RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           24 February 2005
      DOCKET NUMBER:  AR0040001748


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

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Ronald J. Weaver              |     |Chairperson          |
|     |Ms. Yolanda Maldonado             |     |Member               |
|     |Mr. Jonathon K. Rost              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that an officer evaluation report
(OER) for the period 1970 through 1971 be rewritten and that he be
retroactively promoted to chief warrant officer three (CW3) and receive all
back pay and allowances due as a result.

2.  The applicant states, in effect, that he received a maximum OER with a
score of 100 for the period 1970 through 1971, while he was serving in the
Republic of Vietnam (RVN).  He claims that the comments from the rater,
indorser and reviewer that indicated he was the finest warrant officer in
the RVN and should be promoted immediately.  He states he was never
promoted and this OER could not be found and that the officers were either
dead or could not be found.  As a result, a major rewrote the report two
years later.

3.  The applicant states that he later found out from a retired general
that
108th Group Commander retired as a lieutenant general and the battalion
commander retired as a colonel or brigadier general.  He states he knows
the battalion and group commanders on the report are alive and these
officers wanted to see him promoted to CW3.  He states he cannot find the
officer that wrote the OER and he wants the report rewritten.  He claims
his career was cut short because of this missing OER and that he was forced
to retire at 20 years of service after being forced to change from
Artillery to Club Management.

4.  The applicant provides a self-authored statement in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 31 December 1976.  The application submitted in this case
is dated 12 May 2004.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.
3.  The applicant’s record shows that after completing 12 years, 10 months
and 13 days of active military service in an enlisted status in the United
States Air Force (USAF), he was appointed a warrant officer one (WO1) in
the United States Army Reserve (USAR) and entered active duty in that
status on
16 October 1969.  On 16 October 1970, he was promoted to CW2.

4.  The applicant served with Headquarters and Headquarters Battery,
8th Battalion, 4th Artillery, RVN.  The applicant’s Military Personnel
Records Jacket (MPRJ) contains a copy of the OER in question.  It was a
change of rater report that covered the period 16 June 1970 through 20
February 1971.  This report was prepared on 11 July 1975 and contained a
rater evaluation of
98 percent, the report indicates the indorser for the period retired on 31
July 1973.

5.  On 25 February 1976, Department of the Army (DA) officials notified the
applicant that he had not been selected for continuation on active duty by
a recently adjourned DA active duty board.  This notification further
indicated that many warrant officers with fine records were considered, but
the number retained was limited based on reductions in the size of the
Army.  On 31 December 1976, he was honorably released from active duty
(REFRAD), for the purpose of voluntary retirement.  The DD Form 214 he was
issued confirms he completed a total of 20 years and 28 days of active
military service and that he held the rank and pay grade of CW2/W-2 on the
date of his REFRAD.

6.  Army Regulation 623-105 (Officer Evaluation Reporting System)
prescribes the policies and procedures of the preparation and submission of
OERs.  It also provides guidance regarding redress programs including
commander inquiries and appeals.  Paragraph 6-7 addresses timeliness and it
states, in pertinent part, that because evaluation reports are used for
personnel management decisions, it is important to the Army and the
individual officer that an erroneous report be corrected as soon as
possible. As time passes, people forget and documents and key personnel are
less available; consequently, preparation of a successful appeal becomes
more difficult. Substantive appeals must be submitted within
5 years of the OER's completion date on all reports prepared prior to 1 Oct
97.

7.  Army Regulation 600-8-29 (Officer Promotions) provides the policies and
procedures on officer promotions.  Promotion selection boards consider the
eligible officers using their official military personnel file (OMPF),
which includes all OERs accepted for filing by DA, and any communications
from eligible officers.  Promotion selection is made using the best
qualified officer concept as determined by the selective best judgment of
the promotion selection board members based on a review of the overall
records of service of eligible officers.

8.  Army Regulation 15-185 prescribes the policies and procedures for
correction of military records by the Secretary of the Army, acting through
the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-2
contains guidance on ABCMR functions.  It states that the ABCMR considers
individual applications that are properly brought before it. In appropriate
cases, it directs or recommends correction of military records to remove an
error or injustice.  It further states, in pertinent part, that the ABCMR
will decide cases on the evidence of record and that it is not an
investigative body.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that an OER he received for the period 16
June 1970 through 20 February 1971 should be rewritten and that he be
retroactively promoted to CW3 and receive all back pay and allowances due
as a result was carefully considered.  However, by regulation, appeals on
OERs received prior to 1 October 1997 should be submitted within five
years.  While the record shows the OER in question was prepared 1975, which
would tend to support the applicant’s assertion that the original report
was lost, this factor alone does not provide a basis to remove the report
in question.  DA accepted the OER for filing in the OMPF and there is no
indication the applicant took issue with or appealed the contested report
at the time it was submitted.

2.  The applicant also fails to provide any supporting statements from the
officers he claims completed the original OER.  By regulation the ABCMR
considers each case based on the evidence brought before it and the burden
of proof rests with the applicant.  The Board is not an investigative body
and is not responsible for nor does it have the capability to locate and
obtain statements from the officers in question.  As a result, the
regulatory burden of proof necessary to support removal and replacement of
the OER in question has not been satisfied in this case.

3.  The Army’s officer promotion policy is based on selection of the best
qualified officers after a comprehensive review of the overall record of
service of eligible officers and is based on the selective best judgment of
the members of the promotion selection board.

4.  In this case, even if the applicant’s assertions are true, it is
unlikely that the absence of one OER, which was replaced with an almost
equally good OER, would have impacted the promotion selection process
sufficiently enough to change the outcome of the selection process.
Therefore, there is an insufficient evidentiary basis to support a
conclusion that there was any error injustice related to the applicant’s
non-selection for promotion to CW3.
5.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 December 1976.  Therefore, the time
for him to file request for correction of any error or injustice expired on
20 December 1979.  However, he failed to file within the 3-year statute of
limitations and has not provided a compelling explanation or evidence to
show that it would be in the interest of justice to excuse failure to
timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___YM __  ___RJW_  __JKR  __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            ___Ronald J. Weaver____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040001748                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/02/24                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1976/12/31                              |
|DISCHARGE AUTHORITY     |10 USC 1293                             |
|DISCHARGE REASON        |Retirement                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  310  |131.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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