RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 May 2007
      DOCKET NUMBER:  AR20060013894


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Hubert O. Fry                 |     |Chairperson          |
|     |Mr. Thomas E. O;Shaughnessy       |     |Member               |
|     |Mr. James R. Hastie               |     |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, in effect, that an Officer Evaluation Report
(OER) for the period 30 November 2005 through 20 June 2006, be removed from
his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that he was given a referred OER with
many negative blocks checked, which included loyalty and integrity;
however, he was never counseled about his attitude problem or lack of
loyalty.  He claims his service record has plenty of evidence to the
contrary.  He states that he was a good Soldier who displayed the Army
values on a daily basis.  He claims to have letters from patients who
indicate his excellent service to them.  He states that he is a competent
and confident Nurse and is experienced in working in the Emergency Room
(ER) Medical Surgical, Intensive Care Unit (ICU), and recovery room.  He
claims he was treated unfairly and discriminated against because he
complained about unfair treatment to the Inspector General (IG), and he was
retaliated against with weekly counseling statements that were biased,
unjust and prejudicial by his rating chain, which resulted in the unfair
OER he received.  He states that he has letters from associates and doctors
regarding his good clinical skills, and his patients have often
complimented him on his excellent service.  He further states that many
patients requested him for continuing care, but he was often assigned
different patients to care for.

3.  The applicant refers to many documents he submitted to the IG, which he
still has on his computer; however, he provides no additional documentary
evidence with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant served on active duty in an enlisted status for 6 years,
6 months and 10 days from 25 February 1997 through 4 September 2003, at
which time he was honorably discharged to enter active duty as a
commissioned officer.

2.  On 5 September 2003, the applicant was appointed a second lieutenant in
the Army Nurse Corps of the United States Army Reserve (USAR) and entered
active duty in that status as an obligated three year volunteer officer.

3.  On 31 August 2006, while serving at Fort Sill, Oklahoma, the applicant
received a Change of Rater OER for the period 30 November 2005 through
20 June 2006.  This report evaluated the applicant as a Clinical Staff
Nurse in a 59 bed Medical and Dental Activity (MEDDAC) on a 36 bed
medical/surgical pediatric ward.
4.  In Part IVa (Army Values) the rater, a lieutenant colonel, checked the
"No" block in response to questions 2 (Integrity) and 4 (Loyalty).  In Part
IVb (Leader Attributes/Skills/Actions), the rater checked the "No" block in
response to the following b2 Competence Skills:  (Conceptual-Demonstrates
sound judgment, critical/creative thinking, moral reasoning);
(Interpersonal-Shows skill with people, coaching, teaching, counseling,
motivating, and empowering); (Technical-Possesses the necessary expertise
to accomplish all tasks and functions).  The rater also checked the "NO"
block in the following b3 Leadership Skills:  (Communications-Displays good
oral written and hearing skills to individuals/groups); (Decision Making-
Employs sound judgment, logical reasoning and uses resources wisely);
(Executing-Shows tactical proficiency, meets mission standards, and takes
care of people and resources); and  (Assessing-Uses after-action and
evaluation tools to facilitate consistent improvement);

5.  In Part V (Performance and Potential), the rater placed the applicant
in the
3 block (Unsatisfactory Performance-Do Not Promote).  In Part Vb (Comments)
the rater stated that the applicant was a very adverse officer and
displayed his adverse attitude on many occasions during the rating period.
The rater further stated that the applicant offered a rebuttal for most of
the constructive criticism offered to assist him in developing his clinical
skills, and that during the rating period, the applicant received ongoing
counseling regarding his work performance, which resulted in no
improvement.  The rater indicated that the applicant had placed himself in
a position where his integrity is questionable by shifting blame to others
rather than being accountable for his actions.  The rater after attesting
to positive accomplishments of the applicant, concluded by stating that the
applicant had not shown he could effectively use the information obtained
during his continuing education efforts to provide safe and efficient
patient care, and had not demonstrated he had the capability of handling
additional duties.  The rater finally recommended the applicant not be
promoted at the time.

6.  In Part VIIa of the OER, the senior rater (SR), a lieutenant colonel,
placed the applicant in the 3 block (Do Not Promote).  The SR’s comments
indicated the applicant performance had not been commensurate with his
rank.  He had difficulty adapting to his environment and keeping up with
his assigned clinical responsibilities, in spite of weekly performance
counseling and continuous coaching and mentoring.  The SR further stated
that the applicant consistently lacked critical thinking skills and
demonstrated unacceptable nursing care, and his supervisor and shift change
nurse had to closely supervise his every move due to his demonstrated
unacceptable nursing care and lack of critical thinking skills.  The SR
indicated that the applicant exhibited poor communication skills with both
his patients and colleagues.

7.  The SR further commented that the applicant was very argumentative with
the professional staff and had difficulty accepting constructive criticism.
 The SR finally recommended the applicant continue as a staff nurse and
that he not be promoted at the time.

8.  The applicant provided a rebuttal to the OER in which he charged that
his rater practiced favoritism among people of her own race, as evidenced
by the fact she recommended someone of her own race for pediatric school,
but denied him entry into the ICU course despite the fact he was qualified.
 He provides examples of what he perceived to be unfair treatment by his
rater and SR and finally concludes by stating the OER was an unfair and
inaccurate evaluation of his performance and he requested a commander's
inquiry.  His record is void of the commander's inquiry and the applicant
failed to provide the results with his application.

9.  A check with administrative officials of the Officer Special Review
Board (OSRB) confirms the applicant did not appeal the OER in question to
that board.

10.  On 5 September 2006, the applicant was honorably separated, in the
rank of first lieutenant, after completing 3 years and 1 day of active duty
service as a commissioned officer and a total of 9 years, 6 months, and 11
days of active military service.

11.  Army Regulation 623-105 prescribes the policies and procedures
pertaining to the Officer Evaluation System (OES) and Officer Evaluation
Reporting System (OERS).  It also provides guidance regarding redress
programs including commander inquiries and appeals.  Paragraph 3-57
provides the basic rule applicable to modifications of previously submitted
reports.  It states, in pertinent part, that an evaluation report accepted
by Headquarters, Department of the Army (HQDA) 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, to represent the
considered opinions and objective judgment of the rating officials at the
time of preparation.  It also states that requests that a report that has
been accepted for filing in an officer’s record be altered, withdrawn, or
replaced with another report will not be honored.

12.  Chapter 6 contains the policies and procedures pertaining to managing
the OER redress program.  Section III contains guidance on OER appeals and
paragraph 6-10 outlines the burden of proof that must be met to support a
successful OER appeal.  It states that the burden of proof rests with the
appellant.  Accordingly, to justify deletion or amendment of a report, the
appellant must produce evidence that establishes clearly and convincingly
that the presumption of regularity referred to in paragraphs 3-57 should
not be applied to the report under consideration and that action is
warranted to correct a material error, inaccuracy, or injustice.  Clear and
convincing evidence must be of a strong and compelling nature, not merely
proof of the possibility of administrative error or factual inaccuracy.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the OER in question is an unfair and
unjust evaluation of his performance during the rating period was carefully
considered.  However, there is insufficient evidence to support this claim.


2.  By regulation, an evaluation report accepted by Headquarters,
Department of the Army (HQDA) 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, to represent the considered
opinions and objective judgment of the rating officials at the time of
preparation.  In order to justify deletion or amendment of a report, the
appellant must produce evidence that establishes clearly and convincingly
that this presumption of regularity should not be applied to the report
under consideration and that action is warranted to correct a material
error, inaccuracy, or injustice.  Clear and convincing evidence must be of
a strong and compelling nature.

3.  In view of the facts of this case and notwithstanding the applicant’s
claims to the contrary, it appears the evaluations contained on the
contested OER represent the considered opinions and objective judgment of
the rating officials.  As a result, it is concluded that the OER in
question was processed and accepted for filing in the OMPF in accordance
with applicable regulations, and there is insufficient clear and compelling
evidence to overcome the regulatory presumption of regularity, and/or to
remove the contested report from the record at this time.

4.  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 and counsel
have failed to submit evidence that would satisfy this requirement.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___HOF _  ___TEO_  __JRH___  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.




                                  _____Hubert O. Fry     ___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060013894                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/05/22                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2006/09/05                              |
|DISCHARGE AUTHORITY     |AR 600-8-24                             |
|DISCHARGE REASON        |Misc-Gen                                |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.  193  |111.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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