APPLICANT REQUESTS:  The removal from her records of an officer evaluation report (OER) covering the period 22 September 1986 through 31 August 1987.  The applicant states that the contested OER is administratively inaccurate because it contains the comment “[Applicant] is being released from active duty due to a second time non-selection for major” in part Ve, and because it was not referred to her as an adverse report based on the SR having placed her in the fifth block of part VIIa, under potential evaluation. She goes on to state that in accordance with the applicable regulation, each report must stand alone, that each report will be an independent evaluation of the rated officer for a specified rating period.  It will not remark on performance or incidents occurring before or after the rating period.  She further states that although the OER was not considered adverse, by virtue of the fact that only one other officer was rated lower, it should have been referred to her.  She also contends that the contested OER negatively influenced the USAR lieutenant colonel promotion selection board and resulted in her being nonselected for promotion.  In support of her application, she submits a statement from the senior rater of the contested OER.

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 commissioned as a USAR second lieutenant with a concurrent call to active duty on 1 February 1976.  She was promoted to the rank of captain on 1 July 1980.

On 9 February 1987, while serving at Fort Bliss, Texas, the applicant was notified that she had been twice nonselected for promotion to the rank of major and must be released from active duty no later than 1 September 1987.  The applicant acknowledged the notification on 27 February 1987 and elected to be released from active duty on 31 August 1987. 

Accordingly, she was honorably released from active duty on 31 August 1987 and transferred to the USAR.  She was promoted to the rank of major on 1 September 1987.

The contested OER is a release from active duty (REFRAD) report covering the period 22 September 1986 through 31 August 1987, evaluating the applicant as a brigade chemical officer of an air defense brigade.  In part IVd, potential for promotion to the next higher grade, the rater indicated that the applicant should be promoted with her contemporaries.  The supporting comments in part IVe indicate that the applicant was being released from active duty due to being twice nonselected for promotion to major and recommended that the applicant, if recalled to active duty, be recalled as a chemical corps officer in the rank of major.

The SR (a colonel) placed the applicant in the fifth block of part VIIa, the potential evaluation portion of the OER.  This placed the applicant below the COM on the SR’s profile (eight officers were in the top block, 17 officers were in the second block, 10 officers were in the third block, two officers were in the fourth block, four officers, of which the applicant was one, were in the fifth block, and one officer was in the sixth block).  (The SR potential evaluation portion of an OER contains nine blocks.  A rated officer’s placement in the top block determines that he possesses greater potential than an officer placed in the second through ninth blocks.)  The comments in part VIIb were favorable and indicated that she was unavailable for signature.  The OER was not considered adverse and as such was not referred to the applicant.

The supporting statement from the SR indicates that he routinely placed officers who were retiring or separating from the service in the fifth block of his profile because there was no potential for promotion for personnel based on separation.  He further indicated that it was normally his policy to make comments regarding the rated officer’s future potential if recalled to active duty, however, he failed to do so in the applicant’s case.  He also indicated that had he known of the applicant’s desire to continue her service in the USAR, he would have placed her in the second block. 

There is no indication that the applicant ever appealed the contested OER to the Officer Special Review Board (OSRB).

Army Regulation 623-105 establishes the policies and procedures for the OER system.  Paragraphs 5-32 and 9-2 provide than an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, is presumed to be administratively correct, and to have been prepared by the properly designated rating officials at the time of preparation.  Requests that an accepted OER be altered, withdrawn or replaced will not be honored.  An exception is granted only when information which was unknown or unverified when the OER was prepared is brought to light or verified and the information is so significant that it would have resulted in a higher or lower evaluation, had it been known at the time the OER was prepared.

Paragraph 4-16 discusses part VII of the OER, and explains how the SR profile is established and underscores its effect on the rated officer.  Paragraph 4-16b(5)a states, in effect, that the rated officer’s evaluation of potential by the SR is to be made by comparing the rated officer’s potential with all other officers of the same grade rated by the SR.  The Department of the Army then uses the reports to record the SR’s rating history (profile).  This profile contains all OER’s rendered by the SR and accepted as correct by the Department for the rated officer’s grade or grade grouping.  The purpose of the profile is to place a rated officer’s OER in perspective by revealing the SR’s general rating tendency.  Part VIIb will contain the SR’s comments and will address the potential evaluation and the rated officer’s performance.

Paragraph 9-7 of that regulation also states that the burden of proof in an appeal of an OER rests with the applicant.  Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent error or inaccuracy is warranted.

Army Regulation 623-105 also states, in pertinent part, that statements from rating officials often reflect retrospective thinking, or second thoughts.  As a result, claims by rating officials that they did not intend to evaluate as they did will not, alone, serve as the basis for altering or withdrawing a 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 24 September 1987, the date the OER was forwarded to the applicant.  The time for the applicant to file a request for correction of any error or injustice expired on 24 September 1990.

The application is dated 8 September 1994 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