IN THE CASE OF:    

		BOARD DATE:  28 May 2015	  

		DOCKET NUMBER:  AR20140009706 


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, in effect, his Officer Evaluation Report (OER) for the period 1 September 2010 through 11 January 2011 (hereafter referred to as the contested OER) be corrected to:

* remove the negative comments entered in Part VIIc (Comment on Performance/Potential)
* list in Part VIId (List Three Future Assignments for Which this Officer is Best Suited) - Battalion S2, Battalion S3, or Company Commander (as shown on his previous OER)

2.  The applicant states:

* his senior rater (SR) knowingly printed false information regarding his flight status
* the comments were not supported by Training Circular 3-04.11 (Commander's Aircrew Training Program (ATP) for Individual, Crew, and Collective Training), paragraph 4-39
* despite a year of emails, telephone calls, working with the Inspector General (IG), and attempting to meet with his superiors, he was unable to resolve the comments
* his SR eventually acknowledged that the comments were not supported by Army regulatory guidance, the applicant's flight records, or medical records
* his SR clearly had no intention of changing his comments

3.  The applicant provides:

* Contested OER
* extract from TC 3-04.11
* several DA Forms 3349 (Physical Profile)
* Mental Health Intake and Assessment Forms
* email correspondence between the applicant his SR and various Army officials
* DA Form 7122-R (Crew Member Training Record) with two remarks pages
* All Army Activities (ALARACT) Message Number 160/2007, July 2007
* DA Form 4186 (Medical Recommendation for Flying Duty), dated 
5 January 2011 
* Draft OER for the period 1 September 2010 through 10 January 2011
* Psychological Health Program Memorandum, dated 5 June 2011
* Memorandum for Record, dated 27 February 2012
* DA Form 4700 (Medical Record-supplemental Medical Data), dated 
4 August 2011
* Military One Source memorandum, dated 4 September 2014

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was a major in the Arkansas Army National Guard (ARARNG) at the time of his application.

3.  The applicant received the following OERs from the same SR, a lieutenant colonel, while serving as the Rear Detachment Commander, Detachment 1, Company F, 238th Aviation Rear, Camp Joseph T. Robinson, North Little Rock, AR:

	a.  On 29 November 2010, he received a change of rater OER for the period 11 April 2010 through 31 August 2010.  It did not contain any derogatory remarks and his SR rated the applicant as "Fully Qualified" but noted that the applicant needed to complete his military education and continue to develop into a Pilot in Command (PIC).  His SR stated the applicant's best suited future assignment should be as a Battalion S2, Battalion S3, or Company Commander.

	b.  On 1 October 2012, the applicant received the contested OER for the period 1 September 2010 through 11 January 2011.  His SR made the following entries in:

* Part VIIa (Promotion Potential), he placed an "X" in the block "Fully Qualified"
* Part VIIc (Comment on Performance and Potential), he stated that:

           [The applicant] did not aggressively pursue his personal ATP and aviation 
           regulatory requirements during this rating period.  [The applicant] 
          demonstrated this by not progressing in a timely manner and failed to 
          progress due to an administrative grounding which occurred at the end of 
          his ATP year.  His failure in this area decreased his effectiveness as an 
          officer.  It also limits his opportunity to command an aviation line company.
          [The applicant] needs to improve in this area.

4.  The contested OER was digitally signed by his rater on 12 January 2012, the SR on 13 January 2012, and the applicant on 1 October 2012.  It was then posted by Headquarters, Department of the Army (HQDA) to his Official Military Personnel File (OMPF) on 12 October 2012. 

5.  The record is void of evidence showing the applicant submitted rebuttal comments or requested a Commander's Inquiry (CI) to address any administrative errors or disputed inaccuracies with the overall assessment of his performance.

6.  All documents referenced below in these proceedings were provided by the applicant unless otherwise noted.  These documents show that on:

* 15 March 2010, he received authorization for 12 non-medical counseling sessions through Military One Source
* 17 December 2010, he reported symptoms of post-traumatic stress disorder (PTSD) and chronic marital problems during an intake and assessment at Life Works Wellness Program.  He reported having nightmares/flashbacks, depression, labile mood, intrusive thoughts and avoidance of triggering stimuli.  He also reported feelings of guilt about surviving, feeling emotionally numb, poor concentration, difficulty sleeping and eating, hypervigilance, and feeling tense
* 20 December 2010, he received a temporary profile for behavioral health issues
* 5 January 2011, the medical authority recommended a temporary medical suspension from flying duties of 2-4 weeks and he was directed to consult with the Flight Surgeon and his SR not later than 8 January 2011

7.  His DA Form 7122-R shows that during the 4-month rating period covered by the contested OER:

	a.  He completed a Night Vision Goggle (NVG) Proficiency Flight Evaluation (PFE) on 3 November 2010 as a pilot (PI) on a UH60A helicopter.  He remained at readiness level 3 (RL3) for NVG.

	b.  On 5 January 2011, he was assigned duties not to include flying (DNIF) for Soldier Readiness Processing and duty qualified for deployment.  His DNIF status was determined to be greater than 180 days and he was removed from ATP requirements pending the outcome of a Fit for Duty Board.
	
	c.  On 9 January 2011, comments initially indicated that the applicant was "grounded" and that he had failed to meet his RL progression time frame (8 January 2011).  Further, he was pending a commander's investigation.  On 10 January 2011 this entry was found to be an error; however, the record is void of a clarification.

	d.  On 11 January 2011, he was reassigned to a nonoperational position with the 777th Aviation Support Battalion.  The entry as shows the applicant had no ATP requirements.

8.  He provided two memorandums detailing the events that led up to his medical suspension.  He contended that:

	a.  He was "medically" not "administratively" grounded on 9 January 2011, and TC 3-04.11, paragraph 4-49 specifically states, "if a crewmember is removed from RL1 or Flight Activity Code 3 (FAC 3) for other than a training deficiency before the end of the training period, their ATP requirements no longer apply." 

	b.  His NVG flying requirements for progression ended on 9 January 2011.

	c.  He achieved RL1 day and night status in June 2010 and was actively flying nights through the summer and fall to complete his RL status upgrade for NVGs.

	d.  Despite multiple flight cancellations and an operational readiness of 50 percent due to deployed aircraft, he continued to fly days and nights until he was medically suspended for PTSD in December 2010.

	e.  The comments regarding his "failure" and subsequent diminished effectiveness as an officer due to the administrative grounding are invalid and there should be no comment about an area to improve.

9.  Numerous emails, dated between 1 October 2010 and 5 January 2011, show he made several inquiries into the availability of aircraft and received emails about potential shortages of aircraft due to safety concerns and mission requirements.

10.  Numerous emails, dated between 11 April 2011 and 1 October 2012, show the applicant requested his SR make changes to the contested OER.  The applicant contended that his medical disqualification relieved him from completing ATP requirements.  However, his SR informed the applicant that the current commander's guide required an aviation company commander to not only progress, but also to be a PIC and reminded the applicant that this requirement was discussed during an earlier counseling.  Not making PIC was a failure to meet ATP requirements and it disqualified him for a line company command.

11.  Medical records and physical profiles, dated after the period of the contested OER, show the applicant was diagnosed and treated for PTSD and he was ultimately granted a found fit for duty waiver on 7 January 2012.

12.  Training Circular 3-04.11 states a crew member has until the end of the training period to complete ATP requirements.  If a crewmember is removed from RL1 or FAC3 for other than a training deficiency before the end of the training period (for example, a medical grounding or permanent change of station) their ATP requirements no longer apply.

13.  Army Regulation 623-3 (Evaluation Reporting System) establishes the policies and procedures for the Army's Evaluation Reporting System.

	a.  An OER accepted by HQDA and included in the official record of an officer was presumed to have been prepared by the properly-designated 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 an appeal of an OER rests with the applicant.

	b.  In order to justify deletion or amendment of an OER under this regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.  Paragraph 1-10 specifies that no person could require changes be made to an individual's OER except to comply with the regulation.  Members of the rating chain, appropriate administrative personnel office, or HQDA would point out obvious inconsistencies or administrative errors to the appropriate rating officials.  This regulation also provides for the opportunity to request a Commander's Inquiry or to appeal referred/disputed reports.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that the negative SR comments listed on the contested OER be removed and his future assignments listed in Part VIId be corrected to show the same assignments listed on his previous OER.

2.  The evidence of record shows the contested OER contains material errors that should be corrected.  The governing regulation states that an aviator will be released from ATP requirements if medically grounded prior to the end of the training period.  The evidence of record shows the applicant was medically grounded on 5 January 2011 and his training period ended on 8 January 2011.  Therefore, the negative comments made by the SR regarding the applicant's failure to complete his ATP should be removed.

3.  Regarding the future assignments listed on the contested OER, only one assignment, Battalion S1, is normally associated with a junior officer; however, officers are encouraged to accept diverse positions in order to gain experience and increase knowledge.  The fact that his SR listed a Battalion S2 as a future position is subjective and does not imply an error; therefore, correction of this portion of the report is not warranted.

4.  In view of the foregoing, he should be granted partial relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ____X___ GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting the following statement from Part VIIc of the contested OER, dated
1 September 2010 through 11 January 2011:

[The applicant] did not aggressively pursue his personal ATP and aviation regulatory requirements during this rating period.  [The applicant] demonstrated this by not progressing in a timely manner and failed to progress due to an administrative grounding which occurred at the end of his ATP year.  His failure in this area decreased his effectiveness as an officer.  It also limits his opportunity to command an aviation line company.  [The applicant] needs to improve in this area.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correcting the future assignments listed in Part VIId.




      __________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)                                         AR20140009706



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ABCMR Record of Proceedings (cont)                                         AR20140009706



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