BOARD DATE:	  20 February 2014

		DOCKET NUMBER:  AR20140000730 


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 the removal of the DA Form 67-8 (Officer Evaluation Report (OER)) (hereafter referred to as the contested OER) covering the rating period 26 November 1998 through 17 October 1999 from his Army Military Human Resource Record (AMHRR). 

2.  The applicant states:

	a.  The OER was rendered while he served as a member of the Alabama Army National Guard (ALARNG).  He understands that this evaluation is outside of the standard appeal timeline and requests consideration of this appeal based on the December 2013 announcement of the Officer Separation Board in Military Personnel (MILPER) Message Number 12-235.  Additionally, the U.S. Army Human Resources Command (HRC) has deemed him as an officer at "High Risk" for involuntary separation based solely on the content of this appeal.  This evaluation had previously been a part of his Reserve record and was ordinarily masked.  All Reserve and Active records have been combined in his AMHRR, previously known as Official Military Personnel File (OMPF), and this evaluation will be reviewed by the board.  The results of the Officer Separation Board report are final action and there is no appeal process.  This appeal is critical to preparing his AMHRR board file as the board findings can potentially end his career in the U.S. Army and service to the United States.

	b.  This appeal is based on both administrative and substantive errors. This evaluation was rendered in October 1999 prior his completion of the Officer Basic Course (OBC), now known as the Basic Officer Leader Course (BOLC).  Existing and current Army regulations state that he should not have received an evaluation prior to completing OBC/BOLC as outlined in Army Regulation 623-105 (Officer Evaluation Reporting System), dated 1 April 1998, chapter 3, paragraph 3-2(d), and Army Regulation 623-3 (Evaluation Reporting System), dated 5 June 2012, paragraph 2-10(a)(2) and paragraph 3-2(i).

	c.  Parts V (Performance and Potential Evaluation (Rater)) and VlIl (Senior Rater) of the contested OER were selected based solely on him having not completed OBC/BOLC and obtaining a Bachelors Degree.  As a graduate of the Reserve Officers' Training Corps (ROTC) Early Commissioning Program, he received his commission from a Military Junior College with an Associate Degree in November 1998.  He completed his Bachelors degree in August 2000 and entered active duty where he completed OBC/BOLC in April 2001.  All military and civilian education requirements were completed well within the Early Commissioning Program required time of 36 months per Army Regulation 145-1 (Senior ROTC Program: Organization, Administration, and Training), paragraph 6-15(b)(2) (22 July 1996).  All other contents of the evaluation are commendatory, to include above standard performance rating with unlimited potential from both the Rater and Senior Rater.  The blocks checked in Parts Va and VlIla are not representative of his performance or potential as required by regulation.  He believes this was as a result of a lack of knowledge of the requirements of the Early Commissioning Program and an incorrect association with other officers in the ALARNG who failed to complete required education requirements. 

3.  The applicant provides:

* Contested OER
* Extract of Army Regulation 623-105, dated 1 April 1998
* Extract of Army Regulation 145-1
* DA Form 71 (Oath of Office - Military Personnel)
* DA Form 1059 (Service School Academic Evaluation Report)
* Printout of High Risk officer
* HRC Return Without Action to Appeal memorandum
* Letter from the National Guard Bureau (NGB)
* Officer Record Brief

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's records show he enlisted in the U.S. Army Reserve (USAR) on 6 October 1995 and he was trained in and held military occupational specialty 95B (Military Police).  

3.  On 27 February 1997, he executed a DA Form 597 (Army Senior ROTC Non-Scholarship Cadet Contract).  He would later be awarded a Bachelor of Science in Management from Georgia Institute of Technology on 4 August 2000.

4.  On 24 November 1998, Headquarters, First Region (ROTC), U.S. Army Cadet Command, Fort Bragg, NC, published Orders 328-3 releasing him from the ROTC Control Group effective 25 November 1998 and assigning him to the USAR Control Group (Officer Active Duty Obligator), St. Louis, MO.

5.  He was appointed as a Reserve commissioned officer of the Army in the rank of second lieutenant (2LT) and executed an oath of office on 25 November 1998. He was also appointed as a Reserve commissioned officer of the ALARNG and executed an oath of office on 26 November 1998.  He was assigned or attached to A Company, 1st Battalion, 20th Special Forces, ALARNG. 

6.  During October 1998, he received the contested OER, a Change of Duty OER covering the rating period 26 November 1998 through 17 October 1999 for his duties as a Detachment Operations Officer.  His rater was Captain DJH, the Detachment Commander, and his Senior Rater was Major WHD, the Company Commander.  The OER shows in: 

	a.  In Part IV(a) and (b) (Performance Evaluation-Army Values-Leader Attributes/Skills/Actions), the rater placed an "X" in the "Yes" block for all areas.

	b.  In Part Va (Evaluate the 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 in Part Vb, he entered the following comments:

[Applicant] performed his duties in an exemplary manner during the rating period.  He consistently met the standard required to attend Special Forces Assessment and Selection during all training events.  He maintained himself in a high state of physical conditioning, setting a good example for his peers and subordinates that were assigned to the Special Forces Candidate Program.  [Applicant] displayed leadership traits during all training and consistently maintained a positive attitude in both mentally and physically demanding situations.  [Applicant] participated in the Early Commissioning Program.  He is presently pursuing his civilian and military education requirements.  He has to complete his civilian education prior to attending the Infantry Officer Basic Course.  Upon completion of these courses of study, he will be a valuable asset to any unit of assignment.  He has decided to transfer to a platoon leader position and get some experience as a junior leader and complete his civilian and military education prior to attending Special Forces Assessment and Selection.  [Applicant] has unlimited potential and should be promoted to the next higher grade as soon as he completed his basic course. 

	c.  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 "Other" block; placed an "X" in the "Yes" block to indicate he senior rated 4 officers of this grade (at the time) and that a DA Form 67-9-1 (Officer Evaluation Report Support Form) was received with this report and considered in his evaluation and review; and rated the applicant as "Center of Mass (COM)."  He entered the following comments in Part VIIe (Comments on Performance/Potential):

I concur with the rater's comments and ratings.  [Applicant] has performed above the standard and possesses great potential.  However, he must complete the Infantry Officer Basic Course before being promoted to the next higher grade.  He has a positive attitude and is a good team player.  After he completes his education requirements and gets some experience as a platoon leader, I expect him to successfully complete the Special Forces Assessment and Selection and the Special Forces Qualification Course. 

7.  The OER was signed by the Rater, Senior Rater, and applicant on 8, 14, and 16 October 1999, respectively.  It was accepted by Headquarters, Department of the Army (HQDA) and was entered into his AMHRR on 16 March 2001. 

8.  On 15 February 2000, he executed an oath of office as a 2LT in the Georgia ARNG (GAARNG).  On 18 May 2000, the ALARNG published Orders 139-234 reassigning him to Company B, 648th Engineer Battalion, GAARNG  
9.  On 7 July 2000, the USAR Personnel Command, St. Louis, MO, published orders ordering him to active duty as an obligated volunteer for 3 years, effective 11 July 2001 with assignment to the U.S. Army Pacific, Fort Shafter, HI.  

10.  On 29 September 2000, the GAARNG published Orders 273-014 honorably separating him from the ARNG effective 3 August 2000 and reassigning him to the USAR Control Group (Reinforcement). 

11.  He was promoted to first lieutenant in the USAR on 17 October 2000. 

12.  He attended and successfully completed the Infantry Officer Basic Course from 3 December 2000 to 12 April 2001. 

13.  He served in a variety of staff or command assignments and he was promoted to captain on 1 October 2002 and major on 1 December 2008.  He is currently assigned to Fort Lewis, WA.  

14.  There is no indication he:

* requested a commander's inquiry at the time the contested OER was rendered
* appealed the contested OER through his higher headquarters to the National Guard Bureau or the U.S. Army Human Resources Command

15.  Army Regulation 623-105, dated 1 April 1998, established the policies and procedures for the Officer Evaluation Reporting System:

	a.  Paragraph 1-15 states that when it is brought to the attention of the commander that a report rendered by one of his or her subordinates may be illegal, unjust, or otherwise in violation of Army Regulation 623-105, he or she would look into the matter.  The commander will conduct a commander's inquiry and confine his or her inquiry to matters relating to the clarity of the report, the facts contained in the report, its compliance with the regulation, and the conduct of the rated officers and rating officials.  

	b.  Paragraph 3-2 states reports will not be submitted unless authorized by this regulation.  A newly-commissioned officer or newly-appointed warrant officer programmed for attendance at an Officer Basic Course will not be rated under the provisions of paragraph 3-40, 3-41, 3-43, 3-44 (except Army Medical Department officers), or 3-55 prior to attendance at the Officer Basic Course.  Unless a report is required by another paragraph, the period prior to attending the basic course will be non-rated.  This non-rated time will be accounted for in the initial academic evaluation report. 
	c.  Paragraphs 3-40, 3-41, 3-43, and 3-44 describe the change of duty, change of rater, temporary duty and/or special duty OERs respectively.  Paragraph 3-55 describes rater option OERs. 

	d.  Paragraphs 3-57 provided the basic rule applicable to modifications of previously-submitted reports.  It stated, in pertinent part, that an evaluation report accepted by HQDA and included in the official record of an officer was presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  It also stated that requests that a report that has been accepted for filing in an officer's record be altered, withdrawn, or replaced with another report will not be honored.  Exceptions were only authorized when information that was unknown or unverified was brought to light or verified and the information was so significant that it would have resulted in a higher or lower evaluation had it been known or verified when the report was prepared.

	e.  Chapter 6 contained the policies and procedures pertaining to managing the OER redress program.  Section III contained guidance on OER appeals and paragraph 6-10 outlined the burden of proof that must be met to support a successful OER appeal.  Paragraph 6-6 stated, in pertinent part, that an evaluation report accepted by HQDA and included in the official record of an officer is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.

	f.  Paragraph 6-10 contained guidance on the burden of proof and type of evidence necessary to support the submission of an OER appeal.  It stated, in effect, that the burden of proof rests with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that established clearly and convincingly that the presumption of regularity referred to in paragraph 6-6 should not be applied to the report under consideration and that action was 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.

16.  Army Regulation 623-105, chapter 5, established policies and procedures for applying the OER system to the ARNG.  Paragraph 5-1a stated this chapter covers the differences between ARNG and Active Army officers and should be consulted first when preparing OERs on ARNG officers.

	a.  Paragraph 5-21 (Mandatory reports - 120 days):  Reports listed in this section and in chapter 3 are required if the rated officer has completed at least 120 calendar days, excluding non-rated periods, in the same duty position under the same rater during the same rating period.  A "Change of Duty" will be used for all reassignments not involving a change of component.  This includes transfer (PCS) to another State, to another unit within the same State, or to another duty position within the same unit.  A change of duty OER will be prepared in these cases, provided that the minimum rated time criteria established in paragraph a, above or paragraph 5-22, are met.

	b.  Paragraph 5-25 (Modifications to Previously Submitted Reports):  An evaluation report accepted by the Officer Management Branch and included in the official record of an officer is presumed to be administratively correct, have been prepared by properly designated rating officials; and represent the considered opinions and objective judgment of the rating officials at the time of completion.  Request that an official report be altered, withdrawn, or re-placed with another report will not be honored.  Administrative changes, once the OER has been placed on the officer's OMPF (now called the AMHRR), will only be accomplished by the Officer Management Branch when requested by the State Military Personnel Office.  No changes will be made at State level.  

	c.  Paragraph 5-26: The Chief, NGB is responsible for screening and acting on, or forwarding, all appeals submitted by ARNG officers for periods of ARNG service.

	d.  Table 5-1 (Disposition of ARNG Officer OERs), for traditional ARNG officers, appeals are sent to the ARNG Readiness Center, ATTN: Officer Management Branch, National Guard Bureau (NGB), Arlington, VA. 

17.  The equitable defense of laches appropriately bars certain claims.  Laches properly applies when a party through neglect or delay fails to diligently pursue a claim.  To rely on this defense, the Government must show an applicant delayed filing a claim of error for an unreasonable and inexcusable length of time from the time the applicant knew or reasonably should have known of this claim against the Army and the delay by the applicant operated to the prejudice or injury of the Army. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that in October 1999, rating officials rendered a Change of Duty evaluation report on the applicant.  The OER addressed the applicant's achievements and performance as required by the governing regulation.  It does not appear to contain any administrative or substantive errors and appears to have been rendered in accordance with chapter 5, which pertained to ARNG officers, of Army Regulation 623-105, in effect at the time. 
2.  Paragraph 3-2d of Army Regulation 623-105, dated 1 April 1998, and cited by the applicant, applies to Active Army officers.  Chapter 5 of this regulation covers the differences between Active Army and ARNG officers and should be consulted first since there are special requirements for ARNG officers which are found in chapter 5.  

3.  Chapter 5 mandates a Change of Duty OER when the rated officer has completed at least 120 days in the same duty position under the same rater for the same rating period, when an officer is reassigned.  This is the case here.  The applicant's arguments do not show any material error, inaccuracy, or injustice related to the report at the time it was rendered.

4.  The evidence of record also shows the rater and senior rater appear to have complied with the regulatory requirements of evaluating him in a fair and unbiased manner.  By regulation, to support removal of a report there must be evidence that establishes clearly and convincingly that this presumption of regularity should not be applied and that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature.  The applicant did not meet the burden of proof in this case.

5.  The applicant has been aware of this contested OER for 15 years; yet, no attempt was made to appeal the contested OER.  He failed to seek relief regarding this OER between 1999 and 2013.  Likewise, he failed to address this OER with the State ARNG, the NGB, and HRC within the time allotted.  Excusing a considered decision to delay filing creates a situation where the applicant receives an extraordinary windfall for a lack of diligence, one of the reasons why the equitable doctrine exists.

6.  In view of the circumstances in this case, the applicant is not entitled to any of the 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)                                         AR20140000730



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ABCMR Record of Proceedings (cont)                                         AR20140000730



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