MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:             1 August 2000                 
	DOCKET NUMBER:     AR2000036857

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Ms.Deborah S. Jacobs		Chairperson	
	Ms. Karol A. Kennedy		Member	
	Mr. Ernest W. Lutz, Jr.		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) he was given for the period ending 21 January 1990 be removed from his records completely, and that the senior rater (SR) portion of his OER for the period ending 21 January 1991 be deleted from that report.  In a second DD Form 149, Application for Correction of Military Record, the applicant requests the deletion of the SR’s portion of the OER he was given for the period ending 28 October 1992.

APPLICANT STATES:  That his rater was on a witch hunt to find things which his rater could use to eliminate him from the Army because the applicant did not fit into his rater’s puritanical views on life.  The witch hunt was intensified when he started dating a Turkish national whom he later married.  He states that all of the negative information concerning him were rumors and innuendoes, and had no basis in truth.  But based on those rumors and innuendoes, his rater and senior rater harassed him unmercifully and took actions against him which placed his professional credentials in doubt.  The applicant then explains why he had business cards made up which showed that he was a professor at a university when he was not; how his offer to a female patient to walk her home after he treated her and his calling her at home were acts of compassion; why his SR’s directive in response to the woman’s husband’s threat to file an inspector general action request into the incident, for him not to treat any more female patients, was nothing more than him jumping to conclusions; that his SR’s statement to the Officer Special Review Board (OSRB) that the applicant had a professional checkered past because he had changed dental schools is also evidence of his SR jumping to false conclusions; how his rater’s charge of AWOL against him was trumped up; how his SR based his actions pertaining to him on his rater’s tainted perceptions; how the recommendation of the dental Credentials Hearing Committee, for him to submit to a 90-day supervision period, was based solely on command pressure; and how he perceives that errors and omissions were made in the contested OER’s.  The applicant then makes several statements specifically in support of his requests to delete the SR portion of the second and third contested OER.  

In support of his application he submits numerous letters attesting to his professionalism and relating the writers’ perception of the events surrounding the contested OER’s.  One of those letters is from the SR of his contested report.  In that letter his SR stated that his rating of the applicant was not intended to be punitive, that the applicant was an excellent officer with outstanding enthusiasm and work ethic.  The SR continues that the applicant has generally been an outstanding dentist and officer consistently, that to believe that his performance as a dentist or Army officer was routinely sub-par was incorrect.  There were indications that the applicant would have the opportunity to grow and mature under the close supervision of more senior officers.  That proved to be correct, and the applicant grew professionally and has maintained a record of outstanding performance since the contested OER.  The SR stated that he made a mistake by mentioning the supervision in the applicant’s second OER.

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

On 8 March 1990 the applicant, a captain in the Dental Corps on active duty, was forwarded his OER for the period covering 18 February 1989 through 21 January 1990.  In that report it was stated that the applicant met requirements (a third block in a five block scale) and recommended that he be promoted with his contemporaries (a second block rating in a four block scale).  It rated the applicant with all ones (in a scale of 1 to 5, 1 being the best) in Part IV of the form, Professionalism, except for “Possesses capacity to acquire knowledge/grasp concepts”, “Demonstrates appropriate knowledge and expertise in assigned tasks”, and “Displays sound judgement.”  He was assigned “2’s” in these three attributes.  While the applicant’s rater was very complimentary on the applicant’s reputation amongst his patients, his gentle, compassionate care of his patients, and his athletic skills, he also stated that “During the past year [the applicant] experienced problems with several different areas of treatment and also with record keeping.  This year he worked under a 63B who provided supervision and additional training to correct the deficiencies.”  

In the SR portion of the OER, his SR stated that the applicant was a hard worker, was well liked by his patients and was dedicated to his patients.  However, the SR added that the applicant “. . . showed significant improvement in record keeping and quality of care during a recent period of intense scrutiny . . .”

The applicant appealed that OER to the OSRB.  In the processing of his appeal the OSRB contacted his rater and SR.  His rater stated in part that since the applicant served more time under a different supervisor than him, he assumed that the senior rater wanted him to rate the applicant because of the “very definite negative feelings about the applicant” by the applicant’s other supervisor.  The rater stated that the applicant had left a root tip in one of his patients, an event which led to the SR deciding that the applicant should work under the supervision of another dentist.  The rater continued that the applicant was an eager, willing worker who wanted to be shown new things, but he was too eager.  The rater stated that he was afraid to show the applicant any new procedures because after learning only 20 percent of the procedure, the applicant would “charge off like he knew 80 percent.”  The rater summarized his view of the applicant by stating that “The applicant would charge off with great energy, but lost precision in the process . . .”  The rater continued that he had talked to the applicant for taking credit for more than he had been responsible for doing.  The rater also stated that the applicant was not his star performer, that he called on another dental officer he supervised if he needed to get something done.  The rater denied any relationship between his rating of the applicant and the applicant’s personal life.
When contacted by the OSRB, the applicant’s SR stated that the applicant had been under clinical review regarding questions of his competence and that the applicant had a checkered career that is well known among the Dental Corps.  He had started his dental training at one school, then for some reason(s) had to change schools; and that he had some questionable activities going on such as having calling cards printed that he would give out which showed him as a professor at a school when he was not affiliated with that school.  The SR gave examples of some of the applicant’s clinical deficiencies that came to his attention and concluded that the applicant was a likable person who is not afraid of work, but who “talks a better story than is produced.  Where the rubber meets the road, he was not all that good and that is what the OER was looking at.”  

The OSRB concluded that the applicant’s OER was an accurate and objective evaluation of the applicant for the rating period.  The OSRB also considered the procedural errors charged by the applicant and found them without merit with the exception of the OER not being referred to the applicant for comment as it was an adverse report.  The OSRB rectified that omission by allowing the applicant to respond to the OER as if it had been referred and directed that his response be filed with the contested OER.  The OSRB then denied his appeal.

On 1 February 1996 the OSRB returned the applicant’s appeal on his OER for the period ending 28 October 1992 informing him that it was not prepared in proper format and that his evidence was not supportive of his appeal.  There is no evidence that the applicant ever appealed his OER for the period ending 21 January 1991.

Army Regulation 623-105 establishes the policies and procedures for the OER system.  This regulation states, in pertinent part, that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Paragraph 
9-7 of that regulation states 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 6-10d states in pertinent part that statements from rating officials are acceptable if they relate to allegations of factual errors, erroneous perceptions or claims of bias.

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

1.  The Board concurs with the OSRB that there is no evidence that the applicant’s OER for the period ending 21 January 1990 was anything but an accurate and objective evaluation of the applicant for the rating period.  The Board also concurs that there were no procedural errors which would invalidate the contested OER.

2.  There are documented deficiencies in the applicant’s clinical practice, deficiencies which resulted in patients not receiving proper treatment.  It would appear from the contested OER and the conversations between the OSRB and the applicant’s rater and SR that the applicant would not confine his treatment to those procedures for which he was trained and familiar.  This was obviously viewed by his rating chain as a dangerous practice and they sought to confine him to the limitations imposed by his professional schooling and experience.  The fact that the applicant’s SR deemed it necessary to call in the dental Credentials Hearing Committee is indicative of the importance given to this deficiency by the applicant’s SR.

3.  The applicant’s contention that he was the subject of a witch hunt or the victim of unsubstantiated rumors and innuendoes is not supported by the evidence of record.  While his supervisor may very well have disapproved of his personal lifestyle, that in no way is reflected in his OER.  He was faulted for his competence as a dental officer, not his personal or professional values

4.  The Board has considered the numerous statements submitted in the applicant’s behalf.  However, those statements do not invalidate the preceding conclusions.  Particular weight was given to the late arriving statement provided to the applicant from the SR of the contested report.  However, the SR’s statement does not relate to allegations of factual errors, erroneous perceptions or claims of bias.  In the SR statement he said in part that the applicant “has generally been an outstanding dentist” and “There were indications that the applicant would have the opportunity to grow and mature under the close supervision of more senior officers.”  Those phrases actually reinforce the statements made to the OSRB that the applicant required supervision because he would attempt clinical procedures which he was not properly trained to perform.  The statement by the SR that the applicant grew professionally and has maintained a record of outstanding performance since the contested OER is merely indicative that the applicant’s professional training and experience eventually caught up with his work ethic and enthusiasm.  It is not indicative that the statements made on the OER were factual errors, erroneous perceptions or claims of bias.

5.  As for the applicant’s appeal of his OER’s for the period ending 21 January 1991 and 28 October 1992, he has not exhausted his administrative remedies with the OSRB.  In accordance with the regulation under which the Board operates, the Board will not consider any request until the applicant has exhausted his administrative remedies.

6.  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

___dsj___  ___kak__  ___ewl___  DENY APPLICATION

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

INDEX

CASE ID	AR2000036857	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000801	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	111.04	
2.		
3.		
4.		
5.		
6.