RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 April 2008
	DOCKET NUMBER:  AR20070019028 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 that his Officer Evaluation Report (OER) for the period ending 12 June 2001 be expunged from his records.

2.  The applicant states that at the time he received the contested OER, a relief-for-cause report, he was a newly-promoted officer recovering from an incredibly painful and debilitating disease, shingles (herpes zoster).  His (senior) rater (SR) at the time has written a letter stating that he (the SR) should have mentored him and not relieved him from duty.  Additionally, he was not available to sign the OER or see it prior to its release.  He admits that a combination of his immaturity in not telling his commander that he was not truly fit for duty and his failure in taking the responsibility upon himself to attempt to schedule someone else to pull his duty (led to the incident that resulted in the OER).  

3.  The applicant states that his SR wrote a letter to the major promotion board, outlining why he should have mentored him (the applicant) and not given him that OER, and why the applicant should be allowed to continue serving and to be promoted.  The applicant states that he has rectified his own mistakes, and the officer who relieved him states that he should not have relieved him.  

4.  The applicant provides the contested OER; his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 1 September 2001; and a letter, dated 16 February 2007, from the SR of the contested OER.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was commissioned a second lieutenant out of the U. S. Army Military Academy and entered active duty on 1 June 1996.

3.  On 8 January 1998, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for driving while intoxicated.

4.  The applicant was promoted to captain, O-3 on 1 October 2000.

5.  The contested OER is a 4-month relief-for-cause OER for the period             15 February 2001 through 12 June 2001.  During this period the applicant performed duties as a Plans Officer in a Combined Task Force (CTF) in the Bosnian Theater of Operations.  The SR noted that the applicant’s performance as a Battle Captain on the CTF had been commendable, but he relieved the applicant from duty because he found the applicant asleep in the Operations Center on a cot with the lights turned off.  The applicant was the only officer on duty and the CTF relied on him to remain alert and deal with urgent matters as they arose.  The SR noted that the fact the applicant turned off the lights and laid down on a cot indicated to him that the applicant had no intention of trying to stay awake.  The SR also stated that he believed the applicant learned from the experience and could continue to serve the Army in a different venue.

6.  The contested OER was signed by the rating officials on 27 July 2001.  The applicant was not available to sign the OER.  Part Im (Rated Officer Copy) indicates that the OER was forwarded to the applicant on 31 July 2001.  Part IId (This is a referred report, do you wish to make comments?) contains no “x” marks.  No referral letter is filed in the applicant’s Official Military Personnel File (OMPF).  The reviewing official provided his supplementary review on 7 January 2002, stating the OER was complete and correct as written and required no further comment from him.

7.  The applicant was honorably discharged on 1 September 2001.  He accepted appointment in the U. S. Army Reserve on 2 September 2001.  A copy of the contested OER is filed in his OMPF.

8.  On 16 February 2007, the SR of the contested OER forwarded a letter of recommendation to the President of the Major, Department of the Army Reserve Components Mandatory Selection Board.  He stated that although he relieved the applicant from his duties 6 years previously, he felt that the applicant has become a stronger Soldier from that experience.  He stated that good judgment comes from experience; unfortunately, a lot of that experience comes from previously poor judgment.  He stated that he should have taken the time to mentor the applicant instead of relieving him.

9.  On 3 July 2007, the applicant was notified that he had been nonselected for promotion to Major by the Department of the Army Reserve Components Mandatory Selection Board that convened on 12 March 2007.
10.  Army Regulation 623-105, in effect at the time, established the policies and procedures for preparing, processing, and using the OER.  The regulation provided that an OER accepted for inclusion in the official record of an officer 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 the rating officials at the time of preparation.  The burden of proof in appealing an OER rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that clearly and convincingly nullifies the presumption of regularity.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  Table 6-2 (Appeal Preparation and Checklist) stated that statements from rating officials would not be the sole basis of the appeal.

11.  Army Regulation 623-105 listed the types of OERs that would be referred to the rated officer by the SR for acknowledgment and comment before they were sent to Headquarters, Department of the Army (HQDA).  Types of OERs that would be referred included relief-for-cause reports.  

12.  Army Regulation 623-105 stated that if referral was required, the SR would place an “x” in the appropriate box in Part IIe (i.e., Part IId) of the completed report.  The report would then be given to the rated officer for signature and placement of an “x” in the appropriate box in Part IIe (i.e., Part IId).  The SR would refer, in writing, a copy of the completed report.  That would be done even if the rated officer had departed due to permanent change of station, retirement, or release from active duty.  On receipt of the rated officer’s acknowledgment (if received), the SR would attach it and the original or a signed copy of the referral letter to the original report and forward it to the reviewer (if appropriate); the personnel services battalion or the administrative office (as appropriate); or the other rating officials.

13.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  It specifies that promotion reconsideration by a special selection board may only be based on erroneous non-consideration or material error which existed in the records at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual’s non-selection by a promotion board and that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant was not an immature, newly-promoted officer.  He had been promoted to captain 8 months previously and had graduated from the U. S. Military Academy 5 years previously.  Since the contested OER was not the only negative information in the applicant’s records it cannot be determined for certain that the contested OER was the only reason the applicant was nonselected for promotion to Major.

2.  Nevertheless, the contested OER does contain a material error.  The relief- for-cause OER was required to be referred to the applicant.  The lack of a referral letter in his OMPF and the lack of entries in Part IId of the contested OER indicate that the reviewing official erred when he stated the OER was complete and correct as written and required no further comment from him.  Had the OER been properly referred, the applicant could have offered his explanation for his dereliction of duty at the time.  The SR could have reconsidered his decision to issue a relief-for-cause OER at the time.  The failure to follow regulatory guidance may have worked an injustice on the applicant in regard to his chances for promotion.

3.  It would be equitable to expunge the contested OER from the applicant’s records and to have his records reconsidered by a special selection board for promotion to Major under the same criteria considered by the Department of    the Army Reserve Components Mandatory Selection Board that convened on   12 March 2007.

BOARD VOTE:

__x__  __x___  __x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

     a.  expunging from his records the relief-for-cause OER for the period ending 12 June 2001 and any related documents and entering in its place a nonrated statement for the period covered by that report;

      b.  submitting his records to a duly constituted special selection board for reconsideration for promotion to major under the same criteria considered by the Department of the Army Reserve Components Mandatory Selection Board that convened on 12 March 2007;

     c.  promoting him to major and assigning the appropriate date of rank if he is selected for promotion; or

     d.  notifying him if he is not selected for promotion.




      __             x_______
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20070019028


2


DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508