MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            17 December 1998                  
	DOCKET NUMBER:   AC98-12071

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.  The following members, a quorum, were present:

	Ms.	Karen L. Wolff		Chairperson	
	Mr.	Melvin H. Meyer		Member	
	Mr.	Kenneth L.Wright		Member	

	Also present, without vote, were:

	Mr.	Loren G. Harrell		Director	
	Mr. 	Ed Clark		Analyst	

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether he application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his officer evaluation report (OER) for the period covering 1 through 18 October 1990 be removed from his official military personnel file (OMPF); and that he be considered for promotion to lieutenant colonel by a standby board.  He states that he was transferred to the Army Reserve on 1 January 1990 and was unaware of the contested OER until he reviewed his OMPF on 10 August 1995.  (He indicated on his application that he had attached two documents; however, no documents were attached or marked as such in the available records).

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military records show:

He was commissioned in the Army National Guard (ARNG) of the United States on 21 January 1981.  He was promoted to captain and major on 8 July 1983 and 
1 December 1989, respectively.

The contested OER, a change in duty report with an ending date of 18 October 1990, shows that the applicant was serving as a personnel staff officer at the time and that, as the principal advisor and consultant on all civilian education and related matters for the New York ARNG (NYARNG), and that he was responsible for the management and supervision of all civilian education programs for the NYARNG.  The rating officer wrote, in part, “Unfortunately the undetected actions of a key subordinate blemished the success of the New York Army National Guard Civilian Education Program.  The senior rater wrote, in part, “This officer was relieved of his duties as a result of an Army Regulation 
15-6 investigation.  This action was unfortunate in that the officer was a talented individual with a bright career before him.  (A copy of the 15-6 investigation is not in the available records).

A Notification of Personnel Action, Standard Form 50B, effective 7 September 1990, shows that the applicant was “Terminated [from his Civil Service 
GS-11 position as an education services specialist with the NYARNG] After receiving written notice on 31 August 1990 of [the] decision to remove [him] for misconduct, failure to observe written regulations, dereliction of duty, and misuse of Government funds.”

Orders dated 10 October 1990 show that the applicant was honorably separated from the NYARNG effective 19 October 1990 and transferred to the USAR Control Group (Reinforcement).

Army Regulation 623-105 establishes the policies and procedures for the OER system.  It provides the opportunity to request a Commander's Inquiry or to appeal disputed reports.   Paragraphs 5-32 and 9-2 provide that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, is presumed to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Paragraph 9-7 of that regulation states 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.

Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that promotion reconsideration by a standby promotion advisory board may only be based on erroneous nonconsideration or material error which existed in the record at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual's nonselection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for nonselection, except where an individual is not qualified due to noncompletion of required military schooling.

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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

In the processing of this case, a staff advisory opinion (COPY ATTACHED) was obtained from the Chief, Promotion and Notification Branch, Office of Promotions, Reserve Components, Total Army Personnel Command.  It contains no information, advice or recommendation which would constitute a basis for granting the relief requested or for excusing the applicant's failure to timely file.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 19 October 1990, the date he was separated from the NYARNG.  The time for the applicant to file a request for correction of any error or injustice expired on 19 October 1993.

The application is dated 25 April 1998 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

_KLW___  MHM_____  KLW___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AC	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.