IN THE CASE OF:	  

		BOARD DATE:	       19 May 2009 

		DOCKET NUMBER:  AR20080014053 


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 rating period of 20 November 1999 through 19 November 2000 [hereafter referred to as the contested report] be restored back to a rating of "Above Center Mass" (ACOM) in part VIIb Senior Rater [SR] (Potential Compared with Officers Senior Rated in Same Grade).

2.  The applicant states, in effect, that the United States Army Chaplain Center and School’s (USACHCS) Adjutant handled the submission of the contested report in a less than adequate manner resulting in an administrative error that caused his rating in part VIIb to be administratively changed at DA level to reflect Center of Mass (COM) which he feels contributed to him not being selected for promotion to lieutenant colonel (LTC).

3.  The applicant provides, in support of his application, the contested report; DD Form 214 (Certificate of Release or Discharge from Active Duty); memorandum from U.S. Army Human Resources Command (USAHRC), Alexandria, VA, dated 31 July 2008; and his memorandum, with attachments, to USAHRC appealing the contested report for the expressed purpose of having a "Re-Look" board, dated 25 July 2008.

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, and 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’s DD Form 214 shows he was honorably retired from active duty on 31 July 2003 by reason of sufficient service for retirement.  At the time of retirement, he had completed 23 years, 5 months, and 4 days of creditable active service.  The highest rank/grade held during his tenure of service was major (MAJ)/O-4.

3.  The contested report is an annual report for the period 20 November 1999 through 19 November 2000 while assigned as a Senior Instructor at the Chaplain Officer Basic Course. 

4.  Part IIe (Signature of Rated Officer) of the initial contested report shows that the applicant authenticated the report with his signature, but did not provide a date.

5.  Part VIIb of the initial contested report shows an "X" marked in the box rating of ACOM.

6.  The SR provided a statement of support stating that he was notified by US Total Army Personnel Command (PERSCOM) that based on his SR profile, he could not rate the applicant with an ACOM based on the 50 percent rule.  The SR stated that he was informed of his mistake and the action that he would need to take to correct the contested report.  This included verbally giving PERSCOM the authorization to change the rating in block VIIb of the report or it would be automatically changed, and that a letter of warning would be sent to the SR's chain of command.  The SR stated he gave PERSCOM the authorization to change the contested report from ACOM to COM.

7.  The SR continued that he met with the USACHCS Adjutant in reference to the contested report.  It was revealed that due to an administrative oversight by one of the Soldiers working in the S1 section some of the SR’s prior rated reports were not properly processed in a timely manner, causing an imbalance in the sequencing of the SR’s profile.

8.  On 29 June 2001, the applicant submitted a request for promotion reconsideration to LTC to the DA Appeals and Corrections Branch based on the administrative error on the contested report and based on the statement of support submitted by the SR who was also a voting member of the LTC promotion board in question.

9.  On 11 July 2001, the DA promotion reconsideration appeal authority responded to the applicant's request for promotion reconsideration informing him that in order to request promotion reconsideration there must have been an error in the official records seen by the board and the error has been corrected.  The appeal authority informed the applicant that in this case the error was with the OER but that the error had not been corrected.  The applicant was informed on the process for correcting the error through the OER appeal system.  The applicant was informed that OER appeals that claim an error in the sequencing of OERs into the senior rater profile would not be accepted; that improperly sequenced OERs are not a basis for an appeal.

10.  On 31 July 2008, the applicant submitted an appeal to the contested report to the USAHRC Appeals and Corrections Branch.  The applicant was informed that substantive appeals were to be submitted within 3 years of the ending date of the contested report and that his report ended almost 8 years ago.  He was informed that based on the time lapse from the ending date of the contested report, he would have to submit an application to the ABCMR. 

11.  Army Regulation 623-105 (Evaluation Reporting System), in effect at the time, states that the burden of proof in an appeal of an OER rests with the applicant.  Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that the action to correct an apparent material error or inaccuracy is warranted.

12.  Army Regulation 623-105, in pertinent part, states DA Form 67-9 appeals that claim an error in the sequencing of OERs into the senior rater profile will not be accepted.  The profile reflects the total of all reports in a single grade written by that SR and received and accepted at HQDA as of the day the new report is accepted.  Reports may be delayed in mail handling and administrative processing.  The official profile maintained at HQDA on a given day may be different from that in any personal record.  Appeals based on differences between privately kept records and the DA maintained profile will not be honored. It is incumbent on the SR to ensure that reports processed at HQDA are in the desired sequence.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the contested OER should be restored back to a rating of ACOM in part VIIb was carefully considered.

2.  Evidence shows that the contested report was properly authenticated, processed, and forwarded to DA for final posting.  Upon processing at DA, it was discovered that the SR assessment in part VIIb was being rated as ACOM and was not in sequence with the SR profile at DA level.  As a result, the contested report was authorized by the SR and in accordance with pertinent regulations to be changed to a COM rating.

3.  Statements of support for this contested report were provided explaining the circumstances surrounding the mishandling and the administrative errors that were no fault of the applicant.  The SR expressed that his intentions were that the applicant would receive the ACOM rating based on his performance during this rating period.  The statement also contends that the SR understands how to manage his SR profile, but unless he performs the duties of USACHCS and PERSCOM Officers and NCOs, he could not guarantee the desired process.

4.  Although the applicant provides sufficient evidence which supports his contention that an error was made in the processing of the contested report and the error was due to no fault of his own, pertinent regulations direct that appeals that claim an error in the sequencing of OERs into the SR profile will not be accepted.  Additionally, the applicant waited over eight years to request that the SR profile be reset and his rating be placed in the ACOM block.  

5.  Given the extensive passage of time, the fact that the regulation in effect at the time does not allow for sequencing errors in the SR's profile to be the sole basis for removal of an OER, and the fact that the applicant did not provide sufficient evidence which shows that the contested report was inequitable, unjust, or otherwise flawed, there is no basis to grant the applicant’s requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X_____  __X____  ___X____  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.



      ___________X___________
               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)                                         AR20080014053



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ABCMR Record of Proceedings (cont)                                         AR20080014053



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