MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 13 March 2003
         DOCKET NUMBER: AR2002072408

         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. Robert J. McGowan		Analyst

The following members, a quorum, were present:

Mr. Thomas A. Pagan		Chairperson
Mr. Roger W. Able		Member
Mr. John A. Kelley		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)

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APPLICANT REQUESTS: Total expunction from his Official Military Personnel File (OMPF) of the Officer Evaluation Report (OER) for the period 4 November 1996 to 2 September 1997 (961104-970902).

APPLICANT STATES: After receiving the subject OER, he requested a commander's inquiry and the senior rater conducted it in contravention of Army Regulation (AR) 623-105, paragraph 6-4(3)(b). He appealed the OER to Officer Special Review Board (OSRB) at Headquarters, Department of the Army and his appeal was denied. He states the senior rater prejudiced the appeals process which prevented him from having the OER expunged. He adds that he has an excellent career and would like to continue another 9 years as a Colonel, Medical Corps.

COUNSEL CONTENDS: That the subject OER is factually incorrect and is the only blemish to an otherwise long and distinguished military career. The OER was rendered by the rater as retribution for the applicant's having made a complaint of a hostile work environment. When the applicant requested a commander's inquiry, the Hospital Commander, who was also the applicant's senior rater and a party to the flawed OER, conducted the inquiry. In support of the application, counsel submits a 15-page addendum with 9 exhibits. The exhibits include copies of other OERs and letters of support from the heads of other hospital departments.

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

He is a physician (radiologist) and a Lieutenant Colonel in the Medical Corps (MC). He is also a two-time nonselect for promotion to Colonel.

In 1997, the applicant received the subject OER as a relief-for-cause report and as a closeout report under DA Form 67-8 (US Army Officer Evaluation Report). It was a below center-of-mass, adverse report while he was serving as Chief, Radiology Division, General Leonard Wood Army Community Hospital (GLWACH), Fort Leonard Wood, Missouri. The rater was a female Colonel, Army Nurse, serving as the Deputy Hospital Commander and the senior rater (SR) was a Colonel, Medical Corps, serving as the Hospital Commander.

In Part IVa, Professional Competence, of the subject OER, the rater gave the applicant low marks (numerical scores of 2) for Item 2 (Demonstrates appropriate knowledge and expertise in assigned tasks), Item 6 (Encourages candor and frankness in subordinates), Item 7 (Clear and concise in written communication), Item 10 (Is adaptable to changing situations), and Item 14 (Clear and concise in oral communication). She gave the applicant an extremely low mark (numerical score of 3) in Item 8 (Displays sound judgment).

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In Part IVb, Professional Ethics, the rater stated:

In Part Vb, Performance, the rater indicated that the applicant "often failed requirements," and in Part Vd, Potential for Promotion, she checked the block marked “Do not promote.” In Part Vc, Comments, she stated;


In Part Ve, Comment on Potential, the rater stated that the applicant would best serve the Army Medical Department in positions not requiring management or leadership skills. She indicated that he should be assigned only to staff radiologist or research positions.

The SR placed the applicant in Block "3" of Part VIIa, Senior Rater Potential Evaluation. The senior rater's profile for Part VIIa showed a total of 31 officers rated, with 17 officers in block "1," 13 officers in block "2," and 1 officer, the applicant, in block "3." In Part VIIb, Comments, the senior rater called the applicant " a competent clinical and diagnostic radiologist," but stated that he lacked "the requisite interpersonal and leadership skills to effectively remain as Division Chief . . . [and] has not evinced the desire, commitment, interest, understanding, or initiative to effectively lead and manage his division."

The subject OER was completed on 3 September 1997. Although it is unclear exactly when the applicant was provided a copy for his review, he did, on an unknown date in early September 1997, request a commander's inquiry. A copy of his written request is not available; however, in a memorandum for record, dated 10 September 1997, the SR responded by indicating that he conducted the commander's inquiry.

In conducting the commander's inquiry, the SR interviewed the rater and two radiologists (Majors) who worked for the applicant. The two Majors stated that they perceived no bias towards the applicant on the part of the rater, and that the primary problem between the rater and the applicant was the applicant's strong belief that nurses, no matter what their rank or duty position, should be subordinate to doctors. The Majors also stated that the applicant placed self-interests ahead of the Radiology Department and its staff. The SR found that the rater had attempted to counsel and guide the applicant over a 9 month period, but that the applicant was not receptive to guidance from a nurse. In conclusion, the SR found nothing unjust, illegal, or unfair about the subject OER.

When the subject OER was completed, the SR, on 11 September 1997, accomplished the final rating-chain review as stipulated by paragraphs 3-13 and 3-14, AR 623-105. He found the OER to be complete and correct as written.

On 16 September 1997, the report was referred to the applicant as an adverse OER. In an undated endorsement, he acknowledged receipt and referral of the OER and indicated that he wished to provide comments by 26 September 1997. He apparently did not offer comments as the SR noted, on 14 November 1997, that such comments were not received. The applicant was reassigned from GLWACH to Brooke Army Medical Center (BAMC), Fort Sam Houston, Texas.

On 21 June 2001, the applicant, after having been nonselected for promotion to Colonel, appealed the subject OER to the OSRB. The OSRB contacted the rater and one of the applicant's former subordinates in the GLWACH Radiology Department; the SR was retired and could not be located. The rater stated that the applicant believed that, as a doctor, he should not work for a nurse. He was a poor manager and leader, and was not receptive to counseling. The former subordinate (now a Lieutenant Colonel) stated that the applicant was very vocal about his dislike of having to report to a nurse. He said the applicant lacked tact; that every issue, large or small, elicited an intense response from the applicant; that he could not be trusted for what he said outside of his technical area of responsibility; and that he looked out for himself, not his staff. In short, the former subordinate felt that the applicant was lacking in management and leadership ability.

The OSRB conceded that the requested commander's inquiry was not conducted in accordance with AR 623-105 which provides that, if the immediate commander is also in the rating chain (i.e., the SR), the request for an inquiry should be elevated to the next senior commander. Although this was not done, the OSRB did not view it as a fatal flaw in the OER process or germane to the applicant's appeal. The OSRB also found that the reason for submission of the subject OER (Relief for Cause/Closeout) was incorrect, and that two separate OERs should have been written, one as a relief for cause OER and the other as a closeout OER under DA Form 67-8.

The OSRB found that the applicant did not meet the burden of proof required to justify deletion or amendment of the subject OER. On 31 October 2001, the OSRB denied the applicant's appeal.

Because the applicant has raised the point that he has an "excellent" career absent the subject OER, the Board reviewed the applicant's complete OER record using his OMPF dated 05/06/02. The following is a record of the applicant's available OERs and AERs (Academic Evaluation Reports). Note that for the DA Form 67-8 the rating system depicted below has six entries: the first two entries are derived from the rater performance and potential blocks, expressed in Roman numerals, with I the highest and V the lowest; the last four entries are derived from the senior rater potential evaluation (senior rater profile), with the third entry reflecting the applicant's block placement (i.e. top, top two through eight, and bottom), and the fourth through sixth entries portraying, respectively, the number of ratings ranked above, with/equal to, and below the applicant. Also, Part IV (Professionalism) evaluates officers on professional competence using a scale of 1-5 (with 1 being the highest, and standard, rating). For DA Form 67-9, the first entry relates to the rater’s evaluation of performance, expressed in Roman Numerals, with I the highest and IV the lowest; the second Roman Numeral refers to the SR’s evaluation of promotion potential on a scale of I to IV; and the third rating refers to the SR’s evaluation of the applicant’s potential compared with officers senior-rated in the same grade, stated in terms of Above COM, COM, or Below COM (COM corresponds to Center-of-Mass, or average):

                  Score/
Period    Rater/SR Profile         Type of Report

800707-800905    Achieved Standards       Academic (OBC)
800914-801118    Achieved Standards       Academic
801118-810317    I/II/Top2/3/0/1  Initial
                  Score/
Period    Rater/SR Profile         Type of Report

810318-810707    I/I/Top/0/0/0    Release from Active Duty
810714-820903    USUHS Middle 3rd         Academic
820904-830903    USUHS Middle 3rd         Academic
830904-840903    USUHS Middle 3rd         Academic
840904-850518    USUHS Bottom 3rd         Academic
850518-860517    II/II/Not Applicable     Academic (Internship)
In Part IV (Professionalism), the applicant received numerical scores of "2" in "Motivates, challenges, and develops subordinates," "Performs under physical and mental stress," "Displays sound judgment," and "Is adaptable to changing situations."
850705-861212    Achieved Standards       Academic (AMEDD OBC)
860518-870517    I/I/Top2/15/23/17        Annual
870116-880422    Achieved Standards       Academic (CGSC)
870518-880517    I/II/Top3/1/4/2  Annual
880518-880914    II/II/Top3/2/13/2        Change of Duty
880915-890604    l/l/Top 2/3/2/0  Change Duty Station
890605-900604    III/II/Not Applicable    Academic (Residency)
In Part IV (Professionalism), the applicant received numerical scores of "2" in "Demonstrates appropriate knowledge and expertise in assigned tasks," and "Performs under physical and mental stress."
901010-911009    Achieved Standards       Academic (Residency)
911010-921009    Achieved Standards       Academic (Residency)
921011-931010    Achieved Standards       Academic (Residency)
931011-940630    Achieved Standards       Academic (Residency)
940701-950630    I/I/Top2/1/17/1  Annual
950701-960626    I/I/Top2/8/9/2   Senior Rater Option
960627-961103    I/I/Top2/0/3/0   Change of Rater
961104-970902    IV/III/Top3/30/0/0 *     Relief for cause-Close out
971001-980802    I/I/COM  Change of Duty
980803-990331    I/I/COM  Change of Rater
990401-000331    I/I/COM  Annual
000401-010331    I/I/COM  Annual

* Contested Report

Since his relief for cause, the applicant has held positions as diagnostic radiologist, radiologist, and chief of mammography within a radiology department; he has not functioned as a radiology department head through March 2001.

Army Regulation 623-105 establishes the policies and procedures for the OER system. Paragraph 4-17 provides that each report will be an independent evaluation of the rated officer for a specific rating period. It will not refer to prior or subsequent reports. It will not remark on performance or incidents occurring before or after the period covered. The determination of whether an incident

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occurred during the period covered must be based on the date of the actual incident or performance; it will not be based on the date of any subsequent acts, such as the date of its discovery, a confession, or finding of guilt, or the completion of an investigation.

Paragraphs 5-32 and 9-2 provide 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 the 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 5-30, AR 623-105 states that commanders are required to look into allegations of error, injustice, and illegalities in OERs. The inquiry will be made by a commander in the chain of command above the designated rating officials involved in the allegation. The inquiry may be formal or informal and will address irregularities or errors, such as: improperly designated or unqualified rating officials; inaccurate or untrue statements; and/or lack of objectivity or fairness by rating officials.

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

1. 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 this requirement.

2. The subject OER contains minor administrative errors that do not rise to the level of a fatal flaw requiring expunction of the report. Likewise, the commander's inquiry that was conducted in 1997 was not accomplished in accordance with AR 623-105; it should have been referred to the commander above the SR in the applicant's chain of command. The Board, however, agrees with the OSRB that this error does not mandate expunction of the OER.

3. The applicant's OER history does not define his career in terms of "excellence." His OER file can only be viewed as COM and below COM. His OER for the period 850518-860517 highlighted problems in dealing with subordinates, handling stress, exercising sound judgment, and adaptability. His OERs for the periods 870518-880914, 880518-880914, 880518-880914, and 880915-890604 were substandard and raters commented on his inability to handle stress which adversely affected his ability to do his job. The cause of his stress during this 2-year period was attributed to the applicant's failure to gain residency training in radiology on his first attempt.

4. The applicant's first OER as a radiology resident is weak. In Part Vb, he was rated as having "Met Requirements" (Block 3); the standard for this part is "Always Exceeded Requirements" (Block 1). In Part Vd, he was rated as "Promote With Contemporaries" (Block 2); the standard is "Promote Ahead of Contemporaries" (Block 1). Again, he was cited for being unable to perform under stress. He was also cited for not possessing the appropriate knowledge and expertise in assigned tasks. Narrative comments indicate that "[Applicant] has demonstrated some improvement . . . [and] it is the hope of this department that [applicant] will persevere and eventually perform at a high level."

5. Insofar as the subject OER, the applicant appears to have had a deep dislike for his rater, a female Colonel, and an Army Nurse. It is well documented that the applicant did not believe that nurses should supervise doctors, and the Board believes it was this belief that resulted in friction between the applicant and the rater. When the applicant would not, or could not adapt to his rater's leadership style and comply with her managerial and leadership directives, his performance suffered and he ultimately was relieved of his position as Chief of Radiology at GLWACH.

6. The Board concurs with the OSRB Case Summary denying the applicant's OER appeal.

7. 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

________ ________ __jak___ GRANT FORMAL HEARING

__tap___ __rwa___ ________ DENY APPLICATION

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

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INDEX

CASE ID	AR2002072408
SUFFIX
RECON
DATE BOARDED	20030313
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	111.0000
2.
3.
4.
5.
6.