IN THE CASE OF:	  

		BOARD DATE:	  27 October 2009

		DOCKET NUMBER:  AR20090006744 


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, his 6 March 1992 DA Form 67-8 (U.S. Army Officer Evaluation Report [OER]) be changed to remove the entry regarding his lack of knowledge with respect to tactics, inability to grasp and demonstrate technical competence, and losing control of his platoon.

2.  The applicant states he made a terrible mistake but his award of the Army Achievement Medal and Army Commendation Medal demonstrates he was not incompetent.  The referred OER was a successful attempt to destroy his career and wrongly categorized him as incompetent.  He believes this OER will prevent him from being considered for appointment as a chaplain. 

3.  The applicant provides a self-authored letter explaining his issues.

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 U.S. Army Reserve (USAR) under the Delayed Entry Program (DEP) on 18 December 1987.  He was discharged from the USAR DEP on 27 January 1988 and he enlisted in the Regular Army (RA) on
28 January 1988 for a period of 2 years.  His date of birth in his official records is listed as 15 August 1965.

3.  On 18 May 1989, having completed a 14-week Officer Candidate Course, he was honorably discharged for the purpose of accepting a commission in the USAR.  On 19 May 1989, he was appointed as a USAR second lieutenant in the Armor Branch and he entered extended active duty on that date.

4.  He completed the Basic Airborne Course, Armor Officer Basic Course, Officer Candidate Course, Scout Platoon Leadership Course, and was promoted to first lieutenant (1LT) effective 19 May 1991.

5.  While assigned as the platoon leader for Company A, 1st Battalion, 63rd Armor Regiment at Fort Irwin, CA, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for being intoxicated while on duty.  The available record does not include a copy of the NJP or any counseling forms or statements.

6.  The DA Form 67-8 for the period 7 March 1991 through 6 March 1992 states the applicant "failed to grasp and demonstrate the technical and tactical skills required of his position and rank.  His lack of knowledge caused him to lose control of his platoon during force to force rotations."  It further states "His platoon consistently failed to correctly execute battle drills and he failed to maintain personal standards necessary to lead Soldiers.  He reported for work while intoxicated on 2 occasions and has been excessively late to several formations."  The applicant acknowledged receipt of the OER and did not desire to submit comments.

7.  On 19 May 1992, the applicant was honorably released from active duty and transferred to the USAR Control Group (Reinforcement).  He had 3 years of creditable commissioned active service with 1 year, 3 months, and 21 days of prior enlisted active service.

8.  The applicant transferred to a Troop Program Unit (TPU) in November 1993.


9.  Effective 12 February 1996, the applicant was transferred from his TPU back to the USAR Control Group (Reinforcement) for nonattendance of inactive duty 
training between September 1995 and January 1996.  The record indicates he received a referred OER for this period of service.  A copy of this OER is not of record.

10.  On 1 March 1996, U.S. Army Total Army Personnel Command, St. Louis, MO notified the applicant by memorandum that he was considered for promotion [to captain] by a DA Reserve Components Selection Board.  Unfortunately, he was not among those selected for promotion by the board.  As a result of his second nonselection, he was informed that he must be separated from the USAR.  

11.  On 18 December 1996, the applicant was honorably discharged from the USAR and all Reserve of the Army and Army of the United States appointments were terminated.

12.  In the applicant's self-authored statements he admits to making a mistake of drinking and staying out late on the evening of 8 December 1991, causing him to miss formation the next day.  He believes that because he was a Citadel graduate and the only black officer in the command, he faced a hostile atmosphere.  He has had a successful civilian career as a medical supply salesman but gave up this lucrative employment to become a minister.  He has paid for his ministry training himself and would like to resume his military career as a chaplain.  He notes he was twice nonselect for captain during his prior periods of service due to his inability to maintain active drilling participation because of the demands of his civilian job.  In the two statements he submitted, he states he is a candidate for Orders in the Episcopal Church in one and for the Methodist Church in the other.  He is older, wiser, and has paid for his mistakes.

13.  Army Regulation 623-105 (Officer Evaluation Reporting System), in effect at the time, established the policies and procedures for the OER system.  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, 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.  Paragraph 9-7 of that regulation stated that the burden of proof in an appeal of an OER rested with the applicant.  Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant would have been required to 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states, in effect, he needs his 6 March 1992 DA Form 67-8 changed to be competitive for a commission as a chaplain.

2.  There is no available evidence to substantiate the applicant's contention that the NJP or the referred OER were the result of racial discrimination or bias.

3.  The applicant provided no substantiating evidence to demonstrate that he was in any way treated unjustly. 

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20090006744



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090006744



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1