IN THE CASE OF:	  

		BOARD DATE:	  25 June 2014

		DOCKET NUMBER:  AR20140008310 


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 reconsideration of her request for correction of Part IVc (Army Physical Fitness Test (APFT)) of her DA Form 67-9 (Officer Evaluation Report (OER)) for the period 4 February 2008 through 3 February 2009, to show she passed her APFT.

2.  The applicant states she never received verbal or written counseling for APFT failure while serving a mobilization tour with the Department of the Army Office of the Surgeon General.  She contends that she successfully passed the APFT on 16 January 2009.  She deployed to Iraq with the U.S. Army Sustainment Command (ASC) Logistics Civil Augmentation Program (LOGCAP) support brigade and passed the APFT on 14 March 2010.  She deployed to Afghanistan with the ASC LOGCAP support brigade and passed the APFT on 14 April 2013 and again on 14 October 2013.  She attests that throughout her career as an officer in the U.S. Army Reserve, she has performed her duties to standard and passed the APFT.

3.  The applicant provides:

* DA Form 705 (APFT Scorecard), dated 16 January 2009
* three DA Forms 67-9 for the periods ending 8 September 2010, 25 May 2013, and 27 November 2013


CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120016432 on 2 May 2013.

2.  The applicant provides a new argument in the form of the contention that she was not counseled regarding her failure of the APFT during the rating period.

3.  On 16 May 1986, the applicant was appointed as a second lieutenant/O-1 in the U.S. Army Reserve for an indefinite term.  She was promoted through the ranks, culminating in the rank of lieutenant colonel/O-5.

4.  On 29 January 2008, the applicant was ordered to active duty in support of Operation Enduring Freedom for a period not to exceed 365 days beginning on 4 February 2008.

5.  The applicant received an OER for the period 4 February 2008 through 3 February 2009; the reason for submission was her release from active duty.  Part IVc of this OER shows she failed the APFT on 14 November 2008.

6.  In Part Vb (Comment on Specific Aspects of the Performance) of this OER, the applicant's rater stated she failed the APFT twice during the rating period, on 14 May 2008 and on 14 November 2008.  After the first failure, she requested and was afforded extra duty time to prepare.  She was additionally offered assistance with a physical training remedial group which she declined and preferred to prepare on her own.  She later joined this group, re-took the test on 14 November 2008, and failed.  She was again afforded an opportunity to re-take the APFT prior to completion of the rating period and she did not take it.  The OER was signed by the applicant's rater and senior rater.  She did not sign the OER.

7.  On 13 July 2009, Headquarters, U.S. Army Medical Command, notified the Commander, U.S. Army Human Resources Command, that the applicant's OER was completed and signed by her senior rater on 19 July 2009.  Repeated attempts via Army Knowledge Online email and Federal Express were made to contact and obtain the applicant's signature to no avail.  The Chief, Plans Division, Headquarters, U.S. Army Medical Command, requested processing of her OER without her signature.


8.  The applicant provided:

	a.  a DA Form 705 with her initial application that indicates she passed a record APFT on 16 January 2009.  This document bears an illegible signature and no signature block;

	b.  a DA Form 705 that indicates she passed a record APFT on 14 October 2013; and

	c.  three DA Forms 67-9 for the periods ending 8 September 2010, 25 May 2013, and 27 November 2013 which show she passed the APFT on 14 March 2010, 14 April 2013, and 14 October 2013, respectively.

9.  Army Regulation 623-3 (Evaluation Reporting System) establishes the policies and procedures for preparing, processing, and using the evaluation reports effective 17 December 2004.  This regulation states an OER accepted for inclusion in the official record of an officer 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 burden of proof in appealing an OER rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that clearly and convincingly nullifies the presumption of regularity.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  In addition, no appeal may be filed solely based on the contention that the appellant was never counseled.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been carefully considered.

2.  The OER in question shows the applicant failed record APFT's on 14 May 2008 and 14 November 2008 as stated in the contested OER.  The OER also shows she was afforded another opportunity to re-take the APFT prior to completion of the rating period and she chose not take it.  The applicant provided no evidence to the contrary and she does not dispute the validity of these comments.

3.  She provided a copy of a DA Form 705 which indicates she passed a record APFT on 16 January 2009.  However, this document bears an illegible signature and no signature block and she provided no corroborating evidence showing this APFT was, in fact, a unit-sanctioned record APFT.

4.  The applicant attested she was not counseled regarding her APFT failures; however, passing the record APFT twice on an annual basis is a basic requirement for every Soldier in the Army and certainly an officer of the applicant's rank/grade and experience level should not only be well aware of this basic requirement, but requiring it of her subordinates.  The mere fact that she was required to retake the APFT is an indication of this presumption.  Army policy provides that no OER appeal may be filed solely based on the contention that the appellant was never counseled.

5.  The fact that the applicant passed the APFT during subsequent evaluation periods is duly noted.  However, she provided insufficient evidence to show the information reflected on the contested OER is erroneous or unjust or that the information contained therein is untrue.  According to Army Regulation 623-3, the applicant must produce evidence that clearly and convincingly nullifies the presumption of regularity to justify deletion or amendment of a report.  Again, clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of an administrative error or factual inaccuracy.

6.  An OER accepted for inclusion in the official records of an officer 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 burden of proof in appealing an OER rests with the applicant and she has failed to meet her burden of proof.

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 to amend the decision of the ABCMR set forth in Docket Number AR20120016432, dated 2 May 2013.



      ____________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)                                         AR20140008310



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ABCMR Record of Proceedings (cont)                                         AR20140008310



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