MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 13 August 2002
         DOCKET NUMBER: AR2002068545


         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mrs. Carolyn G. Wade		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Ted S. Kanamine		Member
Ms. Lana E. McGlynn		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: That his DA Form 67-8, Officer Evaluation Report (OER), for the period 9 January 1991 thru 26 November 1991 be corrected by removing the reason for submission and the senior rater's comments and future potential evaluation.

APPLICANT STATES: That he is an outstanding officer; that the subject OER contains both administrative and substantive errors; that the signature dates were "penciled in" and the OER was timed for issue following notification of his mandatory release from active duty; that he was never relieved from duty; and that he was not afforded the opportunity to rebut the OER. He adds that, in a 21 December 2001 electronic mail (email), his former rater stated that he "did not sign a 'relief for cause' OER . . . and certainly never counseled . . ." the applicant for one. The applicant's former battalion Executive Officer (XO), responding to a 21 December 2001 email in which the applicant surfaced the possibility that the XO conducted an investigation into the alleged wrongdoing, stated, "I don't think I did an investigation." The applicant admits that the former XO asked him about one meal for which he failed to pay the surcharge.

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:

He served on active duty from 2 January 1989 through 1 February 1992 when he was honorably separated by reason of reduction in authorized strength. He was a First Lieutenant, Corps of Engineers, at the time of his separation.

During 1991, the applicant was assigned to Headquarters and Headquarters Company, 65th Engineer Battalion, Schofield Barracks, Hawaii, where he performed duties as the Assistant S-3 (Operations). While serving in this duty assignment, he was notified by Department of the Army on 15 October 1991 that a Lieutenant Retention Board failed to select him for retention on active duty thereby necessitating his release not later than 1 February 1992.

While serving as the Battalion Assistant S-3, the applicant received the subject OER. The OER was a "Relief for Cause" OER that referred to multiple incidents where the applicant took meals in the Battalion Dining Facility without paying the required surcharge [by allegedly certifying that he was performing duties as the

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Staff Duty Officer, SDO]. The applicant's rater, a Major (Battalion S-3), stated, "During this reporting period, [applicant's] duty performance has been superior, with one exception. He was involved with a series of incidents where he failed to pay the surcharge required for officers eating in the unit Dining Facility."

The applicant's senior rater, a Lieutenant Colonel (Battalion Commander), rated his potential as extremely low (block 7 of 9 blocks) and also stated, ". . . on three separate occasions he violated his integrity by making false official statements to avoid paying the surcharge. [Applicant] has breached the special trust and confidence entrusted to the officer corps. He set himself apart from the standards expected of an officer and acted as if the rules did not apply to him. As a result of his actions and refusal to acknowledge his duplicity, I relieved him from duty. [Applicant] no longer has any value to this unit or the Army."

The applicant departed the 65th Engineer Battalion on 17 December 1991, but did not clear his government quarters until 20 December 1991. The Battalion Commander attempted to refer the subject OER to the applicant on 17 December 1991, but the applicant did not acknowledge the referral. As required by Army regulation, the OER was then forwarded to the reviewer who conducted his review on 7 January 1992. The OER was not processed, however, because a second attempt was made to refer the OER to the applicant on 3 March 1992. This also was unsuccessful and, on 20 March 1992, the reviewer again found the OER to be correct and it was then forwarded to Headquarters, Department of the Army (HQDA) for filing in the applicant's OMPF.

Army Regulation (AR) 623-105, then in effect, established the policies and procedures for the OER system utilizing DA Form 67-8. Paragraphs 5-32 and
9-2 provide that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation. Paragraph 9-7 of that regulation stated 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 material error or inaccuracy is warranted.

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Under AR 623-105, relief-for-cause OER's required referral to the rated officer and, in the case of the subject OER, review by the first officer in the chain of command above the individual who directed the relief (in this case, the Battalion Commander, who functioned as the senior rater). Such reviews were performed prior to processing the report for inclusion in the rated officer's Official Military Personnel File (OMPF) and were required to insure that the narrative portions of the OER contained factual information that fully explained and justified the reason for the relief; verify that the OER was properly prepared; insure that the OER had been referred to the rated officer for comment; and review any comments submitted by the relieved officer. This review was accomplished by the next officer in the chain of command, a Colonel, on 20 March 1992 and the subject OER was determined to be "complete and correct as written."

On 16 October 2000, following his nonselection for promotion to the rank of Major in the US Army Reserve, the applicant appealed the subject OER to the US Total Army Personnel Command (PERSCOM), Alexandria, Virginia. In a memorandum dated 9 January 2001, PERSCOM returned the applicant's appeal without action for failing to file within that agency's 5-year time limit.

Army Regulation 30-1, The Army Food Service Program, establishes policies, procedures, responsibilities, objectives, and basic standards for the Army Food Service Program. It states, in pertinent part, that dining facilities are primarily designed to provide meals to enlisted personnel, but that officer and civilian personnel may be authorized to eat there on a reimbursable basis. Charges for meals will be sufficient to provide for reimbursement of both food cost and operating expense (surcharge). However, a commanding officer or a designated representative (SDO), when the purpose for eating in the dining facility is to determine the quality and quantity of food served to his or her soldiers, will be exempt from surcharges.

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.

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DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The contested report appears to represent a fair, objective and valid appraisal of his demonstrated performance and potential during the period in question. The Board finds the applicant's arguments and contentions to be without merit. The Board believes that both the rater and senior rater were satisfied beyond doubt that the applicant had, on more than one occasion, eaten meals in the Battalion Dining Facility without paying the surcharge after falsely certifying that he was the SDO and therefore exempt from such payment.

2. The Board is also satisfied that the applicant's relief from his assignment as Assistant Battalion S-3 was correctly accomplished and was known to the applicant. Further, every reasonable attempt was made to refer the subject OER to the applicant, and only after such reasonable attempts was the report properly reviewed by the next Army officer in the chain of command and forwarded to HQDA for inclusion in the applicant's OMPF.

3. The applicant has not shown that the contested report contains any serious administrative deficiencies or was not prepared in compliance with applicable regulations and policy.

4. The alleged error or injustice was, or with reasonable diligence should have been discovered on 26 December 1991, the date the senior rater completed his portion of the OER. The time for the applicant to file a request for correction of any error or injustice expired on 26 December 1994.

5. The application is dated 8 January 2002 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.

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Prior to reaching this determination, the Board looked at the applicant's entire file. It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations. Had the Board determined that an error or injustice existed, it would have recommended relief in spite of the applicant's failure to submit his application within the 3-year time limit.

BOARD VOTE:

________ ________ ________ EXCUSE FAILURE TO TIMELY FILE

________ ________ ________ GRANT FORMAL HEARING

__fne___ __tsk___ __lem___ CONCUR WITH DETERMINATION

Carl W. S. Chun
Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2002068545
SUFFIX
RECON
DATE BOARDED	20020813
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	111.0100
2.
3.
4.
5.
6.