IN THE CASE OF:	  

		BOARD DATE:	    21 June 2011

		DOCKET NUMBER:  AR20100026686 


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 her last two DA Forms 67-9 (Officer Evaluation Report (OER)) ratings be changed from unsatisfactory to highly satisfactory.

2.  The applicant states that her last two OER's were unfair and false because her chain of command retaliated against her when she reported two female supervisors for sexual harassment, abuse of power, micromanagement, and mistreatment of her and her staff.  She states she was placed on the Temporary Disability Retired List (TDRL) and may be able to return to duty in the Regular Army or U.S. Army Reserve (USAR), but her two adverse OER's could hinder her potential.  She also requests a personal appearance before the Board to explain herself and to provide witnesses and evidence to support her application.

3.  The applicant did not provide supporting documents with her application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.  Beneficiaries

2.  The applicant was appointed as a commissioned officer in the USAR in the rank of first lieutenant/pay grade O-2 on 29 January 1990.  She was appointed in the Army Nurse Corps in area of concentration (AOC) 66H (Medical-Surgical Nurse).  She entered active duty on 20 March 1999 and served in AOC 66C (Psychiatric Nurse).

3.  On 1 June 2001, she was promoted in the USAR to major/pay grade O-4.

4.  She received a relief-for-cause OER, a referred report, which covered 11 months of rated time from 6 May 2003 to 10 June 2004.  Her rater and senior rater were colonels.  Her principal duty title was "Head Nurse, Inpatient Psychiatry."  The following information is shown on the contested OER.

	a.  In Part IVa (Army Values) the rater placed an "X" in the "NO" block for "INTEGRITY."

	b.  In Part IVb (Leader Attributes/Skills/Actions) the rater placed an "X" in the "NO" block for:

* b.1 (Attributes) "MENTAL"
* b.2 (Skills) "CONCEPTUAL," "INTERPERSONAL," and "TECHNICAL"
* b.3 (Actions/Leadership) "COMMUNICATING," "DECISION-MAKING," "MOTIVATING," "PLANNING," "EXECUTING," "DEVELOPING," and "LEARNING"

	c.  In Part V (Performance and Potential Evaluation) the rater placed an "X" in the "UNSATISFACTORY PERFORMANCE" block and entered the following pertinent remarks in Part Vb (Comment on Specific Aspects of the Performance):

…the demands and challenges of a Head Nurse position exceeds [sic] this officer's ability to adequately continue serving in this role.  [Applicant] demonstrated extreme difficulties performing multi-tasked functions such as assessing, planning, directing, coordinating, and preparing (the) staff for the 2004 Joint Commission for Accreditation of Healthcare Organization's (JCAHO's) survey…resulted in her first-line supervisor undertaking the management of the unit's daily administrative functions.  Her leadership style created an environment of chaos and animosity causing a lack of teamwork between assigned staff and fostering a non-therapeutic patient environment.  [Applicant] does not possess the leadership qualities expected of her rank.

	d.  In Part VII (Senior Rater) the senior rater placed an "X" in the "DO NOT PROMOTE" block and entered the following pertinent remarks in Part VIIc (Comment on Performance/Potential):

[Applicant] has been unable to perform the duties and responsibilities inherent in her position as a Head Nurse for the inpatient psychiatric unit.…  When given extensive counseling for improving her performance, she was repeatedly unable to follow through on assigned tasks, meet suspenses, adequately prepare her unit for the 2004 JCAHO survey, or comprehend the budget process for her unit.  This officer has reached her maximum potential and should not be recommended for promotion to the next grade.  The Army's interests are best served by not retaining this officer….  Officer refuses to sign OER.

5.  On 26 July 2004, the applicant submitted an OER rebuttal stating her OER was late and she refused to sign it.  She stated:

…it is so ridiculously negative – and obviously the result of retaliation and reprisal activity for my filing a Congressional Inquiry against them…they are being investigated by the Whistleblower Inspector General (IG) staff at the Pentagon, and [the] Judge Advocate General is involved because I feel they have retaliated against me for filing an IG complaint against them.

6.  Within her rebuttal statement, she made these points:

* her mental status was excellent until she was removed from her head nurse position
* senior nursing supervisors did not cooperate with her when she was preparing for the inspection in 2004
* she was blamed for the failure of senior leadership during the inspection
* she was harassed and threatened by senior leaders
* she withstood torture and mental duress
* the treatment she received led to her state of depression
* she was diagnosed with fibromyalgia
* she created a database tool to track compensatory time off for her unit
* she developed and coordinated an "on-call" program for ward civilian nurses to perform duty
* her judgment was sound and she handled ward restraint emergencies well
* she admits some of her staff were disgruntled due to the stress of psychiatric nursing and the inspection
* documents were created by her superiors to discredit her
7.  She received an annual OER, also a referred report, which covered 10 months of rated time from 11 June 2004 to 10 June 2005.  Her rater was a major and her senior rater was a colonel.  Her principal duty title was "Education Coordinator."  The following information is shown on the contested OER.

	a.  In Part Iva (Army Values) the rater placed an "X" in the "NO" blocks for "SELFLESS SERVICE" and "DUTY."

	b.  In Part IVb (Leader Attributes/Skills/Actions) the rater placed an "X" in the "NO" blocks for:

* b.2 (Skills) "CONCEPTUAL"
* b.3 (Actions/Leadership) "DECISION-MAKING"

	c.  In Part V (Performance and Potential Evaluation) the rater placed an "X" in the "UNSATISFACTORY PERFORMANCE-DO NOT PROMOTE" block and entered the following pertinent remarks in Part Vb (Comment on Specific Aspects of the Performance):

Occasionally, [Applicant] demonstrated a lack of the sound judgment expected of an officer in her current grade.  This lack of judgment was displayed when she was on unauthorized absence from her place of duty for four days….  Her performance is inconsistent with the level expected of an officer of her rank and experience.  Do not recommend for advanced education at this time.  Do not promote.

	d.  In Part VII (Senior Rater) the senior rater placed an "X" in the "DO NOT PROMOTE" block and entered the following pertinent remarks in Part VIIc (Comment on Performance/Potential):

With improved judgment and accountability, [Applicant] has the potential to be successful as an inpatient psychiatric nurse.  Her current performance is not consistent with that of other officers of her grade, rank, and specialty.  Not recommended for advanced military education.  Do not promote.  Service member refuses to sign.

8.  On 29 July 2005, the applicant acknowledged receipt of this referred OER and stated she did not concur with it or its attached memorandum of notification.

9.  On 3 August 2005, she submitted an OER rebuttal stating her OER was based on substantive error and was completed without considering her support form.  She stated she was [hospitalized] in the intensive care unit for a 2-day period from 17 to 18 May 2005 for chest pains.  She returned to work on 19 May 2005 despite being sick, weak, and genuinely not feeling well.  She stated she was denied convalescent leave and often was "written up when I was tired and sleepy due to medications."  She stated she had to seek emergency medical psychiatric treatment from a different military installation hospital.  She stated, "They were immediately notified of my whereabouts and knew that I was in the care of physicians at Fort Gordon for chest pains and depression, necessitating transportation via ambulance to Fort Jackson for a second admission."

10.  Within her rebuttal statement, she made these points:

* her rater and senior rater were in violation of the Whistleblower Protection Act for her OER was retaliatory in nature
* her rater and senior rater were malicious, vindictive, and retaliated against her
* she was shown contempt because of her ethnicity and single status
* she was the victim of cruelty and maltreatment by her superiors
* her profile did not interfere with her performance of duties as a 66H

11.  She was medically retired and placed on the TDRL on 10 November 2005.

12.  References:

	a.  Army Regulation 623-105 (Officer Evaluation Reporting System), in effect at the time, prescribed the officer evaluation function of the military personnel system and provided principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support the Officer Evaluation System and Officer Evaluation Reporting System.  It also provided guidance regarding redress programs including commander inquiries and appeals.  Paragraph 3-57 of this regulation provides the basic rule applicable to modifications of previously submitted reports.  It states that an evaluation report accepted by Headquarters, Department of the Army, 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 to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  It also states requests to alter, withdraw, or replace a report that has been accepted for filing in an officer's record with another report will not be honored.  Exceptions are only authorized when information that was unknown or unverified when the report 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 or verified when the report was prepared.

	b.  Army Regulation 623-105, chapter 6, contains the policies and procedures pertaining to managing the OER redress program.  Paragraph 6-10 contains guidance on the burden of proof and type of evidence necessary to support the submission of an 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 paragraph 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.

	c.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity deciding cases on the evidence of record.  It is not an investigative body.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

	d.  Army Regulation 15-185 further states that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant did not submit any evidence to show the two contested OER's were retaliatory.

2.  As such, there is insufficient evidence to support her contention that the two contested OER's are substantively inaccurate and do not accurately reflect her performance or potential or that her rater and/or senior rater did not comply with the regulatory requirements of evaluating her in a fair and unbiased manner.  She did not provide clear and convincing evidence to overcome the presumption of administrative regularity and justify the removal of the two contested OER's.  Based on the applicable regulations, the two contested OER's are correct as constituted because she did not meet the burden of proof to justify removal of the contested OER's.

3.  As she did not meet the burden of proof to justify removal of these two OER's, there is no reason or justification to support a formal hearing in this case as she requested.

4.  The applicant provided no evidence with this application.  It appears she intended to provide supporting evidence at a formal hearing.  Based on the available evidence and the facts in this case it was determined that no formal hearing is required at this time.  The applicant has the option of requesting a request for reconsideration.  If she requests reconsideration, she should provide supporting evidence with her request.

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 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)                                         AR20100026686



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ABCMR Record of Proceedings (cont)                                         AR20100026686



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