IN THE CASE OF:	  

	BOARD DATE:	  19 June 2008

	DOCKET NUMBER:  AR20080005269 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that an Officer Evaluation Report (OER) for the period 15 June 1994 through 9 March 1995 be removed from his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that the reporting period for this OER was originally 1 October 1994 through 9 March 1995; however, the Appeals Office at the U.S. Army Reserve Personnel Command (AR-PERSCOM) in St. Louis, Missouri administratively corrected the reporting period to read 15 June 1994 through 9 March 1995 in an earlier attempt to correct administrative errors.  He states that this OER was entered into his official records without his knowledge of its existence, that he had no input to its content, that he was denied his right to redress, and that this OER should have been treated and identified as a referred OER.  He claims that all administrative safeguards and controls to prevent administrative errors and injustices to an officer’s permanent record failed.

3.  The applicant states that due to the personal nature of the comments and the lack of objective evaluation of his assigned military duties, this OER is in no way a reflection of his skills as an officer.  He points out that he had no input in the content of this OER because it was constructed after he transferred out of the unit under the false impression that he was being removed from the Army for failing to make first lieutenant.  He claims that he did not receive a copy of this OER, that the appropriate boxes next to the rater and senior rater should have been checked to identify the OER as a referred report, that the OER states that it was referred to him on 20 June 1995 but the senior rater did not sign the referral letter until 23 June 1995, and that he was never sent the OER or the referral letter. 

4.  The applicant states that the OER is not administratively correct.  It contains several administrative errors from the date of rank and type of OER to his height and weight and numerous others.  He contends that his right to redress and request a Commander’s Inquiry or appeal was violated when the unit sent the OER to the U.S. Army Reserve Personnel Center (ARPERCEN, later designated AR-PERSCOM) in St. Louis, Missouri a full 15 days before the suspense date listed on the referral letter.  He claims that the OER was constructed and added to his OMPF as a punitive action for going to the Inspector General (pertaining to his promotion to first lieutenant).

5.  The applicant states that in February 1995 his company commander told him that he was going to be separated for failing to make first lieutenant.  He claims that in 1998 he found out that he had been promoted to first lieutenant (on 
6 February 1994) only because he had been non-selected for promotion to captain.  He argues that if he had known about his promotion to first lieutenant and that he was still a member of the Army Reserve, he would have transferred to another Troop Program Unit and continued drilling. 

6.  The applicant further states that in 1998 he discovered for the first time the OER and the referral letter in his OMPF and that he immediately began steps to appeal this OER.  He contends that he received his second non-select letter in June 1999 and that he continued to serve in the Army Reserve, drilling until July 2000 when he was honorably discharged.  He also states that he is a good Army officer and believes that his missing promotion to first lieutenant due to a bureaucratic mishap caused a chain of events that led to a 3-year gap in his participation in the Army Reserve and derailed any chance for promotion or advancement.  He believes that had his promotion not been lost he would have successfully continued drilling and been eligible for the captain board as early as 1996.  

7.  The applicant provides 13 enclosures outlined on page 6 of his statement.

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 enlisted in the Army National Guard on 24 April 1986 and was honorably discharged on 1 June 1990 for appointment as a commissioned officer.  On 2 June 1990, he was appointed a second lieutenant in the U.S. Army Reserve (USAR).    

3.  The applicant provided a memorandum, dated 24 January 1995, which shows he was promoted to first lieutenant effective 6 February 1994. 

4.  The contested OER is a 6-month change of rater OER covering the period 
15 June 1994 (it apparently originally began on 1 October 1994) through 9 March 1995 for duties as a Unit Movement Officer with Company B, 542nd Military Intelligence Battalion at Fort Devens, Massachusetts.  This OER was authenticated by the rater on 21 May 1995 and by the senior rater on 15 June 1995 in Part II (Authentication).  The applicant was unavailable for signature.  His previous OER had covered a period ending on 14 June 1994.     

5.  The rater indicated that the applicant was “An officer of questionable integrity who lacks military bearing, discipline and who does not support his chain of command.” and that he “was on the weight control program for the entire rating period with zero progress.”  The applicant received “5” ratings (the lowest possible) in the area of seeks self-improvement, sets and enforces high standards and the area of possesses military bearing and appearance in Part IVa (Professional Competence).  The rater also rated the applicant “Often Failed Requirements” in Part Vb (Performance and Potential Evaluation/Performance During This Rating Period).  The senior rater indicated that the applicant had shown no clear and concise understanding of his responsibilities as a Reservist and USAR officer, that he had been counseled and given ample opportunities to correct his actions but failed to improve in his overall performance, and that through his action had shown no potential for any positions or assignments of increasing responsibilities.     

6.  Part 1o (Rated Officer Copy) on the OER shows it was forwarded to the applicant on 20 June 1995.  Part VII (Senior Rater) on the OER shows that a completed DA Form 67-8-1 (Support Form) was received with this report and considered in his evaluation and review.

7.  The applicant provided a memorandum, dated 15 June 1995, which shows a copy of his OER for the period (1 October) 1994 through 9 March 1995 was referred to him by his senior rater.  The first endorsement, where the applicant was to acknowledge that he received the OER, was dated 23 June 1995 but was not signed by the applicant.   

8.  The applicant provided an undated memorandum he submitted to               AR-PERSCOM requesting the issuance of a non-rated statement for the period 15 June 1994 through 30 September 1994.  He cited that his unit company commander left the unit abruptly without completing a change of rater OER, that the commander completed an annual OER and he [the applicant] filled out an OER support form for this period, but no OER was generated.

9.  On 4 April 2003, AR-PERSCOM responded to the applicant’s request and stated that since the period requested was an invalid reporting period, a         non-rated statement was not authorized.  The Appeals Office administratively corrected the evaluation report for the period 1 October 1994 through 9 March 1995 to read 15 June 1994 through 9 March 1995 and amended item Part lq (Explanation of Nonrated Periods) on his OER to show the entry, “940615-940930 – Lack of Rater Qualification.”  

10.  Orders, dated 19 June 2000, show the applicant was honorably discharged from the USAR effective 1 July 2000 in the rank of first lieutenant.   

11.  A review of the applicant’s OMPF on the Personnel Electronic Records Management System revealed a copy of the OER in question.  

12.  Army Regulation 600-8-104 (Military Personnel Information Management/Records) prescribes the policies governing the Official Military Personnel File, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records.  Table 2-1 of the regulation provides, in pertinent part, that an OER will be filed in the performance section of the OMPF.

13.  Army Regulation 623-105 (Evaluation Reporting System), in effect at the time, stated, in effect, that an evaluation report accepted for inclusion in the official record of a rated Soldier’s OMPF was presumed to be administratively correct, to have been prepared by the proper rating officials, and to have represented the considered opinion and objective judgment of the rating officials at the time of preparation.  The regulation also stated that the burden of proof rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant would produce evidence that established clearly and convincingly that (1) the presumption of regularity referred to in paragraphs 3-39 and 6-7 would not be applied to the report under consideration and (2) action was warranted to correct a material error, inaccuracy, or injustice.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that the OER was entered into his official records without his knowledge of its existence and that he did not discover the OER until 1998 were noted.  He did state that the OER was sent to ARPERCEN 15 days before the suspense date listed on the referral letter (i.e., on 5 July 1995), although it cannot be determined how he determined that date.   However, even if the contested OER was entered into his records without his knowledge, a reasonably prudent officer would have reviewed his OMPF at least annually.  Had the applicant done so, he could have discovered the OER in a timely manner and then appealed the OER in a timely manner. 

2.  Although the applicant contends that he had no input to the content of the OER, his OER shows that the senior rater received a completed support form from the applicant and considered it in his evaluation and review.  The applicant provides no evidence to show he did not provide a completed support form.

3.  The applicant’s contention that he was denied his right to redress was noted.  However, there is no evidence of record which shows the applicant appealed the contested OER to the proper officials in a timely manner.  Even if he did take the reasonably prudent action of reviewing his OMPF on a regular basis, he should have known that he was due an OER on 30 September 1994.  Again, a reasonably prudent officer would have contacted the rating officials to discover where that OER was.  Had he taken that action in a timely manner, again, he could have appealed the OER in a timely manner and addressed the numerous administrative errors on the OER at that time, too.  

4.  The applicant’s contention that the OER should have been treated and identified as a referred OER was noted.  However, evidence of record shows that the OER was referred to him and the first endorsement, where the applicant was to have acknowledge that he received the OER, was dated 23 June 1995.  It does not appear that 23 June 1995 was the date the senior rater signed the referral letter.  The letter itself is dated 15 June 1995.  The OER indicates that it (and presumably the referral letter) was forwarded to him on 20 June 1995.

5.  The contested OER was prepared by the properly designated rating officials.  The applicant has not provided sufficient evidence to show the OER did not represent the considered opinion and the objective judgment of the rater and senior rater at the time of preparation.  Therefore, there is an insufficient basis for granting the applicant’s request. 
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  __xx____  ___xx___  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

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.



       _   _xxxx______   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20080005269





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ABCMR Record of Proceedings (cont)                                         AR20080005269



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