SAMR-RB 16 October 2017 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for AR20160014716 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 03 October 2017, in which the Board members unanimously recommended denial of the applicant's request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant partial relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by amending his DA Form 67-9 (Officer Evaluation Report (OER)) covering the period 1 October 1997 through 31 March 1998 to show his date of rank to captain as "1992 07 14." I direct no further correction be made to the record of the individual concerned. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 16 February 2018. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: Encl tu?· t.&al_ FRANCINE C. BLACKiliiOf\r--­ Deputy Assistant Secretary of the Army (Review Boards) BOARD DATE: 3 October 2017 DOCKET NUMBER: AR20160014716 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: 3 October 2017 DOCKET NUMBER: AR20160014716 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: 3 October 2017 DOCKET NUMBER: AR20160014716 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: a. correction of his DA Form 67-9 (Officer Evaluation Report (OER)) covering the period 1 October 1997 thru 31 March 1998 to show his date of rank to CPT as 14 July 1992 versus 5 June 1996; b. an OER that documents his duty performance during the period 14 July 1997 through 1 October 1997; and c. correction of orders T-05-316191 and T-05-316192, issued by the U.S. Army Reserve (USAR) Personnel Center (ARPERCEN) on 21 May 1993, to show his rank as captain (CPT); and d. a personal hearing before the Board. 2. The applicant states the errors impact pay and promotion potential before his entry on active duty and during the initial months and years for promotions. 3. The applicant provides: * Orders T-06-118522, issued by ARPERCEN on 11 June 1991 * Orders T-06-118522A01, issued by ARPERCEN on 25 June 1991 * DA Form 1059 (Service School Academic Evaluation Report), dated 15 July 1991 * DA Form 5029-R (Supervisor's Evaluation of U.S. Army Health Professions Scholarship Program (HPSP) Active Duty Training (ADT) Participant), dated 8 August 1992 * Orders T-05-316191, issued by ARPERCEN on 21 May 1993 * Orders T-05-316192, issued by ARPERCEN on 21 May 1993 * Orders T-08-522798, issued by ARPERCEN on 21 August 1993 * DA Form 1059, dated 23 September 1993 * Memorandum from the U.S. Total Army Personnel Command (TAPC), St. Louis, MO, dated 5 June 1994, subject: Appointment as a Reserve Commissioned Officer of the Army under Title 10 * Orders T-08-522798, issued by ARPERCEN on 21 August 1995 * Memorandum from the Office of the Surgeon General (OTSG), Falls Church, VA, dated 21 April 1997, subject: Request for Assignment Instructions * Extract of DA Form 5074-R (Record of Award of Entry Grade Credit Medical and dental Officers), undated * Orders A-06-003691, issued by TAPC on 3 June 1997 * DA Form 67-8 (U.S. Army OER), covering the period 14 July 1997 thru 30 September 1997 * Order Number 342-001, issued by TAPC on 8 December 1997 * DA Form 67-9, covering the period 1 October 1997 thru 31 March 1998 * Orders 235-0002, issued by Headquarters, U.S. Army Garrison – Redstone Arsenal on 22 August 2016 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. Following prior enlisted service in the U.S. Air Force, the applicant was appointed as a Reserve commissioned officer of the Army on 4 December 1990, in the rank of second lieutenant. 3. The applicant was appointed as a Reserve commissioned officer of the Army on 5 June 1994, in the rank of CPT. 4. A DA Form 5074-R, dated 21 April 1997, shows the applicant was awarded 9 years of total entry grade credit. However, he was granted four years credit required for grade to CPT/O-3 and had five years of credit in excess of that required for grade. 5. The applicant's record shows he entered active duty on 14 July 1997. 6. The applicant's record contains an OER that covers the period 14 July 1997 thru 30 September 1997. The applicant authenticated this form with his signature on 17 October 1997. 7. Order Number 342-001, issued by TAPC on 8 December 1997, adjusted the applicant's date of rank (DOR) to CPT; specifically, his adjusted DOR (ADOR) was determined to be 14 July 1992. This adjustment resulted from the application of his five years of excess credit, which was granted on his DA Form 5074-R, being subtracted from his date of entry on active duty. 8. The applicant received a Senior Rater Option OER on 15 April 1998, covering the period 1 October 1997 thru 31 March 1998. Part I (Administrative Data), section c. (Rank), contains the entry "CPT" and section d. (DOR) contains the entry "1996 06 05." The applicant authenticated this form with his signature on 15 April 1998. 9. The applicant honorably retired from the Regular Army on 31 October 2016. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he retired at the rank of colonel, following the completion of 37 years and 12 days of active military service. 10. In the processing of this case, an advisory opinion was obtained on 9 March 2017 from the Director of the Medical Education Directorate at OTSG. The advisory official stated he was provided an accurate calculation of constructive credit. 11. The applicant was provided a copy of the advisory opinion on 6 June 2017, to provide him an opportunity to comment and/or submit a rebuttal. However, he did not respond. REFERENCES: 1. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Army Regulation 600-8-105 (Military Orders) provides an order may be corrected by the organization that published the original order to show the true state of affairs existing at the time the original order was published. Orders are not changed to reflect facts that did not exist at the time the original order was published. 3. Army Regulation 623-105 (Officer Evaluation Reporting System) in effect at the time, prescribes the policies and tasks for Army officer evaluation reports. Part Id. required the preparer to enter the date of rank for grade, using 4-digit year format (i.e. 19980730), in which serving as of the "Thru" date of the report. DISCUSSION: 1. Evidence of record shows the applicant was provided the proper constructive service credit by OTSG, which resulted in his DOR to CPT being adjusted to 14 July 1992. 2. The applicant's OER for the period 1 October 1997 thru 31 March 1998 shows his date of rank as "1996 06 05"; however, based on the ADOR he was granted in December 1997, his DOR should have been shown as "1992 07 14." 3. The applicant requests an OER that documents his duty performance during the period 14 July 1997 through 1 October 1997. The evidence of record shows he received an OER covering the period 14 July 1997 through 30 September 1997. 4. The applicant's orders T-05-316191 and T-05-316192, issued on 21 May 1993, shows his rank as 2LT. These orders were published prior to his DOR adjustment that occurred in December 1997. The governing regulation provides orders are not corrected to reflect facts that did not exist at the time the original order was published. 5. The applicant's request for a personal appearance hearing was carefully considered. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant are sufficient to render a fair and equitable decision at this time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017490 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160014716 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2