BOARD DATE:	  27 October 2009

		DOCKET NUMBER:  AR20090003287 


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, in effect, that the Officer Evaluation Report (OER) for the period ending 1 November 2000 be removed from his Official Military Personnel File (OMPF), that his security clearance be reinstated, and that his disability rating be increased to 50 percent.   

2.  The applicant states, in effect, that page three of his self-authored statements contain the following grievances:  

		a.  his rater lacked the 90-day qualification period to rate him,

		b.  that he was not a member of the command that attempted to revoke his security clearance and that his actual commander and doctor did not believe he was a threat to security.  He also states that the investigation into his fitness for a security clearance is in limbo because he is no longer in the military and cannot prove he was not a member of the command that attempted to revoke his clearance, and

		c.  that the Physical Evaluation Board (PEB) reduced his disability rating from 50 percent to 30 percent without comment or reason as stated in the appropriate regulations.  He was also removed from the temporary disability retired list (TDRL) and his rating was further reduced from 30 percent to 
10 percent.  He states the PEB erred because he was given a mental status examination instead of a physical examination.  He believes he should have been given a proper examination and retained on the TDRL for an additional
18 months. 
3.  The applicant provides a self-authored statement; a copy of his OER for the rating period 8 June through 1 November 2001; and a copy of a memorandum from Headquarters, 81st Regional Support Command (RSC), subject:  OER Referral in support of his application.

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.  At the time of his application, the applicant was retired from the United States Army Reserve by reason of a permanent physical disability, in the rank of major, pay grade O-4.  He had completed 9 years, 10 months, and 25 days of creditable active service.

3.  The applicant's contested OER was a Change of Rater report for the period 
8 June 2000 through 1 November 2000, while he was serving as an Assistant Staff Judge Advocate with the 81st RSC, Birmingham, Alabama.  Part II (Authentication) shows the applicant was rated by the Deputy Staff Judge Advocate, a lieutenant colonel, and senior rated (SR) by the Staff Judge Advocate, a colonel.  The rater and SR signatures are dated 29 January 2001 and 1 February 2001 respectively.  The applicant' s signature is dated 7 February 2000 [however, it should be 2001].  

4.  On 28 January 2001, the OER was referred to the applicant for his acknowledgement and/or comments.  Item d in part II (Authentication) of the OER indicates "no" in reference to whether he wished to make comments regarding the referred report.  

5.  Orders Number R-11-006778, US Army Reserve Personnel Command     (AR-PERSCOM, now known as the U.S. Army Human Resources Command (AHRC)) St. Louis, MO., dated 2 November 2000, show the applicant was released from attachment to the 81st RSC and further attached to the Dwight D. Eisenhower Army Medical Center, Medical Holding Company, Fort Gordon, GA, effective the date of the orders.

6.  The applicant’s PEB proceedings are not available.  However, the record contains the following properly constituted orders resulting from the PEB proceedings:

	a.  Orders Number C-05-701080, AR-PERSCOM, St. Louis, MO., dated       18 May 2001, show that the applicant was released from assignment and duty because of a physical disability incurred while entitled to basic pay and placed on the TDRL, effective 11 August 2001.

	b.  Orders Number D152, US Army Physical Evaluation Board, Walter Reed Army Medical Center, Washington, DC, dated 6 August 2002, show the applicant was removed from the TDRL and discharged from the service on 
the same date, with a 10 percent disability rating and 6 months' severance pay.

7.  The Soldier Management System (SMS), AHRC – St. Louis, MO, shows the applicant's clearance was not valid and that he was retired with more than a     24-month break in service.  The SMS also shows the applicant was instructed to contact AHRC – St. Louis, Missouri, Security Management Office for further instructions if he needed a security clearance.

8.  Army Regulation 623-105 (Officer Evaluation Reporting System), in effect at the time, established the policies and procedures for the OER system.  It provided the opportunity to request a Commander's Inquiry or to appeal disputed reports.  Paragraphs 5-32 and 9-2 provided that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, was presumed to have been prepared by the properly designated rating officials, and to have represented the considered opinion and objective judgment of the rating officials at the time of preparation.

9.  Army Regulation 623-105 also stated that the rater would normally be the immediate supervisor for a minimum of 90 consecutive days.

10.  The same regulation stated that the rated Soldier's signature would verify the accuracy of the administrative data in Part I, to include nonrated time; the rating officials in Part II; the APFT and height and weight data; and that the rated Soldier had seen the completed report.  This action increased administrative accuracy of the report and would normally preclude an appeal by the rated Soldier based on inaccurate administrative data.  In the event the rated Soldier was not available or refused to sign, SRs would provide an explanation in their narrative or bullet comments.  If significant changes were made to a final evaluation after the rated Soldier signed it, the SR would ensure the rated Soldier had an opportunity to see the evaluation.

11.  Army Regulation 623-105 further provided that the burden of proof in appealing an OER rests with the rated individual.  Accordingly, to justify deletion or amendment of a report, the applicant must have produced evidence that clearly and convincingly nullified the presumption of regularity.  Clear and convincing evidence must have been of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states that a member who is unfit to perform the duties of his office, grade, rank, or rating will be placed on the TDRL if his disability has not stabilized at the time the member is retired.  The TDRL will list names of all members temporarily retired.

13.  Army Regulation 635-40, paragraph 7-11a(2) (b) states in pertinent part, that Soldiers will be removed from the TDRL and separated with severance pay if the condition has stabilized at less than 30 percent or the disability, although not stabilized, has improved so as to ratable at less than 30 percent.  

14.  Army Regulation 380-67 (Personnel Security) paragraph 3-301 states in pertinent part that a full national agency check will be conducted on personnel requiring a security clearance if there has been a break in service greater than
12 months.

15.  Army Regulation 380-67, Appendix F, paragraph F-1 lists the officials authorized to deny or revoke personnel security clearances (to include secret):  Secretary of Defense and/or designee; the Service Secretaries and/or designees; the Chairman, Joint Chiefs of Staff and/or designee; Directors of the Defense Agencies and/or designees; Commanders of the Unified and Specified Commands and/or designees; and the Commander, CCF and/or designee.

DISCUSSION AND CONCLUSIONS:

1. The available evidence shows the applicant was afforded the opportunity to voice his concerns via comments to the referred OER or to seek redress via a Commander's Inquiry, but he chose not to use those avenues.  He has also failed to provide evidence to show the rater did not meet rater qualifications.  Therefore, there is no evidence nor has the applicant provided any to show the contested report was unfair or unjust, or that the comments and ratings listed on the report were inconsistent with the applicant’s performance of duty during the rating period.
2.  The subject OER has been accepted by Headquarters, Department of the Army, and is included in the applicant's official record.  Therefore, it is presumed to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  The applicant has not provided any evidence to overcome this presumption of regularity.  He also provided no evidence to indicate who may have initiated action to revoke his security clearance.

3.  The specific facts and circumstances surrounding the applicant’s MEB/PEB board processing are not available for review.  There is no evidence nor did the applicant submit any evidence which show he was authorized or awarded a 
50 percent disability rating.  However, his records contain an order which placed him on the TDRL with a 30-percent disability rating and his records also contain orders which ultimately discharged him the USAR and awarded him a 10 percent disability rating.  

4.  Evidence of record shows the applicant had a break in service of more than 12 months and as such his clearance was no longer valid.  However, it appears that if the applicant is in need of a clearance he should contact the AHRC – St. Louis, Missouri, Security Management office for instructions regarding his security clearance.

5.  There is no evidence which shows the applicant was not properly and equitably discharged in accordance with the regulations in effect at the time, that all requirements of law and regulations were not met, or the rights of the applicant were not fully protected throughout the separation process.  Absent such evidence, regularity must be presumed in this case. 

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090003287



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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