IN THE CASE OF:	  

		BOARD DATE:	  23 July 2013

		DOCKET NUMBER:  AR20120019826 


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 the removal of his Officer Evaluation Report (OER) for the period ending 27 February 2011 and any other adverse actions made by his rater from his official records and that the Board take appropriate measures to remedy his unfair consideration during the past 2 years of Graduate Medical Examination selection by placing him in a Urology residency position or equivalent urology training.

2.  The applicant defers comment to his counsel. 

3.  The applicant allows counsel to provide documents in support of his application. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the removal of the applicant’s OER for the period ending 
27 February 2011 and any other adverse actions made by his rater from his official records and that the Board take appropriate measures to remedy his unfair consideration during the past 2 years of GME selection by placing him in a Urology residency position or equivalent urology training.

2.  Counsel states, in effect, that the applicant is a licensed physician and a 2008 graduate of the Uniformed Services University of Health Sciences (USUHS).  During his time at the USUHS as a medical student he was diagnosed with an American Disabilities Act certified learning disability and became the precedent case for testing accommodations.  The applicant’s treatment at the USUHS deteriorated to the point that the applicant filed two inspector general action requests (IGAR) against individuals who acted prejudicially against him and sought congressional inquiries into his treatment at the USUHS.  The applicant ultimately graduated from the USUHS and was assigned to a unit in Hawaii where his rater began exhibiting negative treatment towards the applicant.  His rater also withdrew his letter of endorsement without notifying the applicant, and the applicant was not selected for a Urology residency by the Joint Service Graduate Medical Education Selection Board.  He goes on to state that the applicant filed an IGAR against his rater and requested reassignment; however, his reassignment was not granted immediately and the applicant was subjected to a Focused Professional Practice Evaluation due substantially to his rater’s insistence.  A few weeks later, through counsel, he wrote to the Assistant Chief of the Medical Corps branch for assistance.  In June 2011, he wrote to the commanding general (CG) requesting redress in the form of an investigation under Army Regulation 15-6.  He further states that on 21 June 2011 the applicant received a negative OER covering the period 1 August 2010 to 
27 February 2011 and while the OER may not appear negative, it was carefully written to appear positive while at the same time diminishing his chances for competitive advancement.  Consequently, the applicant submitted a formal Article 138 complaint and appealed the OER to the U.S. Army Human Resources Command (HRC), who rejected his appeal based on insufficient evidence.  He subsequently filed a complaint with the Department of Defense Inspector General based on reprisal and it was returned as untimely.      

3.  Counsel provides a 17- page detailed brief and 29 exhibits in support of the applicant’s application.

CONSIDERATION OF EVIDENCE:

1.  The applicant served in the U.S. Navy from 1988 to 1993.  On19 June 2003, he was appointed as a second lieutenant in the U.S. Army Reserve with an obligation of 4 years at the USUHS.

2.  On 17 May 2008, he was appointed as a Medical Corps captain upon graduation from the USUHS with a concurrent call to active duty.  He completed his officer basic course and was assigned to Fort Bliss, Texas for his first assignment.  On 1 August 2009, he was assigned to the 25th Infantry Division in Hawaii.

3.  On 22 July 2011, the applicant received a change of rater OER (contested report) covering the period 1 August 2010 – 27 February 2011 and evaluating him as a field surgeon.

4.  In Part IV – Professional Evaluation – Professionalism the applicant received “YES” ratings in all areas.

5.  In Part V – Performance and Potential Evaluation the rater gave the applicant a rating of “Satisfactory Performance – Promote.”  His rater commented that the applicant satisfactorily performed the standard duties of a General Medical Officer in garrison.  He also indicated that the applicant had potential and should continue to be groomed for promotion to major.

6.  In Part VII – Senior Rater (SR) his SR gave him a rating of “Fully Qualified” and commented that he had been a consistent performer and should be promoted with his peers.  The report was not considered adverse and as such was not referred to the applicant as such. 

7.  On 29 August 2011, the applicant appealed the OER to the HRC contending there was substantive injustice based on retaliation, bias, prejudice, and unjust ratings.  He provided an IGAR timeline, copies of his IG complaint and request for an investigation under Army Regulation 15-6, and a copy of the contested OER. (Exhibit 25)

8.  On 1 November 2011, HRC returned his request without action based on insufficient evidence.  HRC also advised the applicant that the results of investigations and complaints as well as substantive evidence from third parties would strengthen his appeal. (Exhibit 26)

9.  A review of the numerous documents provided by the applicant failed to show any evidence of the results of his IGARs, investigations or complaints that would indicate that the applicant’s allegations were founded.

10.  Army Regulation 623-3 (Evaluation Reporting System) establishes the policies and procedures and serves as the authority for the preparation of the OER.  It provides that 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.

11.  Army Regulation 623-3 also provides 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.  Clear and convincing evidence will 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 contentions and supporting documents have been carefully considered.  However, the allegations made by the applicant are not supported by sufficiently convincing evidence to show that his allegations are valid.   

2.  The mere act of filing complaints or requesting redress are not sufficient to justify allegations of wrongdoing and the applicant has not provided any evidence such as the results of his complaints that supports his allegations.  

3.  Allegations of wrongdoings must be supported by valid verifiable evidence and the applicant has provided no such evidence.

4.  Accordingly, in the absence of evidence to the contrary, the contested report appears to represent a fair, objective, and valid appraisal of his performance and potential during the period in question.  In view of the foregoing, there is no basis for granting the applicant's 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 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)                                         AR20120019826





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ABCMR Record of Proceedings (cont)                                         AR20120019826



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