IN THE CASE OF:	  

		BOARD DATE:	  25 September 2012

		DOCKET NUMBER:  AR20120005146 


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 an Officer Evaluation Report (OER) for the period 2 May 2006 through 21 January 2007 from his Official Military Personnel File (now known as the Army Military Human Resource Record (AMHRR)).

2.  The applicant states:

* the OER mentions a General Officer Memorandum of Reprimand (GOMOR) that was not placed in his permanent file
* the mention of the GOMOR in his OER makes it permanent
* the OER was a key factor for him being passed over for promotion in the primary zone
* the OER was written and signed while he was unavailable (deployed to Afghanistan)
* there is a memorandum stating that he was counseled on how to appeal the reprimand, but he was never given any such counseling
* when he inquired about an appeal he was told not to worry about it because it would probably be hidden with it being so old
* he was told if he did appeal the OER it may cause the GOMOR to be filed in his AMHRR

3.  The applicant provides:

* Orders 10-519, dated 10 January 2007
* DD Form 1351-2 (Travel Voucher or Subvoucher)
* OER, dated 21 January 2007
*  Email written between him and the HRC OER Appeals Chief

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.  On 10 May 2003, the applicant accepted an appointment as a second lieutenant (O-1) in the U.S. Army Reserve (USAR).

3.  The applicant was promoted to first lieutenant (O-2) on 30 November 2004.  He was promoted to captain (O-3) on 1 July 2006.

4.  On 10 January 2007, Orders 10-519 were published assigning the applicant to a temporary change of station at Fort Bragg, North Carolina, effective 21 January 2007 with mobilization to Afghanistan in support of Operation Enduring Freedom, effective 29 January 2007.

5.  On 21 January 2007, a change of rater OER was prepared for the applicant for the period 2 May 2006 through 21 January 2007.  This OER shows in Part II (Authentication), item d, This is a referred report.  Do you wish to make comments?   He did not sign or date the OER.

6.  The OER shows in Part V – Performance and Potential Evaluation (Rater) b. (Comments on Specific Aspects of the Performance) the entry "Captain H___s has had one error in judgment which resulted in a General Officer Memorandum of Reprimand for an alcohol related incident."  Part VII – Senior Rater, c. (Comments on Performance/Potential) contains the entry "Julius has made a mistake in judgment and desires to continue to serve."  The OER contains the statement "The rated officer was not available for signature."

7.  On 10 July 2007, the applicant's senior rater notified him that his OER was referred because of the statements contained therein.  The notification states that the statements in the OER were discussed with the applicant in a prior counseling and that he was made aware of the procedures for a rebuttal as outlined in Army Regulation 623-3 during his counseling.  He was told that as of the date of the memorandum, he had not submitted a rebuttal to the Human Resources Command and without the rebuttal his OER would stand as is.  The notification states that the rated officer failed to respond to the referral.

8.  The applicant submits email from an HRC official, dated 7 and 8 March 2012, regarding the subject OER.  In the email, the applicant explains to an HRC official that he was interested in disputing an OER that mentioned a GOMOR and that the GOMOR is not filed in his AMHRR.  In the email he states he was given bad information 1 year ago about how to dispute the OER.  The HRC official told him to apply to this Board because 3 years have passed since the OER was completed.

9.  A review of the applicant's AMHRR fails to show the GOMOR to which he refers contained therein.  There is no evidence in his record showing he was passed over for promotion.  His AMHRR does show that he is currently serving in the USAR in the rank of captain.

10.  Army Regulation 600-37 (Unfavorable Information) sets forth policy and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, and ensure that the best interest of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.  It states that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.

11.  Army Regulation 623-3 (Evaluation Reporting System) establishes the policies and procedures for preparing, processing, and using the evaluation reports.  The regulation states that an OER accepted for inclusion in the official record of an officer is presumed to be administratively correct, to have been prepared by the proper 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 appealing an OER rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that clearly and convincingly nullifies the presumption of regularity.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.




DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions and his supporting evidence have been considered.  He contends that the GOMOR referred to in the OER is not in his permanent file; therefore, the OER should be removed.

2.  The GOMOR to which he refers is not contained in his AMHRR.  Furthermore, he provides insufficient evidence showing that he was not counseled or that the statements made in his OER, dated 21 January 2007, are erroneous or unjust.  In his application to this Board he makes no allegations that the statements contained in the OER are incorrect.

3.  According to the applicable regulation, an OER accepted for inclusion in the official record of an officer is presumed to be administratively correct, to have been prepared by the proper 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 appealing an OER rests with the applicant.  To justify deletion or amendment of a report, the applicant must produce evidence that clearly and convincingly nullifies the presumption of regularity.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error.

4.  Although he was not available for signature, the evidence of record suggests the OER was referred to him along with information on how to submit an appeal. The OER was prepared on 21 January 2007.  There is no evidence in the available record showing he was misinformed or that he made any attempts to appeal or to learn how to appeal the OER prior his contact with HRC in March 2012.

5.  The evidence of record suggests it was the intent of his chain of command that the GOMOR and the OER were to be filed in his AMHRR.  The fact that the GOMOR is not filed therein does not constitute error or an injustice in his command's decision to refer to the GOMOR in the subject OER.

6.  In view of the foregoing the applicant's request should be denied.








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)                                         AR20120005146



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ABCMR Record of Proceedings (cont)                                         AR20120005146



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