IN THE CASE OF: BOARD DATE: DOCKET NUMBER: AR20080002299 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, in effect, that the comments added to his OER (Officer Evaluation Report) for the period 1 August 2003 through 31 July 2004 be removed. 2. The applicant states, in effect, that his OER covering the period 1 August 2003 through 31 July 2004 had comments added after the document was signed by the rater, senior rater, and himself. He states the comments were clearly typed and was not found to be done by anyone who signed the document. He states the Inspector General (IG) did an investigation, finding that the OER should be corrected, and was altered. He adds that he was deployed to Iraq and unable to correct the error. Once he returned he was under the wrong assumption that the IG's findings would force the unit to correct the error. He states that while preparing for his upcoming board and reviewing his records, the IG informed him that he needed to do the corrective action. 3. The applicant provides a copy of his OER covering the period 1 August 2003 through 31 July 2004 in support of his request. 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 that he was appointed in the Connecticut Army National Guard (CTARNG) as a captain (CPT/O-3), effective 28 August 2002, with prior commissioned service. 3. The applicant provided a copy of his OER for the period 1 August 2003 through 31 July 2004, an annual report. 4. In Part IVc (Performance Evaluation-Professionalism [Rater]), the rater indicated that the applicant failed his APFT (Army Physical Fitness Test) in November 2003. His height was 69 inches and his weight was 225 pounds. An entry of "NO" was made to indicate that he was not in compliance with Army Regulation 600-9 (The Army Weight Control Program). 5. In Part Va (Performance and Potential Evaluation), the rater placed the applicant in the "Satisfactory Performance/Promote" block. The rater stated in Part Vb (Comment on Specific Aspects of the Performance and Potential for Promotion), in his last comment in the supporting comments block, "the applicant is working on weight reduction and is actively engaged in a physical fitness program to increase current level of fitness." The comment in this section of the OER was inserted using a different font than at first used on the OER. 6. In Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), his senior rater (SR) deemed him to be "Fully Qualified." In Part VIIc (Comment on Performance/Potential), the senior rater entered the comment, "the applicant is working towards his weight loss goal and is also working on his physical fitness program in order to meet Army standards." The comment in this section of the OER was inserted using a different font than at first used on the OER. 7. There is no evidence in the available records to show that the applicant ever appealed the contested OER to the Officer Special Review Board (OSRB) within that board’s 3-year limit for appeal. 8. The applicant stated in his request that an IG investigation had been conducted; however, he provided the Board no evidence of the investigation results or a report. 9. Army Regulation 623-105 establishes the policies and procedures for the OER system. Paragraph 3-57 and 6-6 provide than an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, is presumed to be administratively correct, and to have been prepared by the properly designated rating officials at the time of preparation. Requests that an accepted OER be altered, withdrawn or replaced will not be honored. An exception is granted only when information which was unknown or unverified when the OER was prepared is brought to light or verified and the information is so significant that it would have resulted in a higher or lower evaluation, had it been known at the time the OER was prepared. Paragraph 3-24 provides that each report will be an independent evaluation of the rated officer for a specific rating period and will not refer to prior or subsequent reports. Each report must stand alone. 10. Paragraph 3-19.1 (Part IV, Performance Evaluation-Professionalism), of the same regulation, pertains to Part IVc, Height and Weight/APFT. It states that the rater will enter (typed) the APFT results and the height and weight date of the rated officer in Part IVc. These entries will be verified by the senior rater and the rated officer when they complete and sign their portion(s) of the OER. If any of these entries are missing, regardless of the reason, the rater will explain the absence in Part Vb. Comments are also required for certain entries related to APFT and height/weight information. In the space after the word "APFT" the rater will enter (typed) "PASS" or "FAIL" and in the space after the word "date" enter the month and 4-digit year of the APFT results or "PROFILE" and the month and 4-digit year the profile was awarded. These entries will reflect the officer's status on the date of the most recent APFT administered by the unit as of the thru date of the report. The rater will explain an APFT entry of "FAIL." Comments on "FAIL" entries will address reason for failure and note any progress toward meeting physical fitness standards. 11. In the space after height and weight the rater will enter (typed) the rated officer's height and weight respectively as of the unit's last weigh-in. An entry of "YES" or "NO" will be placed in the space next to the weight to indicate compliance or noncompliance with Army Regulation 600-9 in Part Vb. These comments should indicate the reason for noncompliance; medical conditions may be cited for noncompliance; however, the "NO" entry is still required because medical waivers to weight control standards are not permitted for evaluation reports purposes. The progress or lack of progress in weight control programs should be indicated. 12. Paragraph 3-22 pertains to Part VII, Senior Rater. Subparagraph VIIc(3) states, in pertinent part, that the senior rater comment should focus on the rated officer's potential and future assignments but may also address performance, the administrative review, or the evaluations of rater and intermediate rater. Anything unusual about the report would also be noted here such as APFT and height and weight data or explanatory comments. 13. Army Regulation 15-185 provides the policy, criteria, and administrative instructions regarding an applicant's request for the correction of a military record. The ABCMR considers individual applications that are properly brought before it. In appropriate cases, it directs or recommends correction of military records to remove an error or injustice. The ABCMR will decide cases on the evidence of record. It is not an investigative body. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that the comments he requested removed from his OER were added after the rater, senior rater, and he had signed the report; however, he provided no evidence to support his claim. 2. The applicant contends that an investigation was conducted by the IG who discovered that the report had been altered and it should be corrected; however, he provided no documentary evidence to support his contention. 3. The report was changed or corrected in accordance with regulatory authority due to his having failed his APFT in November 2003 and for his noncompliance with height and weight requirements of Army Regulation 600-9; however, it cannot be determined, based upon available evidence, at what point corrections were made - before the report was completed or after it had been completed. 4. The Board notes that the applicant implied that the comments were placed in the OER after he signed the report. The Board is aware of the pitch of the last comments indicated in Part Vb and Part VIIc, of the OER, and the pitch type that they were typed in. The Board is also cognizant that according to regulatory authority, the comments were required. There is no evidence, and the applicant has provided none, to show the comments were added after he signed the OER. 5. The Board acts upon applications and information that are properly brought before it. The ABCMR will decide cases on the evidence of record. It is not an investigative agency; therefore, the Board assumes government regularity in the applicant's case. 6. The contested report appears to represent a fair, objective, and valid appraisal of the applicant's demonstrated performance and potential during the period in question; therefore, there is no basis for altering the report as he requests. There is no evidence that the applicant appealed to the OSRB. 7. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement. 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) AR20080002299 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080002299 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1