RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBERS: BC-2008- 00538 INDEX CODE: 100.05 XXXXXXXXXXXXXXXXXXX COUNSEL: XXXXXXXXXX HEARING DESIRED: YES ________________________________________________________________ _ APPLICANT REQUESTS THAT: Her officer performance report (OPR) rendered for the period 15 June 2001 through 30 April 2002 be set aside and removed from her records. In addition, her Letter of Reprimand (LOR); Unfavorable Information File (UIF); and her promotion non- selection by the CY07A Lieutenant Colonel (Lt Col) Nurse Corps Central Selection Board (CSB) and any subsequent non-selection by CSB in 2008, along with any separation due to being twice- deferred, be set-aside; and, that her records be considered by Special Selection Board (SSB) for the CY07A Lt Col Nurse Corps CSB. In the event she is selected for promotion by SSB, she requests being granted retroactive date of rank with pay and allowances, and any other appropriate record corrections. ________________________________________________________________ _ APPLICANT CONTENDS THAT: The allegations that led to her LOR and subsequent referral OPR were frivolous and made without basis in fact, documentary support, or prior counseling. The LOR with mandatory UIF entry failed to meet the basic LOR due process requirements by stating specifically what the applicant did and the dates for these incidents. In addition, the LOR was not administered in accordance with (IAW) Air Force Instruction (AFI) 36-2907, paragraph 3.4.1 because, although the applicant was given an opportunity to submit rebuttal comments, once a LOR is issued, UIF filing is mandatory. She feels the often hostile work environment in nursing may have bred these arbitrary and vindictive actions. The LOR and OPR should be determined to be invalid because procedures required by AFI 44-119, Medical Quality Operations, were not followed. In support of her appeal, the applicant provides a statement from her counsel; and, copies of her LOR, response to the LOR, Referral OPR, request to the Evaluation Review Appeals Board (ERAB) to remove the contested report, work schedules, memorandum for record, Performance Feedback, character references, ERAB decision, Promotion Recommendation, Officer Performance Reports, Education/Training Report, award and decoration documents, and articles on Nursing. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ _ STATEMENT OF FACTS: According to the Military Personnel Data System, the applicant is currently serving on active duty in the grade of major with an effective and date of rank of 1 March 2002. She has a Total Active Federal Military Service Date and a Total Active Federal Commissioned Service Date of 22 February 1989 and a projected date of separation (retirement) of 28 February 2009. On 1 April 2002, the applicant received a LOR citing violations of Article 86 of the Uniform Code of Military Justice (UCMJ), Failure to Go, and Article 92, Dereliction of Duty. On 4 April 2002, the applicant responded to the LOR. After considering the applicant’s rebuttal, the commander processed the LOR and a UIF was established in accordance with (IAW) AFI 36-2907, Unfavorable Information File (UIF) Program. On 12 June 2002, the applicant was notified that her OPR closing 30 April 2002 was referred. The applicant acknowledged receipt and provided an undated rebuttal to the referral OPR. The applicant has two non-selections to the grade of Lt Col by the CY07A and CY08A Lt Col Nurse CSBs. The following is a resume of her OPR ratings commencing with the report closing 7 February 1995: PERIOD ENDING OVERALL EVALUATION 7 Feb 95 (Capt) Meets Standards (MS) 7 Feb 96 MS 19 Sep 96 MS 14 Jun 97 MS 12 Dec 97 Training Report (TR) 14 Jun 98 MS 14 Jun 99 MS 14 Jun 00 MS 14 Jun 01 MS 30 Apr 02 (Major) (Referral Report) 30 Apr 03 MS 10 Feb 04 MS 7 Jun 05 MS 6 Nov 05 MS 6 Nov 06 MS The remaining relevant facts are contained in the advisory opinions from the Air Force offices of primary responsibility. ________________________________________________________________ _ AIR FORCE EVALUATION: AFPC/DPSI recommends denying the applicant’s request to set aside her LOR and remove it from her record. DPSI states that after reviewing the case file, they found the LOR was administered IAW the governing instruction and the UIF was established accordingly. The applicant was issued an LOR on 1 April 2002, which listed numerous infractions with corresponding dates for each. On 1 April 2002, the applicant acknowledged receipt of the LOR and provided a rebuttal on 4 April 2002. After considering the rebuttal, the commander processed the LOR and established a UIF IAW AFI 36-2907. The complete DPSI evaluation is at Exhibit B. AFPC/DPSIDEP recommends denial of the applicant’s request to remove her referral OPR. DPSIDEP indicates that on 29 July 2003, the applicant filed an appeal through the ERAB under the provisions of AFI 36-2401, Correcting Officer and Enlisted Evaluation Reports. However, the ERAB was not convinced that the report was inaccurate or unjust and denied relief. The applicant received a LOR and UIF for failure to report to duty without proper authorization; thereby, making the OPR in question accurate. Making a determination on the validity of the LOR/UIF is outside the purview of the ERAB; thereby, making the ERAB’s actions in 2003 appropriate. For the ERAB to favorably remove reference to the LOR/UIF, the applicant must prove that the statement is inaccurate by proving she did not receive the LOR/UIF. For the ERAB to favorably remove the entire OPR requires even more substantial evidence since the ERAB will not void a report that can be corrected administratively. Although the applicant is requesting her OPR be removed, the gist of the evidence provided is geared at proving her innocent of the alleged incidents that led to the LOR/UIF and referral OPR. However, AFPC/DPSI recommended the applicant’s request to “set-aside” the LOR be denied. Therefore, based on this recommendation, the referral OPR is valid as written and in total compliance with governing directives. The complete DPSIDEP evaluation is at Exhibit C. AFPC/DPSOO recommends that based on DPSI’s and DPSIDEP’s denials to set-aside and remove the LOR/UIF and the 30 April 2002 OPR, they recommend denying the applicant’s request for SSB consideration. DPSOO indicates there are no grounds to support removal of her nonselections by the CY07A and the CY08A promotion boards. As she has over 18 years of service she is considered to be in sanctuary and will be retained until she is eligible to retire as an officer on 28 February 2009. The complete DPSOO evaluation is at Exhibit D. AFPC/DPAMN (Nurse Utilization and Education Branch) has grave concerns about the validity of the LOR content and the fact that if the commander truly believed all the allegations in the LOR to be true, then why wasn’t action under AFI44-119 invoked. The commander’s allegations that the applicant “jeopardized patient care,” “failed to adjust assignments, thus exhibiting poor judgment and potentially putting the hospital in a serious risk management situation,” “blatant dereliction of duty,” and so on should have driven action under AFI 44-119. In addition, the commander stated in the LOR “you will be closely observed in the future to ensure that you maintain expected standards;” however, this was not a formal monitoring and evaluation plan IAW AFI 44- 119. It is DPAMN’s opinion that the commander severely overreached and overstated many facts in her allegations/statements in the LOR. There was no proven jeopardy to patient care at the time she wrote the LOR, and it was further disproved in the rebuttal to the LOR, but never acknowledged. To let the unproven allegations in the LOR stand; and, drive a UIF and a referral OPR, that was in her Officer Selection Record (OSR) to meet upcoming promotion boards, did not allow the applicant fair consideration and negatively impacted the applicant’s opportunity for promotion. The complete DPAMN evaluation is at Exhibit E. AFPC/JA recommends denying the applicant’s requests. JA states that the actions taken by the applicant’s command/rating chain to impose an LOR and referral OPR were within the commander’s discretion and entirely proper. The applicant has offered no evidence – merely the opinions of the applicant and her counsel – that the underlying circumstances supporting those actions did not occur or were otherwise erroneous. JA disagrees with the DPAMN advisory opinion that the imposing commander “overreached and overstated many facts in her allegations/statements in the LOR;” and, that the applicant was denied fair consideration because of “unproven allegations” in the LOR and referral OPR. In reaching their conclusion, DPMAN stated that if the commander “truly believed all her own statements in the LOR, she would have implemented actions IAW AFI 44-119.” JA indicates the commander did not conclude that patient safety had indeed been placed at risk. The commander stated the applicant exhibited poor judgment “potentially putting the hospital in a serious risk management situation.” (Emphasis supplied.) The commander was taking action to advise the applicant of serious problems with her behavior and to correct such behavior before an actual risk management situation occurred. This was not in conflict with AFI 44-119 nor otherwise improper. Moreover, even if the portions of the LOR were given DPMAN’s interpretation, the essential factual statements documenting failure to go, poor judgment, poor leadership style, and conflicts with other personnel were nevertheless established without regard to whether patient care was ever jeopardized, and this behavior warranted the corrective action (LOR) and documentation (referral OPR) that followed. In addition, AFI 44-119, paragraph 9.7., makes clear that “administrative adverse action may be taken against the provider regardless of clinical adverse actions.” Thus, whether or not action was taken IAW 44-119, the LOR and referral OPR were proper. The complete JA evaluation is at Exhibit F. ________________________________________________________________ _ COUNSEL'S REVIEW OF AIR FORCE EVALUATIONS: The applicant’s counsel responds that the author of the JA advisory opinion quotes from the 2007 version of AFI 44-119. The 2001 version of the AFI applies in this case. Relying on the 2007 edition does not simply make the JA opinion confusing; rather, the language and standards in the 2007 version are substantively different in certain respects. The counsel’s rebuttal is at Exhibit H. ________________________________________________________________ _ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. The applicant challenges the accuracy of events chronicled in her LOR; however, she has not offered any objective or credible evidence to rebut the version of events offered by her commander. In addition, she contends the LOR and contested OPR were the result of bias and not as a result of evidence. However, while the applicant may believe this is the case, there is nothing in the evidence provided which would support this contention or lead us to believe that the LOR or OPR in question was prepared with any motivation on the part of the evaluator other than to report her assessment of the applicant’s performance. We note the applicant and her counsel contend that her LOR and OPR should be determined to be invalid because procedures required by AFI 44-149 were not followed. However, according to AFPC/DPMAN, because there were no limitations of the applicant’s clinical practice or clinical duties in the Neonatal Intensive Care Unit, the concern that AFI 44-119 wasn’t followed is unfounded. We are not persuaded by the evidence provided, that the actions taken against the applicant were improper, contrary to the provisions of the governing regulations, or that she was denied rights to which she was entitled. In fact, the comments provided by the Office of the Judge Advocate points out that the statements documenting the applicant’s failure to go, poor judgment, poor leadership style and conflicts with other personnel, warranted the LOR and referral OPR without regard to whether patient care was ever jeopardized. We note the counsel’s comments indicating that the author of the AFPC/JA advisory mistakenly used the 2007 version of AFI 44-119 when the applicable version was published in 2001. However, after a thorough review of both the 2001 and 2007 versions of the AFI, we feel that while the numbering of chapters and paragraphs; and some verbiage, vary slightly, the meaning of both AFI’s are similar enough to extract the same intent. Accordingly, in the absence of persuasive evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application. 4. The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ _ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. ________________________________________________________________ _ The following members of the Board considered this application in Executive Session on 25 February 2009, under the provisions of AFI 36-2603: XXXXXXXXXXXXXXXXXX, Panel Chair XXXXXXXXXXXXXXXXXX, Member XXXXXXXXXXXXXXXXXXX, Member The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2008-00538: Exhibit A. DD Form 149, dated 2 Feb 08, w/atchs. Exhibit B. Letter, AFPC/DPSI, dated 30 Apr 08. Exhibit C. Letter, AFPC/DPSIDEP, dated 4 Jun 08. Exhibit D. Letter, AFPC/DPSOO, dated 6 Aug 08. Exhibit E. Letter, AFPC/DPAMN, dated 2 Sep 08. Exhibit F. Letter, AFPC/JA, dated 18 Sep 08. Exhibit G. Letter, SAF/MRBC, dated 26 Sep 08. Exhibit H. Counsel’s Rebuttal, dated 30 Oct 08.