IN THE CASE OF:	  

		BOARD DATE:	  7 April 2009

		DOCKET NUMBER:  AR20080016592


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, in effect, that an Officer Evaluation Report (OER) for the period 22 June through 20 October 2006 be corrected or removed from her Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that the rater and senior rater (SR) comments provided on the contested OER do not accurately reflect her leadership abilities and accomplishments as the Officer in Charge (OIC) of the Camp Bucca, Iraq, Dental Clinic.  She indicates she was responsible for the supervision, management, and assignment of duties for personnel at two dental clinics and that during her tenure both clinics experienced improved production of dental services in spite of equipment failure, limited resources, compound riots, mass casualties, insubordinate noncommissioned officers (NCOs) and dealing with detainees.  She also states that neither the rater or SR visited the clinics during her tenure and the rater denied her any opportunity to address matters of insubordination with her.  The applicant further states that the rater and SR failed to properly conduct the required counseling sessions during her rating period and collectively failed to mentor her in any deficiencies. 

3.  The applicant provides the following documents in support of her application:  letters of support; Area of Consideration (AOC) Report; DA Form 67-9-1a (Junior Officer Developmental Support Form); Memorandum for Record (MFR), Subject: Commander’s Inquiry, dated 19 March 2007; and DD Form 214 (Certificate of Release or Discharge from Active Duty). 


CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that on 23 May 2004 she was appointed a Reserve commissioned officer in the Medical Corps (MC), in the rank of captain (CPT), and that on 6 September 2004 she entered active duty in that status.

2.  On 30 November 2006, while serving with the 502nd Dental Company, the applicant received a Change of Rater OER for the period 22 June through 20 October 2006.  This report evaluated the applicant as the OIC of general dentistry for both a three-chair Theater Internment Facility (TIF) and a one-chair Troop Medical Clinic (TMC).  She was responsible for providing care to 1,500 multinational Soldiers and over 11,000 detainees of war.  

3.  In Part IV (Performance Evaluation-Professionalism) of the OER, the rater, a lieutenant colonel (LTC), checked the "Yes" block in response to every question in Part IVa (Army Values) and Part IVb (Leader Attributes/Skills/Actions).  In Part V (Performance and Potential Evaluation-Rater), the rater placed the applicant in the second block (Satisfactory Performance, Promote), and in Part Vb (Comments) the rater stated that the applicant’s performance was average during the rating period and indicated the applicant excelled in jobs routine and repetitive in nature and had great enthusiasm and ambition in the clinic setting.  The rater also indicated the applicant volunteered for the position of OIC at the Camp Bucca TIF, but her lack of experience, reluctance to use her chain of command, and maturity level presented her with leadership problems.  The rater further stated that the applicant’s working relationship with superiors, subordinates and peers did not reflect the necessary tact and maturity required.  The rater finally indicated the applicant’s completion of the Officer Advanced Course would increase her military knowledge, establish her leadership style, and enhance her opportunity for advancement.

4.  In Part VIIa (Promotion Potential) the SR, a LTC, placed the applicant in the second block (Fully Qualified).  The SR's supporting comments indicated the applicant was a stronger clinician than a leader.  The SR commended the applicant for volunteering for leadership while deployed in Iraq, but stated she lacked the maturity and management skills required to be effective.  The SR finally stated that the applicant should be selected for Residency Training and promoted with peers.  

5.  The applicant’s Official Military Personnel File (OMPF) contains an MFR prepared by the applicant in response to the contested OER, in which she states that the rater's comments are incorrect and do not accurately reflect the reality of her work performance, leadership abilities, and working relationships with superiors, subordinates, and peers.  
6.  In her MFR, the applicant further states that both the rater and SR comments found on the report contradict the only counseling statement she received during the OER rating period as evidenced on a DA Form 67-9-1a, dated 18 August 2006.

7.  The applicant provides a DA Form 67-9-1a, dated 18 August 2006.  Part III (Developmental Action Plan) contains the following comments under the skills indicated:  (Communicating) – “Improving Significantly”; (Decision Making) – “Very Good”; (Motivating) – “You have been in the right place at the right time doing the right thing”; (Planning) – “Very Good”; (Executing) – “Good”; (Developing) – “Outstanding”; (Building) – “Outstanding”; and (Learning) – “Good.”  The applicant’s rater and SR also include additional favorable comments and constructive criticism on this document.

8.  On 19 March 2007, the applicant’s commander provided his response to a commander’s inquiry.  The commander stated that he found no evidence to support that the statements in question on the contested OER were inaccurate or untrue and recommended that the OER be filed in the applicant’s OMPF.

9.  On 7 September 2007, the applicant was honorably released from active duty in the rank of CPT, after completing 3 years and 2 days of active military service. 

10.  The applicant provides six letters of support from the following individuals who were assigned in Iraq during the contested period:  two former colonels (COLs), 3 CPTs, and a specialist (SPC).  These statements provide many favorable comments regarding the applicant’s professionalism, performance, work ethics, character, superb leadership qualities, maturity in dealing with noncompliant Soldiers, and her ability to aptly modify and improve different aspects of her abilities upon receipt of mentoring, constructive criticism and censure from higher ranking officers.

11.  Army Regulation 623-3 (Evaluation Reporting System) 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 3-39 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, provides in pertinent part, the policies and procedures pertaining to managing the OER redress program.  Section III contains guidance on OER appeals and paragraph 6-11 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 3-39 and 6-7 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 her performance during the rating period was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  By regulation, an OER that is accepted by 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, and it represents 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 OER 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.  The evidence of record confirms that the applicant requested a commander's inquiry on the contested OER and pointed out the differences with the rater and SR comments on her DA Form 67-9-1a.  However, after reviewing all the evidence submitted on appeal, the commander conducting the inquiry found no fault with the OER, as evidenced in his 19 March 2007 MFR (Commander’s Inquiry).

4.  The third-party statements provided by the applicant, which attest to her excellent performance in Iraq were also carefully considered.  However, while highly supportive and complimentary, these individuals were not in a position to understand the expectations and requirements of the rating officials on the applicant's contested OER.   


5.  Given the commander's inquiry conducted by the responsible commander 
on the ground found no fault with the contested OER after examining the facts and circumstances surrounding the evaluations and the matters submitted by the applicant on appeal 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.  

6.  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

___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)                                         AR20080016592



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080016592


2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1