IN THE CASE OF:	 

		BOARD DATE:	  15 October 2015

		DOCKET NUMBER:  AR20150007472 


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 his DA Form 1059 (Service School Academic Evaluation Report (AER)) for the Basic Officer Leader Course (BOLC) (hereafter referred to as the contested AER) in item 11c (Performance Summary) "Marginally Achieved Course Standards" dated 24 January 2007, to either:

a.  Annotate the DA Form 1059 as a “Satisfactory – Achieved Course 
Standards” and redact/remove the final line about the failed the Army Physical Fitness Test (APFT); or

b. Remove the DA Form 1059 completely, and add a statement of non-rated 
time and successful completion of Ordnance Officer Basic to his official military personnel file (OMPF).

2.  The applicant states: 

a. The contested AER, which is currently filed in his Army Military 
Human Resource Record (AMHRR) in the interactive Personnel Electronic Records Management System (iPERMS), shows he marginally achieved course standards.  

b. His AER should have been a referred report.

c. The performance summary portion of the AER reflects “Marginally 
Achieved Course Standards.”   According to Army Regulation 623-3 (Evaluation Reporting System), para 3-27a (3), if the “marginal” block is checked, it automatically makes the report a “referred” report, yet block 9 (This Is A Referred Report, Do You Wish To Make Comments?) for DA Form 1059 is not checked to properly reflect that it is a referred report.

d. He was never informed that it was a referred report.  More importantly, the
report was never referred to him by the reviewing official for acknowledgment and an opportunity to comment before being submitted to Headquarters, Department of the Army (HQDA).

e. Due to the administrative error, he was not aware of his rights in regards 
to the AER, the damaging effect it could have on his career, or the need to appeal the evaluation until very recently.

f. Further review of his file will indicate that there was never a referral 
memorandum submitted with that AER as prescribed by Army Regulation 623-3.

g. The derogatory information reflected in his AER is the result of an Army 
Physical Fitness Test (APFT) that was not in accordance with Army Regulation 350-1 (Army Training and Leader Development), or Army Regulation 40-501 (Standards of Medical Fitness), which is an independent substantive error relating to the AER.

h. Due to unavoidable conflicts and poor scheduling by the school, he was
not able to take the APFT until very late in the school cycle.

i. On the day the APFT was administered, he was ordered to take the APFT
or risk failing the course, despite the fact that he had been diagnosed with bronchitis, was on medication, and had been given a light duty profile which was in effect on the day of the APFT.

j. Considering the current fiscal demands placed on the service, this report
puts him at risk for continued promotion.  The fiscal year 2015 Major (MAJ) Promotion Board and the U.S. Army Command and General Staff College (CGSC) Intermediate Level Education Selection Board convened on 
30 March 2015.  

3.  The applicant provides:

* an AER Appeal letter dated 21 April 2015
* an email from the U. S. Army Human Resources Command (HRC) and the applicant dated 20 March 2015
* DA Form 1059 dated 24 January 2007
* The Army Training Requirements and Resources System (ATRRS) report
* Military Medical Support Office (MMSO) Dental Information Sheet
* MMSO Dental Treatment Referral Form
* SF (Standard Form) 603A (Health Record – Dental)
* Upper Chesapeake Health Emergency Physician Records
* DA Form 31 (Request and Authority For Leave)
* Individual Sick Slip
* DA Form 67-10-1 (Company Grade Plate Officer Evaluation Report)
* DA Forms 67-9 (Officer Evaluation Report)
* DA Form 1059 dated 29 June 2010
* An email from HRC to the applicant dated 16 June 2014

CONSIDERATION OF EVIDENCE:

1.  On 15 May 2006, the applicant was appointed in the U. S. Army Reserve (USAR) as a second lieutenant (2LT), assigned to the Ordnance Branch.  

2.  On 1 October 2006, the applicant entered the BOLC.  

3.  On 19 January 2007, while a student at BOLC, he was diagnosed with bronchitis by the Upper Chesapeake Health Clinic.  He was given a note by the clinic for “No Running x 3 days.”

4.  On 22 January 2007, the applicant went to military “sick call” and was given an individual sick slip for “No PT for next five days.”  

5.  On 24 January 2007, the applicant states he was given the choice by his instructors to either take the final APFT on 24 January 2007 or fail the course.  Even though he had a medical excuse for no PT, he took the test anyway and failed.

6. His record in iPERMS contains the contested AER.  The form shows he completed the BOLC but in item 11c, he received a “Marginally Achieved Course Standards” performance summary due to failing his final APFT.  His AER shows he completed the course on 24 January 2007.  However, he did not receive a “referred report.”

7.  On 27 November 2007, he was promoted to first lieutenant (1LT) and on 
1 June 2009, he was promoted to the rank of captain (CPT) in the Regular Army. 

8.  All of the applicant’s DA Forms 67-9 (Officer Evaluation Report) show he has subsequently passed all of his APFT’s to date.


9.  His AMHRR is void of documentation indicating he appealed his report within 3 years of his evaluation.

10.  In a memorandum, subject:  Physical Fitness and Height and Weight Requirements for Military Institutional Training, dated 10 August 2006, the Deputy Chief of Staff, G-3/5/7, announced amendments to Army Regulation 
350-1 pertaining, in part, to the disposition of Soldiers who met academic course requirements but failed APFT standards.  These Soldiers were to be considered academic course graduates and were to receive a DA Form 1059 marked "Marginally Achieved Course Standards."  Soldiers attending institutional training were still required to meet physical fitness standards, but failing those standards was not to result in removal from the course.

11.  Army Regulation 623-3, paragraph 3-35 states the following types of reports will be referred to the student by the reviewing official for acknowledgment and comment: 
   
* Any report with a “NO” response
* Any report with an “UNSAT” rating
* Any report with a “Marginally Achieved Course Standards” response

12.  Army Regulation 600-8-104 (Army Military Human Resource Records (AMHRR) Management) states only documents pertaining to a Soldier’s military career will be filed in the AMHRR which includes the OMPF.  Once properly filed in the OMPF, the document will not be removed from the record unless directed by a specified authority, including this Board.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant received a “Marginally Achieved Course Standards” in his AER for his BOLC ending on 
24 January 2007. 

2.  The applicant claims that he was told by his BOLC instructors on 
24 January 2007, the date the course ended, that he needed to take the APFT or fail the course; therefore, he took the test and failed, even though he was medically waived and had supporting documentation to support his claim.    

3.  Pursuant to Army Regulation 623-3, his AER should have been a “referred” report based on his APFT failure.  The fact that the “referred” block of his AER was left blank indicates he was deprived of the opportunity to rebut his “Marginally Achieved Course Standards” evaluation.  

4.  His APFT failure was neither a basis for disenrollment from the course nor a basis for grading his performance as "Marginally Achieved Course Standards” based on his medical documentation that restricted him from physical training from 22 January 2007 to 27 January 2007.

5.  The only equitable relief possible in this case is to correct the contested AER to show "Achieved Course Standards" and to remove all references to the APFT failure since the applicant was medically waived from the run portion of the APFT. 

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:

* removing from item 14 of the contested AER the statement “2LT C_____ failed to meet the physical fitness standards failing his final APFT run” 
* changing the entry in item 11c of the contested AER to “Achieved Course Standards” 



      _______ _   _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)                                         AR20140007257



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ABCMR Record of Proceedings (cont)                                         AR20150007472



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