IN THE CASE OF:	  

		BOARD DATE:	  23 April 2015

		DOCKET NUMBER:  AR20150003504 


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 correction of a DA Form 1059 (Academic Evaluation Report (AER)) for the period 1 December through 11 December 2008 that he received while attending the Advanced Noncommissioned Officer (NCO) Course (ANCOC) by:

* changing the entry in item 11 (Performance Summary) from "Marginally Achieved Course Standards" to "Achieved Course Standards"
* deleting the entry from item 14 (Comments) which states "failed to meet Army Physical Fitness Training (APFT) standards in accordance with Army Regulation 350-1 (Army Training and Leader Development)"

2.  The applicant states, in effect:

* he sustained injuries to his collarbone and knee about 3 years before attending ANCOC [sic, ANCOC attendance was 4 years and 5 months after injury occurred; injury in June 2004, ANCOC in December 2008]
* it resulted from a malicious act of another, for which he was awarded $30,000.00
* he was a recruiter at the time and, because he was 6 hours from the nearest military installation, he was never able to have his injuries evaluated for a profile by a military physician
* he currently has a P2 profile, which he obtained from a doctor at Fort Riley, KS; he stopped there while traveling
* part of the reason he delayed getting medically evaluated for a profile is that when he first entered the Army, he served in a combat arms military occupational specialty (MOS) where the mentality regarding physical limitations resulting from injuries is to "suck it up"
* as a result, until he stopped at Fort Riley, he never took time away from his mission at the U.S. Army Recruiting Command to obtain a profile
* he had magnetic resonance imaging (MRI) done in 2009 and the physician noted significant injury under his kneecap; the orthopedic doctor suggested surgery and stated the surgery would make his injury "somewhat better"
* he has provided the Board documentation showing the injury prior to attendance at ANCOC and documentation showing the P2 profile which does not permit participation in the event he failed in the ANCOC APFT
* he has been highly successful in his Army career, with the exception of the noted comments on this one AER; he also wishes to point out to the Board that for that same course he was the only student to achieve a grade point average of 100 percent
* he has performed well not only in his normal duties but also in his self-development
* he was a successful center commander for almost 6 years prior to being selected for his current position
* he has earned a bachelor's degree in marketing, graduating Summa Cum Laude (highest of the three academic achievement levels)
* he is an NCO who is dedicated to the mission and his Soldiers and, with the Board's favorable consideration, he hopes to be reevaluated for promotion

3.  The applicant provides:

* DA Form 1059 AER for the period 1 December 2008 through
11 December 2008
* self-authored statement
* Memorandum for Record, dated 13 August 2014, from the applicant's physician
* extract from civilian medical records dating from the time of his injuries
* his Department of the Army (DA) photograph
* DA Forms 2166-8 (NCO Evaluation Report) covering the periods from August 2003 to June 2014
* four award certificates
* two sets of orders for awards
* one university diploma
* two certificates of training


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 enlisted in the Regular Army on 24 June 1998 at age 18.  After completing initial training, he was awarded MOS 19K (M1 Armor Crewman).  After various assignments in MOS 19K, he was awarded the special qualification identifier of 4 for Non-Career Recruiter effective 24 October 2003, and he was awarded MOS 79R (Recruiter) in 2006.  He has continuously served as a Recruiter since 2003.  He is currently on active duty and stationed in the U.S. Army Recruiting Command, Fort Knox, KY.

3.  The applicant provides evidence he injured his knee on 20 June 2004 as a result of an all-terrain vehicle accident.  His records are void of any entries addressing this injury.

4.  His NCOERs do not make any reference to limitations based upon this injury.  The NCOERs he received between the date of his injury and the date he attended ANCOC contain the following APFTs:

* August 2003 through December 2004, PASS, April 2004
* January 2005 through May 2005, PASS, April 2005
* (DA Form 1059 for attending the Basic NCO Course) 26 January 2006 through 2 March 2006, PASS, February 2006
* June 2005 through May 2006, PASS, April 2006
* 1 June 2006 through 31 May 2007, PASS, 25 May 2007
* 1 June 2007 through 1 May 2008, PROFILE (emphasis added), 1 May 2008
* (DA Form 1059 for attending ANCOC) 1 December 2008 through 11 December 2008, FAIL, December 2008
* 2 May 2008 through 1 May 2009, PASS, 22 October 2008


5.  Applicant provides:

	a.  Self-authored statement, which essentially states:

* he bases his request for relief on his belief it would be unjust to keep the AER in question in his record in its current form
* he was performing recruiting duties at an isolated location, hours away from any military installation, when he injured his knee
* his medical history shows the difficulties he had, eventually leading to being given a permanent profile
* the process, which ultimately resulted in the receipt of a permanent profile took a considerably long time
* his geographical location (where he performed recruiting duties) contributed to the length of time, as did the fact he was maintaining an excellent standing as a 79R, always placing mission first
* since receiving the AER, he has continued to advance both personally and professionally, and has not failed an APFT since
* regarding ANCOC, he was slotted in September 2008
* prior to departing for the course, he was given an unit-level APFT and failed the run
* despite the fact he failed the run, he was still sent to ANCOC; he feels he could have been flagged and received an evaluation for a profile
* while at ANCOC he achieved an academic score of 100 percent, but again failed the run portion of the APFT; he was given a marginal rating for ANCOC
* in 2009, an MRI was done in which the doctor noted significant damage to his knee; surgery was recommended but the doctor could only affirm it might make his injury "somewhat better"
* while on leave, he stopped by Fort Riley, KS and a doctor gave him a P2 profile; this profile precluded him in the future from performing the run portion of the APFT
* the process of appeal has taken a long time again due to his geographic isolation
* he was unaware of his ability to appeal the AER until he reached his current duty assignment at Fort Knox, KY
* once at his new unit, he attempted to file an appeal with the U.S. Army Human Resources Command; but he was referred to the ABCMR
* he wishes the Board to note he has been highly successful as an Army recruiter and was a center commander for 6 straight years
* he has obtained his bachelor's degree with a grade point average of 4.0; he was awarded Summa Cum Laude
* he has been an NCO who is dedicated to his Soldiers and his mission; the AER is a black mark on an otherwise successful career

	b.  Memorandum for record, dated 13 August 2014, signed by Doctor Lxxxxxx Rxxx, Family Practice Medical Doctor, which states, in effect:

* the applicant was injured in June 2004 as a result of a motor vehicle accident while stationed in Oregon
* he was treated for his injuries through TRICARE remote
* a review of civilian medical records shows he was treated for a right clavicle fracture and left kneecap dislocation
* time required for recovery was nearly 1 year
* the applicant remained stationed in the civilian sector for about 8.5 years during which he experienced pain and disability in his right arm and left knee
* he attended ANCOC in 2008 and failed the run portion of the APFT; he received a marginal rating despite achieving an academic score of 100 percent
* an MRI conducted in 2009 showed kneecap cartilage damage and misalignment
* in the doctor's opinion, had the applicant had access to a military medical facility, he would have received a profile and could have received an alternate event in the APFT

6.  Army Regulation 623-3 (Evaluation Reporting System) outlines policy and procedures for evaluations.  It states:

	a.  An evaluation report accepted by Headquarters, Department of the Army and included in the official record of a rated Soldier is presumed to be administratively correct; have been prepared by the properly designated rating officials; and represent the considered opinions and objective judgment of the rating officials at the time of preparation.  

	b.  Requests that an evaluation report in a Soldier's official military personnel file (OMPF) be altered, withdrawn, or replaced with another report will not be honored.  

	c.  To justify deletion or amendment of a report, the applicant has the burden of proof to produce clear and convincing evidence showing the presumption of regularity should not be applied to the report under consideration.   Action is deemed to be warranted when it is taken to correct a material error, inaccuracy, or injustice.

7.   Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the OMPF.  It states that DA Forms 1059 will be filed in the performance folder of the OMPF.

8.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, separation, and retirement.

	a.  Chapter 3 provides guidance for the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for service.

	b.  These medical conditions and physical defects, individually or in combination, are those that significantly limit or interfere with the Soldier's performance of his/her duties; may compromise or aggravate the Soldier's health or well-being if the Soldier were to remain in the military service; may compromise the health or well-being of other Soldiers; or may prejudice the best interests of the government if the individual Soldier were to remain in the military service.

	c.  Chapter 7 provides guidance for the physical profile serial system.  The profile is based on the function of body systems and their relation to military duties.  There are six factors, designated as:

* "P" for physical capacity or stamina
* "U" for upper extremities
* "L" for lower extremities
* "H" for hearing
* "E" for eyes
* "S" for psychiatric

	d.  Each factor is assigned a numerical designation from 1 to 4.

* "1" represents a high level of medical fitness
* "2" means there are some activity limitations
* "3" equates to significant limitation
* "4" indicates defects of such severity military duty performance is -drastically limited

	e.  The DA Form 3349 is used to record both permanent and temporary profiles.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests the AER which records his attendance at ANCOC (covering the period 1 December 2008 through 11 December 2008) be amended to show he achieved course standards and comments stating he failed the APFT be removed.  

2.  The governing regulation states to justify deletion or amendment of a report, the applicant has the burden of proof to produce clear and convincing evidence showing the presumption of regularity should not be applied to the report under consideration.  In this case, the applicant has not provided sufficient evidence to support his request.

	a.  The applicant contends his geographic isolation and his dedication to his mission and his Soldiers precluded him from receiving the medical evaluation required to obtain a profile.  Had he been given a profile, he asserts, in effect, he would have been afforded the opportunity to complete an alternate event in place of the run and thus pass the APFT.

	b.  It is not unreasonable to assume that at some point during the 4 year span of time that elapsed between the date of his injury and his attendance of ANCOC he had an opportunity and could have taken the time to have his medical condition evaluated for a profile.  Instead, he waited until after his APFT failure at ANCOC.

	c.  His NCOERs clearly show he took the APFT every year following the injury to his knee.  With the exception of the NCOER for the period 1 June 2007 through 1 May 2008 where it shows he had a profile, he passed each time.  Additionally, his records show an AER received for his attendance at BNCOC in 2006; he passed the APFT then as well.

3.  Given the foregoing, neither his record nor the evidence he provided sufficiently supports granting the requested relief.

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)                                         AR20150003504



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ABCMR Record of Proceedings (cont)                                         AR20150003504



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