IN THE CASE OF:	  

		BOARD DATE:	  22 July 2014

		DOCKET NUMBER:  AR20140007418 


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 appellant requests her Officer Evaluation Report (OER) for the period
1 June 2008 through 20 December 2009 (hereafter referred to as the contested OER) be corrected as follows:

* remove all reference to being a referred report 
* change Army Physical Fitness Test (APFT) to "Pass/20080828"
* change Part V (Performance and Potential Evaluation) to "Outstanding Performance, Must Promote"
* remove comments in Part V (Performance and Potential Evaluation) concerning her APFT failure
* remove appeal memorandum from her official military personnel file (OMPF)

2.  She states she believes her non-selection to major for the Fiscal Year 2014 promotion board was due to her receiving an erroneous referred OER.  She adds she initiated the OER appeal process in 2010 through the Inspector General channels, but did not receive any status on her request.  She explains that she thought the APFT she was administered on 23 November 2009 was a diagnostic test due to her surgery on 8 July 2009.  She was given a 30-day no physical training (PT) profile on 22 July 2009 with an expiration date of 22 August 2009.  She maintains she had up to a 90-day recovery period.  She argues that the rater's statement concerning not passing her APFT during "this" rating period is untrue because she passed two APFTs:  one on 15 July 2008 and another one on 28 August 2008.  She states she believes the rater's assessment of her was based on the error concerning her APFT failure.  
3.  She provides: 

* Self-authored statement
* Contested OER
* Excerpts from Department of the Army (DA) Pam 623-3 and Army Regulation 623-3, each entitled (Evaluation Reporting System)
* DA Form 1059 (Service School Academic Evaluation Report)
* DA Form 4187 (Personnel Action), dated 11 January 2010
* Memorandum, Subject:  Convalescent Leave, dated 8 July 2009
* Excerpts from Army Regulation 40-501 (Standards of Medical Fitness)
* Excerpts from Field Manual (FM) 21-20 (Physical Fitness Training)
* Medical Record documents
* DA Forms 705 (APFT Scorecard)
* OER Updated Timeline
* Two supporting memoranda

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows she is currently a captain (CPT) in the Regular Army with a date of rank of 1 May 2008.

2.  Her DA Form 1059 shows she passed her APFT in August 2008 while attending the Combined Logistics Captains Career Course (CLC) from 3 June 2008 through 24 October 2008.

3.  The applicant's medical records show:

   a.  On 18 June 2009, she requested surgery for left foot pain.  The expected time of recovery was listed as two to three weeks with one week of convalescent leave.  On 8 July 2009, she was admitted to the Womack Army Medical Center and underwent surgery for left foot cyst excision.  She was discharged the same day with pain medication, two weeks of convalescent leave, and a follow-up appointment scheduled for 16 July 2009.  

   b.  On 16 July 2009, she was seen for a follow-up appointment.  She was advised to stop taking the pain medications, but could continue if she felt it would help.  She was instructed to continue activities to tolerance.  Another follow-up appointment was scheduled in one week for suture removal.  She was given a profile because she would be back at work before her next post-operation appointment.  The profile was from 16 July 2009 to 16 August 2009 with the comment of "PT at own pace and distance:  Shoe of comfort as needed."
   
   c.  On 23 July 2009, she was seen for a follow-up appointment.  She received a profile from 23 July 2009 to 16 August 2009 with the comments of "PT at own pace and distance:  Shoe of comfort as tolerated."  She was instructed to follow-up in 6 to 8 weeks as needed in the Podiatry Clinic.  There are no additional documents that indicate her profile was extended beyond 16 August 2009.

4.  The applicant provided her APFT Scorecards that show she successfully passed the APFTs while assigned to the below listed units on the following dates:

* 54th Quartermaster Company, 18 April 2007, Record, (100 points (pts) push-ups (PU), 95 pts sit-ups (SU) 80 pts 2-mile run (2MR) for a total of 275 pts) 
* 20th Quartermaster Battalion, 15 January 2008, Record, (100 pts PU, 84 pts SU, 93 pts 2MR, for a total of 277 pts)
* Army Logistics Management Center (ALMC), 15 July 2008, unknown, (100 pts PU, 90 pts SU, 100 pts 2MR, for a total of 290 pts)
* ALMC, 28 August 2008, Record, (100 pts PU, 100 pts SU, 100 pts 2MR, for a total of 300 pts (361 pts on the extended scale))
* Headquarters and Headquarters Company (HHC), 264th Combat Sustainment Support Battalion, 26 July 2011, Record, (100 pts PU, 90 pts SU, 100 pts 2MR, for a total of 290 pts)

5.  The applicant's record is void of the "failed" APFT, dated 23 November 2009. 

6.  The applicant's record shows she received a change of rater OER while serving in the rank of CPT for the period 1 June 2008 through 20 December 2009 as the Motor/Rail Transportation Officer, HHC, 82nd Sustainment Brigade, Fort Bragg, NC.  She was rated by the Assistant Support Operations Officer, a major, and senior rated by the Brigade Support Operations Officer, a major (promotable).  The rater electronically signed the contested OER on 12 August 2010 and the senior rater and the applicant electronically signed the contested OER on 24 August 2010. 

   a.  In Part IId "This is a referred report, do you want to make comments?"  The applicant initialed "Yes, comments are attached."

   b.  In Part IVc "APFT" the rater listed "FAIL/20091123."
   
   c.  In Part V, the rater assessed the applicant's performance and potential as "Satisfactory Performance, Promote" with the comment of "[Applicant] did not pass her APFT during this rating period.  She has made massive improvement since then without degradation to her work performance."

7.  In the applicant's attachment to the contested report, she provided an OER Timeline and her memorandum of support:

a. The OER Time Line shows the following:

* 1 January 2008 to 31 May 2008 assigned to Fort Lee as the 240th S-1, Officer-in-Charge
* 2 June 2008 to 24 October 2008 attended CLC at Fort Lee
* 26 October 2008 to 19 December 2008 attended Petroleum Officer Course at Fort Lee
* 20 December 2008 to 18 January 2009 Permanent Change of Station
* 18 January 2009 to present reported to Fort Bragg to the 82nd Sustainment Brigade
* 8 July 2009 surgery on left foot
* 16 July 2009 received 30-day no PT profile for foot surgery
* 16 August 2009 a 30-day profile expires and recovery period begins up to 90 days
* 23 November 2009 failed APFT and was never flagged 

   b.  In her appeal memorandum, dated 18 August 2010, she stated she was appealing the APFT failure based on having a passing APFT within the rated period.  She said in accordance with the regulation if a Soldier fails a record APFT they must be flagged.  She added that she was never flagged.  Additionally, she offered that the absence of a height and weight on the APFT invalidated the report.  She reiterated that she had surgery on her left foot on 
8 July 2010 and was placed on a PT profile for 30 days and, therefore, she had 60 to 90 days after 16 July 2010 for a recovery period.  She said she had several passing APFTs from an officer logistical course she attended.  She concluded that the decision to use those scores is up to the chain of command.

8.  The DA Form 4187, dated 11 January 2010, shows the commander approved the applicant's request for the "Funded Nurse Education Program" and indicated that she passed her APFT on 19 October 2009.

9.  The applicant provided two memoranda of recommendation.  Both officers speak highly of her dedication to duty and professionalism.  The officers recommended that she continues to serve in the U.S. Army.

10.  Army Regulation 623-3 prescribes the policy for completing evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System. 

   a.  Paragraph 1-11 states that when it is brought to the attention of a commander that a report rendered by a subordinate or a subordinate command may be illegal, unjust, or otherwise in violation of this regulation, that commander will conduct an inquiry into the matter.  The Commander's Inquiry will be confined to matters related to the clarity of the evaluation report, the facts contained in the report, the compliance of the evaluation with policy and procedures established by Headquarters, Department of the Army and the conduct of the rated Soldier and members of the rating chain. 
   
   b.  Paragraph 3-26 (Referred evaluation reports) states that, in pertinent part, any report with negative remarks about the rated officer's Values or Leader Attributes/Skills/Action in rating official's narrative evaluations will be referred to the rated officer by the senior rater for acknowledgment and comment before being forwarded to Department of the Army.

   c.  Paragraph 3-28 states that the referral process ensures the rated Soldier knows that his/her OER contains negative or derogatory information and affords him/her the opportunity to sign the evaluation report and submit comments, if desired. 
   
   d.  Paragraph 4-7 states that evaluation reports accepted for inclusion in the official record of an officer are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.  To justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  The burden of proof rests with the appellant.

11. DA Pam 623-3 provides procedural guidance for completing and submitting evaluation reports and associated support forms to DA.

   a.  Paragraph 2-28 states that if a referred OER is required, the senior rater will place an "X" in the appropriate box in part II, block d on the completed OER. The OER will then be given to the rated officer for signature and placement of an "X" in the appropriate box in part II, block d. 

   b.  The rated officer may comment if he or she believes that the rating and/or remarks are incorrect.  The comments must be factual, concise, and limited to matters directly related to the evaluation rendered on the OER; rating officials may not rebut rated officer's referral comments. 
   c.  The rated officer's comments do not constitute an appeal.  Appeals are processed separately.  Likewise, the rated officer's comments do not constitute a request for a Commander's Inquiry.  Such a request must be submitted separately.
   
   d.  If the senior rater decides that the comments provide significant new facts about the rated officer's performance and that they could affect the rated officer's evaluation, he or she may refer them to the other rating officials.  They, in turn, may reconsider their individual evaluations.  The senior rater will not pressure or influence the other rating officials to change their evaluations.  Any rating official who elects to raise his or her evaluation of the rated officer as a result of this action may do so.  However, the evaluation may not be lowered because of the rated officer's comments.  If the OER is changed but still requires referral, the OER must again be referred to the rated officer for acknowledgment and new comments. 

   e.  Table 2-4 states in part IVa, in the spaces after APFT, the rater will enter "PASS" or "FAIL" and the date (YYYYMMDD) of the most recent record APFT administered by the unit within the 12-month period prior to the "THRU" date of the OER.  If the rated officer was unable to take a record APFT (due to a profile or pregnancy), his or her status at that time will be documented appropriately. 

   f.  It also states that the rater will enter the rated officer's height and weight respectively, as of the unit's last weigh-in.  If there is no weigh-in during the period covered by the report, the rater will enter the officer’s height and weight as of the "thru" date of the OER. 

12.  FM 21-20 states that a Soldier with a temporary profile must take the regular three-event APFT after the profile has expired.  Once the profile is lifted, the Soldier must be given twice the time of the profile, but not more than 90 days to train for the APFT.  For example, if the profile period was 7 days, the Soldier has 14 days to train for the APFT after the profile period ends.  If a normally scheduled APFT occurs during the profile period, the Soldier should be given a mandatory make-up date.

13.  Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions) states initiate a Flag when a Soldier fails a record APFT.  A Flag is not required for a Soldier who has a permanent or temporary profile that precludes taking the APFT or is unable to undergo an APFT because of conditions beyond the Soldier's control (as determined by the commander). 



DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that all reference to her contested report being referred be removed from the report.  Evidence of record shows she received a "Fail" in Part IVc, APFT with the supporting comment of "[Applicant] did not pass her APFT during this rating period."  Therefore, in accordance with the cited regulation, the contested report was required to be referred to her for acknowledgement and/or comment.  

2.  She also requests that her APFT be changed to "Pass/20080828."  She argues that she was on profile from 22 July 2009 until 22 August 2009 and she was authorized up to 90 days of recovery prior to being administered a record test.  She also maintains that she had taken several APFTs within the rating period.  She argues that she was never flagged for failing her APFT. 

   a.  The evidence of record shows that on 16 July 2009 during her follow-up appointment, she was issued a PT at own pace and distance profile with an expiration date of 16 August 2009 (30 days).  Additionally, her appointment on 
23 July 2009 also shows the expiration date of her profile as 16 August 2009.  There is no evidence and the applicant did not provide any to show that her profile was extended past this date.  As stated in FM 21-20, once the profile is lifted, the Soldier must be given twice the time of the profile, but not more than 90 days to train for the APFT.  Therefore, the applicant should have received 60 days of recovery time for her 30-day profile, making her eligible to take an APFT anytime after 16 October 2009.

   b.  Further, DA Pam 623-3 states the rater will enter "PASS" or "FAIL" and the date of the most recent record APFT administered by the unit within the 12-month period prior to the "THRU" date of the OER.  Therefore, the applicant's assertion that she could use one of several reports administered within the 12-month rating period is not consistent with the information provided in the regulation.  

	c.  Additionally, it is unknown why the applicant was not flagged for failing the APFT.  One could argue that the command did not want to interfere with her request for the "Funded Nurse Education Program."  Nevertheless, the fact that she was not flagged is not sufficient evidence to conclude that she did not fail her November 2009 APFT.

3.  The applicant also maintains that her performance and potential rating of "Satisfactory Performance, Promote" was based on an error concerning her APFT and, therefore, the rating should be changed to "Outstanding Performance, Must Promote" and the comment concerning her failure should be removed.  
4.  The evidence of record shows she failed her most recent APFT and in accordance with Army Regulation 623-3, the rater was required to comment on her failure which he did.  There is no evidence available and she did not provide any evidence to show her rating was inaccurate, unjust, and/or not consistent with her demonstrated performance of duty during the rating period.  Therefore, in the absence of more compelling evidence, there is no basis to change her rating and remove the comments concerning her failure of the APFT.  Likewise, there is no basis to remove her appeal memorandum from her OMPF.  

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)                                         AR20140007418





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ABCMR Record of Proceedings (cont)                                         AR20140007418



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