IN THE CASE OF:.
BOARD DATE: 17 July 2014
DOCKET NUMBER: AR20140004841
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 his officer evaluation report (OER) covering the period 1 August 2000 through 21 February 2001 from the restricted folder of his Official Military Personnel File (OMPF).
2. The applicant states Army Regulation 623-3 (Evaluation Reporting System), paragraph 2-10a(2), provides that newly-commissioned officers are not eligible to receive OER's until after completion of the officer basic course (OBC) and the contested OER was issued prior to his completion of OBC. He was informed by the U.S. Army Human Resources Command and his leadership that he is at risk for involuntary separation by the upcoming officer separation board.
3. The applicant provides copies of the contested OER, an email message, and a copy of Military Personnel Message 13-357.
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 12 July 2000, the applicant was appointed as a U.S. Army Reserve (USAR) second lieutenant (2LT). On 1 August 2000, he was appointed as a 2LT in the New Hampshire Army National Guard (ARNG).
3. On 22 February 2001, he was issued an OER covering the period 1 August 2000 through 21 February 2001 evaluating him as a communications-electronic platoon leader. The report was not adverse and as such was not referred to the applicant for comment.
4. On 10 September 2001, the applicant accepted an appointment in the Washington ARNG. The applicant attended and completed the Signal Officer Basic Course during the period 23 February through 29 June 2001.
5. The applicant was discharged from the Washington ARNG and was transferred to the USAR where he was ordered to active duty on 1 May 2002. He has continued to serve on active duty and was promoted to the rank of major on 1 August 2010.
6. Army Regulation 623-105 (Officer Evaluation Reporting System) in effect at the time, provides in pertinent part, in paragraph 5-1d, that newly commissioned officers programmed for attendance at OBC will not be rated until completion of OBC. The period prior to attending the OBC will be non-rated.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that he was not eligible to receive the contested reports because he had not completed his OBC has been noted and appears to have merit.
2. The contested OER covering the period from 1 August 2000 through 21 February 2001 was completed prior to the applicant completing his OBC and the report was not issued under adverse conditions.
3. Accordingly, it should be removed from his OMPF and replaced with a non-prejudicial statement declaring the period as non-rated time.
BOARD VOTE:
___X___ ___X____ ____X____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing the OER covering the period 1 August 2000 through 21 February 2001 from his OMPF and replacing it with a non-prejudicial statement declaring the period as non-rated time.
_______ _ 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.
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