IN THE CASE OF: BOARD DATE: 31 October 2017 DOCKET NUMBER: AR20160003499 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ____x___ ____x ___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 31 October 2017 DOCKET NUMBER: AR20160003499 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 to amend the decision of the ABCMR set forth in Docket Number AR20150014471, dated 27 October 2015. _____________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. IN THE CASE OF: BOARD DATE: 31 October 2017 DOCKET NUMBER: AR20160003499 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 reconsideration of her earlier request for: a.  transfer of her DA Form 67-9 (Officer Evaluation Report (OER)) (hereafter identified as the contested OER) for the period 18 January 2011 through 31 July 2011 to the restricted folder of her Official Military Personnel File (OMPF); or b.  removal of the contested OER from her OMPF in its entirety; and c.  removal of any Army Board for Correction of Military Records (ABCMR) mention of her GOMOR from her OMPF. 2. The applicant states: a.  The ABCMR stated the Board could not act on her petition and instead placed a record of the Board decision in her OMPF that mentions the general officer memorandum of reprimand (GOMOR) now filed in her restricted folder. b.  She served as the Chief of the Human Resources Action Branch at the U.S. Army Medical Command (MEDCOM), Fort Sam Houston, TX, from January 2010 through 31 July 2011. During her tenure as Chief, she pursued a side venture selling jewelry. Due to her friendly relationship with colleagues and subordinates, the offer to purchase jewelry was extended to her co-workers at some point. c.  She paid the initial start-up fee of $400.00 for Staff Sergeant (SSG) J____ G____ who worked directly for her. SSG J____ G____ and she worked closely together and were friends. SSG J____ G____ showed an interest in selling the jewelry as well in order to ease some financial strain she was experiencing. Initially, the $400.00 was meant to be a gift; however, SSG J____ G____ did not pursue the business as she originally committed to doing. d.  She requested reimbursement of at least half of the start-up costs and she requested repayment of monies on three occasions. e.  SSG J____ G____ was a mobilized Reservist and the decision to release her from active duty was made at the brigade level in June 2011. SSG J____ G____ filed an Inspector General complaint alleging that she was in a hostile work environment based on her false belief that her release from active duty was retaliatory in nature for failing to repay the funds for the jewelry business and, as a result, an investigating officer as appointed to look into the situation. f.  The investigating officer interviewed colleagues as well as subordinates. While evidence was supportive of the improper business relationship between SSG J____ G____ and her, there was no evidence to support SSG J____ G____'s claim that she created a hostile work environment. Evidence was gathered in the opposite direction to support her fairness, flexibility, and desire for teamwork. g.  SSG J____ G____'s character was brought into question and it was recommended that she receive counseling regarding her behavior and outbursts observed by colleagues. h.  She received a GOMOR as a result of the investigation for violating the Joint Ethics Regulation and Army fraternization policy by participating in a business relationship with an SSG, using U.S. Government computers to print business flyers, and using her Government email account to further her business interests. She was deeply saddened by this action, as she intended no harm toward her subordinates and she was unaware that her jewelry business was prohibited, as it was conducted during her personal time. i.  After the reprimand, the entire MEDCOM community was educated on the policies, as the investigating officer recommended that education be provided at all levels. j.  She appealed the GOMOR to the Department of the Army Suitability Evaluation Board (DASEB) on 15 May 2013. On 17 October 2013, the DASEB unanimously partially denied her appeal and transferred the GOMOR to the restricted folder of her OMPF. The DASEB found the intent of the GOMOR had been served and it was in the best interest of the Army to transfer the GOMOR to her restricted folder. k.  The DASEB noted she was rated as "Best Qualified" in the contested OER. While the contested OER was a referred OER, the report itself was a glowing recommendation of her performance and potential for future assignments. Her rater awarded her the highest box check, describing her as having "unlimited potential." Her senior rater recommended her selection for promotion to lieutenant colonel (LTC) at the earliest opportunity. He also made small mention of her "momentary lapse in judgement" and instead focused on her job performance and potential. l.  It has been almost 4 years since the contested OER was placed in her OMPF. It has clearly served its purpose and she has learned from her mistake. She has since been selected to participate in a Human Resources Management Internship at the Army Medical Department Personnel Proponent Directorate and, while there, her rater described her as a "compassionate and intelligent officer." He also found that she had "much potential for future contributions to the Army Medical Department…and should be selected for advanced military education and assigned to positions of increasing responsibility that will continue to capitalize on her acquired skills and her innate ability to forge collaborative teams and partnerships." m.  She received the highest ratings, with performance described as "spectacular" and "unlimited" potential by her rater in her next OER for the period 31 July 2011 through 13 June 2013. Her senior rater rated her as "Best Qualified" and ranked her in the top 5 percent of all officers he rated in over 28 years. He also recommended her promotion to LTC and selection in the prestigious Arroyo Fellowship. n.  She was deployed to Bagram Airfield, Afghanistan, in support of Operation Enduring Freedom XIV. She served as the Division Medical Operations Officer for Regional Command-East and Combined Joint Task Force-101 while deployed. Her OER during this time was outstanding and her rater described her performance as "superb," she was rated in the top 5 percent of all Medical Service Corps officers with whom he had served, and he said her potential was limitless and that she was a must-select for promotion to LTC. Her senior rater served as the Chief of Staff for Combined Joint Task Force-101 and he wrote that she was one of the best Medical Service Corps officers in the division, among the top 5 percent of all medical officers he had observed, and he recommended selection for promotion to LTC below the zone while assigning her to demanding positions in preparation for battalion command. She received an "Above Center Mass" rating from her senior rater. o.  After her deployment, she returned to Fort Sam Houston as the Chief of the Center for Professional Education and Training. She received an OER after 7 months due to a change of rater. Her rater gave her the highest rating and stated she was in the top 5 percent of the rated officers. Her senior rater gave her the highest rating of "Most Qualified" and described her as an exceptional officer who ranks in the top 5 percent of the 100 outstanding majors in the command. She was recommended for immediate promotion to LTC, selection for battalion command, and senior service college attendance. p.  She is currently serving at the Walter Reed National Military Medical Center and her supervisor wrote a letter to the ABCMR on her behalf in which he described her performance as superior and stated she exceeded his highest expectations. He was fully aware of the circumstances surrounding her contested OER and wholeheartedly recommends its removal. He also stated that she has limitless potential and the contested OER in question is not indicative of the type officer she truly is. q.  Her latest OER was for an 11-month period due to a change of rater. Her rater cited she was an outstanding officer and ranked her in the top 5 percent of all officers he served with in his 32 years of service. He also gave her the highest rating of "Excels." Her senior rater ranked her in the top 10 percent of 19 officers and stated she is a stellar and effective leader who is a must-select for promotion to LTC. He rated her as "Most Qualified." r.  She has already received her first non-selection for promotion to LTC. She has learned from her mistakes and she continues to serve the Army to the best of her abilities. s.  Also concerning to her is the fact that ABCMR mentioned the GOMOR that has since been moved to her restricted folder. This mention of the GOMOR in her official records makes all of her efforts to have it transferred to the restricted folder pointless. The first thing seen in her OMPF is the denial from the ABCMR mentioning her GOMOR. This is incredibly damaging to any chance she may have at promotion and advancement in her career. 3. The applicant provides a self-authored brief with nine enclosures. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: Counsel provides no additional statement or evidence. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20150014471 on 27 October 2015. 2. The applicant provided new arguments not previously considered that warrant consideration at this time. 3. Having served in the U.S. Army Reserve Control Group (Reserve Officers' Training Corps) as a cadet, she was appointed as a Reserve commissioned officer in the Medical Service Corps in the rank of second lieutenant on 9 May 1998. 4. Her records show an investigating officer was appointed on 6 June 2011 to investigate whether: a.  the applicant engaged in an improper senior-subordinate relationship and/or fraternized with a subordinate in terms of military equality by conducting an ongoing business relationship with an enlisted member; improperly used Government resources (communication systems and personnel assets) in violation of Department of Defense (DOD) Directive 5500.7 (5500.7-R) (Joint Ethics Regulation); and engaged in possible maltreatment of a subordinate; and b.  whether there had been any episodes of violent or potentially violent conduct in the applicant's section in violation of MEDCOM policy. 5. On 20 July 2011, the investigating officer reported the results of the investigation as follows: a.  The applicant did engage in improper senior-subordinate relationships while aggressively pursuing her jewelry business during duty hours and by soliciting subordinate employees, junior officers, and senior noncommissioned officers to purchase or sell jewelry. A number of individuals were approached by her to purchase jewelry for family members and friends. DOD personnel were familiar with her jewelry business and were invited to jewelry events after hours. She profited from her sales and the sales of others engaged in this activity. DOD personnel working under her direct supervision were aware of or involved with selling or purchasing jewelry during the duty day. Off-duty employment without appropriate authorization is a violation of MEDCOM Regulation 600-3 (Off-Duty Employment Policy). She signed an Off-Duty Employment Policy Statement. b.  The applicant admitted to engaging in an ongoing business relationship with SSG J____ G____. SSG J____ G____ disputed her voluntary participation, but comments from others call SSG J____ G____'s credibility into question. There was evidence that supports the applicant's extending an invitation to attend a jewelry activity out of town to subordinate personnel, either working under her direct supervision or junior in rank. This ongoing business relationship is a direct violation of Army Regulation 600-20 (Army Command Policy), chapter 4, paragraph 4-14, and Article 92, failure to obey general order or regulation. In addition, this situation adversely affected the office environment by creating a real or perceived unfairness and impropriety regarding the hiring of Ms. M____ F____ (fellow jeweler) and the placement of SSG J____ G____ as the acting noncommissioned officer in charge of the Actions Branch. c.  The applicant admitted to paying more than $400.00 in fees for SSG J____ G____ to engage in the jewelry business. She initially stated the money was a gift. However, she further stated SSG J____ G____ did not fulfill her obligation/commitment to sell jewelry. She requested that SSG J____ G____ repay $213.00 of the money. She requested the money on multiple occasions. SSG J____ G____ asserts that she never agreed to pay the applicant and she did not consider the $400.00 a gift or loan. SSG J____ G____ considered the applicant's request for payment an improper use of rank, exploitation, and coercion. The applicant's actions in this regard further compromised her integrity, her authority, and demonstrated an improper use of rank by asking a subordinate for money on multiple occasions. This action contributed to the rift in their relationship and an uncomfortable work environment for SSG J____ G____ and others in the office. d.  The applicant, SSG J____ G____, and Ms. M____ F____ appear to have misused Government resources, specifically in violation of the Joint Ethics Regulation, paragraph 2-301. A number of personnel commented on numerous flyers reproduced by one of the applicant's subordinates in the Actions Branch. Ms. M____ F____ admitted to making flyers. The applicant, as the Actions Branch Chief, failed to advise Ms. M____ F____ of the inappropriateness of her actions. The applicant sent out a number of email messages promoting her business, soliciting funds for her daughters, and asking SSG J____ G____ to pay her money. In another instance, the applicant lost her Government laptop computer. The laptop was in a case with her jewelry inventory. She delayed telling her superior officer and failed to complete the appropriate forms and documentation for a report of survey. She led the investigating officer to believe Mr. H____ had delayed completing the appropriate paperwork when, in fact, she had not provided him the proper documentation of a police report in a timely manner. e.  It did not appear that there was evidence to substantiate maltreatment of any subordinates. Her staff emphasized her fairness, flexibility, and desire for teamwork. Many also emphasized her commitment to assisting in the career progression and success of SSG J____ G____. f.  There was one notable episode of potentially violent conduct that originated in the applicant's section. There was an altercation between SSG J____ G____ and Ms. L____ W____. It started in the office during the duty day and moved to an area outside of the MEDCOM Headquarters building. After some time, the commander came outside to break up the profanity-laced, heated conversation between the two women. Several individuals commented on the unprofessionalism of SSG J____ G____ while in uniform. g. SSG J____ G____'s initial witness statement noted the applicant directly impacted her ability to extend an additional year on active duty. Several individuals were asked how the mobilization processed worked and none of the individuals involved in the process observed any sort of improper action by the applicant. It was explained that SSG J____ G____ was placed in a vacant position from the Strength Management Branch. As a result of the personnel shortage in the Actions Branch, she was placed in that branch to assist with the personnel shortage. Sergeant Major W____ confirmed SSG J____ G____ was told the period of mobilization would be for 1 year and when SSG J____ G____ initially inquired about extending, she was not yet in the required 90-day window. There was also additional discussion regarding whether she had the appropriate skills to work in the Actions Branch before her placement. The evidence did not support retaliation towards SSG J____ G____ by the applicant. 6. The investigating officer recommended the following actions: a.  additional training for the applicant on ethics and the Army's Inappropriate Senior-Subordinate Relationship Policy; b.  at the very least, administrative action against the applicant in the form of a written reprimand from a general officer to address her unprofessionalism and inappropriate conduct as a field-grade officer; c.  administrative action against SSG J____ G____ in the form of a written admonishment or counseling to address her unprofessional behavior as a noncommissioned officer; and d.  increased emphasis on training for the unit on standards of conduct and the Army's Inappropriate Senior-Subordinate Relationship Policy. 7. On 12 August 2011, the applicant received a GOMOR from the Commanding General, U.S. Army Medical Department Center and School, for violating numerous provisions of the Joint Ethics Regulation and the Army fraternization policy under the provisions of Army Regulation 600-20, paragraph 4-14c(1). a.  Specifically, she: * repeatedly attempted to sell jewelry to enlisted Soldiers, noncommissioned officers, and junior officers in the workplace * used Government computers to print business flyers and used her military email account to further her business interests * solicited an SSG to work under her for the same multi-level marketing company * repeatedly demanded $213.00 from the SSG, whom she senior rated, for reimbursement of costs expended in establishing her as a subordinate member of her multi-level marketing "downline" and would have resulted in profits for her as the SSG's sponsor had jewelry been sold b.  The GOMOR was an administrative reprimand imposed under the provisions of Army Regulation 600-37 (Unfavorable Information) and not as punishment under the provisions of Article 15, Uniform Code of Military Justice. 8. On 17 August 2011, she acknowledged receipt of the GOMOR and her rights. She indicated she would be submitting statements in her own behalf. 9. On 22 August 2011, she submitted written matters in her own behalf and took full responsibility for her misconduct. She also requested filing the GOMOR in her local file. 10. On 26 August 2011, the Commanding General, U.S. Army Medical Department Center and School, directed permanent filing the GOMOR in her OMPF. 11. On 28 August 2011, she acknowledged receipt of the contested OER covering the period 18 January 2011 through 31 July 2011. The contested OER shows, in part: a.  Her rater rated her as "Outstanding Performance, Must Promote," and included the comment, "An investigation substantiated that [Applicant] engaged in an improper, senior/subordinate business relationship which resulted in administrative action." b.  Her senior rater rated her as "Best Qualified," and "Center of Mass" and included the comment, "Despite her momentary lapse in judgement, [Applicant] can serve at the next level. Select her at the earliest opportunity for LTC and send to SSC [Senior Service College]." 12. On 11 October 2011, she submitted comments in her own behalf for the contested OER and she took full responsibility for her misconduct. 13. On 15 May 2013, counsel for the applicant appealed to the DASEB for removal or transfer of the GOMOR to her restricted folder on the grounds that the GOMOR had served its purpose. 14. On 17 October 2013, the DASEB unanimously denied removal of the GOMOR from her OMPF but granted the request to transfer the GOMOR to her restricted folder. The DASEB found the intent of the GOMOR had been served and it was in the best interest of the Army to transfer the GOMOR to her restricted folder. 15. On 27 October 2015, the ABCMR denied counsel's request to remove or transfer the contested OER to the restricted folder of her OMPF. 16. A review of the applicant's OMPF shows she has received favorable OERs since the contested OER. 17. A review of her OMPF via U.S. Army Human Resources Command Integrated Web Services shows the ABCMR Decision and Record of Proceedings. However, a review of her OMPF via the U.S. Army Human Resources Command interactive Personnel Electronic Records Management System shows the ABCMR Decision and Record of Proceedings is filed in the restricted folder. REFERENCES: 1. Army Regulation 600-20 (Army Command Policy) prescribes the policy and responsibilities of command which include the wellbeing of the force, military discipline and conduct, the Army Equal Opportunity Program, and the Army Sexual Assault Victim Program. Paragraph 4-14b states relationships between Soldiers of different rank are prohibited if they compromise, or appear to compromise, the integrity of supervisory authority or the chain of command; cause actual or perceived partiality or unfairness; involve, or appear to involve, the improper use of rank or position for personal gain; are, or are perceived to be, exploitative or coercive in nature; or create an actual or clearly predictable adverse impact on discipline, authority, morale, or the ability of the command to accomplish its mission. 2. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the Army Military Human Resource Record, including the OMPF. a. Table B-1 states ABCMR decision and record of proceedings are filed in the restricted folder unless otherwise directed by the ABCMR. b. Paragraph 2-11 provides that, although not a routine procedure, the restricted folder may be released at the Department of the Army level for the purposes of career management and retention decisions. This includes, but is not limited to, Department of the Army level boards. 3. DOD Directive 5500.7-R provides a single source of standards of ethical conduct and ethics guidance, including direction in the areas of financial and employment disclosure systems, enforcement, and training. a.  Paragraph 2-205 (Limitation on Solicited Sales) states a DOD employee shall not knowingly solicit or make solicited sales to DOD personnel who are junior in rank, grade, or position, or to the family members of such personnel, on or off duty. In the absence of coercion or intimidation, this does not prohibit the sale or lease of a DOD employee's non-commercial personal or real property or commercial sales solicited and made in a retail establishment during off-duty employment. The posting of an advertisement in accordance with Federal Government building management policies does not constitute solicitation for purposes of this section. b.  Paragraph 2-301 (Use of Federal Government Resources) states Federal Government communication systems and equipment (including Government-owned telephones, facsimile machines, electronic mail, Internet systems, and commercial systems when use is paid for by the Federal Government) shall be for official use and authorized purposes only. 4. MEDCOM Regulation 600-3 provides procedures and responsibilities pertaining to off duty commitments by all active duty personnel and DOD civilian employee healthcare practitioners assigned or attached to the MEDCOM and subordinates activities. a.  The term "commitments" includes all off-duty employment or self-employment of any nature, as well as uncompensated volunteer activities involving the delivery of healthcare or related services. b.  The term "self-employment" includes the sale of insurance, stocks, mutual funds, cosmetics, household supplies, vitamins, and other consumer goods and services, whether commercially manufactured or handcrafted. c.  Off-duty employment will not involve expense to the Federal Government nor the use of military medical equipment or supplies. 5. U.S. Army Medical Department Center and School and Fort Sam Houston Pamphlet 385-1 (Violence in the Workplace) prescribes policy in the workplace and sets forth warning signs of potentially violent behavior and establishes procedures for responding to threats and acts of violence. It states any form of threatening remarks or gestures in the workplace is unacceptable. All incidents of violence will be thoroughly addressed and appropriate action will be taken. 6. Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System. a.  Paragraph 4-7 states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation. An appeal will be supported by substantiated evidence. An appeal that alleges an evaluation report is incorrect, inaccurate, or unjust without usable supporting evidence will not be considered. The determination regarding adequacy of evidence may be made by Headquarters, Department of the Army (HQDA), Evaluation Appeals Branch. Appeals based on administrative error only will be adjudicated by HQDA Evaluation Appeals Branch. Alleged bias, prejudice, inaccurate or unjust ratings, or any matter other than administrative error are substantive in nature and will be adjudicated by the Army Special Review Board. These are generally claims of an inaccurate or an unjust evaluation of performance or potential or claims of bias on the part of the rating officials. b.  Paragraph 4-8 states substantive appeals will be submitted within 3 years of an evaluation report "THRU" date. Failure to submit an appeal within this time would require the appellant to submit his or her appeal to the ABCMR. The Army Special Review Board will not accept appeals over 3 years old or appeals from Soldiers who are no longer serving on active duty or as part of the U.S. Army Reserve or Army National Guard. c.  Paragraph 4-11 states to justify deletion or amendment of a report, the applicant must produce evidence that established clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action was 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. The burden of proof rested with the applicant. 7. Department of the Army Pamphlet 623-3 (Evaluation Reporting System) provides procedural guidance for completing and submitting evaluation reports and associated support forms to HQDA that are the basis for the Army's Evaluation Reporting System. DISCUSSION: 1. The applicant was issued a GOMOR for violating numerous provisions of the Joint Ethics Regulation and use of Government equipment for personal gain. 2. Her contested OER contained comments based on her actions leading to receipt of the GOMOR. The contested OER provided a fair, objective, and valid appraisal of her performance during the period in question. There is no evidence indicating the existence of a material error, inaccuracy, or injustice, or that her rater and senior rater did not comply with the regulatory requirements for evaluating her in a fair and unbiased manner. 3. She contends the previous ABCMR decision that mentioned the GOMOR which is filed in her restricted folder is immediately displayed when her records are opened. However, a review of her OMPF through the interactive Personnel Records Management System shows both her GOMOR and the previous ABCMR Decision and Record of Proceedings are properly filed in her restricted folder. 4. The OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods and any corrections to other parts of the OMPF. Once placed in the OMPF, the document becomes a permanent part of that file and will not be removed from or moved to another part of the OMPF unless directed by an appropriate authority. 5. The applicant has continued to serve honorably and without incident. Nevertheless, the Army has an interest in maintaining the integrity of its records. The information in those records should reflect the conditions and circumstances that existed at the time the records were created. There is a reluctance to remove adverse information from an OMPF when it was not erroneously filed. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003499 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003499 13 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2