IN THE CASE OF:	

		BOARD DATE:	  23 April 2009

		DOCKET NUMBER:  AR20090003574 


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 removal of his DA Forms 67-8, U.S. Army Officer Evaluation Report (OER), for the periods 19950911 through 19960712 and 19970204 to 19970915 from his record.

2.  The applicant states the two OERs identify a weight issue that has not been of concern for over ten years, no longer reflect an accurate image of him, and should be removed from his records because they may hamper the positive forward progress of his otherwise outstanding career.

3.  The applicant provides no additional documentary evidence in support of this 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.  The applicant's records show he enlisted in the U.S. Army Reserve in the pay grade of cadet on 26 August 1988.  He accepted an appointment as a Reserve Commissioned Officer of the Army in the rank of second lieutenant on 12 May 1990.  The applicant entered active duty on 2 December 1991, was promoted to the pay grade O-3, and remains on active duty in the Regular Army.

3.  The applicant received an OER while serving as a medical surgical nurse and one while serving as a clinical staff nurse containing remarks related to body fat standards which he requests be removed from his official military personnel file (OMPF).  The OER for the period 19950911 through 19960712 contains the remarks, "Failed to meet body fat requirement IAW [in accordance with] AR [Army Regulation] 600-9.  Made significant progress toward meeting requirements by losing 1 percent of body fat and 6 pounds."  The OER for the period 19970204 to 19970915 contains the remarks, "Does not meet body fat standards of AR 600-9.  Currently enrolled in overweight program with no improvement."

4.  Army Regulation 623-105 (Officer Evaluation Reporting System), in effect at the time, prescribes the officer evaluation function of the military personnel system.  The OER is an integral part of the Officer Evaluation System (OES) designed to identify officers who are best qualified for promotion and assignment to positions of higher responsibility.  It also identifies officers who should be kept on active duty, those who should be retained in grade, and those who should be eliminated.  Under the OES, an officer is evaluated on his or her performance and potential.  The OER is used for evaluations for a specific rating period.  Army Regulation 623-105 also states, in pertinent part, that rating officials must prepare reports that are accurate and complete.  

5.  Paragraph 3-57 of Army Regulation 623-105, in effect at the time, provided that an OER accepted by HQDA and included in the official record of an officer, is presumed to be administratively correct, 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.  This regulation further provided that requests that an accepted report be altered, withdrawn, or replaced with another report will not be honored.

6.  Paragraph 6-6 of Army Regulation 623-105, in effect at the time stated that an appeal must be supported by substantiating evidence, that is, the burden of proof in an appeal of an OER rests with the applicant.  An appeal that alleges a report is incorrect or inaccurate or unjust without usable supporting evidence will not be considered. 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 action to correct an apparent material error or inaccuracy is warranted.

7.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides policies, operating tasks, and steps governing the OMPF.  Documents will not be obliterated or moved from the performance portion unless directed by an authority authorized to correct or move documents filed in the performance portion.

8.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files, and ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. 

DISCUSSION AND CONCLUSIONS:

1.  While the applicant contends that the two OERs identify a weight issue that has not been a concern for over ten years, no longer reflect an accurate image of him, and might hamper the positive forward progression in his otherwise outstanding career, the applicant has not provided substantiating evidence to support his contention.  Even if he had provided substantiating evidence, it would not justify removal of the two OERs from his OMPF.

2.  In view of the facts of this case and notwithstanding the applicant's contentions, it appears the remarks related to his weight contained on the two OERs accurately represent the applicant during the rating period.  As a result, it is concluded that the OERs in question were processed and accepted for filing in the OMPF in accordance with applicable regulations.

3.  There is insufficient clear and compelling evidence to overcome the regulatory presumption of regularity, and/or to remove or amend the two OERs.
  
4.  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)                                         AR20090003574



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ABCMR Record of Proceedings (cont)                                         AR20090003574



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