BOARD DATE: 3 May 2018 DOCKET NUMBER: AR20160008048 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 BOARD DATE: 3 May 2018 DOCKET NUMBER: AR20160008048 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. BOARD DATE: 3 May 2018 DOCKET NUMBER: AR20160008048 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 removal of a General Officer Memorandum of Reprimand (GOMOR), dated 9 March 2014, from her Official Military Personnel File (OMPF). 2. The applicant states, in effect, an Administrative Separation Board (ASB), having carefully considered the evidence, found that she did not wrongfully use the Army Reserve Recruiter Assistant Program Account from on or about 16 March 2009 through 19 January 2010 to obtain personally identifiable information of an individual unknown to her as a new recruit of the United States Army Reserve (USAR) to wrongfully receive a $2,000 bonus. Additionally, on 13 September 2013, she did not make a false official statement to a special agency of the U.S. Army Criminal Investigation Command (CID). 3. The applicant provides: * GOMOR, dated 9 March 2014 * GOMOR Acknowledgement, dated 1 April 2014 * Administrative Elimination Board Findings and Recommendation, dated 27 March 2015 * Office of the Chief of Legislative Liaison letter, dated 7 May 2015 * Qualitative Management Program (QMP) Selection Board notification memorandum, dated 18 November 2015 CONSIDERATION OF EVIDENCE: 1. With prior enlisted service in the USAR, the applicant enlisted in the USAR for 8 years on 8 September 2000, in pay grade E-1. She was promoted through the ranks to staff sergeant (E-6) and at the time of her application she was a member of the USAR. 2. On 9 March 2014, the applicant received a GOMOR for engaging in fraud and against the United States Government by making a false official statement and committing larceny. The Commanding General (CG) stated that she wrongfully used her Army Reserve-Recruiter Assistant Program (AR-RAP) account by obtaining personal identifiable information (PII) of an individual, unknown to her, and nominating said individual as a new recruit into the USAR. This action resulted in her wrongful receipt of a $2,000 bonus. In addition, on 13 September 2013, when questioned by a special agent of the United States Army CID, she knowingly made a false official statement with the intent to deceive by denying entering anyone's name into her own AR-RAP account and receiving a $2,000 bonus payment. 3. In the GOMOR the CG stated: a. the applicant had a duty to act responsibly in every situation, to do what is right, to follow orders, and to set a positive example for subordinates; b. she had completely failed the above responsibilities and discredited herself and the United States Army; c. he seriously questioned her judgment and potential for further military service and her actions had embarrassed and disappointed her chain of command; d. this administrative reprimand was imposed under the provisions of Army Regulation 600-37 (Unfavorable Information), and not as punishment under the Uniform Code of Military Justice; and e. he was considering whether to direct that the reprimand be filed permanently in her OMPF, and prior to making his filing decision, he would consider any matters she presented. 4. The applicant acknowledged receipt of the GOMOR on 1 April 2014 and elected to submit matters in her own behalf (the available records do not contain the rebuttal that she submitted in her own behalf, dated 11 April 2014). After careful consideration of the applicant's rebuttal, the CG directed that the GOMOR be filed in the performance section of her OMPF. 5. On 17 September 2014, the applicant was notified that she had been recommended for promotion to sergeant first class (SFC) by the Fiscal Year (FY) 2014 USAR Active Guard Reserve (AGR) SFC Board which convened on 4 February 2014. She was told: a. The Army Human Resources Command (HRC) regularly screens the promotion standing list to see if anyone thereon has become physically, mentally, morally, or professionally unqualified for promotion. b. Records indicated that on 1 April 2014 she received a GOMOR directed to be permanently filed in her OMPF. c. Her records were being referred to a Headquarters, Department of the Army, Standby Advisory Board (STAB) and the STAB would make a recommendation to the Director of Military Personnel Management (DMPM) as to whether she should be retained or removed from the FY 2014 AGR SFC promotion standing list. d. She would remain in a non-promotable/flagged status until a final decision was rendered by the DMPM, and she had until 17 October 2014 to submit a rebuttal in her own behalf. 6. The available records do not contain a rebuttal to the 17 September 2014 notification/recommendation regarding promotion to SFC. 7. The applicant's record contains a DA Form 2166-8 (NCO Evaluation Report (NCOER)) for the period 3 June 2013 through 2 June 2014, in which she was rated "Among the Best" in the block pertaining to her overall potential for promotion and/or service in positions of greater responsibility by her rater. She was rated "Successful" in the block pertaining to her overall performance and "Superior" in the block pertaining to her overall potential for promotion and/or service in positions of greater responsibility by her senior rater. 8. The reviewer of the DA Form 2166-8 non-concurred with the rater and the senior rater evaluation. In a Non-Concurrence Memorandum for the NCOER, dated 24 November 2014, the reviewer stated: a. The evidence revealed the applicant made a false official statement to a CID agent when questioned during an investigation interview during the rating period. b. Her security clearance was suspended during the rating period due to an investigation she was involved in. She was not able to complete many of her assigned duties as a Human Resource NCO since the suspension in September 2013. c. Due to her inability to complete her assigned duties and the misconduct of making a false statement, he believed her performance in the Responsibility and Accountability section of her NCOER should be marked “Needs Improvement (Some)” and her potential for promotion should be marked "Fully Capable." In addition, her Senior Rater performance and potential should be marked "4 – Fair." 9. On 16 December 2014, the applicant was notified that she was considered by a STAB for removal of her name from the FY14 AGR SFC Selection Board List. She was told the board members recommended and the DMPM approved removal of her name from the list. 10. On 7 May 2015, the Office of the Chief of Legislative Liaison responded to an inquiry on behalf of the applicant from a U.S. Representative concerning her allegations of unfair treatment and illegal proceedings involving her recent ASB. The applicant’s Congressional Represent was told the applicant's case was presented before a Board of Officers, and after consideration of the evidence, the board found that she did not commit any misconduct and recommended the applicant’s retention in the Army Reserve with a rehabilitative transfer to another unit as directed by the Deputy Chief of Staff for Personnel, G-1. 11. The applicant provides the verbatim findings and recommendations of the ASB. The ASB concluded: a. By a preponderance of evidence she did not, from on or about 18 March 2009 through 19 January 2010, wrongfully use her AR-RAP account by obtaining PII of an individual unknown to her as a new recruit into the USAR resulting in her wrongful receipt of a $2,000 bonus. b. The above finding does not warrant her separation from the U.S. Army. c. She did not, on 13 September 2013, make a false official statement to a Special Agent of the U.S. Army CID. d. The above finding does not warrant her separation from the U.S. Army. 12. The ASB recommended that she be retained in the Army and that she receive a rehabilitative transfer to another unit. 13. On 5 November 2015, the Department of the Army Suitability Evaluation Board (DASEB) denied the applicant's request for removal of the GOMOR from her OMPF or transfer of the GOMOR to the restricted section of her OMPF. The DASEB stated that without evidence of a compelling nature to show intent served, it would be premature to transfer the GOMOR at that time. 14. On 18 November 2015, the applicant was notified the QMP Selection Board conducted a comprehensive review of her record for potential denial of continued service under the QMP and recommended that she be retained. She was told: a. As a result of findings of the QMP Selection Board she could remain on active duty until the established retention control point for her grade, unless separated earlier under appropriate regulation or statute. b. She would not be subject to a future QMP board unless new derogatory information was posted in her OMPF. c. In the event that new derogatory information was posted in her OMPF resulting in the initiation of another QMP process, her records, in their entirety, may be subject to further review by another QMP board at that time. 15. The available records show the applicant is currently on active duty in an AGR status. REFERENCES: 1. Army Regulation 600-37 sets forth policy and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, and ensure that the best interest of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. a. Once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. b. Unfavorable documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer (i.e., to the restricted portion of the OMPF) would be in the best interest of the Army. The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met. Documents can be removed upon a showing of clear and convincing evidence that the document is untrue or unjust in whole or in part. 2. Army Regulation 600-8-104 (Army Military Human Resource Records Management) provides the following: a. All personnel information recorded under the authority of this regulation is the property of the United States Government. Once recorded, it will not be removed except as provided by law or this regulation. b. Once placed in the OMPF the document becomes a permanent part of that file. The document will not be removed from a section or moved to another part of the OMPF unless directed by one or more of the following: * Army Board for Correction of Military Records * DASEB * Chief, Appeals and Corrections Branch, HRC * Army Military Human Resource Record custodian when documents have been improperly filed * Commander, HRC * Chief, Appeals Branch, National Guard Personnel Center DISCUSSION: 1. The GOMOR imposing authority found the applicant wrongfully used her AR-RAP account and made a false official statement to a CID agent and, after reviewing matters in rebuttal, directed filing of the GOMOR in the performance section of her OMPF. 2. An ASB later found that the allegations were not supported by a preponderance of the evidence. The language used in the ASB decision should not be read as a finding that the applicant had not committed the alleged acts of misconduct. The function of the ASB is to make recommendation on whether a Soldier should be retained (with or without reassignment) or eliminated. In the applicant’s case, the ASB recommended her retention with rehabilitative transfer to another unit. 2. In accordance with applicable regulations, once an official document has been properly filed in the OMPF it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. The burden of proof for removing a GOMOR from the OMPF is established by Army Regulation 600-37 as "clear and convincing evidence" that the GOMOR is untrue and/or unjust. 3. A GOMOR may be transferred to the restricted portion of the OMPF on the basis of proof that its intended purpose has been served and that transfer would be in the best interest of the Army. The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160008048 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160008048 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2