IN THE CASE OF:    

		BOARD DATE:  16 June 2015	  

		DOCKET NUMBER:  AR20140017561 


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, that his:

   a.  DA Form 67-9 (Officer Evaluation Report (OER)) covering the period           13 November 2005 through 31 July 2006 (hereafter referred to as the first contested OER) be removed from his record.  In the alternative, if his request is not granted, he requests the OER not be shown as a referred report and all references to not taking his annual Army Physical Fitness Test (APFT) be removed from the OER. 
   
   b.  OER for the period 1 August 2007 through 31 July 2008 (hereafter referred to as the second contested OER) be corrected to show he passed the APFT in the November/December 2007 timeframe.

   c.  OER for the period 1 August 2008 through 31 July 2009 (hereafter referred to as the third contested OER) be corrected to show he passed the APFT in July 2009.

2.  The applicant states:

   a.  He is an officer in the New York Army National Guard (NYARNG); at the time of the rating of the first contested OER he was a captain (CPT) who had deployed to Iraq from June 2004 to November 2005.  He returned from deployment on 13 November 2005, the start of the rating period for the first contested OER.  Department of the Army Pamphlet 623-3 (Evaluation Reporting System), table 2-4 (Performance Evaluation - Professionalism and Army values for DA Form 67-10-1) and Army Regulation 350-1 (Army Training and Leader Development) both state that, upon returning from a deployment, Reserve Component (RC) officers will be administered a record APFT no earlier than       6 months.  

   b.  Due to terminal leave and several "yellow ribbons" he did not drill until May 2006; this left three drill periods in which to take the APFT.  He had expected to have until November 2006 to take a record APFT (he did, in fact, take a record APFT in October 2006).  His selection to major (MAJ) in June 2006 required a close-out OER to be completed.  He was not aware of the change in rating period resulting from the requirement to complete a close-out OER and he did not take a record APFT during the few months remaining in the adjusted rating period.  Additionally, his unit gave him no notice of the requirement to take his record APFT during this period.  He recently reviewed his Officer Record Brief and promotion packet with his Division G-1 and Division Chief of Staff in an effort to determine why he was not selected for lieutenant colonel (LTC) and it was during this review he realized this OER likely contributed to his nonselection.
   
   c.  He was enrolled in Intermediate Level Education (ILE) beginning               3 December 2007.  He was required to have a valid APFT 30 days prior to the start of the course.  This means his APFT would have fallen within the rating period of the second contested OER.  The APFT taken during the November/December timeframe was misplaced and never made it into his records.  He was an M-day Soldier at the time and he was required to take one APFT during his drill year/rating period.  Since he was never instructed to take another test because he had taken one in November/December 2007 in order to be enrolled in ILE, he believes he should not have received a referred report. 
   
   d.  He received the third contested OER as a referred report because he did not have a record APFT on file for the 1 August 2008 through 31 July 2009 rating period.  He was notified that he needed to take an APFT in July 2009.  He completed the APFT on his personal time during a non-drill day in July 2009.  

   e.  The APFT was subsequently misplaced and he was notified he had to take another APFT during his annual training period at Camp Edwards, MA.  On              10 August 2009, he completed another APFT with a passing score of 251; however, the APFT was completed 10 days after the rating period of the contested OER.
   
   f.  Due to the lost July 2009 APFT, it appears he did not have a valid APFT during the rating period of the third contested OER.  He readily admits he should have fought the contested OERs and requested an inquiry into the lost APFT card; however, he was unaware of the appeals process until 2012 when he wrote a letter to the board to appeal the contested OERs.  He was ultimately informed that due to the age of the contested reports, he should submit his request to the Army Board for Correction of Military Records (ABCMR).

3.  The applicant provides:

* DA Forms 67-9 for the periods in question
* extract from Department of the Army Pamphlet 623-3
* printout showing his record APFT results in October 2006
* Orders Number 319-1049, dated 15 November 2005, issued by Headquarters, 10th Mountain Division (Light Infantry) and Fort Drum, showing the applicant as being released from active duty effective 8 December 2005
* Army Training Requirements and Resources System (ATRRS) screenshot 
* DA Form 705 (APFT Scorecard)

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 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 is serving in the rank/grade of MAJ/O-4 as a member of the U.S. Army Signal Corps.  It appears he is currently serving at Guantanamo in support of Operation Enduring Freedom.

3.  He was mobilized in support of Operation Iraqi Freedom on 16 June 2004 and was deployed to Iraq from 11 January 2005 to 8 November 2005.  He was released from active duty on 8 December 2005 and returned to his NYARNG unit.

4.  He received an OER for the period 1 June 2005 through 12 November 2005 which addressed his duty performance during a portion of his deployment in Iraq.  His rater was MAJ DJP and his senior rater was LTC TEM.

	a.  He is shown as having passed the APFT in November 2004.

	b.  His rater rated him as "Outstanding Performance, Must Promote."  Comments are all favorable.

	c.  His SR's comments are all favorable and the "Best Qualified" block is checked.

5.  A memorandum, dated 30 June 2006, sent by the U.S. Army Human Resources Command to the ARNG Personnel Center stated the applicant had been selected for promotion to the rank of MAJ with a promotion eligibility date of 30 November 2006.

6.  The applicant provides and his record contains the first contested OER which shows he received a change of rater OER while serving in the rank of CPT for the period 13 November 2005 through 31 July 2006 as the Nuclear Biological Chemical Officer, Detachment I, 272nd Chemical Company, 42nd Infantry Division, Troy, NY.  He was rated by the Chemical Officer, an LTC, and senior rated by the Chief of Staff, a colonel (COL).  The rater, senior rater, and applicant signed the first contested OER on 26 October 2006.   

   a.  In Part IId (This is a referred report, do you want to make comments?),  the applicant initialed "No."

   b.  In Part IVc "APFT:   DATE:" is blank.
   
   c.  In Part Vb, the rater stated, in part, "Soldier did not perform an APFT during rating period."
   
   d.  His rater rated him as "Outstanding Performance, Must Promote."  Comments are all favorable.

   e.  His senior rater rated him "Best Qualified."  The senior rater comments contain the remark "This officer has the highest of military bearing and appearance as evidence [sic] by his outstanding physical fitness."  No other reference was made to the APFT and the comments are otherwise favorable.  The senior rater comments also recommended the applicant be promoted to MAJ now and that he showed unlimited potential.

7.  The applicant provides and his record contains his next OER which shows he received an annual OER while serving in the rank of MAJ for the period 1 August 2006 through 31 July 2007 as the Network Operations Officer, Company A, 42nd Special Troops Battalion, 42nd Infantry Division, Troy, NY.  He was rated by the Battalion Commander, a LTC, and senior rated by the Chief of Staff, a COL.  The rater, senior rater, and applicant signed the OER on 12 October 2007.

	a.  He is shown as having passed the APFT in October 2006.
	
   b.  His rater rated him as "Outstanding Performance, Must Promote."  Comments are all favorable.

	c.  His senior rater's comments are all favorable and the "Best Qualified" block is checked.

8.  The applicant provides and his record contains the second contested OER which shows he received an annual OER while serving in the rank of MAJ for the period 1 August 2007 through 31 July 2008 as the Network Operations Officer, Company A, 42nd Special Troops Battalion, 42nd Infantry Division, Troy, NY.  He was rated by the Battalion Commander, an LTC, and senior rated by the Chief of Staff, a COL.  The rater and senior rater electronically signed the second contested OER on 7 October and 9 October 2008, respectively.  The applicant electronically signed this OER on 23 October 2008. 

   a.  In Part IId (This is a referred report, do you want to make comments?),  the applicant initialed "No."

   b.  In Part IVc "APFT:   DATE:" is blank.
   
   c.  In Part Vb, the rater stated, in part, "[The applicant] failed to take an APFT during this rating period."
   
   d.  His rater rated him as "Outstanding Performance, Must Promote."  Comments are all favorable.

   e.  His senior rater's comments are mostly favorable although the senior rater included the statement, "Josh must work to address his physical fitness shortfalls, and if he does, I remain confident that he can be given positions of increased responsibility that lead to his promotion to LTC."  The senior rater checked the "Fully Qualified" box.

9.  The applicant provides and his record contains the third contested OER which shows he received an annual OER while serving in the rank of MAJ for the period 1 August 2008 through 31 July 2009 as the Network Operations Officer, Company A, 42nd Special Troops Battalion, 42nd Infantry Division, Troy, NY.  He was rated by the Battalion Commander, an LTC, and senior rated by the Chief of Staff, a COL.  The rater and senior rater electronically signed the third contested OER on 18 August and 19 October 2009, respectively.  The applicant electronically signed this OER on 8 November 2009. 

   a.  In Part IId (This is a referred report, do you want to make comments?),  the applicant initialed "No."
   
   b.  In Part IVc "APFT:   DATE:" is blank.
   
   c.  In Part Vb, the rater stated, in part, "This is a referred OER as [the applicant] failed to take an APFT during this rating period."
   
   d.  His rater rated him as "Satisfactory Performance, Promote."  Comments are all favorable.

   e.  His senior rater's comments are mostly favorable although the senior rater included the statement, "[Applicant] should complete ILE and ensure he takes scheduled PT test within twelve months of the end date of his OER rating periods and if he does, I am confident that he can serve in positions of responsibility which will lead to his promotion to LTC."  The senior rater checked the "Fully Qualified" block.

10.  The applicant provides:

   a.  A screenshot of the ATRRS self-development center which appears to indicate the applicant had a valid registration for the ILE Common Core course with a report date of 3 December 2007 and an ending date of 24 January 2011.
   
   b.  DA Form 705, dated 10 August 2009, which shows the applicant passed an APFT on 10 August 2009 with a score of 251.  The form does not indicate whether or not the APFT was for record.

11.  There is no evidence the applicant requested a Commander's Inquiry (CI) or submitted an appeal to either the U.S. Army Human Resources Command or the Officer Special Review Board within 3 years of the through date of any of the contested reports.

12.  Army Regulation 623-3 (Evaluation Reporting System) 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 CI 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.

13.  Department of the Army Pamphlet 623-3 provides procedural guidance for completing and submitting evaluation reports and associated support forms to Department of the Army.

   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 CI.  Such a request must be submitted separately.
   
   d.  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. 

14.  Army Regulation 350-1 prescribes policies, procedures, and responsibilities for Army training.  In Section II (Other Army Training Programs and selected-personnel training requirements), paragraph G-9g (Physical readiness training) it states RC Soldiers must be able to pass the APFT at any time, except upon return from deployment.  Following redeployment, Soldiers will be administered a record APFT no earlier than 3 months for active duty Soldiers and 6 months for RC Soldiers.

15.  Table 2-4 of Department of the Army Pamphlet 623-3 states, in accordance with Army Regulation 350-1, RC Soldiers will not be administered a record APFT any earlier than 6 months after return from a deployment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests either the removal of the first contested OER or, alternatively, deletion of the fact it was referred and any remarks pertaining to not taking the APFT.  His contentions and evidence were carefully considered, however both were found to be insufficient to support the granting of relief.

2.  The applicant returned from deployment on 13 November 2005, the start of the rating period.  By regulation, he was not required to take a record APFT until on or after 12 May 2006, at which point he would be expected to be able to pass.  He was identified as a promotion selectee in June 2006 and, while not explicitly stated, he likely was made aware of this fact and that a close-out OER was required.  The applicant states his unit did not alert him of the requirement to take a record APFT, but he should have been aware the 6-month exemption would soon expire and an entry regarding APFT would be required on his OER.  The applicant had at least one month prior to the end of the rated period to complete a record APFT.  The applicant provides no evidence he attempted to complete a record APFT or was prevented from doing so prior to the end of the rated period.  

3.  For removal or alteration of an OER, Army Regulation 623-3 requires the applicant to overcome the presumption of administrative correctness by offering clear and convincing evidence of a material error or inaccuracy.  The basis for the first referred OER is the fact that he had not taken an APFT during the rated period and the remark stating so in the rater's comments portion appear accurate.  No material error therefore occurred and the applicant's arguments and evidence are not of such a strong and compelling nature as to overcome the presumption of administrative correctness.

4.  The second contested OER shows the applicant failed to take an APFT during the rating period.  The applicant states he completed the APFT in the November/December 2007 timeframe.  He contends he was enrolled in ILE beginning 3 December 2007, and he was required to have a valid APFT 30 days prior to the start of the course.  This would mean his APFT would have fallen within the rating period of the second contested OER.  Unfortunately, the APFT taken during the November/December timeframe was misplaced and never made it into his records.

5.  The applicant's ATTRS screenshot and explanation are insufficient to show the information reflected on the second contested OER are 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.  The third contested OER shows the applicant failed to take an APFT during the rating period.  The applicant states he completed the APFT on his personal time during a non-drill day in July 2009; however, the APFT was subsequently misplaced.   He provided a copy of a DA Form 705 which indicates he passed an APFT after the thru date of the contested report.  However, this document is after the thru date of the contested report and does not show if the APFT was, in fact, a unit-sanctioned record APFT.

7.  The fact that the applicant may have passed an APFT during a subsequent evaluation period is duly noted.  However, it is wholly insufficient as evidence to show the information reflected on the third contested OER is erroneous, unjust, or that the information contained therein is untrue.  

8.  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 he has provided insufficient evidence to meet the burden of proof with regard to removing or amending any of the contested OERs.

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)                                         AR20140017561





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ABCMR Record of Proceedings (cont)                                         AR20140017561



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