual 7-22 (Army Physical Readiness Training) clearly states that Soldiers recovering from injury, illness, or other medical conditions must train within the limits of their medical profiles (DA Form 3349 (Physical Profile)) and be afforded a minimum train-up period of twice the length of the profile.

	d.  The prescribed train-up periods must not exceed 90 days before APFT administration or other unit physical readiness goal requirements according to Army Regulation 350-1.

	e.  His unit still scheduled him for the Basic Noncommissioned Officer Course (BNCOC) Phase II which started exactly 1 week after his temporary physical profile expired on 30 May 2009.

	f.  Prior to attending BNCOC Phase II, Class 057-09, he was never given an APFT or the proper 60-day recovery time to allow his knee to rehabilitate.  He was only given 1 week of recovery which potentially led to further knee issues.

	g.  He was issued a permanent physical profile 6 months after completing BNCOC Phase II because he was diagnosed with patellafemoral syndrome, a type of knee injury that worsens over time.

3.  He provides Standard Forms 600 (Chronological Record of Medical Care).

CONSIDERATION OF EVIDENCE:

1.  On 9 January 2002, he enlisted in the Regular Army and is currently serving in the rank of staff sergeant/E-6.

2.  The contested AER shows he attended the Multiple Launch Rocket System Operations/Fire Direction Section Chief BNCOC, Class 057-09, from 9 through 26 June 2009.  This form shows in:

* item 9 – the DA Form 1059 was referred to the applicant, but he declined to submit comments
* item 11 – he marginally achieved course standards
* item 14 – he met academic requirements, but failed to meet APFT standards in accordance with Army Regulation 350-1 during the course
* item 14 – he failed the APFT in June 2009
* item 15 – the rater, reviewing officer, and applicant signed the contested AER on 26 June 2009

3.  There is no record of a DA Form 3349 or evidence which indicates he had taken an alternate APFT event.

4.  A review of the applicant's performance folder in his AMHRR on the interactive Personnel Electronic Records Management System revealed a copy of the contested AER.

5.  He provided Standard Forms 600 which show:

	a.  On 30 April 2009, he had physical therapy for his knee.  The physical therapist noted that no knee weakness was observed.  He was released without limitations.

	b.  On 6 May 2009, he was evaluated for complaint of knee pain.  He was released without limitations.

	c.  On 13 May 2009, he had physical therapy for his knee.  He was released with work/duty limitations; however, no limitations are listed.

	d.  On 29 January 2010, he had a follow-up examination for his left knee and physical profile.  The primary care provider findings noted, "Left knee series without priors reveals no evidence of fracture, dislocation or degenerative change.  The visualized soft tissues appear normal."  He was released with work/duty limitations.  He was issued a physical profile for compression arthralgia (knee, patella, tibia, left fibula) from "29 January to 29 January 2010."  His DA Form 3349 is not available for review.

6.  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 AMHRR 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 the presumption of regularity referred to in paragraphs 3-39 and 6-7 will not be applied to the report under consideration and action is warranted to correct a material error, inaccuracy, or injustice.

7.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR.  It states that DA Forms 1059 will be filed in the performance folder of the AMHRR.

8.  Field Manual 7-22, paragraph 6-6, states Soldiers recovering from an injury, illness, or other medical conditions must train within the limits of their medical 


profiles (DA Form 3349) and be afforded a minimum train-up period of twice the length of the profile.  Prescribed train-up periods must not exceed 90 days before APFT administration or other unit physical readiness goal requirements according to Army Regulation 350-1.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions regarding the contested AER were carefully considered.  However, there is insufficient evidence to show the markings and comments from his instructor/rater were inappropriate.

2.  The applicant's Standard Forms 600 were carefully considered.  However, in the absence of a valid DA Form 3349 for the period prior to his attendance at BNCOC, these documents alone do not show the contested AER was not processed in accordance with applicable laws and regulations.

3.  In the evidence of evidence to the contrary, it appears the contested DA Form 1059 was prepared by the properly-designated rating officials and is properly filed in the performance folder of the applicant's AMHRR in accordance with the governing regulation.  There is no evidence it was improperly prepared or filed.

4.  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 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)                                         AR20140006997



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ABCMR Record of Proceedings (cont)                                         AR20140006997



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