MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  22 August 2000
	DOCKET NUMBER:  AR1999032592

	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. Carl W. S. Chun		Director	
	Mr. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. Edward Williamson		Chairperson	
	Ms. Margaret V. Thompson		Member	
	Mr. Kenneth W. Lapin		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 the 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:  In effect, he be promoted to colonel, pay grade  (O-6) because he was given an Officer Evaluation Report (OER) for the period 16 June to 4 July 1986, which did not reflect his dedication to the Corps.  He contends he had more civilian and military education than that of his senior rater and relates his educational experience.  Further, he contends a chaplain does not have command authority and that he has never issued a command in 27 years.  He relates a story about a chaplain in Korea during the war.  Finally, he contends his senior rater (SR) shouted orders like a drill sergeant and used his rank to get what he wanted.  He relates a story about the SR obtaining a van from the motor pool by demanding it.  The applicant further indicates his SR was not educationally qualified to be a chaplain.  He provides a copy of his resume, a Meritorious Service Medal Certificate, an Army Commendation Medal Certificate, his diploma for the Command and General Staff College, National Security Management Course, Clinical Pastoral Education 1 and 4 units, a temporary substitute teacher certificate for Ohio, Phase III workshop for Ministry of the Soldier in Confinement, his OER for the period 28 January to 15 February 1985, and a photograph.  He provides several letters of support.

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:

The applicant was separated on 19 April 1994, based upon his mandatory removal date.  He was transferred to the Retired Reserve in the rank of lieutenant colonel, with entitlement to retirement pay at age 60 (19 April 1994).  He was not selected for promotion to colonel and his records are complete and did not contain material error.

During the period 28 January to 15 February 1985, the applicant served 19 days active duty for training (ADT) at Fort Huachuca, Arizona.  His OER indicates that he had completed the physical fitness test the prior year and under military bearing and appearance, he failed to meet the weight standard.  The SR indicated that he had excessive weight; however, he was involved in a program to reduce.  At the time of his departure, the Fort Huachuca Chaplains Office advised the Army Reserve Personnel Center that he reported overweight and it was not detected during inprocessing and that he would have been sent home had it been properly detected.  Further, he demonstrated a lack of knowledge of the chain-of-command by going directly to a general officer in requesting active duty.

During the period 16 June to 4 July 1986, the applicant was ordered to ADT at Fort Lewis, Washington, for 19 days plus allowable travel time.  At the time, he was serving in the USAR Control Group in the rank of major.  His OER indicates that he was administered a body fat evaluation, found to be overweight and placed on a weight reduction program; and he disregarded chapel scheduling and caused delays in services, and made non-professional contacts with ROTC staff concerning his accomplishments.  The SR recommended he not be selected for promotion.  There is no evidence and the applicant has provided none, that a Commander’s Inquiry was requested, performed, or that the applicant appealed the contested OER in accordance with pertinent regulations.

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 non-consideration 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 non-selection 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 non-selection, except where an individual is not qualified due to non-completion of required military schooling.

Army Regulation 623-105 (Officer Evaluation Reporting System) 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 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.

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.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 19 April 1994, the date he was placed on the retired list.  The time for the applicant to file a request for correction of any error or injustice expired on 19 April 1997.

The application is dated 22 October 1999 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

__ew___  __mt___  __kl___  CONCUR WITH DETERMINATION

    Carl W. S. Chun
    Director, Army Board for Correction
	                of Military Records

INDEX

CASE ID	AR1999032592	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000822	
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         1.111	OER	
2.131	Prom to 0-6	
3.		
4.		
5.		
6.