RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  2 December 2003
	DOCKET NUMBER:  AR2003085538

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Patrick H. McGann		Member	
	Mr. Melvin H. Meyer		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests, in effect, that his last Noncommissioned Officer Evaluation Report (NCOER) for the period June 1983 through May 1984 be removed from his Performance (P) fiche of his Official Military Personnel File (OMPF).  

2.  The applicant states that upon retirement it is not required that a final NOCER be prepared.  He signed and received an adverse NCOER prior to his retirement.  However, this report does not reflect his past evaluation for historical purposes.  He now desires that his records reflect that his service to his country was of the highest caliber. 

3.  The applicant provides a copy of his NCOER for the period June 1983 through May 1984.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of error which occurred on 25 June 1984, the date he authenticated his NCOER.  The application submitted in this case is dated 23 January 2003.  

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's military records show that he enlisted in the Regular Army on 26 May 1962, with prior military service.  He continued to serve until he was placed on the Army of the United States Retired List effective 31 October 1984 in the rank and pay grade of 1SG/E-8.

4.  The applicant provided a copy of his NCOER for the period June 1983 through May 1984, which was an annual report.  The applicant has provided no evidence to show that he appealed his NCOER to the Department of the Army, Enlisted Special Review Board (ESRB).  

5.  Item 35 (Record of Assignments) of his DA Form 2-1 (Personnel Qualification Record) shows that his last NCOER was an annual report for the period June 1983 through May 1984.

6.  Army Regulation 623-205, in effect at the time, established the policies and procedures for the enlisted evaluation system.  It provided that an EER, accepted by Headquarters, Department of the Army, and included in the official record of the soldier, 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.  The regulation states that the burden of proof in an appeal of an EER rests with the applicant.  Accordingly, to justify deletion or amendment of an EER 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.  It also states that substantive appeals must be submitted within 5 years of the NCOER’s completion date.  
Failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant this exemption.

7.  Paragraph 2-8 of the same regulation pertains to change of rater reports.  It states, in pertinent part, that a final change of rater report upon retirement will be submitted when requested by the ratee.

8.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the Official Military Personnel File, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records.  Paragraph 2-4 of this regulation states that once a document is placed in the Official Military Personnel File it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the Army Board for Correction of 
Military Records, DASEB, Army Appeals Board, the Chief of Appeals and Corrections Branch of the Total Army Personnel Command, or the Official Military Personnel File custodian when documents have been improperly filed, Total Army Personnel Command (TAPC-PDO-PO) as an exception, Chief of the Appeals Branch of the Army Reserve Personnel Center, and Chief of the Appeals Branch of the National Guard Personnel Center.  Table 2 of the
regulation pertains to the composition of the OMPF.  It states, in pertinent part, that NCOERs will be filed on the Performance Fiche.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant received an annual NCOER for the period June 1983 through May 1984 which was adverse in nature.  He authenticated his NCOER on 25 June 1984.  There is no evidence to show that he appealed his NCOER to the ESRB or to show that a final change of rater report was prepared or requested by the applicant prior to his retirement.

2.  The applicant has failed to provide compelling evidence that his NCOER for the period June 1983 through May 1984 should be removed from his P fiche of his OMPF.  His report was properly filed on the Performance fiche of his OMPF in accordance with regulations.  Therefore, there is no basis to remove his last NCOER for the period June 1983 through May 1984 from the Performance fiche of his OMPF.

3.  Records show the applicant should have discovered the error or injustice now under consideration on 25 June 1984; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 25 June 1987.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__fe___  __pm____  __mm____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  

		___Fred N. Eichorn____
		        CHAIRPERSON

INDEX

CASE ID	AR2003085538	
SUFFIX		
RECON		
DATE BOARDED	20031203	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19831031	
DISCHARGE AUTHORITY	AR  635-200, chap 12	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	281	
2.		
3.		
4.		
5.		
6.