IN THE CASE OF:	  

		BOARD DATE:	  13 April 2010

		DOCKET NUMBER:  AR20090011166 


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 that the Officer Evaluation Report (OER) dated 15 May 2007 and all associated appeal documentation be expunged from his records, that he be awarded the Bronze Star Medal (BSM) that was previously approved and subsequently revoked, that his noncommissioned officer in charge (NCOIC) be awarded the BSM that was previously approved and revoked, and that he be granted a formal hearing of his case before the Board.

2.  The applicant states in a 3-page memorandum that the OER contains materially false information and he was denied due process.  He further states that the Board should start by reading his rebuttal to his general officer memorandum of reprimand (GOMOR) as it lays out a timeline and answers many questions; however, he desires to be granted a formal hearing to explain the complexities of his case and establish his credibility with the Board.  He continues by stating that his senior rater (SR) had a clear conflict of interest and therefore lacked objectivity because his SR held him responsible for dereliction of duty in regards to narcotics storage and controls and he was held responsible by his SR for contributing to the death of a Soldier who stole propofol and overdosed.  He also states that he requests that the previously approved and subsequently revoked awards of the BSM for himself and his NCOIC be 
re-awarded and contends that the following issues are key to his case:

	a.  The Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation was concluded without his statements being considered by the investigating officer or the commanding general (CG).

	b.  The appeals board failed to recognize that there was only one Army Regulation 15-6 investigation and not two.

	c.  The repeated confusion between a narcotic and a controlled substance (propofol is a controlled substance – not a narcotic) resulted in a flawed allegation.

	d.  The failure of the SR to comply with Army Regulation 623-3 (Evaluation Reporting System) which is to prevent unverified information from being included in evaluation reports and prevent comments on the fact that nonjudicial punishment (NJP) was given to a rated Soldier.

3.  The applicant provides:

	a.  a 3-ring binder containing the Army Regulation 15-6 summary, results, rebuttal, and OER appeal findings;

	b.  a 3-ring binder containing his appeal summary;

	c.  a 3-ring binder containing the Army Regulation 15-6 investigation; and

	d.  a memorandum of support from the CG of Brooke Army Medical Center.

CONSIDERATION OF EVIDENCE:

1.  The applicant was serving in the Regular Army as an Army Nurse Corps (ANC) lieutenant colonel (LTC) performing the duties as head nurse of an emergency medical treatment (EMT) department in a combat support hospital in Baghdad, Iraq, on 12 September 2006 when he received an annual OER covering the period from 12 September 2005 to 11 September 2006.

2.  His rater gave him maximum ratings and recommended promotion to colonel.  He deemed him an absolute top performer and visionary leader with unlimited potential.

3.  His SR, a Medical Service Corps colonel and the Medical Task Force commander, deemed him best qualified and placed him above center of mass (ACOM) in his SR profile.  The SR commented that he was a must-select for colonel and that he was an extraordinary clinical leader, ANC officer, and Soldier.

4.  Meanwhile, in June 2006 awards of the BSM were approved for the applicant and his NCOIC.  However, those awards were subsequently revoked on 11 June 2007.

5.  On 23 September 2006, an officer (colonel) was appointed to conduct an informal investigation under the provisions of Army Regulation 15-6 regarding the events surrounding the 18 September 2006 death of a sergeant who worked for the applicant in the EMT section and who stole and overdosed on propofol.  The investigation was completed on 2 December 2006 and the investigating officer recommended that the applicant, seven other commissioned officers (which included the applicant's SR/commander), and his NCOIC receive a GOMOR, that they not perform clinical duties until a full investigation was completed, and that they not be assigned to supervisory positions until a full investigation was completed.  The general court-martial convening authority (GCMCA) approved the findings and recommendations of the investigating officer on 22 January 2007.

6.  On 25 September 2006, the applicant's SR/commander was appointed as a line-of-duty investigating officer to determine if the deceased sergeant's death was in the line of duty.  The investigating officer found that the sergeant's death was not in the line of duty and the findings were approved on 4 April 2007.

7.  Meanwhile, the applicant deployed with his unit back to Fort Carson, Colorado, in October 2006 and on 15 March 2007 the applicant received a GOMOR for his failure to report the allegations of illegal substance abuse by a Soldier under his supervision (directly related to the Soldier's death on 18 September 2006), creating an improper leadership climate, and failure to enforce Army standards of conduct and discipline.  The imposing CG informed him that he had 10 days in which to submit matters related to the filing of the GOMOR in his records.  A review of the records of all of the individuals named in the Army Regulation 15-6 investigation failed to show that any other individuals received any disciplinary action related to the death of the sergeant.

8.  The applicant responded to the GOMOR with a 7-page rebuttal in which he addressed all of the issues for which he was accused and contended that he did not deserve the GOMOR.

9.  The applicant's SR/commander recommended that the GOMOR be filed in the applicant's official military personnel file (OMPF).

10.  On 29 April 2007, after reviewing all matters available, the CG directed that the GOMOR be filed in the applicant's local file for 1 year or until his reassignment to another general court-martial jurisdiction.  The applicant was reassigned to Fort Riley, Kansas, in May 2007.

11.  On 31 May 2007, the applicant received a permanent change of station OER covering the period from 12 September 2006 to 15 May 2007 from the same rating officials as the previous OER.  The rater gave the applicant a rating of "Outstanding Performance - Must Promote" and recommended promotion to colonel and attendance at a senior service college.

12.  The SR deemed the applicant's promotion potential to be "Fully Qualified" and placed him in the center of mass (COM) of his SR profile.  He further indicated that a tragic incident in Iraq caused him to question both the applicant's judgment and leadership.  He further stated that the applicant had limited potential for promotion.  The report was referred to the applicant and on 5 June 2007 he submitted a non-concurrence memorandum to the OER.  He contended that his SR's actions rose to the level of being an unqualified rating official because the Army Regulation 15-6 investigation recommended that the same action be taken against the SR as was to be taken against him and that he was the only one of many named who received any punitive action.  Additionally, there was a big discrepancy between the rater and SR ratings and comments and there was never any negative counseling prior to the referred report.

13.  On 18 July 2007, the applicant requested that a commander's inquiry be conducted in regards to the contested OER and contended that his SR was essentially an unqualified rating official given the results of the Army Regulation 15-6 investigation.  An informal inquiry was conducted and the investigating officer (a colonel) determined that since the applicant's SR/commander had not been relieved of his duties, he was required to rate the officers in his rating chain.

14.  The applicant appealed the contested OER to the Officer Special Review Board (OSRB) on 22 February 2008 contending a lack of objectivity by his SR, the inclusion of unproven derogatory information, substantive inaccuracy due to vagueness, and a failure by the SR to comply with counseling procedures.  The OSRB reviewed the available information and determined that there was insufficient evidence to overcome the presumption of regularity in his case and denied his appeal on 11 September 2008.

15.  A review of the available records fails to show any documentation related to the revocation of orders pertaining to the award of the BSM for the applicant and his NCOIC.  His records also fail to show any evidence to indicate that he has exhausted his administrative remedies by applying to the Army Awards Board at the U.S. Army Human Resources Command.  Additionally, he is not authorized to act on behalf of his NCOIC.  Therefore, these issues will not be discussed further until such time as he has exhausted his administrative remedies and re-applies to the Board.

16.  The applicant submits a memorandum for record from the officer (lieutenant colonel) who served as the officer in charge (OIC) and staff physician of the EMT during the period the applicant served as head nurse in Iraq.  He states that the applicant was inappropriately blamed for the death of the sergeant because as the OIC of the emergency room he was responsible for everything the unit did or failed to do.  However, he was not even called to submit a sworn statement during the investigation of the sergeant's death.  He also states that either all were responsible or no one was responsible for the Soldier's decision to use propofol illegally, whether for recreation or suicide.  In addition, the applicant should have received his award of the BSM that he earned and was ready for presentation when the sergeant died.

17.  The applicant's rater for the contested report has continued to provide letters of support and he also contends that the actions taken against the applicant are not reflective of his actual performance or potential during the period in question.

18.  A review of the applicant's OER history since he was commissioned shows that he always (with the exception of the contested OER) received maximum ratings of "Outstanding Performance - Must Promote" from his raters and "Best Qualified" from his SR's.  He has received 14 ACOM ratings and 10 COM ratings.  The contested report is the only report that contains any negative remarks or ratings.

19.  Army Regulation 623-3 establishes the policies and procedures for the OER system.  Chapter 3 of that regulation provides than an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, is presumed to be administratively correct and to have been prepared by the properly designated rating officials at the time of preparation.  Each report must stand alone.  Requests that an accepted OER be altered, withdrawn, or replaced will not be honored.  An exception is granted only when information which was unknown or unverified when the OER was prepared is brought to light or verified and the information is so significant that it would have resulted in a higher or lower evaluation had it been known at the time the OER was prepared.

20.  Army Regulation 623-3, section II states commanders are required to look into alleged errors, injustices, and illegalities concerning OERs.  Paragraph 6-5 provides the policy for requesting/conducting a commander's inquiry.  It states a commander may determine through inquiry that an OER has "serious irregularities or errors...(1) Improperly designated or unqualified rating officials.  (For example, rating officials who have had substantiated findings against them from an official investigation)."

21.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant's request for correction of a military record.  Paragraph 2-2 of that regulation provides that the ABCMR will decide cases on the evidence of record.  It is not an investigative body.  The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing in Title 10, U.S. Code, section 1034, and Department of Defense Directive 7050.6) or request additional evidence or opinions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the contested OER should be expunged from his records has been noted and appears to have some merit.

2.  While it is always tragic that Soldiers die for one reason or another, in those cases where a Soldier takes his or her own life or dies through actions that are a result of his or her own misconduct such as the case in question, it is difficult at best to ascertain what could have been done to prevent such incidents from occurring.

3.  In this case, it appears that the investigating officer chose to hold the entire chain of command, to include the hospital commander (the applicant's SR), responsible for the events that led to the Soldier's death – the theft and overdose of propofol.

4.  In doing so, the investigating officer recommended that the chain of command consisting of the applicant, the applicant's SR, and seven other officers and noncommissioned officers receive GOMOR's and that they not be assigned supervisory duties or perform clinical duties until the final investigation was completed.  The GCMCA approved both the findings and recommendations of the investigating officer.

5.  However, for reasons that are not apparent in the available evidence, the applicant was the only one of the 9 individuals identified by the investigating officer who received a GOMOR or who had negative comments reflected on their evaluation reports.

6.  In the contested report the SR states that a tragic incident in Iraq caused him to question the applicant's leadership and judgment.  However, there is no evidence to suggest that he ever counseled the applicant on such issues until such time as he rendered his evaluation in the contested report, which also supports the applicant's contention that his SR lacked objectivity.  

7.  The OIC and attending physician of the emergency room at the time has come on line and stated that he was in charge and, as such, should have been held accountable for everything that happened or did not happen in his section, which is indicative of the way real leaders practice.  The OIC was not held responsible in any form.

8.  However, the GCMCA had approved the findings that the applicant's SR had also been responsible in the death of the Soldier.  In accordance with regulatory guidance, it appears the SR should be determined to have been an unqualified rating official.  But, the rating by the rater on the contested OER is indicative of the applicant's performance and potential during the period in question and should not be removed from his record.

9.  Therefore, given the fact that the SR was deemed to be just as responsible for the incident in question as the applicant, it appears to be inherently unfair that the SR was allowed to choose the applicant as the "fall guy" and lay the blame for the Soldier's death at the applicant's feet in the form of a referred OER.  Accordingly, it would be in the interest of justice to delete the SR's ratings from the contested OER and to place a non-prejudicial statement in his records.

10.  Additionally, the applicant's records should be placed before any promotion selection boards that viewed the contested OER.

11.  Given the recommendations of the staff of the Board, it does not appear that a personal appearance before the Board is necessary in this case.  Accordingly, there appears to be no basis to approve that portion of his request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ___X___  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting the SR's evaluation of the OER ending on 15 May 2007 and placing a 


non-prejudicial statement in his records to explain the deletion, by placing his records before any promotion selection boards that may have viewed the OER, and by removing all documents related to the appeal of his OER from the performance section of his OMPF.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to expunging the OER from his records or granting him a personal appearance before the Board.



      ____________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)                                         AR20090011166



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ABCMR Record of Proceedings (cont)                                         AR20090011166



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