RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           7 December 2004
      DOCKET NUMBER:  AR2004103201


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Michael J. Fowler             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Mark D. Manning               |     |Chairperson          |
|     |Mr. John E. Denning               |     |Member               |
|     |Mr. James B. Gunlicks             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests removal of the DA Form 67-9 Officer Evaluation
Report (OER) covering the rated period 31 March 2000 through 30 March 2001
(hereafter referred to as the contested OER).

2.  In the alternative the applicant requests that if the entire contested
OER cannot be removed that the rater's block check in Part Va and the last
six sentences in Part Vb of the rater's narrative be removed.  The
applicant further requests that the Senior Rater (SR) block check in Part
VIIb and SR narratives in Parts VIIc and VIId be removed from the contested
OER.

3.  The applicant contends that the contested OER is subjective, unfair and
non-performance based.  The applicant continues that the rating officials
failed to fulfill their obligations and that the rater maliciously
manipulated her evaluation to negatively impact her military career.

4.  The applicant provides a copy of the G-1 Officer Special Review Board
(OSRB) case summary and a copy of her appeal to the OSRB and all
attachments.

CONSIDERATION OF EVIDENCE:

1.  On 11 December 1987, the applicant accepted appointment as a second
lieutenant/pay grade O-1 and executed an Oath of Office in the U.S. Army
Reserve.

2.  Records show that the applicant was assigned to the Brooke Army Medical
Center (BAMC) Brigade Command at Fort Sam Houston, Texas during the period
of the contested OER.

3.  The contested OER was an annual report which covered 12 months of rated
time for the applicant's duties serving as the "Senior Community Health
Nurse" of BAMC.

4.  Records show that Part IIe (Signature of Rated Officer) of the
contested OER contains the applicant's signature and the entry "22 May
2001."  Part IId (This is a referred report, do you wish to make comments?)
contains the "X" in the block (Yes, comments are attached).

5.  Entries on the contested OER show that the rater placed her "X" under
"Yes" for all of the blocks in Part IVb Attributes, Skills and Actions
categories.

6.  In Part V (Performance and Potential), the rater placed her "X" in the
second block (Satisfactory Performance, Promote).  The rater also provided,
in part, the following comments in Part Vb (Comment on Specific Aspects of
the Performance and Potential):  "[The applicant's name omitted] is gaining
an appreciation for the diverse responsibilities in Army Community Health
Nursing (ACHN).  She requires reminders to meet suspense's and demonstrates
inappropriate communication with supervisor, peers, and subordinates.  Her
next assignment should give her an opportunity to work with a dense troop
population under strong leadership of a senior ACHN.  Select for
appropriate military or civilian education.  Promote with peers.  Exempt
from Army Physical Fitness Test (APFT) requirement in accordance with Army
Regulation 40-501.  Exempt from weight control standards of Army Regulation
600-9."

7.  In Part VII (Senior Rater) of the contested OER, the SR placed her "X"
in the second block (Fully Qualified) under Part VIIa (Evaluate the Rated
Officer's Potential to the Next Higher Grade).

8.  In Part VIIb, the SR placed her "X" in the third box which resulted in
a "Below Center of Mass Retain" evaluation.  In Part VIIc (Comment on
Performance/Potential), the SR made general comments regarding the
applicant's performance and potential.  The SR specifically wrote:  "[The
applicant's name omitted] generally performs to expectations and is gaining
valuable experience as a team player in working with diverse organizations
as she plans the celebration of this spring's Fort Sam Houston Public
Health Week.  Professional development may continue with guidance and
supervision.  Must be given an opportunity to complete Command and General
Staff College and Advanced Nurse Leadership Course."

9.  The contested OER was referred to the applicant.  The applicant
provided comments by memorandum dated 10 May 2001.  The applicant's OMPF
shows that her comments are filed adjacent to the contested OER.

10.  The applicant essentially stated the following in her written rebuttal
to the contested OER:

      a.  a concerted effort was made on the part of the rater to place an
end to what was otherwise a completely enjoyable and productive nursing
career;

      b.  the rater had a negative, reactionary, and punitive style
leadership;

      c.  she never received a copy of her rater's and SR's support forms
on her initial counseling;
      d.  the first negative comment on her OER speaks of her need for
reminders and disrespect of individuals to include employees;

      e.  the contested OER is completely unjust, erroneous, and is not
based on objective opinion;

      f.  the issue of respect is clearly unverifiable and with interviews
of her peers, subordinates, and other superior officers will reveal just
the opposite about her;
      g.  she worked for several months without sufficient staffing and the
strain on the staff and morale was obvious.  The applicant continued that
she was also assigned additional duties;

      h.  both the rater and SR were frequently absent during the rating
period;

      i.  neither rating official fulfilled their obligations to provide
her the guidance required,


      j.  she received no counseling from her SR, professional development,
or guidance during the rating period, and there was no indication that she
would receive a below center of mass.

11.  The contested OER was provided to Headquarters, Department of the Army
officials for processing.  The contested report was profiled on 16 July
2001 and entered on the applicant's Official Military Personnel File
(OMPF).

12.  Records show that the applicant requested a Commander’s Inquiry on
10 May 2001 and a Commander’s Inquiry was conducted on 2 September 2001.

13.  The results of the Commander’s Inquiry show that the investigating
officer concurred with the applicant's contention that the negative
narratives were highly undeserved on the contested OER.

14.  The investigating officer that conducted the Commander's Inquiry noted
that the applicant was an exemplary officer and characterized by two
previous OERs as a superior officer deserving of promotion below the zone.

15.  The investigating officer interviewed the applicant and both
supervisors that worked several miles away from the applicant.  He
continued that the applicant was placed in charge of a very busy Healthcare
Prevention Service.



16.  The investigating officer stated that an apparent adversarial
relationship could have developed with the applicant and her rater.  The
investigating officer continued that the rater had a history of adversarial
relationships and negative OERs toward two prior ratees that the
investigating officer spoke with.

17.  The investigating officer concluded that the friction in the
applicant's rating chain led to further acrimony and deflated ratings by
both the rater and SR.  The investigating officer stated "In discussing
this issue with all involved it would appear that a focused discussion
among all parties might have avoided this."

18.  The investigating officer recommended that the contested OER be
redone, to rewrite the OER narrative to be more representative of the rated
officer, to change the supervisory arrangement, and institute an improved
supervisory system to foster better communication.

19.  The applicant's evaluation history as a major contains four OERs.  She
had one OER prior to the contested OER and two reports after the contested
OER.

20.  The applicant had different raters and SRs on all four reports.  The
reports show in Part IV (Performance Evaluation-Professionalism) that the
raters placed an "X" under "Yes" for all of the blocks in the Attributes,
Skills and Actions categories.

21  Under Part Va (Performance and Potential Evaluation), three of the
raters placed the applicant in the first block (Outstanding Performance,
Must Promote), except for the contested OER, with positive comments on
specific aspects of the applicant's performance except for the contested
OER.

22.  Under Part VIIa (Senior Rater) three of the SRs placed the applicant
in the first block (Best Qualified) except for the contested OER.  In Part
VIIb (Potential Compared With Officers Senior Rated In Same Grade) two of
the SR's evaluations resulted in placing the applicant in "above center of
mass" (ACOM), one in " center of mass" (COM), and the contested OER which
resulted in placing the applicant in “below center of mass retain” (BCOMR).

23 .  The applicant appealed the contested OER on 19 February 2003 to the
OSRB.

24.  The applicant provided several letters of support from co-workers and
observers which all spoke highly of her performance, that the applicant was
an officer who cares, conducted herself professionally, and diligently
worked to produce meaningful results.

25.  The OSRB case summary identified the rated period and the applicant's
duties and noted that she had requested a Commander's Inquiry which was
conducted under the provisions of Army Regulation 623-105 (Officer
Evaluation Reporting System).

26.  The OSRB then considered the applicant's contentions that the
contested OER was substantively unfair and unjust and did not accurately
reflect her performance and potential.

27.  The OSRB contacted the rater on 22 July 2003.  The rater stated that
she remembered the applicant and the OER in question.

28.  The rater stated that she counseled the applicant at the beginning and
midpoint, as well as at various other times, throughout the rating period
of the contested OER.  The rater also recalled, but could not positively
confirm, that she provided copies of both her and the senior rater's
support forms.

29.  The rater continued that she specifically counseled the applicant more
than other officers she rated and that most of the counseling was negative.


30.  The rater confirmed that at the end of the rating period she provided
the SR with proposed comments for the applicant's OER but no recommendation
on the "blocking."

31.  The rater further stated that the first draft of the contested OER
reviewed and signed by the applicant, her and the SR was returned to the
rating chain by the BAMC personnel office because it contained
inappropriate comments by the rater.

32.  The rater stated she and the SR rewrote the OER and the SR changed her
blocking from "center of mass" to "below center of mass retain."  The rater
continued that she had no input into the SR's decision to change the
"blocking" in the final OER.

33.  The rater concluded that the rating of the applicant was very fair and
accurate.  The rater considered the applicant to be a very unprofessional
officer, who was verbally abusive to subordinates, did not follow through
on guidance given her, and was disrespectful to the rater.

34.  The OSRB contacted the SR on 31 July 2003.  The SR stated that she
remembered the applicant and the OER in question.

35.  The SR stated that she counseled the applicant personally at various
times during the rating period, that she also observed the applicant in
various situations, and was able to form her judgment of the applicant's
performance and potential based on these observations.

36.  The SR continued that she asked the rater to submit proposed SR
comments for the contested OER.  The SR further stated that the rater's
recommended comments for Part VIIc were normally very well written
requiring little wordsmithing and that she was quite sure that the rater
did not submit a recommended blocking.

37.  The SR stated that her assessment of the applicant's demonstrated
performance and potential was accurate and fair.  The SR concluded that she
believed that the applicant is a fine nurse; however, her inexperience was
probably the cause of the difficulties she encountered.

38.  The OSRB contacted the applicant's former Brigade Commander on
30 July 2003.  The former Brigade Commander stated that she remembered the
applicant, the background of the contested OER, and some details of the
contested OER.

39.  The former Brigade Commander stated she had appointed an investigating
officer to conduct a Commander's Inquiry for the contested OER on 3 July
2001.

40.  The former Brigade Commander stated that the investigating officer for
the Commander's Inquiry found in favor of the applicant, that she could not
recall the specific recommendation, and that the recommendations became
moot when the applicant and SR were reassigned.

41.  The OSRB summary stated that paragraph 6-10 of Army Regulation 623-105
places the burden of proof on the applicant to provide clear and convincing
evidence to justify deletion or amendment of an OER and that such evidence
was not found in this case.

42.  The OSRB considered the applicant's contention that neither rating
official fulfilled their rating responsibility.  The OSRB concluded that
the applicant did not provide and the OSRB did not find elsewhere the
necessary evidence to delete or amend the contested OER.

43.  Paragraph 1-10a of Army Regulation 623-105 states that performance
evaluations are assessments on how well the rated officer met his or her
duty requirements and adhered to the professional standards of the officer
corps.  Performance is evaluated by considering the results achieved, how
they were achieved, and how well the officer complied with professional
standards.

44.  Paragraph 2-14a of Army Regulation 623-105 states that the senior
rater is the senior rating official in the rating chain. The senior rater
uses his or her position and experience to evaluate the rated officer from
a broad organizational perspective.  His or her evaluation is the link
between the day-to-day observation of the rated officer's performance by
the rater and intermediate rater and the longer term evaluation of the
rated officer's potential by Department of the Army selection boards.

45.  Paragraph 3-20 of Army Regulation 623-105 states that the rater
comments on specific aspects of performance and potential.  These comments
are mandatory.  As a minimum, the comments should address the key items
mentioned in the duty description in Part III and, as appropriate, the duty
description, objectives, and contributions portions of the OER support
form. Evaluation of potential consists of an assessment of the rated
officer's ability to perform in positions of greater responsibility.
Comments should be specific and address, as appropriate, the officer's
potential for promotion, military and civilian schooling, specific
assignment (both in terms of level of organization and level of
responsibility), and command.  Raters are authorized to separate
performance and potential portions of their narratives in Part Vb.

46.  Paragraph 3-22 of Army Regulation 623-105 states that the senior rater
makes an assessment of the rated officer's overall potential in comparison
with all other officers of the same grade the senior rater has senior rated
or has currently in his or her senior rater population.  This potential is
evaluated in terms of the majority of the officers in the population.  If
the potential assessment is consistent with the majority of officers in
that grade, the senior rater will place his "X" in the Center of Mass box.
If the rated officer's potential exceeds that of the majority of officers
in the senior rater's population, the senior rater will place his "X" in
the Above Center of Mass/Center of Mass box.  (The intent is for the senior
rater to use this box to identify their upper third in each grade.)
However, in order to maintain a credible profile, the senior rater must
have less than 50% of the ratings of a grade in the top box.  Fifty percent
or more in the top box will result in a Center of Mass label.  If the rated
officer's potential is below the majority of officers in the senior rater's
population for that grade and the senior rater believes the rated officer
should be retained for further development, the senior rater will place his
"X" in the Below Center of Mass-Retain box.  If the rated officer's
potential is below the majority of officers in the senior rater's
population for that grade and the senior rater does not believe the rated
officer should be retained on active duty, the senior rater will place his
"X" in the Below Center of Mass-Do Not Retain box.
47.  Paragraph 3-57b of Army Regulation 623-105 states that requests that
an accepted report be altered, withdrawn or replaced with another report
will not be honored.  The following will not be used to alter or withdraw a
report, neither will they be included in the OMPF: (1) statements that the
rating officials underestimated the rated officer; (2) statements from the
rating officials that they did not intend to rate him or her as they did;
and (3) requests that a rating be revised.

48.  Paragraph 6-4f of Army Regulation 623-105 states that to ensure the
availability of pertinent data, and timely completion of a commander's
inquiry done after the OER in question has been accepted at HQDA, the
inquiry must be conducted by either the commander at the time the OER was
rendered who is still in the command position, or by a subsequent commander
in the position. However, the inquiry must be forwarded to HQDA not later
than 120 days after the "Thru" date of the OER.

49.  Paragraph 6-4g of Army Regulation 623-105 states that the results of
the commander's inquiry that are forwarded to HQDA will include the
findings, conclusions, and recommendations in a format that could be filed
with the OER in the officer's OMPF for clarification purposes.  The
results, therefore, will include the commander's signature, should stand
alone without reference to other documentation, and will be limited to one
page.  Sufficient documentation, such as reports and statements, will be
attached to justify the conclusions.

50.  Paragraph 6-10b of Army Regulation 623-105 states that clear and
convincing evidence must 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 his/her assertions, the clear and convincing standard has
been met with regard to those assertions.

51.  Army Regulation 623-105 provides, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the contested OER is subjective, unfair and
non-performance based.  The investigating officer who conducted the
Commander's Inquiry did note that the applicant was an exemplary officer
and characterized by two previous OERs as a superior officer deserving of
promotion below the zone. However, there is no evidence to show that the
investigating officer was in a position to know what the applicant's rater
required of her.  There is no evidence and the applicant has not provided
evidence that substantiates these claims.  Specifically, the applicant has
not provided compelling evidence which shows that the contested OER did not
represent the honest and fair evaluations of the rater and SR.  An
evaluation that is inconsistent with others does not mean that it is
incorrect or unjust.

2.  The Brigade Commander failed to follow through on the regulatory
requirement to forward the results, with her signature, of the Commander's
Inquiry to HQDA.  Had she done so, her conclusion and recommendation might
have substantiated the applicant's contentions.

3.  The applicant further contends that the rating officials failed to
fulfill their obligations and that the rater maliciously manipulated her
evaluation to negatively impact her military career.  There is no evidence
and the applicant has not provided evidence that shows that the rater and
SR did not comply with the regulatory requirements of evaluating the
applicant in a fair and unbiased manner.

4.  Although, the applicant provided several letters of support from co-
workers and observers with her OER appeal, the authors did not provide
compelling evidence to overcome the presumption of regularity with regard
to the evaluation of the applicant by her rating officials.

5.  There is no evidence and the applicant has not provided compelling
evidence which shows the contested OER is substantively inaccurate and does
not accurately reflect her performance or potential.  The applicant has
failed to provide clear and convincing evidence to overcome the
"presumption of regularity" and justify the removal of the contested OER.

6.  Based on the applicable regulations, the contested OER is correct as
constituted and the applicant has failed to meet the burden of proof to
justify removal of the contested OER.  Therefore, there is no basis for
removal of the contested OER.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__MDM__  __JED __  __JBG__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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




                                  __Mr. Mark D. Manning___
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004103201                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |7 December 2004                         |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |111.0000.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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