BOARD DATE: 10 July 2014 DOCKET NUMBER: AR20140010247 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 removal of the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), general officer memorandum of reprimand (GOMOR), and DA Form 67-9 (Officer Evaluation Report (OER)) for the period 22 June 2002 through 17 July 2002 from his military records. 2. The applicant states he wants these documents removed or, in the alternative, moved to the restricted folder of his Official Military Personnel File (OMPF) because they have served their purpose. He argues that it has been approximately 13 years since these documents were filed in his OMPF. He has been dedicated to serving with distinction and honor. The continual presence of these documents does not accurately reflect his past and present performance or his future contributions to the Ohio Army National Guard and to the U.S. Army. He further states he submitted a memorandum on 14 May 2014 through his chain of command. Unfortunately, he did not learn about this Board until after the deadline for the second promotion board had passed. He further asks that if this request is approved, correction of his records retroactive to 13 January 2014 to meet the Fiscal Year 2014 promotion board requirements. 3. The applicant provides: * letter of recommendation, dated 20 January 2006 * Bronze Star Medal Certificate, dated 11 May 2006 * DA Form 67-9 for the period 31 May 2005 through 30 May 2006 * DA Form 67-9 for the period 29 September 2006 through 28 September 2007 * DA Form 67-9 for the period 1 October 2007 through 30 September 2008 * DA Form 67-9 for the period 29 September 2008 through 28 September 2009 * DA Form 67-9 for the period 29 August 2009 through 28 August 2010 * DA Form 67-9 for the period 29 September 2010 through 16 May 2011 * DA Form 67-9 for the period 17 May 2011 through 16 May 2012 * DA Form 67-9 for the period 2 December 2012 through 1 December 2013 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. In the processing of this case, it was determined that the applicant had not exhausted all of his administrative remedies. Therefore, that portion of this application pertaining to his Article 15 and GOMOR have been administratively closed and forwarded to the Department of the Army Suitability Evaluation Board. A letter was sent to the applicant advising him of this action. Accordingly, these two issues will not be discussed further in this Record of Proceedings. 3. On 13 September 1988, the applicant enlisted in the Regular Army. He attained the rank of specialist/pay grade E-4 and was released from active duty on 12 September 1992. He subsequently enlisted in the Army National Guard on 25 November 1992 and attained the rank of sergeant/pay grade E-5. He was discharged on 16 March 1997 for the purpose of commissioning. 4. On 18 March 1997, the applicant was appointed as a second lieutenant in the Reserve of the Army. He was promoted to first lieutenant on 18 September 1998 and to captain on 30 September 2000. 5. On or about 28 October 2000, the applicant was assigned for duty in the Republic of Korea as the Aviation Maintenance Officer with Division Support Command, 2d Infantry Division. He served in this position until 11 May 2001 when he was reassigned as the Commander, Company B, 602d Aviation Support Battalion. He served as the commander of this company until 17 July 2002. He received the following three OER's for duty in this position: a. change-of-rater OER for the period 12 May through 10 October 2001, b. change-of-rater OER for the period 11 October 2001 through 21 June 2002, and c. relief-for-cause OER for the period 22 June 2002 through 17 July 2002. This OER shows the applicant was relieved from command at the direction of the Commanding General, 2d Infantry Division, on 27 June 2002 based on an investigation confirming he violated Article 92 of the UCMJ. The OER further stated that the nature of his performance prior to the investigation was outstanding and the only reason for his relief from command was due to the stated violation. The OER indicated he should not be promoted and did not list any future assignments for which he was best suited. 6. Army Regulation 623-105 (Officer Evaluation Reporting system), then in effect, established the policies and procedures for the OER system. a. It provided that the primary function of the OER was to provide information to Department of the Army Headquarters for use in making personnel management decisions. The information provided in the OER, combined with the Army's needs and individual officer qualifications, is used as a basis for personnel actions including promotion, elimination, retention in grade, retention on active duty, reduction in force, command selection, school selection, assignment, specialty designation and Regular Army integration. b. It provided that a secondary function of the OER is to encourage officer professional development and to enhance mission accomplishment. c. It provided that an OER accepted by Department of the Army Headquarters 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. d. It provided that the burden of proof in an appeal of an OER rests with the applicant. e. It further provided that to justify deletion or amendment of an OER, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent error or inaccuracy is warranted. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that the subject OER should be removed from his OMPF, or in the alterative, moved to the restricted folder of his OMPF because it has served its purpose. 2. The available evidence shows the applicant was relieved from command for violating Article 92 of the UCMJ. The applicant does not dispute the accuracy of this OER. In fact, he does not identify any administrative or substantive errors on this OER. He simply contends that the report has served its purpose. 3. The applicant's contention is found to be without merit. The function of the OER is to assist in making personnel management decisions, to encourage officer professional development, and to enhance mission accomplishment. These actions are continuous throughout an officer's military career. 4. An OER is not rendered as a form of punishment. It is not designed for or intended to serve as a tool for dealing with misconduct or criminal activity. It is merely a measurement of duty performance, good or bad, and a determination as to future potential. A series of OER's provides a record of the rated officer's improvement or decline in his performance and potential and assisting officials who must make various personnel decisions. 5. In view of the above, the applicant's request should be denied. 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 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) AR20140010247 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140010247 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1