IN THE CASE OF:	  

		BOARD DATE:	  27 July 2011

		DOCKET NUMBER:  AR20110000930 


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 the DA Form 67-6 (U.S. Army Officer Efficiency Report) (OER) he received when he left Vietnam (first tour (21 June 1968 through 18 February 1969)) from his official military personnel file (OMPF). 

2.  He states that he signed a blank OER form and was not interviewed for that evaluation.  

3.  He provides no additional evidence.

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 military records show he was appointed in the Army of the United States, as a second lieutenant, on 12 March 1967, with prior Naval and Army Reserve enlisted service.  He was promoted to first lieutenant on 27 January 1968.  He served in Vietnam from 11 March 1968 through 19 February 1969. 

3.  He was issued a permanent change of station rated officer OER for the period 21 June 1968 through 18 February 1969.  He was serving as a Troop Advisor in the authorized grade of captain.  It was not considered an adverse report and was not referred to him as one.  

4.  In Part IV (Personal Qualities) and in Part VI (Performance of Duty Factors), indicated on a scale from 1 to 5, he receiving rankings of 1, 2, and 3.  In Part XI (Comments) his rated commented, "This job he performed to the best of his abilities and his performance in procuring combat support was usually fine; however, since he was assigned to a position calling for a more experienced officer in both grade and service, his advisor effectiveness was sometimes disappointing."  

5.  His indorser commented, "Because of inadequate training and experience, in Armor, the applicant was not properly qualified to serve as Troop Advisor in Vietnam.  He demonstrated an earnest desire to learn and did profit from personal guidance and direction."

6.  He was ranked a 1 for his overall value to the service and rated as performing his duty as well as most officers and promote along with contemporaries by his rater and indorser.  

7.  He was promoted to captain on 12 March 1969.  He again served in Vietnam from 5 January 1971 through 4 January 1972.  

8.  He was honorably retired in the rank of captain on 10 May 1972, for permanent disability.

9.  Army Regulation 623-105 (Officer Evaluation Reporting System), in effect at the time, established the policies and procedures for the Officer Evaluation Reporting System (OERS).  Chapter 5 stated a report (change of rater, change of duty, annual evaluation report, etc.,) was required if the rated officer had completed at least 90 calendar days in the same position under the same rater during the same rating period.  Paragraph 5-32 stated that an evaluation report accepted by Headquarters, Department of the Army (HQDA), and included in the official record of an officer, 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 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 action to correct an apparent material error or inaccuracy is warranted.  

10.  Army Regulation 623-105, paragraph 9-3, stated that because evaluation reports are used for personnel management decisions, it is important to the Army and the rated individual that an erroneous report be corrected as soon as possible.  As time passes, people forget and documents and key personnel are less available; consequently, preparation of a successful appeal becomes more difficult.  Normally, appeals would be considered regardless of the period of the report and a decision would be made in view of the regulation in effect at the time.  However, the likelihood of successfully appealing a report diminishes as a rule with the passage of time.  Substantive appeals on reports rendered 5 or more years prior are particularly difficult to substantiate with credible existence.  Prompt submission was, therefore, recommended.  

11.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, the Military Personnel Records Jacket, the Career Management Individual File, and the Army Personnel Qualification Record.  It also prescribes the composition of the OMPF.  Paragraph 2-4 of this regulation states that once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation. 

DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding the passage of time, the applicant has not shown that the OER for the period 21 June 1968 through 18 February 1969 contains any serious administrative deficiencies or that it was not prepared in compliance with applicable regulations and policy.  The contested report appears to represent a fair, objective and valid appraisal of his demonstrated performance and potential during the period in question.

2.  He has not provided convincing evidence that this OER was unjust, in whole or in part, to support removal from his OMPF.  Substantive appeals must be submitted with 5 years of the OER's completion date and failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant this exception.  There is no substantive evidence of record and he has provided none to show the contested report is incorrect, inaccurate, or unjust.

3.  In view of the facts of this case, it appears that the evaluation contained on the contested OER represents the considered opinions and objective judgment of the rating officials at the time of their preparation.  As a result, it is concluded the contested OER was processed and accepted for filing in his OMPF and there is insufficient clear and compelling evidence to overcome the regulatory presumption of regularity, and/or to remove/delete the contested report. 

4.  In view of the foregoing, there is no basis for granting him 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)                                         AR20110000930





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110000930



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1