MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            7 June 2000
	DOCKET NUMBER:   AR1999015980

	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. Hubert S. Shaw, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. James P. Steuve		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 to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	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: That the Officer Evaluation Report (OER) covering the period 27 May 1996 through 26 May 1997 be removed from her Official Military Personnel File (OMPF).

APPLICANT STATES: In effect, that the OER in question “contains certain specific allegations of factual events that are either untrue, or so contrived in their description to be misleading”.  She states that reference is made to her inability to complete assigned tasks; however, the only task that she did not complete occurred because her rating officer (referred to henceforth as the rater) withdrew the tasking when the rater rendered an adverse OER.  She contends that delay in her APFT [Army Physical Fitness Test] and nursing license verification, as well as instances of leaving soldiers at a bus stop at night were examples of poor judgment cited in her OER.  The applicant also states that her OER cited instances of "inappropriate behavior” by acting in a “disrespectful manner” toward her rater.  But the applicant contends that there were two events where she “voiced objection” and the rater became angry .  Finally, she states that she received a number of favorable and “noncritical” quarterly counselings, but that after she requested a Commander’s Inquiry rating officials produced a number of private MFRs [memoranda for record] which allegedly documented her conduct.  In conclusion, she states that the hospital commander investigated most of these issues, determined that many of the adverse comments had no factual basis, and recommended that they be removed from the applicant’s OER.

In support of her application, the applicant submitted the statement to her OER appeal (summarized in the preceding paragraph) as an addendum to her application and documents at tabs A through J as follows:  

A)  The supplemental statement to her Request for Investigation, dated 22 September 1997; a statement of support by a fellow officer, dated 12 December 1997 and addressed to the Officer Special Review Board (OSRB); a 1 July 1998 memorandum to the U.S. Total Army Personnel Command (PERSCOM) appealing the OER in question; and a 22 September 1997 memorandum addressed to the Inspector General (IG) of the U.S. Army Medical Command (MEDCOM) requesting investigation into a violation of DOD Directive 6490.1 (Mental Health Evaluations of the Armed Forces).

B)  A copy of the contested OER; the 5 August 1997 OER referral; the applicant’s 5 August 1997 acknowledgement of the referred OER and her intent to provide comment. 

C)  The applicant’s 8 August 1997 response to the referred OER.

D)  The applicant’s 12 June 1997 and 11 August 1997 requests for a Commander’s Inquiry into the contested OER.

E)  The 10 September 1997 response by the Commanding General of the Eisenhower Army Medical Center to the request for a Commander’s Inquiry and his 10 September 1997 memorandum to PERSCOM recommending deletion of comments from the contested OER.

F)  A 20 December 1996 counseling statement; a 19 May 1997 counseling statement with the applicant’s nonconcurrence; a 9 June 1997 counseling statement with a 4-page rater performance counseling worksheet with the applicant’s nonconcurrence and the counselor’s 13 June 1997 statement indicating the applicant refused to sign this counseling statement; a 4 October 1996 counseling statement; a 25 November 1996 counseling statement.

G)  A 10 January 1997 memorandum for record regarding the APFT; a 26 January 1997 memorandum for record regarding her nurse’s license, a 2 December 1996 Optional Form 41 (Routing and Transmittal Slip) by the Senior Rater (SR) with the note “Great Job [name and rank of the applicant omitted]”; a 7 November 1996 Optional Form 41 by the SR with positive comments to the applicant; a 18 March 1997 Optional Form 41 by the SR with comments to three personnel (including the applicant); a 22 April 1997 Optional Form 41 addressed to three personnel (including the applicant); a 16 May 1997 Optional Form 41 with comments by the SR to two personnel (including the applicant).

H)  A 27 May 1997 memorandum recommending the applicant for a command referred mental health evaluation; an 18 June 1997 memorandum for record regarding a command referred mental health evaluation; a DA Form 67-8-1 (OER Support Form) dated by the applicant on 24 May 1997; and a 12 August 1997 response from an inspector general stating the applicant’s allegation of unfair treatment “could not be substantiated.”

I)  A copy of the applicant’s Officer Record Brief, dated 11 May 1999.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant was appointed as a Reserve commissioned officer in the Army Nurse Corps through the ROTC.  She entered active duty on 9 October 1989, was promoted to captain on 1 November 1992 and is still serving on active duty.

At the time in question, the applicant was assigned as an instructor in the Practical Nurse Course at the Eisenhower Army Medical Center at Fort Gordon, Georgia.  

The contested OER covered the rated period of 27 May 1996 through 26 May 1997 for duties as an instructor in the Practical Nurse Course.  This OER was authenticated by the rater, SR and the applicant in Part II (Authentication) on 5 August 1997.  She received ratings of “1” in 13 of the 14 elements of professional competence and a rating of “2” in Part IVa.8. (Displays sound judgement).  Under professional ethics, the rater, who was a major, wrote: 
“a. 8. Officer frequently displayed poor judgement resulting in inappropriate behavior and an inability to complete assigned tasks”.  The rater also made favorable comments about completion of 27.5 hours of continuing education and Phase I of CAS3 [Combined Arms Service and Staff School] and commented that the applicant met the body fat standards of Army Regulation 600-9.

In Part V (Performance and Potential Evaluation), the rater placed her “X” in the second block (Usually Exceeded Requirements).  In Part Vc (Comments on Specific Aspects of the Performance), the rater noted the applicant “performed her duties in a satisfactory manner; however, her poor judgement and inappropriate behavior resulted in several accounts of professional disrespect, and delay in her APFT and nursing license renewal verification.  In support of her comments on poor judgement, the rater cited an instance where the applicant left her students downtown at a training site bus stop without ensuring supervision and transportation back to their base.  The rater also stated that organizational changes had to be made as a result of the applicant’s inappropriate actions.  The remainder of the rater comments recounted the applicant’s accomplishments.

In Part Vd (This Officer’s Potential for Promotion to the Next Higher Grade), the rater placed the applicant in the second block (Promote with Contemporaries) and stated:  “[The applicant] should serve as a pediatric clinical staff nurse.”

In Part VIIa (Potential Evaluation), the SR, a lieutenant colonel, placed her “X” in the third block and concurred with the rater’s evaluation.  The SR commented that the applicant “possesses good organizational skills and the potential to excel but limits herself by her poor judgement and inability to accept responsibility for assigned projects necessary to satisfactorily complete mission.  Her resistance to supervisory guidance, support and leadership inhibits her ability to see the total organization’s mission.”  The SR also commented that the applicant “communicated well with students”, “facilitated a successful transition of student clinical supervision to the affiliated hospital’s primary staff”, and that her “next assignment should be as a clinical staff nurse on a pediatric or adult medical/surgical ward at a MEDCEN before assuming additional responsibilities.” 

The SR referred the OER in question to the applicant on 5 August 1997.  This referral was made in accordance with paragraph 4-27h of Army Regulation 623-105 (Officer Evaluation Reporting Systems).  Paragraph 4-27h provides that the SR may refer an OER for comment when in the SR’s opinion the OER in question contained ratings or comments so derogatory that the OER may have an adverse impact on the rated officer’s career.  The applicant acknowledged receipt and indicated comments will be provided.

On 8 August 1997, the applicant responded by nonconcurring “with the information contained in the report” and by stating the OER in question was “inaccurate and unfairly reflects [her] actions during this rated period, and [her] qualities as an Army officer.”  The applicant further commented that this OER was the third version covering the period 27 May 1996 through 26 May 1997.  She stated that the first version was withdrawn based on a determination resulting from a Commander’s Inquiry and was replaced by the second version which omitted the negative remarks of the first version and replaced them with “more vague, less measurable complaints about [her] leadership and professionalism.”  

The applicant also pointed out that she had originally been rated “2” under Part IVa.2. (Demonstrates appropriate knowledge and expertise in assigned tasks), but that had to be deleted because it was unfounded; however, now Part IVa.8. (Displays sound judgement) had been changed from a “1” rating to a “2” rating.  The applicant also contends that the rater does not support comments on poor judgement, inappropriate behavior and inability to complete assigned tasks with reference to specific events and with counseling.  She also stated that there is no factual evaluation for any rating less than the highest and that the only time her rater brought up the issue of disrespect was the day the applicant received the OER in question.  Finally, the applicant contended that the SR comments and evaluation were tainted by information provided by the rater. 

The applicant concluded by pointing out that the rating chain was unable to support an adverse OER, that they failed to comply with “military policy” by not giving “written interim counseling statements at intervals during the rating period”, and that she was not given the opportunity to correct the “misconceptions” that existed in her mind or among the rating officials.  The applicant concluded that failure to give her the opportunity to “change [her] course and comply with the rater’s requirements reflected poor supervisory and leadership skills”; therefore, the adverse portions of the OER should be “discounted.”

On 10 September 1997, the Commanding General of the Eisenhower Army Medical Center (a Brigadier General) provided his official response to the applicant’s request for a Commander’s Inquiry.  He stated that the OER in question would be forwarded to Department of the Army and noted that, as a result of his inquiry, the rating officials “made multiple attempts to reflect a more accurate picture of your performance during the rated period.”  The Hospital Commander also forwarded his memorandum along with the OER to Department of the Army.  In his memorandum, he stated that, based on recommendations of the investigating officer and his interviews with the rated officer and rating officials, he found that portions of the OER are unjust because the noted deficiencies are taken out of context and cannot be fully substantiated.  As a result, he recommended that Part V of the OER should be amended by striking “poor judgement and” (line 1); “and a delay in her APFT and nursing license renewal verification” (lines 2-3) and the second sentence in its entirety.

The contested OER was received by Department of the Army officials.  The OER was processed on 10 October 1997 and placed in the applicant’s OMPF.  The OER was annotated as a late report and the SR profile was displayed as (3/7/1*/0/0/0/0/0/0).  (The asterisk indicates the applicant’s position.)  This was a below center of mass (BCOM) rating by the SR.

On 22 September 1997, the applicant submitted a request to the MEDCOM Inspector General (IG) for the processing of a complaint of reprisal for having engaged in protected communication with her chain of command, an Equal Opportunity Advisor, and two IG’s (the Fort Gordon IG and the MEDCOM IG).  She contended that the adverse actions were an improper attempt by the administrative company commander to refer her for a mental health evaluation based on the recommendation of the applicant’s supervisors and an adverse referred OER.  The applicant deemed both of these actions were acts of reprisal. 

On 24 October 1997 the MEDCOM IG referred the case to the Department of Defense Inspector General (DOD IG) for consideration as a complaint of reprisal for having engaged in a protected communication.  As a result of a complaint to the (DOD IG) under the Military Whistleblower Protection Act (Section 1034, Title 10, United States Code) and Department of Defense Directive 7050.6 (Military Whistleblower Protection), dated 12 August 1995; the MEDCOM IG conducted an investigation of two allegations made by the applicant.

Allegation Number One was that, on 27 May 1997, the applicant’s rater with the concurrence of the applicant’s SR rater violated DOD Directive 6490.1 by improperly recommending the applicant to the unit commander for a mental health evaluation in reprisal for the applicant having engaged in protected communication with her chain of command and an Equal Opportunity Advisor.  This allegation was not substantiated.  The investigator concluded that the action on the part of the rater and SR was “proper and procedurally correct”, but the company commander administratively violated DOD Directive 6490.1 by not seeking assistance from a mental health professional before making the referral and that the unit commander’s action was not in any way related to reprisal.

Allegation Number 2 was that, on 9 June 1997, the rater and the SR violated DOD Directive 7050.6 by improperly rating the applicant on her OER covering the period 27 May 1996 through 26 May 1997 in reprisal for the applicant having engaged in protected communications with her chain of command, an Equal Opportunity Advisor, and the IG.  This allegation was not substantiated.  Investigation revealed “convincing evidence” that the applicant had major problems with her rater long before any protected communication occurred and evidence shows that the OER in question was not written as an act of reprisal.  The investigator concluded the OER was proper and procedurally correct.

The report of investigation was approved by the Surgeon General of the Army and the applicant was notified by a 9 September 1998 memorandum from the DOD IG that her allegations were not substantiated.  

On 1 July 1998 the applicant filed an appeal of the OER in question with the Deputy Chief of Staff for Personnel Officer Special Review Board (OSRB).  In this appeal, the applicant contended that the OER was substantively inaccurate, unjust and does not accurately portray her demonstrated performance or potential.  Specifically, the applicant contends the rater falsely and unfairly describes specific incidents of poor judgement and less than desired performance that are wholly lacking in factual support and that her contentions are supported by the results of the Commander’s Inquiry and subsequent IG investigations.  Further she claims that the SR could not render a “fair/just” report because the SR never observed her duty performance; she was negatively influenced by the rater; and the SR never counseled her.  The applicant requested that the contested OER be removed from her OMPF.

The OSRB case summary indicated that the applicant has been considered for promotion to major, but was not selected.  The applicant’s career management branch indicated that the applicant was not selected for promotion to major by the Calendar Year 1999 and the Calendar Year 2000 Army Medical Department Major Promotion Selection Board.

Evidence and documents reviewed by the OSRB consisted of a copy of the contested OER, with referral, response and Commander’s Inquiry; the applicant’s OMPF and ORB; her appeal memorandum; an undated statement by the applicant; a statement from a fellow officer and co-worker; the applicant’s rebuttal comments to referred OER versions one and two; the Commander’s Inquiry, dated 10 September 1997; the applicant’s memorandum regarding violation of DOD Directive 6490.1, Mental Health Evaluations of the Armed Forces with nine enclosures; SR notes dated between October 1996 and May 1997; six general counseling statements, dated between October 1996 and June 1997; a memorandum, subject: Commander Inquiry Findings and Recommendations, dated 14 July 1997; an IG memorandum, subject:  Investigative Report:  Reprisal Case-[the applicant’s name omitted], dated 9 September 1998 and a DD Form 149 (Application for Correction of Military Record), dated 8 February 1999.

The OSRB conducted analysis of the contested OER and contacted rating officials.  The rater could not be contacted.  Essentially, the SR stated that she used a variety of information (rater input, written products, results of assigned products, and student critiques) in preparing the applicant’s OER and that she did not ask the rater for a recommended SR block check or draft SR comments.  The SR also stated that she personally witnessed the applicant’s “disrespect and inappropriate behavior towards the Rater” and recalled the applicant’s inability to follow specific guidance in the preparation of lesson plans, “failure to electronically archive, as directed, modified lesson plans”, and reluctance by the applicant to accept responsibility for assigned tasks as the basis for her SR narrative comments.  The SR also stated that she provided feedback to the applicant on her written products and on several occasions verbally.  The SR stated that she believed the rater “had gone the extra mile in trying to help” the applicant in the performance of administrative duties and the applicant was resistant to any assistance from the rater which resulted in open insubordination by the applicant to the rater.  The SR stated that she had confidence that her rating was independent and was a fair and accurate evaluation of the applicant’s performance/potential during the rated period.  

The OSRB contacted the Hospital Commander at the time in question who directed the Commander’s Inquiry.  The Hospital Commander confirmed that the applicant had requested a second Commander’s Inquiry, but that he did not direct a second one because the applicant had not submitted “new” evidence.  He did state, however, that he personally reviewed the results of the original Commander’s Inquiry, and, based on this review, he became convinced that the rater “had not done a good job mentoring” the applicant.  The Hospital Commander concluded that the applicant was apparently a “satisfactory” clinical nurse, but she was not prepared for or technically competent in her duties as a 91C course instructor.  

The Hospital Commander also stated the belief that some of the rater’s comments in Part Vc were unsupportable, but that the remainder of the evaluation was substantiated by supporting documentation.  As a result, he prepared the memorandum to U.S. Total Army Personnel Command regarding the portions of the rater’s comments which he felt were not substantiated.  In concluding, the Hospital Commander stated that he had met with the applicant personally and his impression was that she was a “below center-of-mass officer compared to other captains that were assigned” to his hospital and recalled that in subsequent assignments at his hospital the applicant’s performance was satisfactory and her potential was at best “center-of-mass.

The OSRB addressed the applicant’s contentions.  First, she asserted that the IG investigation supports her claims that the OER in question was unfair and unjust. However, the OSRB found in this matter that the IG report did not substantiate the applicant’s claims of reprisal and that the only deficiency was the failure of the company commander (who was not in the rating chain) to follow proper procedures for requesting a mental health evaluation.  Therefore, the OSRB found that this contention lacked merit.

The applicant contended that the Commander’s Inquiry substantiated her claims that the rater’s portion of the contested OER falsely and unfairly described specific incidents of poor judgement and less than desired performance that are wholly lacking in factual support.  The OSRB found that the Commander’s Inquiry revealed “noted deficiencies are taken out of context and cannot be fully substantiated” and that the Hospital Commander who directed the Commander’s Inquiry recommended that specific parts of the rater’s narrative be deleted.  However, the OSRB also noted that the Hospital Commander stated that no further changes in the OER were required because he had substantiated the rest of the comments made by rating officials.  In this matter, the OSRB deferred to the Hospital Commander’s assessment and opined that evidence substantiates that Part Vc of the contested OER should be amended.

The applicant contended that the SR could not render a fair/just OER because she never observed the applicant in the performance of duties and she was negatively influenced by the rater.  The OSRB found this contention was not proven by the applicant.  The OSRB noted that regulatory guidance does not require the SR have daily or even frequent contact with the rated officer.  The governing regulation does require that the SR will “use all reasonable means to become familiar with the rated officer’s performance.  When practical the following should be used:  (1) Personal contact; (2) records and reports; (3) The Rater’s …evaluation of the rated officer given on the OER; the information given by the rated officer…on the (Support Form).”  The OSRB also pointed out that the SR recounted several sources from which she gained information as a basis for her SR comments and stated that she wrote her own narrative comments and made her own block check.  In conclusion, the OSRB asserted that it is clear the SR’s evaluation was independent and was not tainted by the rater and that the Commander’s Inquiry and the IG investigation found no discrepancy in the assessment by the SR.  Therefore, the OSRB concluded that the SR portion (Part VII) of the OER in question is valid and should remain unchanged.

The applicant contended that the SR never counseled her.  The OSRB found that this contention was not proven by the applicant.  The Hospital Commander confirmed that he had reviewed all of the rater’s counseling statements pertaining to the applicant.  The SR also confirmed that she had counseled the applicant verbally and provided feedback on the applicant’s written products.  The OSRB also found that counseling between the rater and the applicant occurred and that it was apparent that the applicant knew that she could consult with the SR on matters of counseling.  As a result, the OSRB concluded that counseling in accordance with regulatory guidance took place.

After completing its consideration of the matters in appeal presented by the applicant, the OSRB concluded that there was sufficiently convincing evidence that selected statements in Part Vc (the rater’s narrative comments) are inaccurate, unjust, and do not accurately reflect the applicant’s demonstrated performance during the rating period.  Therefore, the OSRB recommended partial approval of the appeal and amendment of Part Vc of the contested OER to delete the highlighted words and sentences as follows:  “[The applicant] has performed her duties in a satisfactory manner; however, her poor judgement and inappropriate behavior resulted in several accounts of disrespect, and a delay in her APFT and nursing license renewal verification.  [The applicant] displayed poor judgement by leaving her enlisted students at a downtown clinical training site bus stop at night without ensuring supervision and transportation back to the military post.”  

After removing the verbiage directed by the OSRB, the following rater narrative in Part Vc resulted:  “[The applicant] has performed her duties in a satisfactory manner; however, her inappropriate behavior resulted in several accounts of professional disrespect.”  

The OSRB also recommended that the applicant’s appeal be filed on her restricted microfiche and that promotion reconsideration is not warranted because of this change to the applicant’s file.  In a 30 November 1999 memorandum, the President of the OSRB directed that the Appeals and Corrections Branch of the U.S. Total Army Personnel Command take the actions recommended by the OSRB to amend the contested OER.

In the processing of this case, an advisory opinion (COPY ATTACHED) was provided by the OSRB.  The applicant was provided with the opportunity to submit comments on this opinion.  She responded on 29 December 1999.  In her comments, the applicant contended there are several inconsistencies in the OSRB advisory opinion.  

The first issue was that the comments regarding her poor judgement were deleted from Part Vc; however, the rating of “2” under Part IVa.8. (Displays sound judgement) “remains unchanged”.  The applicant also states that she provided with her appeal a copy of the first draft of the contested OER which shows a rating of “1” under Part IVa.8.  

The second issue raised by the applicant in the her comments on the OSRB advisory opinion related to the statement made by the SR for the contested OER to the OSRB, specifically that the SR noted the applicant’s “failure to electronically archive, as directed, modified lesson plans”.  The applicant contends that she submitted documents refuting this comment and pointing out that all of her projects were “completed in a timely manner”.  She contends that she “received feedback from [her] former SR indicating the lesson plan revisions were done in a timely manner” and that she provided minutes of faculty meetings which show the progression of the revisions, the primary corrections that were needed, and two months elapsed before her former rater returned the drafts.  

In conclusion, the applicant states that this is an “extensive appeal” and that there are several areas in which it is unclear how the OSRB reached its conclusion.  Based on these inconsistencies perceived by the applicant and the fact that the OSRB interviewed everyone involved except her and the rater, the applicant requests to appear before the Army Board for Correction of Military Records.

The applicant’s evaluation history as a lieutenant shows three OER’s.  In these OER’s, the applicant received ratings of “1” in all 14 elements of professional competence and received positive comments under professional ethics and competence from two different raters, one captain and one major.  Both raters also placed her in the top block (Always Exceeded Requirement) under Part Vc (Comments on Specific Aspects of the Performance) and in the top block (Promote Ahead of Contemporaries) in Part Vd (This Officer’s Potential for Promotion to the Next Higher Grade).  Two different SR’s evaluated the applicant on the three OER’s she received as a first lieutenant, but neither of them was SR for the OER in question.  The applicant was rated in the center of mass (COM) on these OER’s as follows:  (0/0/5*/0/0/0/0/0/0), (1/3*/1/0/0/0/0/0/0) and (4/16*/2/1/0/0/0/0/0) with the comments on each report indicating potential for greater responsibility or send to advanced course.

As a captain, the applicant received ten OER’s including the contested OER with seven prepared on the DA Form 67-8 and three prepared on the DA Form 
67-9.  Nine of the reports cover duties as a staff or clinical nurse and one OER (the contested report) covers duties as an instructor.  

The seven reports as a captain prepared on the DA Form 67-8, with the exception of the contested report, show the applicant received ratings of “1” in all 14 elements of professional competence, received positive comments under professional ethics and competence, the raters placed the applicant in the top blocks for performance and potential with comments in both narratives.  

Except for the contested OER, the applicant’s senior ratings prepared on the DA Form 67-8 placed her COM.  The SR profile for these OERs are:  (2/5*/0/0/0/0/0/0/0), (0/1*/0/0/0/0/0/0/0), (1/3*/1/0/0/0/0/0/0), (2/5*/1/0/0/0/0/0/0), (2/13*/0/0/0/0/0/0/0), the contested OER (3/7/1*/0/0/0/0/0/0), and (6/23*/1/0/0/0/0/0/0).  Generally, the SR comments portrayed the applicant’s performance as excellent and recommended assignment as a head nurse, advanced civilian and military education and promotion.

The applicant’s next three OER’s as a captain were prepared on the DA Form 
67-9 which became effective in October 1997.  The first of these three OER’s covered four months and the second covered six months, both for duties a clinical staff nurse.  The third OER covered 11 months as a clinical head nurse.  Two different raters, who were majors, prepared the first two OER’s, and the rater for the third OER was a lieutenant colonel who on the preceding OER was the applicant’s SR.  

In Part IV (Performance Evaluation-Professionalism) of the first report completed on the DA Form 67-9, the rater, placed her “X” under “YES” in each of the Army Values.  She also placed her “X” under “YES” in all of the blocks under Attributes, Skills (Competence), and Actions (Leadership).  The rater placed her “X” for “MENTAL” under Attributes, for “CONCEPTUAL” and “INTERPERSONAL” under Skills, and for “COMMUNICATING”, “PLANNING” and “DEVELOPING“ under Actions (Leadership).  Under Part V (Performance and Potential Evaluation), the rater placed the applicant in the top block (Outstanding Performance, Must Promote) with positive comments on the specific aspects of the applicant’s performance.  The rater also commented in Part Vc (Identify any unique professional skills or areas of expertise of value to the Army that this officer possesses) that the applicant should be assigned as a head nurse, instructor or nurse counselor and considered for long term health education and training.  

The applicant’s SR for the above OER was a lieutenant colonel.  In Part VII (Senior Rater) of this OER, the SR placed his “X” in the first block (Best Qualified) under Part VIIa (Evaluate the Rated Officer’s Potential to the Next Higher Grade). This rating placed the applicant “CENTER OF MASS” based on a total of one officer rated.  The SR also made comments to include “performed duties in an outstanding manner”, “send to CAS3 at the earliest opportunity” and “consider favorably for Long Term Health Education”.

In Part IV (Performance Evaluation-Professionalism) of the second OER completed on the DA Form 67-9, the rater, placed his “X” under “YES” in each of the Army Values.  He also placed her “X” under “YES” in all of the blocks under Attributes, Skills (Competence), and Actions (Leadership).  The rater placed his “X” for “MENTAL” under Attributes, for “CONCEPTUAL” and “TECHNICAL” under Skills, and for “COMMUNICATING”, “DECISION-MAKING” and “ASSESSING“ under Actions (Leadership).  Under Part V (Performance and Potential Evaluation), the rater placed the applicant in the top block (Outstanding Performance, Must Promote) with positive comments on the specific aspects of the applicant’s performance.  The rater also commented in Part Vc (Identify any unique professional skills or areas of expertise of value to the Army that this officer possesses) that the applicant had eight years of inpatient pediatric nursing experience.

The applicant’s SR for the above OER was a lieutenant colonel.  In Part VII (Senior Rater) of this OER, the SR placed her “X” in the first block (Best Qualified) under Part VIIa (Evaluate the Rated Officer’s Potential to the Next Higher Grade). This rating placed the applicant “ABOVE CENTER OF MASS” based on a total of eight officers rated. The SR also made  strong comments to include “Select [the applicant] for Long Term Health Education”, “the applicant by far was the best choice to step up to the head nurse position” and “Promote from below the zone”.

In Part IV (Performance Evaluation-Professionalism) of the third OER completed on the DA Form 67-9, the rater, placed her “X” under “YES” in each of the Army Values.  She also placed her “X” under “YES” in all of the blocks under Attributes, Skills (Competence), and Actions (Leadership).  The rater placed her “X” for “MENTAL” under Attributes, for “INTERPERSONAL” and “TECHNICAL” under Skills, and for “COMMUNICATING”, “EXECUTING” and “ASSESSING“ under Actions (Leadership).  Under Part V (Performance and Potential Evaluation), the rater placed the applicant in the top block (Outstanding Performance, Must Promote) with positive comments on the specific aspects of the applicant’s performance.  The rater made no comment in Part Vc (Identify any unique professional skills or areas of expertise of value to the Army that this officer possesses).

The applicant’s SR for the above OER was a colonel.  In Part VII (Senior Rater) of this OER, the SR placed his “X” in the first block (Best Qualified) under Part VIIa (Evaluate the Rated Officer’s Potential to the Next Higher Grade). This rating placed the applicant “ABOVE CENTER OF MASS” based on a total of six officers rated.  The SR also made comments to include “[the applicant] is the linchpin in Nursing Division who performs in an outstanding manner”, “[the applicant] ranks among the top 10% of all captains with whom I have worked”, and “She is a must for promotion to Major and selection for Long Term Health Education”.

Army Regulation 623-105 (Officer Evaluation Reporting System), effective 30 April 1992, governed the previous OER system for the DA Form 67-8 and provided, in pertinent part, that any OER with ratings or comments that, in the opinion of the SR, are so derogatory that the report may have an adverse impact on the rated officer’s career will be referred for acknowledgment and comment prior to forwarding to Department of the Army.

Army Regulation 623-105, effective 30 April 1992, established the policies and procedures for the previous OER system based on the DA Form 67-8.  The regulation provided for a Commander’s Inquiry in cases where it brought to the attention of a commander that an officer evaluation report (OER) rendered by a subordinate or a member of a subordinate command may be illegal, unjust or otherwise in violation of this regulation.  The primary purpose of a commander’s inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated officer and correcting errors before they become a matter of permanent record.  A secondary purpose of a commander’s inquiry is to obtain command involvement in clarifying errors or injustices after the OER is accepted at Headquarters, Department of the Army.  The commander involved will inquire into the matters alleged, but must confine his or her inquiry to matters relating to the clarity of the OER, the facts contained in the OER, the compliance of the OER with the governing regulation, and the conduct of the rated officer and members of the rating chain.  The commander does not have authority to direct that an OER evaluation be changed, and the commander may not use command influence to alter the honest evaluation of an officer by a rating official.  

Army Regulation 623-105, effective 30 April 1992, governed the policies and procedures for the previous OER system which was based on the DA Form 
67-8.  The regulation provided the opportunity to request a Commander's Inquiry or to appeal disputed reports.  Paragraphs 5-32 and 9-2 provided 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 this regulation stated that 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.

Paragraph 4-13 of Army Regulation 623-105 (effective 30 April 1992) stated that Part IV of the DA Form 67-8 is prepared by the rater and provides instructions on the preparation of Part IVa. (Professional Competence).  Specifically, the regulation requires rating on a scale of “1” to “5” (1 being high) how well each statement describes the rated officer.  The regulation also stated that any comments on the strengths or weaknesses will be placed in the comments part of block “b” and that comments are only mandatory to explain or clarify ratings of “4” or “5” in Part IVa.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The applicant received an adverse OER.  The contested OER was properly referred to her by the SR and she responded with written comments.

2.  The applicant requested a Commander’s Inquiry into her allegations that the contested OER was “an unfair and arbitrary attack on her career” and “reflects a personal animus being held against [her].”  A Commander’s Inquiry was conducted and the General Officer, who directed the Commander’s Inquiry, recommended “striking” unsubstantiated comments by the rater.  However, this General Officer also stated to the OSRB that the remainder of the evaluation was substantiated by supporting documentation.

3.  The applicant submitted a complaint under the Whistleblower Protection Act alleging reprisal by the rating officials for protected communications.  Investigation was conducted by the MEDCOM IG.  The DOD IG determined the applicant’s allegations were not substantiated and so notified her.
4.  The applicant appealed the contested OER to the OSRB.  The OSRB, after detailed review and telephonic interviews with the SR and the Hospital Commander who directed the Commander’s Inquiry, concurred with the General Officer’s recommended amendments to the rater comments contained in the contested OER.  As a result, the President of the OSRB directed amendment of the contested OER which has been accomplished.

5.  The Board noted the applicant’s contention that the contested OER “contains certain specific allegations of factual events that are either untrue, or so contrived in their description to be misleading”, specifically related to her inability to complete assigned tasks, her poor judgment, and instances of "inappropriate behavior” by acting in a “disrespectful manner”.  

6.  Regarding the applicant’s contention that she completed all tasks on time, the Board noted the statement of support from a major who was a co-worker.  This co-worker asserted that the project that she and the applicant worked on together was on schedule.  However, the Board also found that the applicant, by her own admission in interview with the MEDCOM IG, refused to complete work directed by her immediate superior until her SR returned and was counseled for this in writing on 19 May 1997.  Counseling statements show the applicant was not responsive to inquiries from the rater regarding time sensitive actions (renewal of nursing license, participation in physical training, and taking the APFT) and did not properly prepare a replacement instructor to conduct classes in the applicant’s absence.  Notwithstanding the reasons provided by the applicant for not meeting these requirements established by the rater, these incidents represent a pattern of failure to complete requirements established by the applicant’s immediate supervisor and rater.

7.  The Board noted the applicant’s contention that the rater, not the applicant, became angry when the applicant “voiced objection”.  Contrary to this contention, counseling statements and the MEDOM IG report indicated that the applicant did not maintain proper military bearing on several occasions.  By her own admission in the MEDCOM IG report, the applicant stated she was blunt at times and had a tendency to say things without thinking.  The SR noted the applicant’s resistance to supervisory guidance. 

8.  Contrary to the applicant’s contention that the Commander’s Inquiry determined that many of the adverse comments had no factual basis, the Commander’s Inquiry only resulted in removal of selected portions of the rater comments in Part Vc.  Specifically the Commander’s Inquiry and appeal to the OSRB resulted in removal of the words “poor judgement” and the examples of poor judgement involving delay of the APFT, nursing license renewal and leaving students at a downtown clinical training site.  The General Officer responsible for the Commander’s Inquiry and the OSRB retained the rater comment citing the applicant for “inappropriate behavior” which resulted in several accounts of “professional disrespect”.  Further, the SR also commented that the applicant resisted supervisory guidance, support and leadership.

9.  The Board noted the applicant’s contention that, after she requested a Commander’s Inquiry, her superiors produced a number of private MFRs [memoranda for record] which allegedly documented her conduct.  This matter was considered during the Commander’s Inquiry and it is not a basis for overturning an OER.  It is not irregular or otherwise prohibited for rating officials to keep notes regarding the performance of subordinates.

10.  The Board noted the applicant’s comment on the OSRB advisory opinion regarding the removal of the words “poor judgement’ from the rater narrative, but not changing the rating “2” in Part IVa.8. (Displays sound judgement).  The Board noted that the first version of the contested OER contained a “1” rating in Part IVa.8.  However, the third version of the OER was submitted to Headquarters, Department of the Army and was accepted for filing in the applicant’s OMPF subsequent to completion of the Commander’s Inquiry.  This version contained a “2” rating in Part IVa.8., and the OSRB did not change this rating after completing the applicant’s OER appeal.  The Board noted that, while the comment on poor judgement was removed from the rater narrative in Part Vc, there is no basis for changing a rating in Part IVa.8. or comments in Part IVb. because these sections are not linked to Part Vc of the OER.

11.  The Board noted the applicant’s contention that she submitted documents which refuted the SR statement to the OSRB regarding the applicant’s “failure to electronically archive, as directed modified lesson plans”.  These documents were not submitted to the ABCMR; however, this matter is appropriate to the OSRB’s consideration of this case and is only one example among several regarding the applicant’s performance.  As a result, the ABCMR has not discussed this separately or otherwise considered this issue as a key factor or major determinant in this case.

12.  Based on the foregoing, the Board concluded:

	a.  that, as a result of the Commander’s Inquiry and appeal to the OSRB, the applicant was granted relief deemed appropriate by those officials;

	b.  that an adverse OER was not rendered to the applicant in reprisal by the rater or SR;

	c.  that the professional relationship between the applicant and her superiors was marked by “professional disrespect” and instances of “inappropriate behavior” as confirmed by the General Officer who directed the Commander’s Inquiry;

	d. that the applicant resisted “supervisory guidance, support and leadership” as noted by the SR;

	e.  that the applicant has not provided convincing evidence to show the comments in the contested OER, as amended by the OSRB, about timeliness of work, responsiveness or poor judgement by either the rater or SR are inappropriate; and

	f.  that the applicant has not provided sufficient evidence to show the contested OER, as amended by the OSRB, “contains certain specific allegations of factual events that are either untrue, or so contrived in their description to be misleading”, is “an unfair and arbitrary attack on her career” or “reflects a personal animus being held against [her].”

12.  The Board also notes that, while the contested OER places the applicant below COM and contains adverse comments, these facts are not a basis for removing this OER from her OMPF.  Clearly, the rater and the applicant had professional differences.  The Board noted the applicant’s contention that she was not given the opportunity to “change [her] course and comply with the rater’s requirements” and that failure to be given this opportunity to do so “reflected poor leadership and supervisory skills” by her chain of command.  However, the Board notes that it was the applicant’s duty to comply with instructions and guidance from superiors and that counseling, the MEDCOM IG report, the Commander’s Inquiry and SR comments to the OSRB clearly show the applicant was given the opportunity to correct her shortcomings, but did not do so.  As a result, rating officials documented the applicant’s performance in her OER.  Therefore the OER, as amended by the OSRB, is valid and describes facts and the applicant’s disagreement with this OER is not a basis for removing it from her OMPF.  

13.  The Board notes that the contested OER, as amended by the OSRB, is below COM in comparison to 10 other OER’s which are COM and two OER’s which are above COM.  However, the fact this OER is below COM is not a basis to remove this OER from the applicant’s OMPF, particularly since the OER, as amended by the OSRB, represents a valid appraisal of the applicant’s performance and potential during this specific rated period as verified by the Hospital Commander and the OSRB.

14.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

14.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

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

INDEX

CASE ID	AR1999015980	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	200006/7	
TYPE OF DISCHARGE	NA-ACTIVE DUTY	
DATE OF DISCHARGE	NA-ACTIVE DUTY	
DISCHARGE AUTHORITY	NA ACTIVE DUTY	
DISCHARGE REASON	NA	
BOARD DECISION	DENY	
REVIEW AUTHORITY	MR CHUN	
ISSUES         1.	111.0005.0000	
2.		
3.		
4.		
5.		
6.