IN THE CASE OF:

		BOARD DATE:	  24 April 2012

		DOCKET NUMBER:  AR20120005637 


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 all documents related to his 23 January 2008 record of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, either be removed from his official military personnel file (OMPF) or transferred to the restricted section.  Included are a DA Form 67-9 (Officer Evaluation Report) (OER) for the period ending 31 March 2008, and the referral memorandum.

2.  The applicant states:  

	a.  the OER contains comments stating he received NJP.  According to Army Regulation (AR) 623-3 (Evaluation Reporting System), paragraph 3-24b, rating officials may not comment on an NJP that a Soldier receives when the NJP is filed in the restricted section of the OMPF.  He appealed the NJP and the Department of the Army Suitability Evaluation Board (DASEB) approved the transfer of the NJP and related documents to the restricted portion of his OMPF.

	b.  he has continued to Soldier on by taking on greater positions of responsibility and it would be in the best interests of the Army to allow him to continue to serve and be promoted.  

3.  The applicant provides copies of:

* subject OER with 23 July 2008 Referral Memorandum 
* 24 May 2010 DASEB Memorandum
* AR 623-3, paragraph 3-24, Prohibited Comments

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 is a Regular Army, Transportation Corps, major/O-4.

3.  The applicant received an annual OER covering the period 1 April 2007 through 31 March 2008 for his duties as the 3d Brigade Logistical Support Team Chief at Fort Drum, NY.  His rater was the Logistics Support Element Commander, a lieutenant colonel/O-5.  His senior rater was the Brigade Commander, a colonel/O-6.  The OER shows the following entries:

	a.  In Part Va  (Performance and Potential Evaluation – Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion) the rater placed an "X" in the "Satisfactory Performance, Promote" block and entered appropriate comments in Part Vb (Comment on Specific Aspects of the Performance, Refer to Part III, DA Form 67-9, and Part IVa,b, and Part Vb, DA Form 67-9-1).  Specifically, the rater commented, "Despite receiving disciplinary action under UCMJ during this period [the applicant] continues to demonstrate that he is a complete team player and committed to the AMC mission."

	b.  In Part VIIa  (Senior Rater) – (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade) the senior rater placed an "X" in the "Fully Qualified" block.  Block VIIb (Potential Compared with Officers Senior Rated in Same Grade) indicates "Center of Mass."  Block VIIc (Senior Rater – Comment on Performance/Potential) the senior rater states "the applicant received a General Officer Article 15 during this rating period, was punished, but continues to perform."

4.  On 22 February 2010, the applicant requested the NJP, OER, and referral memorandum be transferred to the restricted section of his OMPF.  He stated the intended purpose of the NJP had been met and he had learned from his mistake. He has been nominated for a position, but it is pre-conditioned on the removal of the NJP from his OMPF.  

5.  On 24 May 2010, the DASEB approved the transfer of the NJP and related documents to the restricted section of his OMPF.  The record of proceedings states the applicant was advised by separate correspondence that he had to submit his appeal of his OER through the Human Resources Command, Alexandria, VA.  

6.  AR 623-3 prescribes the policies for completing evaluation reports.  It states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation.  To justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  The burden of proof rests with the appellant.

	a.  Paragraph 3-24 (Prohibited Comments) states that when NJP is given and filed on the restricted fiche or locally under AR 27–10, paragraph 3–37, and AR 600–8–104, rating officials may not comment on the fact that such NJP was given to a rated Soldier.  This does not preclude mentioning the rated Soldier’s underlying misconduct that served as the basis for the NJP.

	b.  Paragraph 6-8 (Timeliness) states that substantive appeals will be submitted within 3 years of an OER through date.  Failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant this exception.  Administrative appeals will be considered regardless of the period of the report and a decision will be made in view of the regulation in effect at the time the report was rendered.  As a rule, the likelihood of successfully appealing a report diminishes with the passage of time.

7.  AR 600-8-104 (Military Personnel Information Management/
Records) governs the composition of the OMPF and states the performance section is used for filing performance, commendatory, and disciplinary data.  Once placed in the OMPF, the document becomes a permanent part of that file.  The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board.  Table 2-1 states the DA Form 67-9 is filed in the performance section of the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends all documents related to his 23 January 2008 NJP should either be removed from his OMPF or transferred to the restricted section.  Included are an OER for the period ending 31 March 2008, and the referral memorandum.

2.  The applicant contends that the subject OER contains prohibited comments by the rater and senior rater relating to the NJP.  The governing regulation states that when NJP is given and filed on the restricted fiche or locally under AR
27–10, paragraph 3–37, and AR 600–8–104, rating officials may not comment on the fact that such NJP was given to a rated Soldier.  The DASEB approved his request to transfer the NJP to the restricted section of his OMPF on 24 May 2010.  

3.  The governing regulation provides policies for completing evaluation reports.  At the time the OER was completed, the applicant had received the NJP and it was filed in the performance section of this OMPF.  The DASEB decision to transfer the NJP is not extended to a proper OER.  

4.  The applicant has not provided convincing evidence to have the OER moved to the restricted section of his OMPF or to have the NJP, OER, or referral memorandum removed from his OMPF.

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 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)                                         AR20110022522



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ABCMR Record of Proceedings (cont)                                         AR20120005637



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