BOARD DATE: 16 May 2017 DOCKET NUMBER: AR20160001192 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __x______ ___x_____ ___x__ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 16 May 2017 DOCKET NUMBER: AR20160001192 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. BOARD DATE: 16 May 2017 DOCKET NUMBER: AR20160001192 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 67-9 (Officer Evaluation Report) for the rating period 2 February 2007 through 29 February 2008 (hereafter referred to as the contested OER) from his official military personnel file (OMPF). 2. The applicant states he was a student in the Maneuver Captains' Career Course from 23 July to 19 December 2007 (4 months and 27 days); and in the Cavalry Leaders' Course from 3 to 18 January 2008 (15 days). The contested OER was written to fill in the year of 2007 and rates him for the entire period. He argues that the rating does not line up with his actual record or history. He has attempted, without success, to have the U.S. Army Human Resources Command (HRC) and the National Guard Bureau (NGB) to work this issue. 3. The applicant provides: * DA Form 1059 (Service School Academic Evaluation Report) dated 19 December 2007 * DA Form 67-9 ending on 1 February 2007 * Certificate of Training for the Cavalry Leaders Course dated 3-8 January 2008 * DA Form 67-9 (Contested OER) ending on 29 February 2008 * DA Form 67-9, ending on 28 February 2009 * Memorandum for [the applicant] from HRC, subject: Appointment as a Reserve Commissioned Officer of the Army, dated 3 December 2014 * Memorandum for Commander, 213th Regiment, from the NGB, dated 11 February 2015 * DA Form 5691-R (Request for Reserve Component Assignment Orders), dated 11 February 2015 * DA Form 5690-R (Reserve Component’s Career Counselor Interview Record) dated 11 February 2015 * Orders C-02-503153, HRC, dated 25 February 2015 * DA Form 705 (Army Physical Fitness Test Scorecard), dated 6 June 2015 * DA Form 4037 (Officer Record Brief), dated 3 August 2015 * Memorandum for the Army Board for Correction of Military Records (ABCMR) dated 16 November 2015 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 contested OER, an extended annual report, covered 13 months of rated time from 2 February 2007 to 29 February 2008 for his duties as assistant operations officer. It shows a nonrated code “S.” The report is not a referred report. It rated the applicant as satisfactory performance, promote. The rater noted that the applicant had graduated from the Cavalry Leaders' Course and the Basic Airborne Course during the rated period. The senior rater found him to be fully qualified and recommended him for assignments as a company commander, battle captain, or battalion operations officer. 3. The contested OER was signed by the rater on 26 March 2008, by the senior rater on 1 May 2008, and by the applicant on 2 May 2008. It was subsequently posted to his OMPF. 4. There is no available documentation showing the applicant submitted an appeal to HRC. REFERENCES: 1. Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System. a. It states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation. To justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. The burden of proof rests with the appellant. b. Paragraph 3-36 states an evaluation report accepted by Headquarters, Department of the Army (HQDA) and included in the official record of a rated Soldier is presumed to be administratively correct, to have been prepared by the properly designated rating officials who meet the minimum time and grade qualifications; and to represent the considered opinions and objective judgment of the rating officials at the time of preparation. Requests for modifications to evaluation reports already posted to a Soldier’s OMPF require use of the Evaluation Report Redress Program. c. Figure 3-1 (Example of Non-Evaluated Time) shows that a Soldier who departs his unit for a resident school, receives an AER for his training, and returns back to his same rating chain, should receive an OER for the number of months he was in his unit and a nonrated code “S” for school. d. Paragraph 6-8 states that substantive appeals are to be submitted within 3 years of an OER through date. Failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant an exception. Administrative appeals will be considered regardless of the period of the report and a decision will be made in view of the regulation in effect at the time the report was rendered. The likelihood of successfully appealing a report diminishes, as a rule, with the passage of time. 2. Army Regulation 600-8-104 (Army Military Human Resource Records Management) governs the composition of the OMPF and states that the performance section is used for filing performance, commendatory, and disciplinary data. Once placed in the OMPF, the document becomes a permanent part of that file. The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board. Appendix B states the DA Form 67-9 is filed in the performance section of the OMPF. DISCUSSION: 1. The applicant contends that the contested OER should be removed from his OMPF because he was in a student status for about 5 and 1/2 months during the rating period. 2. The applicant states he was a student in the Maneuver Captains' Career Course from 23 July to 19 December 2007 (4 months and 27 days) and in the Cavalry Leaders' Course from 3 to 18 January 2008 (15 days). The contested OER was written to fill in the year of 2007 and rates him for a 13 month period. He argues that the rating does not line up with his actual record or history. 3. By regulation, to support removal or amendment of a report there must be evidence that establishes clearly and convincingly that this presumption of regularity should not be applied and that action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature. The evidence does not show that there are substantive inaccuracies in the contested OER. 4. The applicant received an extended annual OER that covered a 13 month period, all of which was considered as rated time. However, it also recognized that the applicant had completed training courses during this period. Accordingly, there appears to be an administrative error in the number of rated months as indicated by the nonrated code “S” in the administrative portion of the OER. Because HRC will consider administrative appeals regardless of the period of the report, the applicant still has the option to ask HRC to consider changing the number of rated months to allow for the 5 and 1/2 months he was a student. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001192 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001192 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2