IN THE CASE OF:	  

		BOARD DATE:	  16 July 2012

		DOCKET NUMBER:  AR20120020226 


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:

	a.  amendment of her DA Forms 67-9 (Officer Evaluation Report (OER)) covering the periods 27 October 2007 through 24 March 2008, 25 March 2008 through 30 January 2009, and 31 January 2009 through 22 June 2009 or, in the alternative, removal of the OER's from her Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File); and

	b.  reinstatement on active duty.

2.  The applicant states the following:

	a.  The OER covering the period 27 October 2007 through 24 March 2008 contains derogatory statements that are not substantiated in her performance for the period rated.  This OER is highly biased and should be reviewed for “non-subjective” comments and removed from her record for cause.  She believes the OER to be in retaliation and prejudicial because she previously filed an Inspector General (IG) complaint involving the senior rater.

	b.  The OER covering the period 25 March 2008 through 30 January 2009 contains subjective and discriminatory statements that "delineates" from her performance for the period rated.  This OER is highly biased and should be reviewed for “nonsubjective” comments and removed from her record for cause.  She believes the OER to be in retaliation and prejudice because she previously filed an IG complaint involving a close colleague of the senior rater.

	c.  The OER covering the period 31 January 2009 through 22 June 2009 contains derogatory and unjust statements and constitutes substantial errors in her performance.  This OER is highly biased and should be reviewed for 
“nonsubjective” comments and removed from her record for cause.  She believes the OER to be in retaliation and prejudice because she previously filed an IG complaint involving the senior rater.

3.  The applicant provides:

* three applications, one for each OER in question
* two letters of support
* previous OER's
* contested OER's
* DD Form 214 (Certificate of Release or Discharge from Active Duty) 

CONSIDERATION OF EVIDENCE:

1.  Having prior commissioned service in the U.S. Army Reserve, the applicant was commissioned in the Regular Army on 31 December 2002 as a medical surgical nurse.  She was promoted to major on 2 January 2003.

2.  She provided OER's covering the periods 6 March 2006 to 26 October 2007 which show she was rated "OUTSTANDING PERFORMANCE, MUST PROMOTE" by her raters and she was rated "BEST QUALIFIED" by her senior raters at Walter Reed Army Medical Center (WRAMC).  She received the Army Commendation Medal for meritorious service during the period 6 March 2006 to 26 October 2007.

3.  The first contested OER is a 4-month change-of-rater OER covering the period 27 October 2007 through 24 March 2008 for duties as an Evening/Night Nursing Supervisor for Company A, Troop Command, Brooke Army Medical Center (BAMC), Fort Sam Houston, TX.

4.  In Part IVb2 (Leader Attributes/Skills/Actions), the rater placed an "X" in the "NO" box for "CONCEPTUAL."

5.  In Part IVb3 (Actions – Leadership), the rater placed an "X" in the "NO" boxes for "COMMUNICATING" and "EXECUTING."

6.  She was rated "UNSATISFACTORY PERFORMANCE, DO NOT PROMOTE" in Part Va (Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion) by her rater.  In Part Vb (Comment on Specific Aspects of the Performance) her rater stated, "[Applicant] is a soft spoken, intelligent Army Nurse Corps officer.  In the role of Evening/Night Nursing Supervisor, she exhibited a genuine desire to meet the daily mission.  However, [Applicant] demonstrated significant deficiencies in her ability to function independently as an Evening/Night Nursing Supervisor.  [Applicant] frequently failed to provide senior leadership with a clear, accurate and concise command interest report.  Additionally, her time management and organizational skills were routinely challenged.  [Applicant] exhibited difficulty in calculating, validating and accurately communicating information on reports such as the Patient/Bed Availability, Nursing Utilization Resource Summary, and Bed Assignment-Surgery sheet."

7.  In Part Vc (Comment on Potential for Promotion) her rater stated, "[Applicant] has limited potential for promotion as an Army Nurse Leader.  Although [Applicant's] performance was unsatisfactory, she may have future potential for promotion with continued mentoring.  Recommend instructor assignment."

8.  She was rated "DO NOT PROMOTE" in Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade) by her senior rater.  "BELOW CENTER OF MASS – RETAIN" was entered in Part VIIb (Potential Compared with Other Officers Senior Rated in Same Grade) by her senior rater.  In Part VIIc (Comment on Performance/Potential) her senior rater stated, "[Applicant] was challenged in the role as Evening/Night supervisor.  With an orientation period over three times as long as normally required and extensive one-on-one counseling and guidance, she continued to struggle in the role.  She was effective at presenting classes during Department of Nursing Orientation, however, [Applicant's] potential for clinical and leadership roles at this time is limited.  She is best suited for positions in a non-threatening, controlled environment, such as a staff nurse or instructor."

9.  The second contested OER is a 10-month change-of-rater OER covering the period 25 March 2008 through 30 January 2009 for duties as a Clinical Staff Nurse for Company A, Troop Command, BAMC, Fort Sam Houston, TX.

10.  In Part Vc her rater stated, "[Applicant] demonstrates the potential for leading small nursing teams or serving as an instructor of basic nursing practice.  Continue to prepare with military education opportunities to expand her leadership capabilities.  Needs continued development prior to promotion to Lieutenant Colonel."

11.  In Part VIIc her senior rater stated, "As she continues to acclimate to the Post Anesthesia Care Unit, [Applicant] has demonstrated satisfactory clinical performance during this rating period.  She maintains military readiness by attending mandatory training such as PROFEX, BLS [basic life support] and ACLS [advanced cardiac life support], and has been helpful with orienting newly assigned staff members and students.  She participated in the ongoing BLS certification of the BAMC Warrior Brigade staff, and most notably, she has actively supported the Hospital Education Department as a BLS and ACLS instructor for all hospital staff, as well as presenting classes on ECG [electrocardiogram] interpretation to new Department of Nursing personnel.  She has not demonstrated the leadership, management, or organizational skills prerequisite to any future assignments that require these attributes.  Promote when ready."

12.  The third contested OER is a 5-month change-of-rater OER covering the period 31 January 2009 through 22 June 2009 for duties as a Clinical Staff Nurse for Company A, Troop Command, BAMC, Fort Sam Houston, TX.

13.  She was rated "Do Not Promote" in Part VIIa by her senior rater.  "BELOW CENTER OF MASS – DO NOT RETAIN" was entered in Part VIIb by her senior rater.  In Part VIIc her senior rater stated, "[Applicant] demonstrated the ability to effectively provide quality patient care in a well supervised environment of care.  She also demonstrated her willingness to share her passion for teaching other staff, both within her area and across the organization.  [Applicant] has performed well clinically, however, remains challenged when multi-tasked or in a leadership role.  She has not been able to demonstrate the conceptual skills needed to identify the second and third order effects of her actions and for this reason, is not performing at a level commensurate with her peers.  At this time, [Applicant's] potential for continued service is extremely limited as she is not ready to assume the duties and responsibilities of the next higher rank.  Do not promote.  Recommend transition to civilian service."

14.  On 21 August 2011, she retired in the rank of major by reason of permanent disability (enhanced).

15.  A review of the performance folder of her AMHRR on the integrated Personnel Electronic Records Management System (iPERMS) revealed copies of the OER's in question.

16.  In a memorandum to the Board, dated 16 October 2012, the applicant states the following:

	a.  She wants the Board to address the substantive errors, inaccuracies, and injustices contained in the OER's.  She requests reinstatement on active duty on the basis that the disputed OER's are substantively inaccurate and unjust and therefore rendered invalid.  The disputed OER's resulted in her separation from the Army on 21 August 2011.

	b.  She requests deletion of specific portions contained within the disputed OER's.  In the alternative, she requests removal of the disputed OER's from her AMHRR as being substantively inaccurate and unjust.  If the Board removes the OER's, she requests declaration of the corresponding rating periods as non-rated time.

	c.  With respect to the OER covering the period 27 October 2007 through 24 March 2008, she requests removal of the:

* "X" in the "NO" box in Part IVb3 for COMMUNICATING and EXECUTING
* "X" in the "UNSATISFACTORY PERFORMANCE, DO NOT PROMOTE" box in Part V
* comments in Part Vb and Part Vc from the rater
* "X" in the "DO NOT PROMOTE" box in Part VIIa
* entry "BELOW CENTER OF MASS RETAIN" in Part VIIb
* comments in Part VIIc from the senior rater

	d.  She did not function independently because she was not given the opportunity to prove her leadership capability.  She briefed the Commanding General twice.  She was intensely scrutinized over-the-shoulder at the computer and monitored.  The Command Interest Reports could not be accurate because the computer eccentric program was malfunctioning.  Further, her morning briefing input was subjective to the receiver (senior rater) who rated it as mostly unsatisfactory.  She was told by one to be brief and by others to give more data.  Execution of report data as she submitted was correct as given to her by the staff, but changed constantly over time and midshift.  Prior to the morning report they were again checked for accuracy.  Numbers were only as accurate as the one giving them.  She worked with the same numbers at WRAMC and she received an Army Commendation Medal.  Three immediate previous colonels rated her as "BEST QUALIFIED" and expressed that she had "unlimited potential" and "absolutely promote to lieutenant colonel."

	e.  Further, after revalidating her nursing skills to work under a captain during this report, the senior rater fails to mention she could be utilized as a Family Nurse Practitioner, Clinical Nurse Specialist, or Critical Care Registered Nurse.  She was not truly mentored for this job.  She was pressured from day 1 with insensitive comments suggesting failure and asked if she even wanted "this job," was she mentally qualified for it, and did she have a brain deficit.  She felt unwanted from the beginning.  During her interview with the senior rater she was told if this job did not work out she could be placed elsewhere.

	f.  This report was precisely timed and neatly threaded to accommodate a conspired retaliation for an IG complaint she filed in 2004 involving another Director of Nurses (DON) at WRAMC whom the senior rater knew.  Prior to her assignment at BAMC, the DON at WRAMC verbally told her that she had spoken to the senior rater about her assignment.

	g.  Regarding the OER covering the period 25 March 2008 through 30 January 2009, she requests removal of the following comments in Part Vc:

* "Needs continued development prior to promotion to Lieutenant Colonel."
* "She has not demonstrated the leadership, management, or organization skills prerequisite to any future assignments that require these attributes.  Promote when ready."

	h.  Her growth potential as an Advanced Practical Nurse was suppressed by her leaders.  After the DON concluded she was not the person she wanted as the Night Supervisor, she placed her in Nursing Education where she was autonomous and was given some authority with her new senior rater.  Her previous senior rater was removed by the IG.

	i.  She worked under the supervision of an officer 6 years junior to her date of rank.  When this major/supervisor was absent from the unit, she was specifically blocked and not given the opportunity to be the acting or senior floor nurse.  She had to contend with remarks from the supervisor such as "she [Applicant] is not promotable."  Second and third order effects are performed repeatedly when doing her clinical skills which her rater wrote as "excellent."  Avenues for change were met with resistance.  Her advanced practical skills to seasoned change and productivity were noted in all her previous OER's.  Her senior rater at WRAMC commented she had boundless potential and recommended to "absolutely promote to Lieutenant Colonel."  She believes an injustice, prejudice, and cultural bias exists when her senior suggests "do not retain me."

	j.  Regarding the OER covering the period 31 January 2009 through 22 June 2009, she requests removal of the:

* entry in Part VIIa – "DO NOT PROMOTE"
* "X" in Part VIIb – "BELOW CENTER OF MASS DO NOT RETAIN"
* comments in Part VIIc – "She has not been able to demonstrate the conceptual skills needed to identify the second and third order effects of her actions and for this reason, is not performing at a level  commensurate with her peers.  At this time, [Applicant's] potential for continued service is extremely limited as she is not ready to assume the duties and responsibilities of the next higher rank.  Do not promote.  Recommend transition to civilian service."

	k.  The comments in Part VIIc do not support the box checks in Part VIIa or b.  The senior rater did not consider her rebuttal DA Form 67-9 (OER Support Form), dated 4 August 2009, nor did she confer with colleagues who worked in close proximity to her on a daily basis and had personal knowledge of the execution of her duties as a Clinical Staff Nurse.  The senior rater did not comply with the regulation's mandate.

17.  She provided a letter of support from an acting head nurse who attests:

* he worked with the applicant for about a year and she was always the perfect definition of an officer
* she was always professional and very hard working
* she always maintained her military bearing

18.  She also provided a letter from a retired colonel who volunteered with the Department of Ministry who attests:

* during his tour of duty, he worked with the applicant
* he observed her to be alert, concerned, professional, and competent in her performance
* she was responsive to the needs of the doctors and patients, quick to identify issues and unhesitating in her assessment of what was needed and how to alleviate problems
* she appeared to be able to quickly react to changing conditions, organize and delegate duties of co-workers, and to frequently become an active participant in the resolution of the problem

19.  Army Regulation 623-3 (Evaluation Reporting System) states an evaluation report accepted by Headquarters, Department of the Army, and included in the official record of a rated Soldier 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.  Requests that an evaluation report in a Soldier's AMHRR be altered, withdrawn, or replaced with another report will not be honored.  The regulation also states the burden of proof rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant will produce evidence that clearly and convincingly establishes that:

	a.  the presumption of regularity will not be applied to the report under consideration and

	b.  action is warranted to correct a material error, inaccuracy, or injustice.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests removal of the contested OER's from her AMHRR on the basis of substantive errors, inaccuracies, and injustices.  In order to justify deletion of a report, the burden of proof rests with the applicant to produce evidence that establishes clearly and convincingly that:  (1) the presumption of regularity should not be applied to the report under consideration and (2) action is warranted to correct a material error, inaccuracy, or injustice.

2.  Her contention that the OER's were in retaliation and prejudicial because she filed an IG complaint involving the senior rater was noted.  However, there is no evidence and she provided no evidence which shows her senior raters reprised against her.

3.  Although she contends the disputed OER's resulted in her separation from the Army on 21 August 2011, the evidence of record shows she was retired by reason of permanent disability.

4.  Her remaining contentions and the documentation provided were carefully considered.  However, there is no evidence that the information contained in the OER's is not administratively correct, was not prepared by the proper rating officials, and does not represent the considered opinion and objective judgment of the rating officials at the time of preparation.

5.  The OER's are properly filed in her AMHRR in accordance with the governing regulation.

6.  In view of the foregoing, there is an insufficient basis for granting the requested relief.

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)                                         AR20120020226



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ABCMR Record of Proceedings (cont)                                         AR20120020226



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