ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  23 December 2020

	DOCKET NUMBER:  AR20170003469


APPLICANT REQUESTS:  The applicant defers to counsel for submission of his 
request, statement, and evidence.

COUNSEL’S REQUEST, STATEMENT, AND EVIDENCE:  

*	removal of any adverse files to include any passovers or referrals in his 
Official Military Personnel File (OMPF) that shows he was denied acceptance 
in the U.S. Army Reserve (USAR) or the Florida National Guard (FLARNG)
*	reflect that he was accepted in the U.S. Army Reserve or the Army National 
Guard simultaneously with his discharge from active duty and retroactively 
credit his service from when he was ruled ineligible on 30 September 2014
*	change re-entry code to be qualified to reenter the U.S. Army (RE-1)
*	retroactively promote him to consider him for rank of Major through a Special 
Selection Board (SSB) at first eligibility
*	direct the Defense Finance and Accounting Service (DFAS) to audit his 
military pay account and retroactively provide all pay and entitlements from 
the day after his separation of 1 April 2015
*	removal of the DA Form 67-10-1 Officer Evaluation Report (OER) for the 
rating period 1 February 2014 thru 31 July 2014 from his service record
*	grant other relief as the Board deems just and appropriate
*	a personal appearance before the Board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	Attorney’s statement-Brief in Support of the Applicant - 23 pages
*	Attorney Exhibits 1-21 (Evidence to Support Case) such as DA Form 67-9, 
and DA Form 67-10-1 (OER’s) for period covered from 18 October 2006 thru 
31 July 2014, (9) (Exhibit 2-4, 6-9, 11-12)
*	DA Form 1059’s (Service School Evaluation Report), dated 6 March 2006 to  
30 July 2010, (2) (Exhibit 1 & 5)
*	Memorandum For Record (MFR), dated 11 February 2014, Subject: Referred 
OER
*	US Army Human Resources Command (AHRC) Letter/Acknowledgement 
Packet, dated 19 June 2014, Subject:  Involuntary Separation (Exhibit 13 & 
14)
*	AHRC Memo, dated 30 September 2014, Subject: Application for USAR 
Appointment (Exhibit 15)
*	Letter of Recommendation for the FLARNG, dated 20 January 2015 (Exhibit 
10)
*	DD Form 214 (Certificate of Release or Discharge from Active Duty), period 
ending 1 April 2015 (Exhibit 16)
*	Electronic mail from FLARNG, dated 28 April 2016 (Exhibit 17)
*	MFR, dated 9 September 2016, Subject: Freedom of Information Act (FOIA) 
Request (Exhibit 18)
*	References from Army Regulations (AR) 614-20 (Interservice Transfer of 
Army Commissioned Officers on the Active Duty List), dated 11 June 2007 
(Exhibit 19) 
*	Attorney Letter, dated 30 August 2016, FOIA Request, and Authorization to 
Release Records (Exhibit 20)
*	Army Regulation 135-100 (Appointment of Commissioned and Warrant 
Officers of the Army), dated 1 September 1994, (Exhibit 21)

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, 
United States Code (USC), section 1552(b); however, the Army Board for Correction 
of Military Records (ABCMR) conducted a substantive review of this case and 
determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  Counsel states the applicant had a good productive career as a junior officer.  
However, during a reduction in force he was selected for involuntary separation 
pursuant to the provisions of 10 U.S. Code Section 638a.  He was denied 
appointment in the USAR and FLARNG because it was determined that he did not 
meet eligibility requirements.  The regulation governing selection to the Reserves 
states appointments will be tendered only to former Regular Army (RA) officers 
whose overall record of previous performance indicates they have a high degree of 
potential for service in the Reserve components.  The applicant’s complete record 
reflects that he has a “high degree” of potential for service in the Reserve 
Components.  However, the Human Resources Command Officer Accessions 
Branch (HRC) failed to carefully review the applicant’s OMPF and particularly his 
OER with the thru date of 31 January 2014.  In its ruling the HRC Accessions 
Branch failed to consider the rehabilitative OER following the referred OER.  
Because the HRC Officer Accessions Branch without consideration of additional and 
surrounding facts, determined that a referral OER alone was sufficient basis for 
denial of appointment to the Reserves, its decision, is arbitrary, capricious, a 
violation of law and unjust.  Likewise, the unwritten standard that a referral OER 
alone is a basis to deny appointment to the Reserves is plainly erroneous and the 
regulation under which it is implemented suffers from the “vice of vagueness” 
requiring that such an unwritten regulation have no force and effect.  Applying any 
such standard to the applicant is contradictory to the opinion of his rater, who after 
giving the applicant a referral OER, pointed out in a letter recommending the 
applicant for service in the FLARNG that the applicant’s performance after the 
referral OER had resulted that he had achieved substantial growth as a leader.  
Unfortunately, the opinion of the rater was not available to the U.S. Army HRC which 
ultimately decided that the applicant did not meet the eligibility requirements.  In 
considering the “overall record of previous performance” the HRC simply ignored his 
service before and after his referral OER.  It they had reviewed his overall record 
they would have discovered that his overall service was “absolutely outstanding” 
except for one small blip by a young officer who was placed in a position above his 
experience and for the first part of his service in that position was under experienced 
and over challenged.  The relief sought by the applicant after consideration of this 
application is as follows:

*	Correct the records to reflect that he has never been denied acceptance in 
the USAR or FLARNG
*	Correct the records to reflect that he was accepted in the USAR or FLARNG 
simultaneously with his discharge from active duty
*	Modify his reentry code to reflect that he is considered qualified to reenter the 
U.S. Army (RE-1)
*	Retroactively promote him to the rank of Major (MAJ) as of the date he would 
have been first eligible to be promoted to that rank
*	Retroactively credit him with service in the USAR or ARNG to the date of first 
eligibility as if he had not been ruled ineligible on 30 September 2014
*	Award pay and allowances as if he served in the Army Reserves from his 
date of first eligibility to the present including all increases in pay he would 
have received whether through promotion or otherwise
*	Remove the Referred OER covering the period of 1 February 2014 through 
31 July 2014 from his OMPF
*	Remove all documents from his OMPF which refer to the above reference 
OER or any events which underlie the content of the report
*	Remove any Passovers from his personnel file from 1 February 2014 forward
*	Remove from his records and all other places where the document may be 
preserved any evidence that he received a referral OER
*	Insert a memorandum in his personnel file where the removed fitness report 
would have been filed at the direction of the Secretary of the Army
*	State original OER as filed contained substantial factual and legal errors
*	Any selection board which may consider promotion should draw no 
conclusion from the absence of the removed report and assume that the 
applicant served during the period of the missing report consistent with his 
service
*	Credit the applicant with service from the day of his first eligibility if he had not 
been determined to be ineligible for service in the Army Reserves
*	Award the applicant pay and allowances he would have received had he 
continued to drill
*	Destroy any erroneous investigative material developed in this case
*	Award the applicant or recommend to appropriate authority that the applicant 
be repaid his attorneys fees and costs to this case and all other proceedings 
related to it
*	Grant such other relief as the Board deems just and appropriate (see detailed 
Brief in Packet).

3.  The applicant’s counsel provides:

	a.  A Brief Support Letter where he states background history of applicant.  He 
earned his Associate of Arts (A.A.) degree from State University.  He received his 
Bachelors of Science degree in Health, Leisure and Exercise Science in 2005.  He 
participated in the Reserve Officer Training Program (ROTC) at the same time.  He 
was commissioned as a second lieutenant

	b.  His DA Form 1059 shows he attended the Basic Officer Leaders Course III 
from 6 March 2006 to 2 June 2006 it states his performance as a platoon leader.  He 
made a significant contribution to the success of the training conducted by the class 
(see Exhibit 1). 

	c.  His DA Form 67-9 (OER) covering 18 October 2006 thru 1 October 2007, 
shows his first duty station was Fort Wainwright, AL.  He served for approximately 
one year, his rater rates him as “best qualified”.  He served as a platoon leader for a 
45-man rifle platoon.  He was deployed to India and commended by Indian field 
grade officers for exceptional field craft.  His rater states “this is an officer who will 
contribute to our combat readiness in any position” (see Exhibit 2).  

	d.  His OER covering 18 October 2007 thru 17 October 2008, reflects that he was 
promoted to captain (CPT) and recommended that he be sent to Maneuver 
Captain’s Career Course (MCCC) (see Exhibit 3).

	e.  His OER covering 18 October 2008 thru 17 October 2009, shows he was 
rated as “Outstanding Performance”, “Must Promote” and as “Best Qualified.”  In the 
comments section it says his manner of performance during this rating period has 
been remarkable (see Exhibit 4).

	f.  His DA Form 1059 covering 11 March 2010 thru 30 July 2010, shows he 
attended the 14-week Maneuver Captains Career Course.  His performance was 
described as "Outstanding" with a 82.8 percent academic average.  He was 
described as "an extremely intelligent officer” with a high degree of common sense 
and tactical judgment (see Exhibit 5).

	g.  His OER covering 18 October 2009 thru 15 June 2011, shows he was 
assigned to Fort Bragg, NC as Assistant to Brigade Operations Office and Brigade 
Plans Officer in Charge.  The applicant was not experienced as a ranger.  The 
majority senior ranks had this unique training.  His rater states “Must Promote” and 
“Best Qualified” (see Exhibit 6).

	h.  His OER covering 16 June 2011 thru 20 April 2012, his raters states “Must 
Promote” and “Best Qualified” and under recommendations, it reflects that he be 
selected for company command and be promoted to MAJ (see Exhibit 7).

	i.  His OER covering 21 April 2012 thru 16 November 2012, shows the applicant 
served as an Assistant Liaison Officer for a 3300 member deployed brigade combat 
team while deployed to Kandahar, Afghanistan.  He was also selected for company 
command and was rated as part of the top 10 percent of officers in the command.  
His performance was described as “Outstanding” (see Exhibit 8).

	j.  His OER covering 17 November 2012 thru 12 April 2013, shows he was 
assigned as the Assistant Brigade Plans Officer.  His ratings are much the same as 
in prior reports.  However, command description of his work is now regarded as 
“absolutely outstanding”.  He earned an Expert Infantryman’s Badge (see Exhibit 9).

	k.  His OER covering 13 April 2013 thru 31 January 2014 shows the company 
command position, in which the applicant assumed historically had been filled by an 
officer who had prior executive officer command experience.  In the comments the 
rater states “company command has challenged the very limits of his potential as an 
infantry officer.  The applicant maintains a positive attitude through all events, but 
struggles with taking away lessons learned to improve effectively command and 
manage his unit”.  He also states the applicant possesses limited potential for 
promotion to MAJ in the maneuver fires and effects career field.  That he be 
considered for continued service in fields with his aptitudes such as, physical 
training, therapy and overall fitness (see Exhibit 11).

	l.  Letter of Recommendation, dated 20 January 2015, shows Colonel M__ P__
recommended him to the FLARNG.  This recommendation is to be a supplement to 
his OER dated February 2014.  He further mentioned what he stated in the previous 
OER that the applicant did not have any command experience prior to becoming a 
Headquarters and Headquarters Company (HHC) Commander, which was the 
cause for the referral OER.  His lack of company executive officer time combined 
with not having prior regular infantry company command contributed to his being 
challenged.  He also pointed out that the applicant continued to improve between 
February 2014 and July 2014.  He recognized his increased competency and 
potential to serve for the FLARNG or with any other military affiliation (see Exhibit 
10).

	m.  His OER covering 1 February 2014 thru 31 July 2014, shows his rater LTC 
now COL M__ P__ rated him as “Proficient” (see Exhibit 12).  On page 8 of brief in 
support of applicant, the counsel explains that when the applicant assumed 
command there was an incident for missing property during his change of command 
inventory and this is what triggered the referral OER situation; however, the Army 
never pursued collection regarding the loss.

	n.  During 2014 the Army was in the midst of a draw down, whereby active duty 
officers were being considered by officer separation boards (OSB) for separation 
from the service.  Because of his high quality performance except for the one referral 
OER, which seemed to be rectified by successor OER from the same rater, the 
applicant had no expectation that he was at risk for separation.  It was usual that 
those at risk had been informally identified.  Notwithstanding the foregoing, he was 
selected for separation (see Exhibit 13).

	o.  Acknowledgement of Involuntary Separation memorandum, dated 19 June 
2014.  He understood in order to receive separation pay he must request 
reappointment and agree to serve in the Ready Reserve for a minimum of 3 years 
(see Exhibit 14).

	p.  AHRC’s Letter of Denial for appointment to the USAR, dated 30 September 
2014, states the applicant’s denial was based on eligibility requirements (see Exhibit 
15).

	q.  His DD Form 214 shows he was honorably discharged on 1 April 2015, for 
early separation under provisions of AR 600-8-24 (Officer Transfers and 
Discharges), chapter 5.  He completed 9 years, 2 months, and 26 days of net active 
service; 4 years, 7 months, and 2 days of foreign service.  It also shows in:

*	Item 13 ( Decorations, Medal, Badges, Citations, and Campaign Ribbons 
Awarded or Authorized) shows he was awarded the following:(See Exhibit 
16):

o	Afghanistan Campaign Medal with Campaign Star
o	Army Commendation Medal (4th Award)
o	Iraq Campaign Medal with Campaign Star
o	Overseas Service Ribbon (2nd Award)
o	North Atlantic Treaty Organization (NATO) Medal
o	Expert Infantryman Badge
o	Parachutist Badge
o	Air Assault Badge

*	Item 26 (Separation Code) JCC
*	Item 27 (Reentry Code) N/A.  
*	item 28 (Narrative Reason for Separation): Early Separation

	r.  Email from FLARNG, dated 28 April 2016, which shows he was denied 
appointment (see Exhibit 17).

	s.  MFR, issued by AHRC, dated 9 September 2016, shows the response to a 
Freedom of Information Act (FOIA) request.  Counsel argues paragraph 5 of this 
document states HRC Officer Accessions Branch reviewed OMPF.  This review lead 
to the denial of Reserve Component (RC) appointment based on the applicant’s 
referred OER with thru date 31 January 2014.  This OER is the causal document for 
the denial of RC appointment.  However, in AHRC letter, dated 30 September 2014 
that document makes no mention of the OER but simply states the applicant was not 
selected based on the established eligibility requirements (see Exhibit 18).

	t.  Army Regulation 614-120, issued 11 June 2007, U.S. AHRC is the appropriate 
agency for determining the applicant’s accession into the USAR (see Exhibit 19).

	u.  Letter from applicant’s counsel, dated 30 August 2016, requesting FOIA in 
reference to the applicant’s denial of application to entrance into the USAR (see 
Exhibit 20). 

	v.  Counsel argues that Army Regulation 135-100, issued 1 September 1994,
paragraph 1-7c is ambiguous, vague, erroneous and illegal; paragraphs 1-6 e & f are 
arbitrary and the facts do not support the HRC’s decision (see Exhibit 21).

4.  A review of the applicant’s service records shows:

	a.  Having had prior service in Reserve Officer Training Corps (ROTC) he 
executed his oath of office (DA Form 71) on 10 December 2005 and was appointed 
as a Reserve Commissioned Officer of the Army.  He entered active duty on 6 
January 2006.

	b.  He served in Iraq from 23 September 2008 thru 3 September 2009 and in 
Afghanistan from 28 February 2012 thru 30 September 2012.

   c.  His DA Form 67-9, covering the rating period 21 April 2012 through 
16 November 2012, for his duties as Brigade Operations Liaison Officer to Division 
while assigned to HHC, 4th Brigade Combat Team (BCT) at Fort Bragg, NC.  His 
rater was MAJ R__ P__, Senior Brigade Liaison Officer, and his senior rater was 
COL B__ M__, Brigade Combat Team Commander.  The rater rated him as 
"Outstanding Performance-Must Promote" in comparison to 83 Army officers he 
rated in the applicant's grade, and the senior rater rated him as "Best Qualified" 
“Center of Mass”.

   d.  His DA Form 67-9, covering the rating period 17 November 2012 through 
12 April 2013, for his duties as Assistant Brigade Plans Officer while assigned to 
Headquarters, 4th BCT, 82nd Airborne U.S. Forces Command (FORSCOM) at Fort 
Bragg, NC.  His rater was MAJ J__ W__, Plans Officer, and his senior rater was 
COL T__ W__, BCT Commander.  The rater rated him as "Outstanding 
Performance-Must Promote" in comparison to 56 Army officers he rated in the 
applicant's grade, and the senior rater rated him as "Best Qualified" “Center of 
Mass”.

	e.  His DA Form 67-9, covering the rating period 13 April 2013 through 
31 January 2014, for his duties as Company Commander while assigned to 
Headquarters, 4th BCT, 82nd Airborne U.S. Forces Command (FORSCOM) at Fort 
Bragg, NC.  His rater was LTC M__ P__, Battalion Commander, and his senior rater 
was COL T__ W__, BCT Commander.  The rater rated him as "Satisfactory 
Performance- Promote" in comparison to 28 Army officers he rated in the applicant's 
grade, and the senior rater rated him as "Fully Qualified" “Center of Mass”.  Part I (h) 
Reason for submission AHRC directed. His senior rater recommended him best 
suited for Army Medical Department (AMEDD) in the military occupational specialty 
(MOS) 65 career field.

	f.  An MFR from the applicant, dated 11 February 2014, states his interest of 
continuing his career as an Officer in the U.S. Army his intent to transitioning into 
another career field upon completion of his command of HHC.  The potential for 
promotion by his superior officers attests to his aptitude in physical therapy, athletic 
training and overall fitness.  His primary choice for career field reassignment is to 
transition into Medical Specialist branch.  He believed he could also serve well in the 
Operational Research and Systems Analysis or Simulations Operations Functional 
areas.

	g.  Memorandum, dated 5 August 2014, from the commander of U.S. AHRC, 
advises the applicant of his separation as the result of FY14 CPT officer separation 
board for involuntary discharge or involuntary transfer.

	h.  His DD Form 214 shows he was honorably discharged on 1 April 2015, for 
early separation under provisions of Army Regulation 600-8-24 (Officer Transfers 
and Discharges), chapter 5.  He completed 9 years, 2 months, and 26 days of net 
active service; 4 years, 7 months, and 2 days of foreign service.  It also shows in
item 18 (Remarks) Separation Pay $63,185.10; item 28 (Narrative Reason for 
Separation) Early Separation; item 26 (Separation Code) JCC, and item 27 (Reentry 
Code) N/A.  He was awarded or authorized:

*	Afghanistan Campaign Medal with Campaign Star
*	Army Commendation Medal (4th Award)
*	Iraq Campaign Medal with Campaign Star
*	Overseas Service Ribbon (2nd Award)
*	North Atlantic Treaty Organization (NATO) Medal
*	Expert Infantryman Badge
*	Parachutist Badge
*	Air Assault Badge

5.  Army Regulation 15-185 states that 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.

6.  Army Regulation 623-3 (Evaluation Report System) paragraph 4 states that the 
burden of proof rests with the appellant.  Accordingly, to justify deletion or 
amendment of an evaluation report, the appellant will produce evidence that 
establishes clearly and convincingly that the presumption of regularity referred to in 
paragraph 3-37a and 4-7a will not be applied to the evaluation report under 
consideration.

	a.  Action is warranted to correct a material error, inaccuracy, or injustice.  

	b.  Clear and convincing evidence will be of a strong and compelling nature, not 
merely proof of the possibility of administrative error or factual inaccuracy.

	c.  For a claim of inaccuracy or injustice of substantive type, evidence will include 
statements from third parties, rating officials, or other documents from official 
sources.  Third party are persons other than the rated officer or rating officials who 
have knowledge of the appellant’s performance during the rating period.  Such 
statements are afforded more weight if they are from persons who served in 
positions allowing them a good opportunity to observe firsthand the appellant’s 
performance as well as interactions with rating officials.

	d.  To be acceptable, evidence will be material and relevant to the appellant’s 
claim.  In this regard, note that support forms or academic counseling forms may be 
used to facilitate writing in evaluation report.  However, these are not controlling 
documents in terms of what is entered on the evaluation report form.  Therefore, no 
appeal may be filed solely because the information on a support form or associated 
counseling document was omitted from an evaluation, or because the comments of 
rating officials on the evaluation report are not identical to those in the applicable 
support form or counseling document.  In addition, no appeal may be filed solely 
based on the contention that the appellant was never counseled.  

7.  Army Regulation 600-8-29 (Officer Promotions) paragraph 7-2a(1)(2)(3) states 
that 

	a.  The SSB may be convened under US 628 to consider or reconsider 
commissioned or warrant officers for promotion when HQDA discovers one or more 
of the following:

      (1)  An officer was not considered from in or above the promotion zone by a 
regularly scheduled board because of administrative error.  This would include 
officers who missed a regularly scheduled board while on the TDRL and who have 
since been placed on the ADL.
      
      (2)  The board that considered an officer from in or above the promotion 
zoned did not have before it some material information (SSB discretionary).
   
      (3)  The board that considered an officer from in or above the promotion zone 
did not have before it some material information (SSB discretionary).  Special 
Selective Continuation Boards may be convened in accordance with Title 10 USC, 
section 637 for commissioned officers and Title 10 USC, section 580 for warrant 
officers to consider for selective continuation officers who have twice failed selection 
for promotion, provided the officers would or should have been considered by a 
selective continuous board following their second failure of selection for promotion.  
Special Selective Continuation Boards for USAR warrant officers on the Active Duty 
List are solely governed by this regulation. 

8.  Army Regulation 37-104-4 (Military Pay and Allowance Policy) paragraph 20-1 
settlement actions authority, states that only the director, DFAS (Defense Finance)-
IN may make settlement actions affecting the military pay accounts of Soldiers as a 
result of correction of records by the ABCMR per provisions of AR 15-185.

9.  Army Regulation 635-8 (Separation Processing and Documents) prescribes 
policies and procedures for the completion of the DD Form 214.  It states item 28 will 
list the narrative reason for separation based on the regulatory authority as identified 
in Army Regulation 635-5-1 Separation Program Designator (SPD Codes). 

10.  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.

BOARD DISCUSSION:

1.  After review of the application and all evidence, the Board found the relief is not 
warranted.  Counsel’s contentions, on behalf of the applicant were carefully 
considered.  The Board determined the applicant’s record is void of evidence that 
shows he appealed the contested OER.  The purpose of maintaining the OMPF is to 
protect the interests of both the U.S. Army and the Soldier.  In this regard, the OMPF 
serves to maintain an unbroken, historical record of a Soldier's service, conduct, 
duty performance, and evaluations, and any corrections to other parts of the OMPF.  
Once placed in the OMPF, the document becomes a permanent part of that file and 
will not be removed from or moved to another part of the OMPF unless directed by 
an appropriate authority.  There does not appear to be any evidence the contested 
OER was unjust or untrue or inappropriately filed in the applicant's OMPF.

2.  Counsel contends, in effect that the applicant’s contested OER is not 
representative of his service.  However, he did not provide evidence attesting the 
contested OER contains material errors or substantive inaccuracies.  The Board 
notes that regulatory guidance provides once an official document has been properly 
filed in the OMPF, it is presumed to be administratively correct and to have been 
filed pursuant to an objective decision by competent authority.  Thereafter, the 
burden of proof rests with the individual concerned to provide evidence of a clear 
and convincing nature the document is untrue or unjust, in whole or in part, thereby 
warranting its alteration or removal from the OMPF.  The Board determined the 
criteria for removing documentation from his OMPF was not met.

3.  Furthermore, the Board agreed that the applicant’s record is absent of evidence 
that shows he was selected for promotion to major by a promotion selection board.  
Official promotion and selection boards select members for promotion based upon 
their performance and potential; the Board does not.  The Board may refer records 
to appear before a special selection board (SSB) for promotion consideration when 
there is a clear error or injustice.  The Board agreed the request for relief has no 
merit as the available evidence does not clearly indicate that the conditions for 
referring the applicant to an SSB was met.  The Board also found no error or 
injustice in that the applicant was not accepted into the USAR/ARNG pursuant to 
regulatory guidelines. 

4.  The applicant's request for a personal appearance hearing was carefully 
considered.  In this case, the evidence of record was sufficient to render a fair and 
equitable decision.  As a result, a personal appearance hearing is not necessary to 
serve the interest of equity and justice in this case.


BOARD VOTE:

Mbr 1	Mbr 2		Mbr 3

:	:	:				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.


							  
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.


REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military 
records must be filed within three years after discovery of the alleged error or 
injustice.  This provision of law also allows the ABCMR to excuse an applicant's 
failure to timely file within the three-year statute of limitations if the ABCMR 
determines it would be in the interest of justice to do so.

2.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for 
correction of military records by the Secretary of the Army, acting through the 
ABCMR.  The ABCMR begins its consideration of each case with the presumption of 
administrative regularity, which is that what the Army did was correct.  

	a.  The ABCMR is not an investigative body and decides cases based on the 
evidence that is presented in the military records provided and the independent 
evidence submitted with the application.  The applicant has the burden of proving an 
error or injustice by a preponderance of the evidence.  

	b.  The ABCMR may, in its discretion, hold a hearing or request additional 
evidence or opinions.  Additionally, it states in paragraph 2-11 that 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.

3.  Army Regulation 623-3 (Evaluation Report System) paragraph 4 states that the 
burden of proof rests with the appellant.  Accordingly, to justify deletion or 
amendment of an evaluation report, the appellant will produce evidence that 
establishes clearly and convincingly that the presumption of regularity referred to in 
paragraph 3-37a and 4-7a will not be applied to the evaluation report under 
consideration.

	a.  Action is warranted to correct a material error, inaccuracy, or injustice.  

	b.  Clear and convincing evidence will be of a strong and compelling nature, not 
merely proof of the possibility of administrative error or factual inaccuracy.

	c.  For a claim of inaccuracy or injustice of substantive type, evidence will include 
statements from third parties, rating officials, or other documents from official 
sources.  Third party are persons other than the rated officer or rating officials who 
have knowledge of the appellant’s performance during the rating period.  Such 
statements are afforded more weight if they are from persons who served in 
positions allowing them a good opportunity to observe firsthand the appellant’s 
performance as well as interactions with rating officials.

	d.  To be acceptable, evidence will be material and relevant to the appellant’s 
claim.  In this regard, note that support forms or academic counseling forms may be 
used to facilitate writing in evaluation report.  However, these are not controlling 
documents in terms of what is entered on the evaluation report form.  Therefore, no 
appeal may be filed solely because the information on a support form or associated 
counseling document was omitted from an evaluation, or because the comments of 
rating officials on the evaluation report are not identical to those in the applicable 
support form or counseling document.  In addition, no appeal may be filed solely 
based on the contention that the appellant was never counseled.

4.  Army Regulation 600-8-29 (Officer Promotions) paragraph 7-2(a)(1)(2)(3) states 
that the SSB may be convened under US 628 to consider or reconsider 
commissioned or warrant officers for promotion when HQDA discovers one or more 
of the following:

	(1)  An officer was not considered from in or above the promotion zone by a 
regularly scheduled board because of administrative error.  This would include 
officers who missed a regularly scheduled board while on the TDRL and who have 
since been placed on the ADL.

	(2)  The board that considered an officer from in or above the promotion zoned 
did not have before it some material information (SSB discretionary).

	(3)  The board that considered an officer from in or above the promotion zone did 
not have before it some material information (SSB discretionary).  Special Selective 
Continuation Boards may be convened in accordance with Title 10 USC, section 637 
for commissioned officers and Title 10 USC, section 580 for warrant officers to 
consider for selective continuation officers who have twice failed selection for 
promotion, provided the officers would or should have been considered by a 
selective continuous board following their second failure of selection for promotion.  
Special Selective Continuation Boards for USAR warrant officers on the Active Duty 
List are solely governed by this regulation.
5.  Army Regulation 37-104-4 (Military Pay and Allowance Policy) paragraph 20-1 
settlement actions authority, states that only the director, DFAS (Defense Finance)-
IN may make settlement actions affecting the military pay accounts of Soldiers as a 
result of correction of records by the ABCMR per provisions of Army Regulation 15-
185.

6.  Army Regulation 635-8 (Separation Processing and Documents) prescribes 
policies and procedures for the completion of the DD Form 214.  It states item 28 will 
list the narrative reason for separation based on the regulatory authority as identified 
in Army Regulation 635-5-1 Separation Program Designator (SPD Codes). 

7.  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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170003469

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