RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  12 July 2007 
	DOCKET NUMBER:  AR20060015315 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Mr. Jose A. Martinez

Member

Mr. William F. Crain

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 removal of Officer Evaluation Report (OER) for the period 1 April 1998 through 31 March 1999 [hereafter referred to as the contested report] from his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that he did not sign the contested report and that someone forged his signature.  The applicant further adds that the rating in Part VII (Senior Rater) and the SR rating in Part VII(b) (Potential Compared With Officers Senior Rated in the Same Grade) do not correspond with the rating in Part VII(c) (Senior Rater Comments on Performance/Potential).

3.  The applicant provides copies of the contested OER, copy of a previous OER prepared by the same rater, a statement by his rater, and copies of his rater's OERs in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 31 March 1999, the through date of the applicant's OER.  The application submitted in this case is dated 16 October 2006.

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.  Records show that the contested report was an "Annual" report for 12 months of rated time in the position of Civil Affairs Officer, United States Army Atlantic Command.

4.  The contested report shows the applicant was rated by a lieutenant colonel in the position of Civil Affairs Officer and he was senior rated by a colonel in the position of Special Operations Chief.

5.  The contested OER shows in part IV (Professional Evaluation-Professionalism (rater)) that the rater placed his "X" under "Yes" for all of the blocks in the Army Values section which indicated that the applicant supported each of the Army values.  The rater also placed his "X" under all of the blocks in the Attributes, Skills and Actions categories which indicated that the applicant demonstrated the fundamental qualities, characteristics and major actions to perform in a leadership position.

6.  In Part VII (Senior Rater) of the contested OER, the SR placed his "X" in the second block (Fully Qualified) under Part VIIa (Evaluate the Rated Officer's Potential to the Next Higher Grade).

7.  Part VIIb of the contested report shows the SR's evaluation resulted in a "Below Center of Mass Retain" evaluation.  In Part VIIc (Comment on Performance/Potential), the SR made generally positive comments regarding the applicant's performance and potential.  The SR essentially stated the applicant performed his duties in an outstanding manner and that he has great potential and should be promoted to colonel as soon as possible.

8.  On 11 July 2006, the applicant appealed to the OSRB wherein, he requested removal of the contested report for inaccuracy of his signature block.  The applicant also argued that he was never provided counseling by his rater indicating that his performance was in question.  He concluded that he did not see or sign the contested report.

9.  The OSRB acknowledged receipt of the officer's appeal on 15 August 2006 and sent his appeal to the Special Review Board (SRB) for adjudication on 22 August 2006.  On 7 September 2006, the SRB returned his appeal without action indicating the officer's justification for submitting the substantive appeal beyond the five year limit was not sufficient to warrant an exception.  

10.  On 28 June 2006, the applicant's rater submitted a statement which essentially stated that due to oversight at the time the OER was completed, he did not notice the "Center of Mass Rating" box was checked.  The applicant's rater continued that the SR relied on his expertise and advice.  The rater concluded that at no time did the SR indicate that there was a problem with the applicant's performance and that the applicant was one of the most knowledgeable and competent officers that he had ever served with.  The rater concluded that the OER should be removed from the applicant's records because he does not deserve the rating.

11.  Paragraph 1-10a of Army Regulation 623-105 (Personnel Evaluations) states performance evaluations are assessments on how well the rated officer met his or her duty requirements and adhered to the professional standards of the officer corps.  Performance is evaluated considering the results achieved, how they are achieved, and how well the officer complied with professional standards.

12.  Paragraph 3-2g of Army Regulation 623-105 states rating officials must prepare reports that are accurate and as complete as possible within the space limitations of the form.  This responsibility is vital to the long-range success of the Army's mission.  With due regard for the officer's current grade, experience, and military schooling, evaluations should cover failures as well as achievements.  However, evaluations will not normally be based on a few isolated minor incidents.

13.  Paragraph 3-17b(3) of Army Regulation 623-105 states that the rated officer's signature verifies the accuracy of the administrative data in Part I (except block m), the rating officials in Part II, the Army Physical Fitness Test (APFT) and height and weight in Part IVc, and that the rated officer has seen the completed OER, Parts I through VII. 

14.  Paragraph 6-10 of Army Regulation 623-105 places the burden of proof on the applicant to provide clear and convincing evidence to justify deletion or amendment of an OER.

15.  Paragraphs 3-57 and 6-6a of Army Regulation 623-105 state that an evaluation report accepted by HQDA and included in the official record of an officer is presumed to be administratively correct, has been prepared by the properly designated rating officials and represent the considered opinions and objective judgment of the rating officials at the time of preparation.  

16.  Paragraph 3-57 of Army Regulation 623-105 states that an evaluation report accepted by Headquarters, Department of the Army, and included in the official record of an officer is presumed to be administratively correct, has been prepared by the properly designated rating officials, and represents the considered opinions and objective judgment of the rating official at the time of preparation.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he is entitled to removal of the contested report because he did not see or sign the OER.  The applicant further contends that there is no justification for the below center of mass rating.


2.  Although the applicant provided a statement from the rater, this statement is not sufficient evidence to show that the contested report did not accurately reflect the rating officials considered opinion and objective judgment of the applicant's performance and potential at the time the contested report was rendered or that the rating officials lacked the fairness, honesty, and impartiality required by Army Regulation 623-105.

3.  The applicant's rater argued the "Below Center Mass Rating" was an oversight.  Applicable regulation provides that requests for an accepted report to be altered, withdrawn, or replaced with another report will not be honored in those cases when a rating official submits a statement claiming administrative oversight or a statement from a rating official claiming he or she rendered an inaccurate center of mass rating.

4.  The applicant's contention that his signature was falsely placed on the contested report was carefully considered and determined to be without merit.  Lacking substantiating evidence showing that this signature was inaccurate, there is no basis to amend the contested report.

5.  Based on the foregoing, there is no basis to amend or delete the contested report as requested. 

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 31 March 1999; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 30 March 2002.  The applicant did not 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

_JEA_ __  _JAM___  _WFC____  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.





James E. Anderholm_
          CHAIRPERSON


INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.