IN THE CASE OF:	  

		BOARD DATE:	    16 February 2012

		DOCKET NUMBER:  AR20110009602 


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 his DA Form 67-9 (Officer Evaluation Report (OER)) covering the period 20051216 - 20060831 be added to the performance section of his Official Military Personnel File (OMPF) along with the OER covering the period 20060901 - 20070831.

2.  The applicant states he currently has two OERs in the restricted section of his OMPF because of conflicting dates and he desires the error to be corrected.  He goes on to state that his new unit at the time wanted to assist him with covering
2 months of unrated time after his Joint Psychological Operations Task Force (JPOTF) assignment that overlaps his subsequent assignment and he believes it will look very negative when he is considered for promotion to the rank of major.

3.  The applicant provides a copy of the contested OER, a memorandum from the applicant, and a response to his evaluation appeal.

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.  After having had prior enlisted service, the applicant, on 30 June 2005, was commissioned as a Signal Corps second lieutenant with concurrent call to active duty.

3.  He was promoted to the rank of first lieutenant on 30 December 2006 and to the rank of captain on 1 August 2008.

4.  The OER ending on 31 August 2006 is a change of rater report that evaluates him as a platoon leader in a psychological operations company.  It is a maximum report.  The other report ends on 20070831 and is an annual report that evaluates him as an executive officer of a psychological operations company.  It is also a maximum report.  The two reports are currently filed in the restricted section of his OMPF since his promotion to CPT.

5.  The applicant appealed the OER for the period ending 31 August 2007 to the Human Resources Command (HRC).  On 4 April 2011, he was advised that he had not appealed the report within the 3 years required by the applicable regulation; therefore, his appeal was returned without action.  He was advised that he could apply to this Board.

6.  In the processing of his case a staff advisory opinion was obtained from officials at the Officer Special Review Board (OSRB) which opines that the contested OER is by regulation masked in the restricted section of the OMPF upon his promotion to CPT and the OSRB is not authorized to remove documents from the restricted section of the OMPF.  The advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comment or a rebuttal.  He did not respond.

7.  Army Regulation 623-3 establishes the policies and procedures for the OER system.  Paragraph 3-57 and 6-6 provide than an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer is presumed to be administratively correct and to have been prepared by the properly designated rating officials at the time of preparation.  Requests that an accepted OER be altered, withdrawn, or replaced will not be honored.  An exception is granted only when information which was unknown or unverified 


when the OER was prepared is brought to light or verified and the information is so significant that it would have resulted in a higher or lower evaluation, had it been known at the time the OER was prepared.  

8.  Army Regulation 600-8-104 (Military Personnel Information Management Records), paragraph 2-6, provides that information contained in the restricted section of the OMPF will not be released to any other person or agency without the approval of the Commanding General, HRC or the Department of the Army selection board proponent.  While there are some exceptions, presidents of promotion selection boards must submit a written request for  access to restricted data to the Office of the Deputy Chief of Staff for Personnel with justification for access to such information.

9.  Department of the Army Memorandum 600-2, Policies and Procedures for Active Duty List Officer Selection Boards, provides in paragraph 9b that the Army has restricted access to, or “masked,” all lieutenant OERs upon each officer’s promotion to CPT.  Masking moves an officer’s lieutenant OERs from the performance section for officers to the restricted section.  Consequently, OERs will not be available on the performance section for officers considered for promotion to the rank of major or higher.

DISCUSSION AND CONCLUSIONS:

1.  Both of the OERs in question are excellent reports and both are contained in the restricted section of his OMPF, which prevents routine access to the reports by promotion selection boards.

2.  While the reports appear to represent a fair, objective, and valid appraisal of his demonstrated performance and potential by his rating officials during the period in question, they were prepared when he was a lieutenant.  Therefore, there appears to be no basis for removing them from the restricted section of his OMPF as they are appropriately filed in accordance with Department of the Army Memo 600-2.

3.  Therefore, since the applicant does not want selection boards to view the contested report, and since both OERs are filed in the restricted section of his OMPF (in accordance with the governing memorandum) and not subject to routine review by selection boards, there appears to be no basis to grant his 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)                                         AR20110009602



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110009602



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1