MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:	 

	BOARD DATE:             8 December 1999                
	DOCKET NUMBER:	AR1999014738

	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.

	Mr. Loren G. Harrell		Director	
	Mr. Gerald E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. James P. Huber		Member	
	Mr. Arthur A. Omartian		Member	

	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 to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	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:  Reconsideration of his previous application to correct his records to reflect a more favorable senior raters evaluation block notation on the Officer Evaluation Reports (OERs) for the periods of 820510-830501, 830510-831116 and 900101-901231.  He requests reconsideration for promotion to lieutenant colonel.  The applicant also requests that, upon favorable action, he be retired as a lieutenant colonel with a calculation of years in grade as if his retirement was affective the date of the Board’s decision.  He also requests back pay and benefits for this period of time in addition to reimbursement for legal fees.

APPLICANT STATES:  In effect that the Board erred in holding the applicant to the 3-year statute of limitation on appealing his OERs.  He contends that a 1994 court case opined that under the Soldier’s and Sailor’s Act all statutory time frames are suspended while a service member is on active duty.  The applicant avers that this includes the actions of this Board.

NEW EVIDENCE OR INFORMATION:  The applicant’s case is reopened in accordance with the Army Board for Correction of Military Records Reconsideration Project (ABCMR-RP) criteria.  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 17 March 1993 (COPY ATTACHED).  The applicant’s interim request was administratively closed.

The applicant submits a 23-page argument again outlining his contentions and the citations he deems appropriate.  He contends that new evidence was submitted in the form of the court case of United States Court Of Appeals for the District Of Columbia Circuit, in DETWEILER v. PENA No. 93-5214 (309 U.S. App. D.C. 16; 38 F.3d 591; 1994 U.S. App. LEXIS 30387), showing that the Board should not have invoked the 3-year statute of limitations.

The Court Of Appeals opinion states, in effect, that in the case of Detweiler v. Pena, the decision by the Coast Guard Board for the Correction of Military Records (BCMR) in dismissing the application as untimely was in error.  The district court had upheld the BCMR's determination that the tolling provision found in the Soldiers' and Sailors' Civil Relief Act of 1940, [50 U.S.C. app. @ 525 (Supp. IV 1992) (SSCRA)], does not suspend the BCMR's three-year statute of limitations, [10 U.S.C. section 1552 (Supp. IV 1992)] during a service member's period of active duty.  The district court also held that the BCMR's refusal to waive its limitations period "in the interest of justice" was subject to judicial review, but that the Board's discretion had been appropriately exercised in this case.  The Court Of Appeals held that section 205 of the SSCRA does in fact toll the BCMR's three-year statute of limitations and Detweiler's application was therefore timely filed.  It did not render a ruling on whether the BCMR's interest-of-justice determinations are judicially reviewable.  The Appeals Court reversed and remanded the case to the district court for return to the BCMR so that it may decide the petition on the merits of the case.

The Board accepts the decision of the Court of Appeals as new evidence warranting Board review, therefore, the Board will render a decision based on the merits of the case.

Army Regulation 623-105 establishes the policies and procedures for the OER system.  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 be administratively correct, 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.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In view of all of the circumstances in this case, the applicant is not entitled to the modifications requested of the contested OERs.  He has not shown error or injustice for the relief he now requests.

2.  His contentions have been noted by the Board; however, they are not sufficiently supported by the evidence or his application.  There is no error or injustice in his record.  He has not shown that he was not rated properly or that the rater violated proper rating procedures.  The Board concludes that he has failed to overcome the presumption that the contested OERs is administratively correct, was prepared by the properly designated rating officials, and represents the considered opinion and objective judgment of the rating officials at the time of preparation.

3.  He has not shown that the contested OERs contain any administrative deficiencies or were not prepared in compliance with applicable regulations and policy.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

4.  The applicant’s contention that the OERs were adverse based upon the senior raters profile is without merit.  The applicant has not provided any evidence that the OERs were adverse as set forth by regulation.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__rvc___  __jpj____   ___aao___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999014738	
SUFFIX		
RECON	 	
DATE BOARDED	1999120	
TYPE OF DISCHARGE	 	
DATE OF DISCHARGE	 	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION		
REVIEW AUTHORITY		
ISSUES        1.	111.00	
2.		
3.		
4.		
5.		
6.