RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           7 June 2005
      DOCKET NUMBER:  AR20040006330


      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. Karl F. Schneider             |     |Deputy Assistant     |
|     |                                  |     |Secretary (Army      |
|     |                                  |     |Review Boards)       |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Karen Y. Fletcher             |     |Chairperson          |
|     |Mr. Kenneth L. Wright             |     |Member               |
|     |Mr. William D. Powers             |     |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, award of the Purple Heart (PH) and
Bronze Star Medal, promotion to captain, and removal of officer evaluation
reports (OERs) rendered by a named lieutenant colonel (LTC).

2.  The applicant states, in effect, that he requests attendance at any
Board hearing on this matter.  He also states that he was selected for
promotion to CPT by the 1992-1993 promotion selection board, which was
published in the Army Times with a promotion date of 1 October 1993.  He
claims that when the promotion date arrived, three officers came to his
hospital where he was being treated for Gulf War injuries to conduct his
promotion ceremony.  However, before the ceremony could be conducted, the
medical holding company commander called to inform us that no orders had
been published and that he would look into the matter.  At this time, it
was discovered that his former stateside commander, a LTC, had submitted a
FLAG action on his records claiming that since he was hospitalized, he no
longer met the physical requirements for promotion to CPT and that he
exceeded the height/weight standards.  He now requests that he be promoted
and now be given a promotion and retirement ceremony he never received.

3.  The applicant also requests that all OERs he received from a named LTC
and any actions from a named general be removed from his records.  He
claims these actions are unjust and in one case are entirely untrue.  He
claims that in one case, his signature was obtained against his will while
he was incapacitated in the hospital.  He also requests the inclusion of an
OER he received from a named CPT and LTC and a retention recommendation
letter submitted by a named commanding general also be added to his record.


4.  In support of his application, the applicant provides a self-authored
statement, retention recommendation (Commander, Personnel Information
Systems Command), United States Army Personnel Command (PERSCOM) electronic
mail (e-mail) message on promotion and the Fiscal Year 1993 (FY93) CPT
Promotion Selection Board (PSB) Results Memorandum.
CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged error or injustice
that occurred on 20 April 1994.  The application submitted in this case is
dated
24 August 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 limitations 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.  There are no orders or other evidence on file that confirm he is
entitled to the BSM.  In the absence of authority for this award, he may
request award of the BSM under the provisions of Section 1130 of Title 10
of the United States Code (10 USC 1130).  He has been notified by separate
correspondence of the procedures for applying for this award under 10 USC
1130.  As a result, award of the BSM will not be discussed further in this
Record of Proceedings.

4.  The available evidence shows the applicant was commissioned a second
lieutenant in the Regular Army and entered active duty on 24 May 1989.  He
was promoted to first lieutenant (1LT) on 24 May 1991, and he served in the
primary specialty 88A (Transportation).

5.  The applicant served in Southwest Asia (SWA) from 1 August through
19 October 1991.  During his tenure on active duty, he earned the following
awards and decorations:  Meritorious Service Medal, Army Commendation
Medal, National Defense Service Medal, SWA Service Medal with 1 bronze
service star, Army Service Ribbon, Parachutist Badge and Air Assault Badge.


6.  The applicant’s medical history reveals that he was medically evacuated
from SWA and arrived as a patient at Fort Polk, Louisiana on 21 October
1991.  On
23 January 1992, a Medical Evaluation Board (MEB) diagnosed the applicant
with manic depressive illness and referred him to a Physical Evaluation
Board (PEB).
7.  On 8 June 1992, a PEB convened at Fort Sam Houston, Texas, to evaluate
the applicant.  The PEB concluded that the applicant’s condition was in
remission and found him fit for duty.  At this time, he was reassigned to
Fort Eustis, Virginia, where he arrived for duty in October 1992.

8.  On 23 October 1992, a suspension of favorable personnel actions (FLAG)
was initiated on the applicant based on his being placed in the weight
control program.

9.  On 12 February 1993, the FY93 CPT promotion list was published by
Department of the Army (DA).  The applicant’s name was included on this
list.

10.  On 1 July 1993, PERSCOM approved the applicant’s request for
unqualified resignation.

11.  On 14 July 1993, a FLAG was initiated on the applicant by DA based on
his removal from the promotion list.

12.  On 8 February 1994, a PEB convened at Walter Reed Army Medical Center,
to consider the applicant’s case.  The PEB found the applicant’s
schizoaffective disorder rendered him physically unfit and recommended a
combined disability rating of 70 percent.  The PEB further recommended that
the applicant be placed on the Temporary Disability Retired List (TDRL).

13.  On 8 February 1994, the applicant concurred with the findings and
recommendations of the PEB.  On 9 February 1994, the PEB was approved on
behalf of the Secretary of the Army.

14.  The available medical records provide no indication that the applicant
ever received a wound or injury as a direct result of, or that was caused
by enemy action.

15.  The applicant’s Official Military Personnel File (OMPF) was not made
available to the Board, and the available evidence does not include any of
the OERs in question, or any indication that the applicant ever appealed
any of these reports while he remained on active duty.
16.  On 20 April 1994, the applicant was honorably released from active
duty (REFRAD), by reason of disability, temporary, and placed on the TDRL.
The separation document (DD Form 214) he was issued confirms that on the
date of his REFRAD, he held the rank of 1LT and had completed a total of 4
years,
10 months and 27 days of active military service.  The applicant
authenticated this document with his signature on the date of his
separation.

17.  On 31 October 1995, a PEB convened at Fort Lewis, Washington to
consider the applicant’s case.  The PEB found the applicant’s
schizoaffective disorder rendered him physically unfit and it recommended a
combined disability rating of 50 percent.  The PEB also recommended that
the applicant be granted a permanent disability retirement.

18.  On 15 December 1995, after partially concurring with the PEB findings
and recommendations and requesting a formal PEB on 11 November 1995, the
applicant after fully consulting with counsel, waived his right to a formal
hearing and accepted the findings and recommendations of the PEB.

19.  PERSCOM Orders Number D21-2, dated 24 January 1996, directed the
applicant be removed from the TDRL and that he be placed on the Retired
List on 24 January 1996, in the rank of 1LT, by reason of permanent
disability.

20.  The applicant provides a recommendation from the then commander of the
Personnel Information Systems Command, a brigadier general (BG), dated
14 April 1992.  In this recommendation, the BG strongly recommended the
applicant’s retention on active duty.  He stated that when he learned the
applicant was being considered by a medical board, he decided to fight for
his retention because he was an outstanding officer.  He further stated
that the manifestation of unusual behavior by the applicant was unique and
never repeated.

21.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and
criteria concerning individual military awards.  Paragraph 2-8 contains the
regulatory guidance pertaining to awarding the PH.  It states, in pertinent
part, that in order to award a PH there must be evidence that a member was
wounded or injured as a result of enemy action.  The wound or injury for
which the PH is being awarded must have required treatment by a medical
officer, this treatment must be supported by medical treatment records that
were made a matter of official record.
22.  Army Regulation 600-8-29 (Officer Promotions) prescribes the Army’s
officer promotion policy.  Paragraph 1-19 contains guidance on non-
promotable status.  It states, in pertinent part, that an officer is not
promotable when he/she is under, or should be under a suspension of
personnel actions.  It further states that an officer is non-promotable
when he/she is documented as overweight.

23.  Army Regulation 623-105 provides the Army’s policy on the Officer
Evaluation System.  Chapter 6 contains guidance on the redress system and
Section III contains guidance on the appeals process.  It states, in
pertinent part, that an OER accepted for filing into the OMPF is presumed
to be administratively correct, to have been prepared by the proper rating
officials, and to represent the considered opinion and objective judgment
of rating officials at the time of preparation.

24.  Paragraph 6-10 of the OER regulation contains guidance on the burden
of proof and types of evidence necessary to support a successful appeal of
an OER.  It states that the burden of proof rests with the appellant.
Accordingly, to justify deletion or amendment of a report, the appellant
must produce evidence that establishes clearly and convincingly that the
presumption of regularity assigned to OERs accepted for filing in the OMPF
should not be applied to the reports in question.  Further, the applicant
must provide evidence that action is warranted to correct a material error,
inaccuracy, or injustice.  Clear and convincing evidence must be of a
strong and compelling nature, not merely proof of the possibility of
administrative error or factual inaccuracy.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that he should be promoted to CPT, awarded
the PH and that all OERs submitted by a named LTC should be removed from
his record were carefully considered.  However, there is insufficient
evidence to support these claims.

2.  The available evidence fails to provide any indication that the
applicant was ever wounded/injured as a result of combat action, or that
his physical disability was the direct result of, or caused by enemy
action.  As a result, the regulatory burden of proof necessary to support
award of the PH has not been satisfied in this case.
3.  By regulation, an officer is in a non-promotable status when they are
under, or should be under a suspension of personnel actions.  The evidence
of record in this case shows that based on his being placed in the weight
control program, a  FLAG action was imposed on the applicant on 23 October
1992.  It further shows that he was removed from the promotion list and
that a FLAG action was imposed for this reason by DA on 14 July 1993.  As a
result, he had already been removed from the promotion list and was in a
non-promotable status in October 2003.

4.  The record also contains a properly constituted separation document
that was issued to the applicant on the date of his REFRAD on 20 April
1994.  This
DD Form 214 confirms he held the rank of 1LT on the date of his separation.
 The applicant authenticated this document with his signature, which was
his verification that the information contained on the document, to include
his rank, was correct at the time it was prepared and issued.  As a result,
there is an insufficient evidentiary basis to support his promotion to CPT
at this late date.

5.  By regulation, an OER accepted for filing in the OMPF is presumed to be
administratively correct, to have been prepared by the proper rating
officials, and to represent the considered opinion and objective judgment
of rating officials at the time of preparation.  The regulation further
stipulates that the burden of proof necessary to overcome this presumption
of regularity rests with the applicant.  The regulation stipulates that in
order to successfully appeal an OER, the applicant must provide clear and
convincing evidence of a compelling nature to show action is necessary to
correct a material error, injustice or inaccuracy.

6.  The evidence in this case does not show the applicant ever contested
the OERs in question at the time they were issued or accepted for filing
into his OMPF.  Further, other than his self-authored statement, there is
no evidence to support his assertion that the OERs rendered by the named
officers were in error, inaccurate, or unjust.  As a result, the regulatory
burden of proof necessary to support a successful OER appeal has not been
satisfied in this case.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 20 April 1994.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 19 April 1997.  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 RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___KYF _  ___KLW_  ___WDP_  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.




            ____Karen Y. Fletcher____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040006330                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/06/07                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1994/04/20                              |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |TDRL                                    |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  310  |                                        |
|2.  46                  |                                        |
|3.  1021                |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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