IN THE CASE OF: 

		BOARD DATE:  30 January 2014

		DOCKET NUMBER:  AR20130022198 


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 two DA Forms 67-9 (Officer Evaluation Reports (OERs)) from the restricted section of his Army Military Human Resource Record (AMHRR). 

2.  The applicant states:

	a.  He has two OER’s as a lieutenant (LT) from his time in the Ohio Army National Guard (OHARNG).  At the time he had not completed the Officer Basic Course and was waiting to get accessed on active duty.  

	b.  He received his commission from Marion Military Institute and was a part of the Early Commissioning Program.  He had to either serve in the National Guard or Reserves while finishing his Bachelor’s Degree before being accessed onto active duty.  The OERs cover the periods:  27 June 2000 through 26 June 2001 and 27 June 2001 through 26 June 2002.

	c.  These two OER’s are not well written or indicative of his performance as an officer.  

3.  The applicant provides copies of the two OERs.

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 infantry major/O-4.

3.  The applicant received two OERs while assigned to Troop A, 2d Battalion, 107th Cavalry, Cincinnati, Ohio.  The first OER was for his performance as a second lieutenant (2LT) Tank Platoon Leader for the period 27 June 2000 through 26 June 2001, and the second OER was for his performance as a first lieutenant (1LT) Tank Platoon Leader for the period 27 June 2001 through 
26 June 2002.  The back page of both OER's refer to him as a 2LT.  Neither OER contains any derogatory entries or remarks; nor is either a referred report.

4.  A review of the applicant's integrated Personnel Electronic Records Management System (iPERMS) reveals no existing restricted section is currently in use.  The review also revealed five OERs the applicant received as a 2LT or 1LT are currently filed in the performance section.  

5.  Army Regulation 623-3 (Evaluation Reporting System) 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.

6.  Army Regulation 600-8-104 (AMHRR) governs the composition of the AMHRR and states the performance section is used for filing performance, commendatory, and disciplinary data.  Once placed in the AMHRR, the document becomes a permanent part of that file.  The document will not be removed from or moved to another part of the AMHRR unless directed by certain agencies, to include this Board.  Paragraph 3-8a(1) states DA Forms 67-9 for second lieutenant, first lieutenant, or warrant officer will be moved to the "Restricted" folder upon promotion and/or selection to captain or chief warrant officer.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends two OERs he received, for the periods 27 June 2000 through 26 June 2001 and 27 June 2001 through 26 June 2002, should be removed from his AMHRR.  He indicates the OERs are filed in the restricted section, but should be removed entirely.

2.  The applicant has not provided convincing evidence to have the OERs removed from his AMHRR.

3.  The evidence shows that the applicant’s records contain an administrative error which does not require action by the Board.  Therefore, administrative correction of the applicant’s records will be accomplished by the Army Review Boards Agency (ARBA) Case Management Division (CMD) as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.




2.  The Board determined that an administrative error in the records of the individual concerned should be corrected.  Therefore, the Board requests that the ARBA CMD direct the official custodian of the iPERMS to administratively correct the records of the individual concerned by moving the five OERs the applicant received as a 2LT and 1LT to the restricted section of his official record.



      ____________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)                                         AR20130022198



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