AR20160006835

IN THE CASE OF:

BOARD DATE: 10 May 2016

DOCKET NUMBER: AR20160006835

BOARD VOTE:

_________ _______ ________ GRANT FULL RELIEF

________ ________ ________ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

___x____ ____x___ ___x_____ DENY APPLICATION

2Enclosures
1. Board Determination/Recommendation
2. Evidence and Consideration

IN THE CASE OF:

BOARD DATE: 10 May 2016

DOCKET NUMBER: AR20160006835

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

_____________x____________
CHAIRPERSON

I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

IN THE CASE OF:

BOARD DATE: 10 May 2016

DOCKET NUMBER: AR20160006835

THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1. Application for correction of military records (with supporting documents provided, if any).

2. Military Personnel Records and advisory opinions (if any).

THE APPLICANT’S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests:

a. removal of the Officer Evaluation Report (OER) covering the period
15 November 2007 through 31 October 2008 (hereinafter referred to as contested OER-1) from her Official Military Personnel File (OMPF), and

b. correction of substantive errors on the OER covering the period 20 June 2011 through 19 June 2012 (hereinafter referred to as contested OER-2).

2. The applicant states that she was twice non-selected for promotion to major (MAJ) due to the unjust/inaccurate contested OERs. She has been selected by the Army Nurse Corps (ANC) for selective continuation of service.

a. On 27 February 2015, a Board of Inquiry (BOI) recommended her for retention based on the finding that the referred (contested) OERs are not supported by a preponderance of the evidence. The BOI considered both referred OERS in their deliberations and concluded that there was not enough support to justify the adverse information in the OERs.

b. Her appeal is a priority two (2). It is based on both administrative and substantive inaccuracy, and mitigating/extenuating circumstances that warrant removal of contested OER-1 and correction of contested OER-2.

(1) She states that contested OER-1 should be removed from her OMPF because it is both untrue and unjust. The BOI determined that the allegation of conduct unbecoming of an officer is not supported by a preponderance of the evidence. Therefore, the information contained in contested OER-1 must be removed so that her career is not tarnished and her promotion is not hindered.

(2) She also states that she remained within the acceptable limit for the body fat percentage requirements of 36 percent (%). An email message from her company commander indicates the error in contested OER-2. Therefore, since she was in compliance during the rating period, any comments regarding exceeding weight requirements are not appropriate and should be removed.

(3) She adds that the references/comments to being out of compliance with Army Regulation (AR) 600-9 (The Army Weight Control Program (AWCP)) should be removed from contested OER-2. Specifically, from:

* Part IV (Performance Evaluation Professionalism Rater), block c (Height/Weight), “No” should be replaced with the entry “Yes”
* Part V (Performance and Potential Evaluation Rater)

* block b (Comment on specific aspects of the performance)
* block c (Comment on Potential for Promotion)

* Part VII (Senior Rater), block c (Comment on performance/ potential)

3. The applicant provides copies of the following documents:

* Evaluation Report Appeal (summarized above)
* contested OER-1
* contested OER-2 with referral comments
* character reference memorandum and notes
* selective continuation memorandum and acknowledgement
* initiation of elimination memorandum
* email messages
* BOI findings, recommendations, and action

CONSIDERATION OF EVIDENCE:

1. The applicant had prior honorable enlisted service in both the Regular Army and in the U.S. Army Reserve.
2. The applicant was appointed as a Reserve commissioned officer of the Army, in the rank of second lieutenant, on 13 December 2004. She is currently serving on active duty as a Regular Army commissioned officer in the rank of captain (CPT)/pay grade O-3E. She was promoted to CPT on 1 July 2008.

3. A review of the performance folder of the applicant’s OMPF revealed the two contested OERs (i.e., two DA Forms 67-9 (OERs)) that show, in pertinent part:

* contested OER-1: change of rater report for the period 15 November 2007 through 31 October 2008 for duties performed as Clinical Staff Nurse, Intensive Care Unit/Post Anesthesia Care Unit (ICU/PACU), U.S. Army (USA) Medical Activity Department (MEDDAC), Fort Stewart, GA

* Part II ((Authentication)

* block a (Rater): MAJ Monnica D. F___, Head Nurse, ICU/PACU
* block c (Senior Rater): Lieutenant Colonel (LTC) Margaret L. D__, Chief, Nursing Administration, USA MEDDAC, Fort Stewart, GA
* block d (This is a referred report, do you wish to make comments,), an “X” (indicating it is a referred report) and an “X” indicating “Yes, comments are attached”
* block e (Signature of Rated Officer), the applicant’s electronic signature, dated 22 December 2008

* Part IV

* block a (Army Values), line 5 (Respect), an “X” in the “No” box
* block b (Leader Attributes/Skills/Actions), line b2 (Skills), item 2 (Interpersonal), an “X” in the “No” box

* Part V

* block a (Evaluate the rated officer’s performance during the rating period and his/her potential for promotion), an “X” in the box for “Satisfactory Performance, Promote”
* block b: “[Applicant] is an intelligent and conscientious Critical Care nurse with an overly assertive communication style that often conveys disrespect and insubordination. As one of the only nurses in the unit with formal Critical Care training and clinical experience, her skill set was mission-essential to the safe delivery of nursing care to ICU/PACU patients, thus making her the natural choice to serve as the primary Charge Nurse and Critical Care resource after-hours. Unfortunately, [applicant’s] defiant attitude and verbal dissent with leadership and unit operations impeded her efficacy as a shift leader by alienating team members and creating reluctance, in less-experienced nurses, to seek her guidance. Despite her limitations, [applicant] did share her clinical expertise with colleagues when directed to develop and deliver in-services on Rhabdomyolysis and Team Building. Additionally, she revised a much-needed unit SOP [Standard Operating Procedure] to address the utilization of unit guards with ICU patients and served as the Unit Schedule Coordinator. As a Nurse, [applicant’s] dedication to the hospital’s mission of taking care of Soldiers was unfaltering. As a Leader, [applicant’s] communication style and interpersonal skills precluded her from serving in roles of increased responsibility and, ultimately, were not commensurate with her rank and position as a senior Company Grade officer.”
* block c: “With continued leadership-directed counseling and active mentoring [applicant] could achieve her potential as an ANC officer. Send to the Captains Career Course and promote once professional deficiencies are corrected.”

* Part VII

* block a (Evaluate the rated officer’s promotion potential to the next higher grade), an “X” in the box for “Fully Qualified”
* block c: “[Applicant] is an excellent clinician. She has unlimited potential to succeed in the Army Nurse Corps once she harnesses her energies into more productive endeavors and positive motivations. [Applicant] is a solid candidate, with further development, to fill the position of Head Nurse of an ICU at a MEDDAC. Send to Captains Career Course. Promote with peers.”

* contested OER-2: annual report for the period 20 June 2011 through
19 June 2012 for duties performed as Clinical Staff Nurse, ICU, Fort Belvoir Community Hospital (FBCH), Fort Belvoir, VA

* Part II

* block a: MAJ Mario A. R___, Clinical Nurse, Officer in Charge
* block c: LTC Mary J. S___, Section Chief, FBCH, Fort Belvoir, VA
* block d, an “X” (indicating it is a referred report) and an “X” indicating “Yes, comments are attached”
* block e, the applicant’s electronic signature, dated 14 August 2012
* Part IV

* block c

* Army Physical Fitness Test: Pass, Date: 17 May 2012
* Height: 66 (inches), Weight: 192 (pounds); “NO”

* Part V

* block a, an “X” in the box for “Satisfactory Performance, Promote”
* block b, in pertinent part (sixth sentence), “Despite rigorous physical fitness and nutritional programs, [applicant] is not in compliance with AR 600-9.”
* block c, in pertinent part (last sentence), “Select for Long Term Health Education and Training (LTHET) and promotion to Major after compliance with AR 600-9.”

* Part VII

* block a, an “X” in the box for “Fully Qualified”
* block b, in pertinent part (last sentence), “Once in compliance with AR 600-9, select for LTHET and promotion.”

* OER Referred Report Comments (Contested OER-2) that show

* “Based on my review of my OER, dated 10 August 2012, I want to add the following statements pertaining to AR 600-9. Over the past fifteen years I have been in compliance with AR 600-9 in which I have maintained an appropriate level of physical fitness. Due to my recent surgeries over the last 6 months I am limited on my physical ability to exercise. At this present time, I am due for another surgery prior to the end of this year, I am not medically cleared to participate in a rigorous physical fitness regiment [sic], but I have recently enrolled in a nutritional program on 2 Aug[ust] 2012 to assist me in meeting my weight standards. My supporting medical documents are attached to this statement.”
* DD Form 689,(Individual Sick Slip), dated 2 August 2012, that shows in the “Remarks” section, “Patient underwent 2 major abdominal surgical procedures this year; February and June, which limited patient’s physical activity during and after that time period.” The form shows the signature of Paul B___, Medical Doctor.

4. A review of the applicant’s OMPF/AMHRR failed to reveal any evidence that she submitted an appeal for correction, transfer, or removal of the contested OERs from her OMPF to the U.S. Army Human Resources Command (HRC).

5. A Consideration for Referral to Show Cause memorandum shows that as a result of deliberations during the Fiscal Year 2013 (FY13) MAJ ANC, Medical Service Corps, Army Medical Specialist Corps, and Veterinary Corps Promotion Selection Board (PSB), a majority of the members voted that the applicant be required to show cause for retention on active duty as a result of substandard performance. The bases were that the applicant’s AMHRR indicated a referred OER (contested OER-2) for inability to meet body fat standards according to AR 600-9 and a referred OER (contested OER-1) for lack of Respect in Army Values. The Commanding General, HRC, approved the board’s recommendation.

a. An HRC memorandum, dated 27 February 2014, subject: Initiation of Elimination, notified the applicant that she was identified by the FY13 MAJ ANC PSB to show cause for retention on active duty under the provisions of AR 600-8-24 (Officer Promotions), paragraph 4-2(a and b), because of substandard performance of duty and misconduct, moral or professional dereliction.

b. An Office of the Staff Judge Advocate, 8th Theater Sustainment Command, Fort Shafter, HI, memorandum, dated 30 January 2015, subject: Notification to Appear Before a BOI, notified the applicant of a hearing to determine whether she should be discharged for substandard performance of duty and misconduct, moral or professional dereliction before the expiration of her term of service. She was advised of her rights, including calling witnesses she desired to call and to present any documents or any other matters, to include physical profiles that she wanted the board to consider.

c. DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers), shows a BOI convened on 23 April 2015 and the applicant was present with counsel. The BOI Summarized Transcript shows, in pertinent part:

* the applicant introduced as evidence some family pictures and copies of cards from patients
* with respect to contested OER-1, in pertinent part, it shows: “When I was a first lieutenant, I came into a hostile work environment at Fort Stewart. There were already EO [equal opportunity] complaints prior to my arrival. My supervisor was MAJ F____, who was absent a majority of the time. I was never aware of any issues concerning my performance or professionalism. I never received an initial, developmental or any type of counseling, other than the referred OER from MAJ F____. There was a situation while I was on profile that was a safety issue and it violated my profile.”
* with respect to contested OER-2, in pertinent part, it shows: “In 2012, I had two major abdominal surgeries. I have always been the type to not make weight, but I always made the measurements and met the standards during my career. I was never counseled or flagged after weigh-in for the referred OER I received for failure to meet body fat percentage in 2012. It was brought up to my attention when I was at the company that I should have never received the referred OER, because I never failed. That was when my commander tried to assist me in correcting my record. I never got the chance to finish rectifying the issue due to my transition and hectic work schedule. I never received any documents showing the failed body fat percentage.
* in response to a question by the board she stated, “I did submit a comment to HRC concerning the 2008 referred OER, but somewhere it got lost in transmission. I was addressing the missing comments with HRC through email, but I would have to find the correspondence.”
* the applicant offered no further documentary evidence
* the BOI Findings show

* the allegation of substandard performance of duty based on the substantiated derogatory activity resulting in two referred OERs for the period 15 November 2007 31 October 2008 and 20 June 2011 19 June 2012, in the notification of proposed separation is not supported by a preponderance of evidence
* the allegation of conduct unbecoming an officer, based on the above referenced items, in the notification of proposed separation is not support by a preponderance of evidence

* the board recommended the applicant be retained in the U.S. Army
* on 10 March 2015, the Commander, Pacific Regional Medical Command, Honolulu, HI, approved the findings and recommendations of the BOI and recommended the applicant be retained in the U.S. Army

d. An HRC memorandum, dated 3 April 2015, subject: Closing of Elimination Action, that shows the Chief, Leader Development Division, notified the applicant that based on the determination to retain her on active duty and the action by the Commander, Pacific Regional Medical Command, Honolulu, HI, on 10 March 2015, the elimination action was closed.
6. In support of her request the applicant provided the following additional documents.

* numerous handwritten notes to the applicant, apparently written by co-workers and friends, wishing her well and thanking her for her dedicated duty performance
* memorandum of support from CPT Leslie M. B____, ANC, dated 6 May 2014, to the President FY14 Officer Separation Board. She stated she was a co-worker of the applicant’s from December 2007 to September 2009 at Winn Army Community Hospital, Fort Stewart, GA. She attested to the applicant’s professionalism and leadership traits. She also described an “open forum” meeting in February 2008 involving military nurses and MAJ F___ (applicant’s rater on contested OER-1). She stated, “[the applicant] who was the most outspoken, was targeted and retaliated against by way of her OER.”
* email messages between the applicant and CPT Jenna M. B____, spanning the period 28 April 2014 and 7 May 2014, that show

* the applicant requested

* a memorandum stating she was in the process of correcting the referred OER with leadership prior to her transfer to Tripler Army Medical Center, Honolulu, HI
* the dates she was flagged for height and weight because she was not sure based on the documents she had

* CPT B___ expressed her uncertainty to the applicant as to the specific issue the applicant wanted the memorandum to address

* HRC memorandum, dated 18 November 2014, subject: Selective Continuation (SELCON) and Mandatory Retirement Date (MRD), that notified the applicant that she was considered for promotion to the next higher grade, but she was not among those selected for promotion by the board. She was also informed that a subsequent board recommended her for SELCON and the Secretary of the Army approved the recommendation.
* A memorandum signed by the applicant on 18 November 2014, subject: Acknowledgement of SELCON and MRD, that shows she accepted the SELCON period ending on her MRD of 31 July 2019.

REFERENCES:

1. AR 623-3 (Evaluation Reporting System), in effect at the time, prescribes the policies and tasks for the Army’s Evaluation Reporting System and includes reporting systems for officers. It includes policy statements, operating tasks, and rules in support of operating tasks. Chapter 6 (Evaluation Redress Program) emphasizes the fact that an erroneous evaluation report should be corrected as soon as possible. Substantive appeals must be submitted within 3 years of the evaluation report “THRU” date. Appeals must be processed through the HRC, Evaluations and Appeals Branch, prior to submission to the Army Special Review Board. The burden of proof rests with the appellant to produce evidence that establishes clearly and convincingly that (1) the presumption of regularity will not be applied to the report under consideration, and (2) action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions. Failure to submit an appeal within this time frame will require the appellant to submit their appeal to the Army Board for Correction of Military Records (ABCMR).

2. AR 600-8-104 (Army Military Human Resource Records (AMHRR) Management) provides policies, operating tasks, and steps governing the OMPF.

a. Depending on the purpose, documents will be filed in the OMPF in one of three folders: performance, service, or restricted. Once placed in the OMPF, the document becomes a permanent part of that file.

b. The Authorized Documents list provides guidance for filing documents in the OMPF. It shows the DA Form 67-9 will be filed in the performance folder of the OMPF.

3. AR 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. Chapter7 (Appeals and Petitions) provides the policies and procedures for appeals and petitions for removal of unfavorable information from the OMPF. Paragraph 7-2 (Appeals for removal of OMPF entries) shows that 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 that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.

DISCUSSION:

1. The applicant’s contends that contested OER-1 should be removed from her OMPF and contested OER-2 should be corrected with respect to errors pertaining to non-compliance with AR 600-9 because a BOI considered both OERs in its deliberations, concluded that there was not enough support to justify the adverse information in the OERs, and recommended her retention on active duty.

2. Contested OER-1 shows the applicant received an unfavorable rating with respect to Army Values (Respect) and both the rater and senior rater provided comments pertaining to her need for improvement in her communicative style.
The evidence of record shows contested OER-1 was referred to the applicant and, on 22 December 2008, the applicant indicated that she would provide comments. However, a copy of any comments she may have submitted are not filed with the OER.

a. There is no evidence of record that the applicant attempted to have the comments that she may have submitted in response to the referred report included in her OMPF as an attachment to the contested OER-1 in the 7 years since contested OER-1 was filed in her OMPF/AMHRR.

b. In testimony to the BOI she stated that she never received any counseling from the rater. However, comments in contested OER-1 by the rater show otherwise (i.e., “when directed to develop and deliver in-services on” and”with continued leadership-directed counseling and active mentoring [applicant] could achieve her potential as an ANC officer).

c. The evidence of record shows the applicant failed to file a timely appeal within the 3-year time restriction for the submission of substantive appeals.

d. The applicant has failed to submit clear and convincing evidence of a strong and compelling nature that contested OER-1 does not represent the considered opinion and objective judgment of the rating officials at the time or that it is factually inaccurate.
3. Contested OER-2 shows the applicant received a “No” entry and both the rater and senior rater provided comments pertaining to her non-compliance with the AWCP. The evidence of record shows contested OER-2 was referred to the applicant and, on 14 August 2014, the applicant indicated that she would provide comments. The comments and document she submitted are filed with the OER; however, they offer insufficient evidence to refute the entry and comments of the rater and senior rater. It is noted that in her statement to the referred report she stated, “I have recently enrolled in a nutritional program on 2 August 2012 to assist me in meeting my weight standards.”

a. There is no evidence of record that the applicant provided any official documentary evidence with respect to her compliance with the AWCP standards. Specifically, any AWCP documents showing she met the height, weight, and/or body fat standards.

b. In late April 2014/early May 2014, the applicant requested a memorandum stating she was in the process of correcting contested OER-2 with leadership prior to her transfer to Tripler Army Medical Center, Honolulu, HI. She also requested, the dates she was flagged for height and weight because she was not sure based on the documents she had in her possession.

c. The evidence of record shows the applicant was afforded the opportunity to provide documentary evidence to the BOI. The evidence of record shows she failed to provide any documentary evidence related to contested OER-2
(e.g., AWCP records, physical profile, commander’s statement, etc.).

d. The applicant has failed to submit clear and convincing evidence of a strong and compelling nature that contested OER-2 is in error.

4. The applicant verified that she had seen the two completed contested OERs and she acknowledged this with her signature. The contested OERs are properly filed in the performance folder of the applicant’s OMPF.

5. An evaluation report accepted for inclusion in the official file of a rated officer’s OMPF is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation. There is insufficient evidence to refute the presumption of administrative regularity with respect to contested OER-1 and/or contested OER-2.

6. The BOI Findings show the allegation of substandard performance of duty was based on the substantiated derogatory activity resulting in two referred OERs. While the BOI found the proposed separation was not supported by a preponderance of evidence, this finding does not lead to the conclusion that the contested OERs were not accurate, correct, and the objective judgment of the rating officials.

7. By regulation, in order to remove a document from the OMPF, there must be compelling evidence to support its removal. The applicant failed to submit evidence of a compelling nature to show that contested OER-1 and/or contested OER-2, filed in the performance folder of her OMPF is/are untrue, in error, or unjust.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings AR20150000953

Enclosure 1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

ABCMR Record of Proceedings (cont) AR20160006835

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20160006835

12

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2