IN THE CASE OF:	  

		BOARD DATE:  1 August 2013

		DOCKET NUMBER:  AR20120021373 


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 Officer Evaluation Reports (OERs) covering the periods 20050617 – 20051115, 20070416 – 20080331, and 20080401 – 20090206 from his official records.

2.  The applicant states, in effect, that he was diagnosed with Bipolar II Disorder in February 2006 and only after the passage of time did he fully understand how this medical condition substantially impacted his performance. 

3.  The applicant provides nine enclosures consisting of the three contested OERs, his DD Form 214 (Certificate of Release or Discharge from Active Duty), results of an investigation, and sworn statements.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the three contested OERs be removed from the applicant’s official records.

2.  Counsel states, in effect, that the OER ending on 15 November 2005 was unjust because his rating officials knew that he suffered from a mental disorder and gave no mitigating consideration to the fact that the illness caused his behavior.  In regard to the OER ending on 31 March 2008, the ratings received by the applicant are contradictory to the award for which he was recommended and the language used in the award and thus should be removed from his records.  In regard to the OER ending on 6 February 2009, the rating officials used unsubstantiated information to form disparaging ratings that damaged the applicant’s character, integrity, trustworthiness, and reliability and thus should be removed from his records.

3.  Counsel provides a 10-page detailed brief explaining his position in regard to each of the contested OERs.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned as a U.S. Army Reserve (USAR) Medical Corps Major on 4 April 2003 with a date of rank of 3 April 2003.

2.  On 16 September 2004, the applicant accepted a Regular Army appointment and he was ordered to active duty the same day and assigned to a unit in Vicenza, Italy

3.  He deployed to Afghanistan on 5 January 2005 and on 18 November 2005, while serving as a battalion surgeon, he received a General Officer Memorandum of Reprimand (GOMOR) for conduct on diverse occasions between 1 March and 31 July 2005 of maltreating numerous subordinates by verbal abuse, use of expletives and other derogatory comments while at Forward Operating Base (FOB) Salerna, fraternizing with subordinates by using his rank and position to influence junior officers and Soldiers to loan him money that he used to pay local civilians for labor and services, and disposing of U.S. Government medical equipment without authorization by transferring an undetermined amount of equipment from the battalion aid station to a local Afghanistan medical center.  

4.  The applicant also received a relief for cause OER ending on 15 November 2005 (first contested OER) in which he received a “NO” rating in Part IV Performance Evaluation – Professionalism under “Duty.”

5.  In Part V - Performance and Potential Evaluation he received a rating of “Unsatisfactory Performance – Do Not Promote.”  His rater stated that his performance was less than satisfactory, that he did not have the skill set or level of professionalism needed in the officer corps or medical providers and that he should treat and care for patients only under the highest levels of supervision.

6.  His intermediate rater commented that his performance was unsatisfactory and the questionable execution of his duties led to his relief for cause.  He further stated that the applicant received counseling for his inappropriate comments to Soldiers, that he made unauthorized commitments of money to Afghan medical authorities and his unauthorized movement of the Battalion Aid Station and its equipment reduced the Task Force’s ability to provide medical and trauma response capabilities during combat operations.  His overall conduct and behavior were a detriment to unit morale and cohesion.  He recommended that the applicant not be promoted or selected for schooling.

7.  In Part VI – Senior Rater (SR), his SR gave him a rating of “Do Not Promote” and stated he relieved the applicant of his duties due to his unsatisfactory performance in a combat zone.  He recommended that the applicant not be promoted or retained.  He placed the applicant below center of mass on his SR profile.  

8.  The OER was referred to the applicant and there is no evidence he appealed the OER to the Officer Special Review Board (OSRB).

9.  Following an investigation under the provisions of Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers), the applicant was command-referred for a mental health evaluation on 7 February 2006 and he was diagnosed as having Bipolar II Disorder.  He was prescribed medication to treat the symptoms.

10.  On 9 March 2007, a special meeting of the Credentials Committee was conducted at Landstuhl Regional Medical Center (LRMC) in Germany under the provisions of Army Regulation 40-68 to review allegations of misconduct by the 
applicant while on a field training exercise in Germany.  The committee noted the applicant had been placed on abeyance of privileges on 23 February 2007 for unprofessional conduct.  It also noted he had previously been placed on supervised privileges for 90 days and based on his compliance with his medication and no further disruptions, he was returned to full privileges in August 2006.  The committee unanimously recommended that the following actions be taken:

a. Place the applicant on enhanced supervision for 6 months.

b. Initiate a Military Occupational Specialty (MOS) Medical Review Board (MMRB/Physical Evaluation Board (PEB) as soon as possible.  If results are not returned by the end of the enhanced supervision period of
6 months, extend the enhanced supervision for an additional 6 months or until MEB results are known.

c. Refer to LRMC Healthcare Providers Committee (HCPC) with monthly reports being submitted by applicant's supervisor and provider.

d. Enhanced supervision to be conducted by the Vicenza Clinic commander and his successor.

e. Reinstatement from abeyance.

11.  On 3 August 2007, he received another GOMOR for using indecent language and conduct unbecoming an officer and gentleman by soliciting homemade pornography from a junior enlisted Soldier on two occasions and offering a profile or pills for payment.  His conduct occurred while on a field training exercise in Germany.

12.  On 23 June 2008, while stationed at Fort Campbell, Kentucky, the applicant received a change of rater OER ending on 31 March 2008.  In Part IV Performance Evaluation – Professionalism, he received “No” ratings under “Integrity,” “Mental and Emotional” attributes, and “Developing.”  He also failed his Army Physical Fitness Test (APFT).

13.  In Part V – Performance and Potential Evaluation he received a rating of “Unsatisfactory Performance Do Not Promote.”  His rater commented that the applicant gave a solid performance and while being a competent physician, his leadership skills and officer qualities are lacking.  Additionally, he lacks moral judgment and has significant character issues which preclude him from recommending the applicant for promotion.

14.  In Part VII – SR, his SR gave him a “Fully Qualified” rating and stated that while he is a competent physician, he lacks military leadership  and good judgment.  He had multiple counseling’s, both verbal and written, on expectations of behavior for Army officers and the consequences of failing to do so.  He demonstrated difficulty meeting those expectations but did show improvement.  He placed the applicant below center of mass on his SR profile. 
The OER was referred to the applicant and there is no evidence that he appealed the OER to the OSRB.

15.  On 1 October 2008, while assigned to Fort Campbell, KY, the installation commander gave the applicant a Memorandum of Administrative Reprimand wherein he reprimanded the applicant for failing to meet the standards of medical professionalism expected of U.S. Army officers and for conduct unbecoming an officer and gentleman.  He further indicated that as a result of his actions while performing duties as a physician, four Soldiers had complained to their chain of command regarding his unprofessional conduct and inappropriate interactions with them.  The applicant was serving as the medical director of the Warrior Care Clinic at the time and was responsible for processing Soldiers through the Physical Disability Evaluation System (PDES).

16.  On 6 November 2008, the applicant was notified of initiation of elimination proceedings under the provisions of Army Regulation 600-8-24 (Officer Transfer and Discharges), paragraph 4-2b(8) by reason of misconduct, moral or professional dereliction.

17.  After consulting with defense counsel, the applicant submitted a request for unqualified resignation in lieu of elimination under the provisions of Army Regulation 600-8-24, chapter 4.

18.  On 17 December 2008, the Department of the Army Ad Hoc Review Board recommended the applicant's resignation be accepted and he be furnished a general discharge.

19.  On 6 February 2009, the applicant received a relief from active duty (REFRAD) OER ending on 6 February 2009.  In Part IV – Performance Evaluation – Professionalism, he received all “Yes” ratings.

20.  In Part V – Performance and Potential Evaluation he received a “Satisfactory Performance – Promote” rating.  His rater commented that the applicant’s performance was outstanding but he did not take the initiative to take his APFT.

21.  In Part VII – SR, his SR gave him a “Do Not Promote” rating and placed him below center of mass in his SR profile.  He commented that the applicant was a competent physician who did valuable service for the Warrior Transition Battalion; however, he had difficulties in adapting to the standards of behavior expected of an officer.  In spite of counseling, on several occasions his pattern of unprofessional language and poor judgment resulted in complaints, some substantiated, others not, that unfortunately formed the perception of impropriety.  He did not show the initiative to take an APFT, let alone demonstrate the desire to improve upon his last failed APFT.  The OER was referred to the applicant and there is no evidence that he appealed the OER to the OSRB.

22.  On 20 February 2009, the applicant was discharged under honorable conditions under the provisions of Army Regulation 600-8-24, paragraph 4-2b, due to unacceptable conduct.  He had served 4 years, 5 months, and 5 days of active service this period and had 6 months and 22 days of prior active service.

23.  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.

24.  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 and contentions made by the applicant are not supported by sufficiently convincing evidence to show that they are valid.   

2.  The applicant has provided no third-party statements or statements from persons who were in a position to observe his performance that support his allegations that his ratings in the three contested reports were unjust.

3.  While there is no disputing that the applicant was diagnosed with a mental disorder, the applicant has failed to provide sufficient evidence to show that the mental illness was the resultant cause of the unacceptable conduct that led to his discharge.

4.  Accordingly, the contested reports appear to represent a fair, objective, and valid appraisal of his performance and potential during the periods 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)                                         AR20120021373





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