IN THE CASE OF:	   

		BOARD DATE:	  28 April 2015

		DOCKET NUMBER:  AR20150001058 


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 that the Army Physical Fitness Test (APFT) that she passed on 1 June 2013 be allowed to stand as a record APFT for her.  She further requests that her DA Form 67-9 (Officer Evaluation Report (OER)) for the period 16 June 2012 through 15 June 2013 (hereafter referred to as the contested OER) be corrected as follows:

* remove all references to it being a referred report 
* change the APFT entry in Part IVc to read "APFT:  PASS  DATE:  20130601"
* remove the comment in Part V (Performance and Potential Evaluation (Rater)) "failed to perform a record APFT during this rating period"

2.  The applicant states that Army Regulation 623-3 and Department of the Army Pamphlet 623-3 (both titled Evaluation Reporting System) provide for the entries in Part IVc of an OER:

	a.  For Soldiers with permanent and temporary profiles who have been cleared to take an alternate APFT, the rater should enter "PASS" or "FAIL" for the alternate APFT as prescribed by health care personnel.  The APFT may include an alternate authorized aerobic event (walk, bike, or swim).  No comment about the Soldier's profile is required.

	b.  For Soldiers with permanent profiles whose profiles prohibit them from taking the APFT, the entry will be left blank and the rater will explain the reason why it has been left blank.
3.  The applicant contends her OER does not reflect the fact that she had a permanent profile, dated 30 May 2013, which cleared her to take an alternate APFT as prescribed by health care personnel and that she passed an alternative APFT on 1 June 2013.  She further contends that leaving the entries blank on her OER and entering the statement "[The applicant] failed to perform a record APFT during this period" indicates that she had a permanent profile and failed to complete a record APFT within the rating period, meaning she did not attempt, hence failed.

4.  Further, the applicant states this inaccuracy is an injustice as there are records showing she passed three APFTs taken within the rating period on 4 November 2012, 6 April 2013, and 1 June 2013.  The substantive error is that a record APFT was given, taken, and passed in accordance with the applicant's gender and age on 1 June 2013.  The record APFT was deemed invalid by the company commander on 20 June 2013, 5 days after the end of the rating period. The reason the APFT was deemed invalid was due to the fact that the 2.5 mile walk route was measured improperly by the unit, which caused it to be longer than 2.5 miles.  The applicant's time of completion was within the standards for 2.5 miles despite the fact that the distance was over 2.5 miles, as is stated by an APFT grader in a DA Form 2823 (Sworn Statement).  It was unjust for the commander to take 20 days to invalidate the record APFT.

5.  The applicant attests that her rater and senior rater did not want her to be in compliance in order to give her a referred OER out of retaliation for filing an Inspector General (IG) complaint in 2011, which is in violation of Title 10, U.S. Code, Section 1034 (Protected communications; prohibition of retaliatory personnel actions) and Department of Defense Directive 7050.06 (Military Whistleblower Protection).

6.  She provides: 

* Self-authored statement
* Contested OER
* 3 DA Forms 3349 (Physical Profile)
* Excerpts from Department of the Army Pamphlet 623-3 and Army Regulation 623-3
* email
* OER Appeal packet
* 3 DA Forms 705 (APFT Scorecard) and associated DA Forms 5501 (Body Fat Content Worksheet (Female))
* 2 DA Forms 4856 (Developmental Counseling Form)
* 2 DA Forms 2823
* Army Special Review Board (ASRB) packet
* IG Complaint packet, dated 9 May 2011

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that following periods of enlisted service in the Regular Army and the Army National Guard (ARNG), she served as a commissioned officer in the ARNG and the U.S. Army Reserve (USAR) prior to being transferred to the Retired Reserve in the rank/pay grade of major (MAJ)/
O-4 on 31 October 2014.

2.  A DA Form 3349, dated 17 September 2012, shows the applicant was issued a temporary profile due to back pain.  This profile restricted her from executing any of the usual APFT events, but cleared her to execute the following alternate aerobic APFT walk, swim, and bike events.  The expiration date of this temporary profile was 16 December 2012.

3.  A DA Form 705, dated 4 November 2012, shows the applicant had a profile at the time and that she passed the alternate aerobic APFT walk event.  The associated DA Form 5501 shows she was also in compliance with Army height/weight standards at the time.

4.  A DA Form 705, dated 6 April 2013, shows the applicant had a profile at the time and that she passed the alternate aerobic APFT walk event.  The associated DA Form 5501 shows she was also in compliance with Army height/weight standards at the time.

5.  A DA Form 4856, dated 5 May 2013, shows the applicant was counseled by the G3 (Training Officer), 4th Expeditionary Sustainment Command.  The G3 stated the APFT was a part of readiness standards and acknowledged that the applicant's temporary profile prevented her from taking the APFT.  It was also noted that her most recent profile began on 17 September 2012 and expired on 16 December 2012 and that she was allowed 90 days following the expiration of her profile to train for the APFT.  The applicant was informed that she would be expected to take the APFT as soon as possible after the expiration of a temporary profile and that taking the APFT would be her primary duty for the first battle assembly (BA) following the 90-day training period.  However, she was advised that she could take the APFT sooner if she desired.  The applicant was advised that if she had a lengthy temporary profile, it must be reevaluated at least once every 3 months.  The "Plan of Action" portion of the counseling document shows the anticipated date for the applicant to take a record APFT was to be determined on official medical documentation.  The applicant was directed to obtain a permanent profile within the next 30 days and she was advised that lacking an official profile within this timeframe she would be scheduled for an APFT during the next BA.  The applicant agreed with this counseling and authenticated the document with her signature.

6.  A DA Form 4856, dated 5 May 2013, shows the applicant was counseled by her company (Headquarters and Headquarters Company (HHC)) commander.  The commander reiterated the information in the G3's counseling regarding the applicant's temporary profile.  The commander noted that the applicant had 
139 days following the expiration of her temporary profile on 16 November 2012 to train for the APFT.  The commander stated that although the applicant took the APFT on 6 April 2013, she performed an invalid event by walking instead of executing the standard APFT events.  The "Plan of Action" portion of the counseling document shows the scheduled date for the applicant to take a record APFT was to be 1 June 2013.  The applicant agreed with this counseling and authenticated the document with her signature.

7.  A DA Form 3349, dated 30 May 2013, shows the applicant was issued a permanent profile due to chronic low back pain.  This profile restricted her from executing any of the usual APFT events, but cleared her to execute the alternate aerobic APFT walk, swim, and bike events.  The document bears the statement:  "This profile has been validated, in its entirety, by the 63d Regional Support Command Surgeon’s Office and is the permanent profile of record.  It is not to be changed without supporting medical documentation.”  This document was authenticated by the profiling officer and approving authority.

8.  A DA Form 3349, dated 5 June 2013, shows the applicant was issued a temporary profile due to chronic low back pain.  This profile restricted her from executing any of the usual APFT events, but cleared her to execute the alternate aerobic APFT walk, swim, and bike events.  The expiration date of this temporary profile was 3 September 2013.  This document was authenticated by the profiling officer, but not an approving authority.  The document bears, in part, the following statements:

	a.  "Expected date of fully mission capable:  20130903."

	b.  "Justification comments for fully mission capable:  Soldier will require a ND-PEB [Non-duty Physical Evaluation Board].  Soldier is waiting for paperwork to confirm the permanent profile."

	c.  "This temporary profile is an extension of a temporary profile first issued on 9/26/2012 (26 September 2012)."

	d.  "This profile has been validated, in its entirety, by the 63d Regional Support Command Surgeon’s Office and is the permanent profile of record.  It is not to be changed without supporting medical documentation."  

9.  Two DA Forms 2823, dated 19 June 2013, show that two senior noncommissioned officers (NCOs) rendered sworn statements regarding events that occurred on 1 June 2013.  Both NCOs were present during the administration of the unit's record APFT, one was serving as the NCO in charge (NCOIC) of the APFT and the other was present as the HHC Training NCO.  Both NCOs attested to the fact that the record APFT was conducted and it was noted that the 2.5 mile walk route was measured improperly as a result of a last-minute adjustment and was later verified to actually have been greater than 2.5 miles in length.  The APFT NCOIC stated the applicant had passed the APFT in spite of the longer distance.  The Training NCO stated that later that day the HHC Commander advised him that they needed to change the walkers' record APFT to a diagnostic APFT.  Although the HHC Commander asked the Training NCO to advise the Soldiers, the Training NCO recommended to her to advise them herself because of their ranks.

10.  On 20 June 2013, the applicant's company commander sent an email addressed to the applicant and Master Sergeant (MSG) B and courtesy copied two commissioned officers and two senior NCOs.  The email reads as follows:

[The applicant] and MSG B,

This is to inform you that after speaking with the 1SG [First Sergeant] and the personnel in charge of the APFT conducted on 01 June 2013, I have decided to invalidate the 2.5 mile walk results portion of the test due to no fault of yours for the following reasons:

   (1)  The 2.5 Mile mark was inaccurately measured hence undermined the integrity of the results.

   (2)  Based on the attached Sworn Statements [described in paragraph 9 above], you questioned the accuracy of the distance which resulted in the re-measurement that proved the distance was incorrect.

   (3)  Fix It Plan:

- The results of the above mentioned APFT are invalid
- Arrange with the 1SG to retake your APFT in military status, you can RST or use AT to take the APFT at your "earliest convenience"
- No flagging actions will be initiated as a result of the 01 June 2013 APFT

NOTE:  The 1SG will counsel and retrain APFT personnel.

11.  The applicant's record contains the contested OER which shows she received an annual OER while serving in the rank of MAJ for the period 16 June 2012 through 15 June 2013 as the Mobilization Officer, 4th Sustainment Command (Main Support Element), San Antonio, TX.  She was rated by the Assistant Chief of Staff, G3, a lieutenant colonel, and senior rated by the Chief of Staff, a colonel.  The rater and senior rater electronically signed the contested OER on 1 June 2013 (14 days prior to the end of the rated period) and the applicant electronically signed the contested OER on 7 October 2013. 

   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:   DATE:" is blank.
   
   c.  In Part Vb, the rater stated, in part, "[The applicant] failed to perform a record APFT during this rating period."

12.  On 7 October 2013, the applicant rendered a memorandum to address her referred OER.  The applicant noted that she passed a record APFT on 4 November 2012 while on a valid temporary profile that began 17 September 2012 and ended 16 December 2012.  Her record APFT was scored, recorded, and accepted by HHC and filed in her records along with her temporary profile; this indicates acceptance by the commander.  At no time afterward was she counseled for taking an invalid record APFT or informed otherwise.  There is no commander's policy letter that exists such as the sample memorandum on page 5 of Field Manual 7-22, dated 26 October 2012, which provides guidance and policy for Physical Readiness Training.  The applicant provided copies of her temporary profile, dated 17 September 2012; her APFT Scorecard, dated 4 November 2012; the extension of her permanent profile, dated 30 May 2013; and her temporary profile extension, dated 5 June 2013.  She stated that all of her medical documentation was provided to the Unit Administrator and 1SG.  She concluded that there was no failure on her part to complete a valid APFT within her rating period.

13.  A DA Form 705, dated 16 November 2013, shows the applicant had a profile at the time and that she passed the alternate aerobic APFT walk event during a 

record APFT.  The associated DA Form 5501 shows she was also in compliance with Army height/weight standards at the time.

14.  On 16 December 2013, the applicant submitted an appeal for correction of the subject OER to the U.S. Army Human Resources Command (USAHRC).  The bases of her appeal were all of the aforementioned matters that were in her memorandum in response to the referred OER and the fact that she passed a record APFT on 1 June 2013 that was subsequently deemed invalid by her company commander on 20 June 2013, 5 days after the end of her rated period.
In addition to the documents that she included with her referred OER, the applicant provided a copy of her company commander's aforementioned email dated 20 June 2013.

15.  A DA Form 705, dated 16 April 2014, shows the applicant had a profile at the time and that she passed the alternate aerobic APFT walk event during an APFT.
The associated DA Form 5501 shows she was also in compliance with Army height/weight standards at the time.

16.  On 22 August 2014, the President of the Officer Special Review Board (OSRB) approved the majority vote of the OSRB to deny the applicant's OER appeal and tasked the USAHRC to notify the applicant of the decision.  The USAHRC notification was issued on 27 August 2014.

17.  On 31 October 2014, the applicant was assigned to the Retired Reserve as a result of being medically disqualified - not as a result of her own misconduct.

18.  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.

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

	a.  For Soldiers with permanent and temporary profiles who have been cleared to take an alternate APFT, the rater should enter "PASS" or "FAIL" for the alternate APFT as prescribed by health care personnel.  The APFT may include an alternate authorized aerobic event (walk, bike, or swim).  No comment about the Soldier's profile is required.

	b.  For Soldiers with permanent profiles whose profiles prohibit them from taking the APFT, the entry will be left blank and the rater will explain the reason why it has been left blank.

   c.  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. 
   
   d.  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.

20.  Field Manual 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests correction of the contested OER by:

* removing all references to it being a referred report 
* changing the APFT entry in Part IVc to read "APFT:  PASS   DATE:  20130601"
* removing the comment in Part V "failed to perform a record APFT during this rating period"

2. The above issues have been carefully considered and deemed to have merit.

3.  The evidence clearly shows that:

	a.  The applicant was issued a valid permanent profile on 30 May 2013 and this profile restricted her from performing the standard APFT events; but cleared her to execute the 2.5 mile walk as an alternate APFT event.

	b.  On 1 June 2013, the applicant passed the 2.5 mile walk event during a record APFT, in spite of the walk route actually being longer than the prescribed 2.5 miles; thereby exceeding the Army standard. 

	c.  The applicant's rater and senior rater authenticated her OER on 1 June 2013, 2 weeks prior to the end of the period covered by the contested OER.

	d.  The applicant's company commander did not deem the APFT invalid until 20 June 2013, 5 days after the end of the of the period covered by the contested OER; thereby making it impossible for the applicant to take another APFT during the rated period.

4.  Department of the Army Pamphlet 623-3 provides that for Soldiers with permanent and temporary profiles who have been cleared to take an alternate APFT, the rater should enter "PASS" or "FAIL" for the alternate APFT as prescribed by health care personnel.  The APFT may include an alternate authorized aerobic event (walk, bike, or swim).  No comment about the Soldier's profile is required.

5.  In view of the foregoing and in the interest of equity, the applicant should be granted full relief as detailed below in the Board Determination/Recommendation portion of these proceedings.

BOARD VOTE:

____x___  ____x___  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  Amending the subject OER by:

* removing all references to it being a referred report from Part IId
* amending the APFT entry in Part IVc to read "APFT:  PASS  DATE:  20130601"
* removing from Part Vb the comment "[The applicant] failed to perform a record APFT during this rating period"

	b.  Transferring all documents pertaining to this action from the performance folder to the restricted folder of her Official Military Personnel File.



      _______ _   _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)                                         AR20150001058



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ABCMR Record of Proceedings (cont)                                         AR20150001058



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