IN THE CASE OF:	  

		BOARD DATE:	  13 May 2014

		DOCKET NUMBER:  AR20130012849 


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:

* that the 1998 Selective Retention Board (SRB) be set-aside for non-compliance with controlling regulations
* an adjustment of his military technician retired pay from the date of his release at age 48 to age 55 projections (in effect, additional service credit)
* promotion to the rank of colonel to place him in equal standing with his peer group at retirement
* removal of a General Officer Memorandum of Reprimand (GOMOR) from his Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File
* removal of his Officer Evaluation Report (OER) for the period 2 April 1997 through 30 September 1997 from his AMHRR 
* increase his general schedule (GS) pay grade to GS-14 to adjust for lost career advancement

2.  The applicant states, in effect, the 1998 SRB was not conducted in accordance with controlling regulations in that officers were used for that board who were from units and agencies outside of the Arizona Army National Guard (AZARNG).  His separation as an AZARNG commissioned officer and unit technician was not in accordance with AZARNG and Army regulations and policies.  The GOMOR was issued prematurely and the OER was not valid.  



3.  The applicant provides an enclosure list containing:

* a one-page letter explaining his application
* a six-page draft of comments regarding the Inspector General’s investigation that was not provided with his application
* a letter written by the applicant to the SRB, dated 5 March 1998
* a letter informing the applicant that his appeal to the Officer Special Review Board (OSRB) had been denied
* a response from the Department of Defense Inspector General (DODIG) regarding his complaints
* his request to the Governor of Arizona and Congressional Representatives
* certificates for the Meritorious Service Medal, Arizona Meritorious Service Medal, and a Letter of Recognition
* 18 third-party letters
* three pages related to the 1998 SRB
* a family photograph 
* documents related to a reprisal complaint
* a memorandum indicating that his GOMOR would be removed from his 201 File
* AZARNG Policy Letter 20.02
* separation documents
* the front page of three OERs covering the periods between 10 August 1992 through 1 April 1995 and a complete copy of the OER covering the period 2 April 1997 through 30 September 1997
* News articles and media coverage regarding irregularities in the AZARNG
* Memorandum of Instruction for the SRB of 30 April – 2 May 1997
* AZARNG 635-102, National Guard Regulation 635-100, and AZARNG Regulation 635-1
* two pages of Arizona Administrative Code Title 8, chapter 3, Military Technician Merit Placement Plan
* the Reserve Officer Personnel Management Act (ROPMA)

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 was serving in the AZARNG in the pay grade of E-7 when he was honorably discharged on 31 January 1981 to accept a commission.

3.  On 1 February 1981, he was appointed as a Quartermaster Corps second lieutenant in the AZARNG and the U.S. Army Reserve (USAR).  He was serving simultaneously as a full-time unit technician in the pay grade of GS-12, step 8.  He was promoted to the rank of major on 10 September 1993.

4.  Meanwhile, on 15 December 1992, after a board of officers convened and determined that the applicant had engaged in acts of personal misconduct, conduct unbecoming an officer, and failure to exercise necessary leadership or command required of an officer of his grade, the applicant was issued a GOMOR by The Adjutant General of Arizona (a major general).  

5.  The applicant, with the assistance of counsel, submitted a rebuttal to the GOMOR; however, the issuing authority directed that the GOMOR be filed in his AMHRR.  There is no evidence to show that he applied to the Department of the Army Suitability Evaluation Board (DASEB) to have the GOMOR transferred to the restricted section of his AMHRR.  However, on 18 April 1997, the Deputy Chief of Staff for Personnel of the AZARNG provided the applicant a memorandum for record indicating that The Adjutant General had directed that the GOMOR be removed from his 201 File.

6.  On 4 November 1997, he was issued a change of rater OER covering the period 2 April 1997 – 30 September 1997 evaluating him as a mobilization readiness officer.  In Part IV, under Performance Evaluation – Professionalism, he received a rating of “2” under “Maintains appropriate level of physical fitness,” “Motivates, challenges and develops subordinates,” and “Encourages candor and frankness in subordinates.”  He received ratings of “1” in the remaining areas. 

7.  In Part V, under Performance and Potential Evaluation, his rater gave him a rating of “Usually Exceeds Requirements” and “Promote with Contemporaries.”

8.  In Part VII, his Senior Rater (SR) placed him in the second block of his SR profile.  The OER was not considered adverse and was not referred to the applicant as such.

9.  In May 1999, the National Guard Bureau (NGB) notified the applicant that the OSRB had denied his appeal of the contested OER.

10.  On 30 April 1999, after being selected for non-retention by the 1998 SRB, the applicant was honorably discharged from the AZARNG and was transferred to the USAR Control Group (Reinforcement).  He was also terminated from his civilian position due to the loss of his military membership with the AZARNG and was granted a discontinued service retirement with age reduction.

11.  On 9 May 2000, the applicant was notified that he had been considered but was not selected for promotion to the rank of lieutenant colonel (LTC) by the Army Reserve Components Selection Board that convened on 8 September 1999.

12.  On 4 February 2003, the applicant was notified that he had been considered but was not selected for promotion to the rank of LTC by Army Reserve Components Selection Board that convened on 4 September 2002.

13.  On 1 August 2003, he was honorably discharged from the USAR.

14.  The applicant was notified that he was considered by an Army Special Selection Board for promotion to LTC and he was not selected:

* under the 1999 criteria on 22 March 2004
* under the 2000 criteria on 2 July 2004
* under the 2001 criteria on 8 April 2004

15.  On 3 August 2006, the applicant dispatched a letter to the DODIG requesting that its investigation be re-opened and he provided 50 enclosures with his letter.

16.  On 17 April 2007, the DODIG responded to the applicant’s request to the effect that after reviewing the available evidence and conducting additional interviews with the applicant and others who were not previously interviewed, the DODIG stood by its previous conclusions.  Officials at the DODIG also informed the applicant that issues involving the removal of the GOMOR from his AMHRR and reinstatement in the AZARNG were not within the authority of that agency.  The DODIG addressed the applicant’s issues one by one in its five-page response to the applicant.

17.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual personnel files.  Paragraph 7-2 (Policies and Standards) states that once an official document has been properly filed in the AMHRR it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the AMHRR or that it has served its intended purpose to support transfer from the performance folder to the restricted folder of the AMHRR.

18.  Army Regulation 623-105 (Officer Evaluation Reporting System) at the time, establishes the policies and procedures and serves as the authority for preparation of the OER.  It provides 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 and to have been prepared by the properly-designated rating officials at the time of preparation.  Each report must stand alone.  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.

19.  Army Regulation 623-105 also provides that 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.  Clear and convincing evidence will 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 is requesting that this Board nullify a 1998 SRB determination that he should not be retained in the AZARNG, removal of a GOMOR and OER from his AMHRR, promotion to GS-14, promotion to colonel, and an additional 
7 years of service credit. 

2.  The applicant’s contentions and supporting documents have been carefully reviewed and appear to lack merit. 

3.  The applicant’s contention that the 1998 SRB was improperly conducted is not supported by sufficient evidence.  Additionally, it appears that it was approved by the appropriate authorities at the time and has been reviewed by IG investigations.

4.  While it is indeed unfortunate that the applicant was not selected for promotion to LTC, it is noted that at least two DODIG investigations have addressed his allegations and they were unsubstantiated.

5.  Additionally, while he contends that he was not promoted to LTC because of irregularities in the AZARNG, he has been considered and not selected by no less than six USAR promotion selection boards.  He has failed to show through sufficient evidence that he was best qualified for promotion to LTC.  Accordingly, there is no basis to grant that portion of his request as well.

6.  In regard to removing the GOMOR from his AMHRR, the applicant failed to show sufficiently convincing evidence that the GOMOR is unjust or untrue.

7.  The applicant’s contention regarding the contested OER has been noted and also appears to lack merit.  The applicant has failed to provide sufficient convincing evidence to show the report does not factually document his performance and potential during the period specified by the report.

8.  In regard to his request to be promoted to the civilian grade of GS-14, there is no evidence to show that he would have applied for and been accepted for a GS-14 position and since civilian advancement is not normally made in the same position he was serving in, there appears to be no basis to address this issue further.  More importantly, this Board has no jurisdiction over civilian personnel promotion issues.

9.  Therefore, in the absence of sufficient evidence to substantiate his claims, there appears to be no basis to grant his request.

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)                                         AR20130012849



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ABCMR Record of Proceedings (cont)                                         AR20130012849



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