APPLICANT REQUESTS: In effect, the removal of an officer efficiency report (OER) from his Official Military Personnel File (OMPF). The applicant states that during the first 6 months of his service in the Army he was stationed at a hospital at Dugway Proving Grounds, Utah, and had a disagreement with his commander as to whether or not he should be issued a statement of non-availability for his wife to deliver their second child at a metropolitan civilian hospital. His commander disapproved his request and as a result of the disagreement, he (the applicant) was transferred to Fort Riley, Kansas. He goes on to state that this was the only episode of difficulty he experienced in his career as a medical officer with the Army. However, every time (over the past 30 years) he applied for staff privileges at a hospital that required references the Army would send a copy of a letter (the OER) from his former commander which is derogatory in nature. He continues by stating that he does not believe it is fair that his former commander can discredit him without his being afforded an opportunity to respond in kind.
PURPOSE: To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.
EVIDENCE OF RECORD: The applicant's military records show:
The applicant was appointed as a USAR first lieutenant on 31 July 1962 and ordered to active duty as a Medical Corps officer in the rank of captain on 19 August 1962.
Upon completion of his training he was initially assigned to Dugway Proving Grounds, Utah, on 9 October 1962 as a general medical officer.
On 21 February 1963 a change of rater OER was rendered on the applicant that contained less than favorable comments from his rater (a captain) and his indorser (a colonel) regarding the applicants performance as a medical officer. The report was finalized by the reviewer (post commander) on 27 February 1963 for inclusion in his OMPF.
The applicant was subsequently reassigned to Ft Riley, Kansas on 20 March 1963 where he served until he tendered his resignation on 29 June 1964.
On 18 August 1964 he was honorably discharged from the service in the rank of captain after serving 2 years and 18 days of total active service.
A review of the applicants records reveals that it contains a copy of a letter from Methodist Hospitals in Dallas, Texas, requesting information from the National Personnel Records Center in St. Louis, Missouri, regarding the applicants service as a Medical Corps officer during the period 1962 through 1964. Contained with the request was a document signed by the applicant authorizing the release of information and documents to the requesting officials. Consequently, copies of the applicants separation documents and OERs were provided (to include the aforementioned report).
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. Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.
DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 18 August 1964, the date of discharge. The time for the applicant to file a request for correction of any error or injustice expired on 18 August 1967.
The application is dated 11 September 1995 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.
DETERMINATION: The subject application was not submitted within the time required. The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.
BOARD VOTE:
EXCUSE FAILURE TO TIMELY FILE
GRANT FORMAL HEARING
CONCUR WITH DETERMINATION
Karl F. Schneider
Acting Director
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