IN THE CASE OF:	 

	BOARD DATE:	  3 June 2008

	DOCKET NUMBER:  AR20080005355 


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 provides his request through counsel.

2.  The applicant's statements are provided through counsel. 

3.  The applicant provides supporting documents through counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, removal of the Officer Evaluation Report (OER) for the period 9 June 2006 through 14 February 2007 [hereafter referred to as the contested report] from the applicant's record.

2.  Counsel states, in effect, that the contested report is an "offense to any right thinking person, and should be stricken from the record."  Counsel argues that although the applicant could have done a better job commanding the small clinic, he was faced with a hostile and entrenched civilian doctor who was not about to change his ways and an incompetent and lazy cadre of noncommissioned officers.  Counsel concludes that under no circumstances did the applicant's failures outweigh or significantly diminish his overall contributions as a colonel.

3.  Counsel provides a 12 page supplemental statement; Administrative Reprimand, dated 14 February 2007; 17 OERs including the contested report; Developmental Counseling Form; 8 Memorandums for Record; Sworn Statement, dated 20 July 2006; Army Grade Determination Review Board request, dated 21 June 2007; a Request to Remove a General Officer Memorandum of Reprimand, dated 30 January 2008; and an Article 15-6 investigation and associated documents in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The contested report is a Relief for Cause OER for the period 9 June 2006 through 14 February 2007 for a total of 8 months. 

2.  Part IIIa (Principal Duty Title) contains the entry "Officer in Charge."

3.  Part IIIc (Significant Duties and Responsibilities) contains the entry:
      
      "Officer in Charge of the Northern Atlantic Treaty Organization (NATO) Health Clinic, providing medical care to military, retiree, and civilian beneficiaries, and their family members assigned to NATO Headquarters, US Mission, the US Embassy, European Commission and US Army Garrison, Brussels.  Provide leadership and policy guidance to a medical system consisting of laboratory, radiology, medical records, physical examinations, immunizations, patient administration, pharmacy, and Health Benefits Services.  Serves on several community level committees, representing the medical consultant to the Brussels Community Commander.  Coordinate between various agencies to include host national facilities and US State Department Medical Unit to provide seamless medical care to beneficiaries.  Acts as Contracting Officer Representative for Service Contracts."
      
4.  The contested report shows the applicant authenticated the administrative portion of the contested report on 29 May 2007.

5.  Part IVb (Leader Attributes/Skills/Actions) of the contested report shows that an "X" was placed in each of the "Yes" blocks with the exception of block number 2 (Physical), wherein the "X" was placed in the "NO" block and that "X" was placed in the "Mental, Conceptual, Communication, Planning, Technical, and Learning" blocks. 

6.  Part V (Performance and Potential Evaluation) of the contested report shows the rater placed his "X" in the "Unsatisfactory Performance, Do Not Promote" block.  In Part Vb (Comment on Specific Aspects of Performance), the rater noted that the applicant was an exceptional physician who earned praise from his patients and the community for his caring, concern, and clinical skills.  The rater continued that an Inspector General investigation revealed major deficiencies in the applicant's leadership, command style, and interpersonal team building skills, with significant impact on morale and performance of the clinic.  The rater further stated that he directed relief, effective 14 February 2007 because the applicant failed to follow policies and regulations regarding urinalysis testing; leave book maintenance and processing; and Soldier Training Time.  The rater continued that the lack of attention to detail and "hands off" noncommissioned officer oversight created significant real and perceived issues of unfairness, hostility, and inequity among many staff in the very small clinic.  The rater concluded that the applicant failed the run portion of his Army Physical Fitness Test and that it was unclear if progress at improving his run time would bring about a passing score on his next exam.

7.  Part Vc (Comment on) of the contested report contains the entry "Do not promote." 

8.  Part VII (Senior Rater) of the contested report show that the senior rater placed an "X" in the "Best Qualified" block.  

9.  Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade) of the contested report shows that the senior rater placed his "X" in the Do Not Promote Block.

10.  Part VIIb (Potential Compared with Officers Senior Rated in Same Grade) of the contested report shows that the applicant was rated in the "Below Center of Mass Retain" block.

11.  Part VIIc (Comment on Performance/Potential) of the contested report shows the senior rater indicated that the applicant was an outstanding clinician and physician.  The senior rater continued that the applicant's work as a health care professional was key to the community's ability to maintain quality health care and to develop a first-rate plan to deal with avian influenza.  The senior rater also stated that in light of a recent investigation, the applicant's inordinate reliance on noncommissioned officers to manage internal administrative functions of the clinic and to adhere to policies and regulations created a work environment harmful to good order and discipline and resulted in the relief for cause as the clinic officer-in-charge.

12.  Part VIId (List 3 Future Assignments for which this Officer is Best Suited) of the contested report shows the applicant was best suited for assignments as a "Teaching Staff; Family Practice Residency; Division Surgeon, OSD Staff." 

13.  Records show that an Article 15 investigation was completed on the applicant.  The investigation officer determined that the following allegations regarding the applicant were substantiated:

	a.  Sergeant's Time Training was not conducted from May 2005 to April 2006.  Sergeant's Time Training was scheduled and a schedule was posted; but the training was not conducted.

	b.  The NATO Health Clinic leadership did not conduct urinalysis testing of it's Soldiers in accordance with Army Regulation 600-85 (Army Substance Abuse Program) for the time period January 2004 to December 2005.

14.  The Article 15-6 investigation clearly shows that there were numerous allegations against noncommissioned officers associated with the applicant and that these allegations were substantiated.

15.  On 30 November 2006, a legal review of the investigating officer's finding was conducted.  The review indicated that the Article 15-6 investigation and the report were legally sufficient.

16.  The applicant's counsel provided a 12 page statement which indentifies the applicant's contentions.  Specifically the applicant's counsel contends that the General Officer Memorandum of Record (GOMOR) received by the applicant was given to a distinguished and devoted physician who has never compromised patient care.  Counsel argues that unlike many physician colonels who stop being care givers, the applicant saw patients to the date of his retirement.

17.  Counsel continues that because of the GOMOR, the applicant underwent a Grade Determination Board to determine whether he should retire in the rank of colonel and that ultimately it was determined that his retired rank should be colonel/pay grade O-6.

18.  Counsel argues that the GOMOR was not about the applicant being a doctor; rather it was about the applicant being the commander of a miniscule NATO Health Clinic which contained eight uniformed service members and six civilians with no executive officer.  Counsel further argues that the applicant was the only officer assigned to the NATO Health Clinic.

19.  Counsel contends that concurrent with the issuance of the GOMOR the applicant received a Relief for Cause OER [the contested report].  Counsel argues that the rating officials for the OER for the period immediately preceding and immediately following the contested report contain the same rater and senior rater.

20  Counsel argues that the previous OER and the following OER both prepared by the same rating officials as the Relief For Cause OER contain laudatory comments.
21.  Counsel continues that although the GOMOR questioned the applicant's fitness for service on 14 February 2007; by 8 June 2007, the rater states that the applicant has the potential to continue providing exemplary medical care in unit under consideration and the senior rater concluded that the Army should assign the applicant as a Senior Practice Physician because he will deliver first-rate results.

22.  Counsel notes that the counseling form provided to the applicant upon his relief states "I want to emphasize that the issues noted above are not a reflection of your professionalism, skill and dedication as a physician and Soldier.  Again, your service as a Soldier Medic is not in question.  You have established a spotless clinical record that many patients seek you out as their care provider.  You have served the Army with a long record of distinction and honor.  You should be justly proud of those accomplishments as are all of us in the LRMC Command."

23.  Counsel contends that the Relief for Cause OER resulted from two Articles 15-6 investigations that demonstrated three circumstances which existed within the NATO Health Clinic.  Specifically, counsel states that there was serious personality conflict between the applicant and a civilian doctor, that the applicant had to rely on marginally competent noncommissioned officers, and that he worked in a miniscule work environment where civilian clothes were worn by everyone and where everyone knew everyone else's business.

24.  Counsel argues that there was in fact no deplorable leadership and management by the applicant; no reprehensible failure to enforce Army standards; or integrity issues as the GOMOR suggests.

25.  Counsel notes that the applicant could have and probably should have recognized the inadequacies of his noncommissioned officers and without an executive officer more vigorously inserted himself into the administration of the NATO Health Clinic which is his sole failing.  Counsel argues that this failure was also a failure of the command structure.

26.  Counsel argues that this case is not about misconduct even though there was a disingenuous attempt to shoehorn this matter into dereliction of duty language.  Counsel concludes that there was most certainly no integrity violation.

27.  Counsel further argues that the applicant has been a colonel since 2001 and his overall performance has been exemplary.  Counsel contends that this incident is the sole negative entry in the applicant's record and is related only to nominal command issues in a small command.
28.  Counsel argues that the following issues were an unwarranted attack on the applicant's unquestioned integrity, ability, and professionalism.  Specifically, counsel contends, in effect, that the non-commissioned officer was an ineffective leave manager; that the applicant did not oversee the "incompetent" leave manager; that the applicant corrected errors in his leave reporting when notified of such errors; there is no evidence that the applicant did not fill out the proper leave forms for every period of leave he took; and that in 2005 and 2006 the applicant sought to correct any discrepancies in his leave account.

29.  Counsel continues that the NATO Health Clinic Urinalysis Program deficits were a result of no Urinalysis Program Liaison which the applicant agrees was his responsibility but he did not ignore the need for the required testing.

30.  Counsel addressed the remaining issues identified on the GOMOR.  Specifically, counsel states the absence of meaningful "Sergeant's Time" was inaccurate.  Counsel contends that time was set aside on Thursday mornings and there were interruptions due to patients needs.  Counsel continues that there did not appear to be much enthusiasm among this group of sergeants for sergeant's time.

31.  Counsel continues that the GOMOR addressed failure to designate an Acting Commander while he was TDY.  Counsel argues that the next person in line was a Sergeant First Class and that the unit had eight Soldiers with low operation tempo.  He continues that the applicant was available by cell phone and the attempted suicide that occurred while the applicant was TDY was handled by the civilian physician. 

32.  Counsel contends that the uniform issue identified in the GOMOR was a matter that should have been handled by the sergeants and not by a colonel.  Counsel further contends that the Soldier in question was counseled about her tongue piercing by the sergeants.

33.  Counsel further contends that the overall command climate and good order and discipline identified in the GOMOR were as a result of a significant personality conflict between the applicant and the civilian doctor.  Counsel argues that the size of the clinic did not allow for escape from the obvious.

34.  Counsel concludes that the Relief for Cause OER was gross overkill.  He states that the clinic had eight uniformed and six civilian members, none of whom wore uniforms.  He continues that there was no executive officer and that the applicant was not only the commander, but was also a physician providing health care.  

35.  Counsel further states that the noncommissioned officers were demonstrably incompetent; and that the applicant was undermined by a passive aggressive civilian doctor who was firmly entrenched in the clinic and not about to change his ways.  In his final statement, counsel argues that the Relief for Cause OER was neither grounded in fact nor necessary and that it provides an unwarranted blemish on an otherwise impeccable career.  

36.  Counsel continues that although it can be argued that the applicant could have done a better job commanding a small clinic, under no circumstances did the applicant's failures outweigh or significantly diminish his overall contributions as a colonel.

37.  Paragraph 3-2g and 3-2h of Army Regulation 635-105 (Officer Evaluation Reporting System) indicate that rating officials must prepare reports that are honest, fair, accurate and complete showing the achievements and failures of the rated officers.  

38.  Paragraph 3-7 of Army Regulation 635-105 sets forth the rater responsibilities.  The rater has the obligation to notify the rated officer under their supervision from the beginning and throughout the rating period on their performance with face-to-face counseling and periodic follow-ups.  The rater is obligated to make a fair and honest evaluation(s) of the rated officer under their supervision.

39.  Paragraph 3-19b(2) of Army Regulation 635-105 states, in pertinent part, that the rater will place an "X" in either the "yes" or "no" box for each attribute/skill/action.   Comments may be provided on these strengths or any other leadership attribute/skill/actions in Part Vb.  

40.  Paragraphs 3-57 and 6-6a of Army Regulation 623-105 states that an evaluation report accepted by HQDA and included in the official record of an officer is presumed to be administratively correct, have been prepared by the properly designated rating officials, and represent the considered opinions and objective judgment of the rating officials at the time of preparation.  

41.  Paragraph 6-10 of Army Regulation 623-105 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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the contested report was an offense to any right thinking person and should be stricken from the record was carefully considered. 

2.  By admission by the applicant and his counsel, the applicant's performance in several leadership duties was not successful.  The contested report clearly shows that although the applicant was very successful as a physician, he failed in his leadership duties by using a "hands-off" approach and relying too much on his noncommissioned officer.  Additionally, the fact that he was the only officer assigned to the NATO Clinic in Brussels and that he was assigned as the officer in charge indicates that as a colonel he was placed in a position of leadership.  Evidence shows that he failed in that regard.

3.  Notwithstanding the applicant's counsel's argument that the contested report was overkill, neither the applicant nor his counsel has provided clear and compelling evidence which shows that the ratings on the contested report were in error or that they were not considered opinions and objective judgments of the rating officials at the time the report was rendered.  

4.  Additionally, both rating officials acknowledged that the applicant was a successful physician.  However, based on the fact that several allegations in the Article 15-6 investigation were substantiated, both rating officials determined that a relief for cause was warranted. 

5.  Therefore, based on the foregoing, there is insufficient evidence to support the applicant's request for removal of the contested report.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X___  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.




       _    ___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.

ABCMR Record of Proceedings (cont)                                         AR20080005355



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ABCMR Record of Proceedings (cont)                                         AR20080005355



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