IN THE CASE OF: BOARD DATE: 31 May 2018 DOCKET NUMBER: AR20170004672 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 May 2018 DOCKET NUMBER: AR20170004672 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: * removal of the General Officer Memorandum of Reprimand (GOMOR), dated 15 December 2009 from the performance section of her official military personnel file (OMPF) * reconsideration for promotion to major (MAJ) by a special selection board (SSB) under the Fiscal Year 2016 (FY16) Army Promotion List (APL) Promotion Selection Boar * evaluation of the evidence provided to re-award her the Pathfinder Badge, which the Board already made a permanent part of her DD Form 214 (Certificate of Release or Discharge from Active Duty) insofar as the Board stated it will not be deleted, and which is still a part of her permanent record 2. The applicant states: a. A Judge Advocate General (JAG) review, a summary by the Army Board for Correction of Military Records (ABCMR), and a summary by the Chief, Human Resources Operations and Support Division at the U.S. Army Materiel Command (AMC) are enclosed and support the requested action. All other required documents as requested by the Department of the Army Suitability Evaluation Board (DASEB) concerning appeals and removal of unfavorable information, are enclosed. (Note: The applicant has not applied to the DASEB.) b. She also requests, upon approval of removal of such reprimand, reconsideration of promotion under the criteria and instructions for the FY16, MAJ, APL Promotion Selection Board. She understands that Department of Defense Instruction (DODI) 1320.11 (Special Selection Boards), part 4.2, states, "A Special Selection Board shall not, under section 628(b) or 14502(b), consider any person who may, by maintaining reasonably careful records, have discovered and taken steps to correct that error or omission in which the original board based its decision against promotion." c. She further understands that she was afforded the opportunity to submit documents to her OMPF and to "My Board File," and to send correspondence to the president of the board regarding possible administrative deficiencies in her records or to bring special attention to any matter she considered important during consideration and that failure to do so does not constitute "material unfairness" or a "material error." She has included the SSB packet as an enclosure as proof of submission to the U.S. Army Human Resources Command (HRC) on 20 December 2016 for prior consideration and to help resolve this matter. She was told to resubmit for consideration when the GOMOR was removed from her official records. d. She believes the Board should reevaluate her case based on misrepresentation of evidence by the investigating officer that led to the issuing of the GOMOR and revocation of the Pathfinder Badge. The Board should reevaluate her case to exonerate her from the claims of the GOMOR, remove the GOMOR from her OMPF, and evaluate the evidence provided to re-award the Pathfinder Badge which the Board already made a permanent part of her DD Form 214 by stating it would not be deleted. The GOMOR issuing officer has since retired, and although this wrong cannot be made whole, it is her request that this be removed from her files permanently. 3. The applicant provides: * Request for removal of GOMOR * Letter to board president * Email to HRC, dated 28 February 2016 * Records Review of GOMOR issuance and filing * Memorandum from Headquarters, AMC, Human Resources Office; Redstone Arsenal, AL, to a Judge Advocate General (JAG) Office * Memorandum from JAG Office; Captain (CPT) Je__;·Legal Review and summation of GOMOR Issuance and Filing Procedures for President of the Board * Email to HRC, dated 4 March 2016 * Email to Lieutenant General (LTG) He__ (Retired), Request for GOMOR Permanent Removal Letter from Soldier Records, dated 14 November 2016 - 7 February 2017 * Sample Letter for LTG (R) He__, Request for GOMOR Permanent Removal Letter from Soldier Records to submit to the Department of the Army Suitability Evaluation Board (DAESB) dated 8 November 2016 * Officer Evaluation Report (OER), dated 26 February 2016 * Daily email correspondence between the applicant and LTG (R) He__, subject: Request for GOMOR Permanent * Removal Letter and intentional consideration from 14 November 2016 6 February 2017 * SSB Packet to HRC, dated 20 December 2016, and emails 4. The applicant also provides: * Board of Inquiry - Findings and Recommendations * Post-Board Notification Memorandum 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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR201000016150 on 10 May 2011. 2. The applicant provides new argument and/or evidence that warrants consideration by the Board. 3. The applicant enlisted in the Regular Army on 19 November 1996. She was honorably discharged on 30 July 2004 to enter an officer training program. 4. She enlisted in the U.S. Army Reserve (USAR) as a Reserve Officers' Training Corps cadet on 2 August 2004. She was discharged from the USAR on 14 May 2006. 5. She was appointed as a Regular Army commissioned officer and executed an oath of office on 15 May 2006. She completed the Military Intelligence (MI) Basic Officer Leader Course. 6. She entered active duty on 17 May 2006. She was assigned to Headquarters and Headquarters Battery, 18th Fires Brigade (Airborne), and then Headquarters and Headquarters Company, 30th Engineer Battalion, 20th Engineer Brigade, Fort Bragg, NC. She was promoted to captain (CPT) on 1 October 2009. 7. On 2 June 2009, Headquarters, U.S. Army Infantry Center, Fort Benning, GA, published Orders 152-73 awarding the applicant the Pathfinder Badge for completion of Pathfinder training on or about 5 June 2009. 8. On 22 October 2009, the Commander, Headquarters, 20th Engineer Brigade, Fort Bragg, NC, appointed an investigating officer (IO) to conduct an Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Board of Officers) investigation surrounding allegations that the applicant: a. wrongfully wore an unauthorized Pathfinder Badge and was unaccounted for during her transition from the 18th Fires Brigade to the 20th Engineer Brigade in June/July/August 2009; and b. engaged in conduct unbecoming an officer on three separate occasions – * interaction with staff at the Corps G1, on 2 September 2009 * during an arms room inspection at the 27th Engineer Battalion, on 28 September 2009 * during a Brigade Command and Staff Meeting, on 2 October 2009 9. On 6 November 2009, Headquarters, U.S. Army Maneuver Center of Excellence, Fort Benning, GA, published Orders 310-37 revoking the applicant's award of the Pathfinder Badge. 10. On 11 November 2009, the IO made the following findings and recommendations: a. The IO found the applicant failed to achieve Pathfinder course standards by failing to pass the Drop Zone examination after three attempts. After the first failure she unsuccessfully appealed her case to the company and battalion commanders, arguing that she in fact passed the test but the proctor did not give her credit for one test question. The chain of command determined her response was illegible and allowed her to retest two additional times. She was released from the course and did not participate in graduation; however, she was allowed to restart with the next class. Having been ineffective in all of her previous appeals, she approached the Headquarters and Headquarters Company first sergeant (1SG) during in-processing, arguing again that she passed the test the first time and telling him she had an appointment with the Inspector General (IG) to file a complaint. As the 1SG had no knowledge of the previous events, he decided she deserved the benefit of the doubt because he wanted to avoid an IG complaint against the school. He instructed her section leader to write a memorandum stating she completed the course and issued her orders. The IO concluded the applicant used the threat of an IG complaint, manipulation, and deception to obtain the memorandum that issued her Pathfinder Badge orders. Subsequent orders were issued revoking the applicant's Pathfinder Badge. b. The IO found the applicant took liberties with her presence for duty after returning from Airborne School and before departing the 18th Fires Brigade. Specifically, she failed to report in accordance with her 21 July 2009 report date. She had her orders amended to reflect a new report date and did not possess a valid leave form prior to departure from her losing command. Also, she did not sign or call out on leave and used 14 duty days to clear her unit/installation. c. The IO found the applicant displayed a lack of military bearing and professionalism in dealing with the XVIII Airborne Corps Strength Management Office by presenting a hostile attitude towards her peers and civilian inspectors during the 27th Engineer Battalion arms room inspection. She displayed grandstanding behavior and an unprofessional attitude toward superior officers during the Command and Staff/Resources and Availability Meetings. d. The IO recommended that a GOMOR be placed in her permanent file, that she be given an Article 15 for Conduct Unbecoming an Officer (Article 133), and that a Show Cause Board be initiated. The IO stated the applicant regularly chose to put her own interest first, her moral character was questionable, and further actions to rehabilitate her would not be fruitful. 11. On 13 November 2009, a military attorney reviewed the AR 15-6 investigation into allegations of misconduct by the applicant. The attorney stated: * the subject investigation was legally sufficient in accordance with AR 15-6, paragraph 2-3(b) * the proceedings complied with the legal requirements of AR 15-6 * there were no material legal errors present that affect the findings and recommendations * sufficient evidence supported the IO's findings and the recommendations were consistent with the findings * prior to any adverse action, she should be given notice of the findings and recommendations and a reasonable opportunity to submit a rebuttal 12. On 15 December 2009, the applicant was reprimanded by the Commanding General (CG), XVIII Airborne Corps, for wearing an unearned Pathfinder Badge, manipulating the intra-post permanent change of station (PCS) process, and for displaying a lack of professionalism and military bearing towards superior commissioned officers between September and October 2009. The GOMOR stated: a. On 11 November 2009, an investigation pursuant to AR 15-6 determined that she failed to graduate from Pathfinder School and was not entitled to wear the Pathfinder Badge, that she selfishly manipulated the PCS process and did not take proper leave and was therefore unaccounted for during several weeks of her intra-post PCS between the 18th Fires Brigade and the 20th Engineer Brigade, that she displayed a lack of professionalism and military bearing when dealing with personnel from the Strength Management Office, and that she was disrespectful to superior commissioned officers within her Brigade on multiple occasions in September and October 2009. b. Her actions were unacceptable. Over the course of the last six months, she exhibited a disturbing lack of professionalism, maturity, and judgment. As a commissioned officer, she was charged with living up to Army values and enforcing Army standards. She failed in this regard. There was no excuse for her actions, and the imposing officer would not tolerate further misconduct of this nature. In the future, he expected her to conduct herself with the highest standards of professionalism, and any failure to do so may result in further disciplinary action. c. This reprimand was imposed as an administrative measure and not as punishment under Article 15 of the Uniform Code of Military Justice. 13. On 22 December 2009, the applicant was provided a copy of the signed GOMOR, but she declined to acknowledge receipt or take possession of the packet, stating her Trial Defense Counsel advised against it. She subsequently submitted a rebuttal in which she requested the GOMOR be filed in her restricted file and she took responsibility for her actions. She asked that the entire situation, as well as her service record, be considered before making a decision. 14. The applicant's immediate commander recommended against initiating an officer elimination board and that she be retained on active duty. Her intermediate commander, however, recommended her separation. Her senior commander recommended that the GOMOR be filed in her OMPF and a show cause board be initiated. 15. On 22 February 2010, after reviewing the applicant's rebuttal and considering all matters available and the recommendations by her chain of command, the CG directed that the GOMOR be permanently filed in the applicant's OMPF. The GOMOR is currently filed in the performance section of the applicant's OMPF. 16. On 17 March 2010, the CG, XVIII Airborne Corps, notified the applicant that she was required to show cause for retention on active duty for having committed acts of personal misconduct, conduct unbecoming an officer, and receiving a GOMOR. 17. In May 2010, the applicant petitioned the ABCMR for: * removal of the GOMOR, dated 15 December 2009 * investigation of the AR 15-6 IO for obstruction of justice * reinstatement of her Pathfinder Badge in accordance with the Pathfinder Program of Instruction/Letter of Instruction (LOI) * reinstatement of all rights that were lost due to the investigation, to include an opportunity to assume a command 18. Between 15 and 28 July 2010, by memorandum, the CG, XVIII Airborne Corps, notified the applicant that the command was notified that the Deputy Assistant Secretary of the Army (Review Boards) approved the elimination action in her case and ordered she be discharged from the service with an honorable discharge. In accordance with governing regulation, her separation would occur between 5 and 14 days of notification. 19. On 28 July 2010, she acknowledged receipt of the official written notification of the approved elimination action by the Deputy Assistant Secretary of the Army (Review Boards). She further acknowledged that she would be involuntarily separated with an Honorable Discharge Certificate. 20. On 11 August 2010, the applicant was honorably discharged under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 4-2a, due to substandard performance. Her DD Form 214 shows she completed 4 years, 2 months, and 25 days of active service during this period. It also shows the Pathfinder Badge as one of her authorized awards. 21. It appears a board of inquiry convened and considered whether the applicant should be retained or separated. After considering the evidence, the Board of Inquiry found: a. The applicant did not exhibit apathy, defective attitudes, or other characteristic disorders to include inability or unwillingness to expend effort through: (a) her manipulation of the PCS process, wherein she was unaccounted for during several weeks during an intra-post PCS; and/or (b) displaying a lack of professionalism and military bearing when dealing with personnel from the Strength Management Office; and/or (c) being disrespectful to superior commissioned officers within her Brigade on multiple occasions in September/ October 2009; and/or (d) other related acts as supported by the GOMOR dated 15 December 2009, which was/were supported by a preponderance of the evidence, and this conduct did not constitute substandard performance of duty. b. The applicant did not fail to conform to prescribed standards of dress, personal appearance, or military deportment through: (a) her manipulation of the PCS process, wherein she was unaccounted for during several weeks during an intra-post PCS; and/or (b) displaying a lack of professionalism and military bearing when dealing with personnel from the Strength Management Office; and/or (c) being disrespectful to superior commissioned officers within her Brigade on multiple occasions in September/October 2009; and/or (d) other related acts as supported by the GOMOR dated 15 December 2009, which was/were supported by a preponderance of the evidence, and this conduct did not constitute substandard performance of duty. c. The applicant did not (a) manipulate the PCS process, wherein she was unaccounted for during several weeks during an intra-post PCS; and/or (b) display a lack of professionalism and military bearing when dealing with personnel from the Strength Management Office; and/or (c) be disrespectful to superior commissioned officers within her Brigade on multiple occasions in September/October 2009; and/or (d) commit other related acts as supported by the GOMOR dated 15 December 2009, which was/were supported by a preponderance of the evidence, and this conduct did not constitute acts of personal misconduct. d. The applicant did not (a) manipulate the PCS process, wherein she was unaccounted for during several weeks during an intra-post PCS; and/or (b) display a lack of professionalism and military bearing when dealing with personnel from the Strength Management Office; and/or (c) be disrespectful to superior commissioned officers within her Brigade on multiple occasions in September/October 2009; and/or (d) commit other related acts as supported by the GOMOR dated 15 December 2009, which was/were supported by a preponderance of the evidence, and this conduct did not constitute conduct unbecoming an officer. e. The applicant did have adverse information filed in her OMPF and this derogatory information forming the basis for the adverse information, combined with other known deficiencies, did not form a pattern when reviewed in conjunction with the officer's overall record requiring elimination f. The Board of Inquiry recommended the applicant not be separated (from the U.S. Army Reserve). 22. On 3 May 2011, the Board denied her request (AR20100016150). The Board stated: a. As for the Pathfinder Badge, the evidence showed both the applicant's chain of command and the Pathfinder School conducted investigations into this matter and concluded that she failed to achieve course standards and she should not have been issued orders for this badge. The school's 1SG did not have the authority to hear her appeal or award her the Pathfinder Badge. There was insufficient evidence to award her the Pathfinder Badge. However, this award was listed on her DD Form 214 and would not be deleted due to this Board’s policy of not taking action that would result in a less favorable outcome for the Soldier unless specifically requested by the Soldier. b. As for the GOMOR, it was properly administered in accordance with applicable regulations and it was properly filed in the performance section of her OMPF: (1) The evidence showed she failed to report to her new duty station by the original report date and she took corrective actions after the fact to ensure her leave form was completed and her orders were amended to cover her absence. As an officer and former noncommissioned officer, she was aware of her responsibility to keep the unit informed of her whereabouts and to report in a timely fashion any circumstances that would prevent her from being present for duty. Her actions displayed a lack of discipline and raised questions about her ability to effectively perform as a leader. Further, witness statements clearly showed she displayed inappropriate behavior and conduct unbecoming an officer on three separate occasions when dealing with senior officers and civilians. (2) There was no evidence of an error or an injustice. A preponderance of the evidence established that the applicant engaged in conduct unbecoming an officer by the unauthorized wear of the Pathfinder Badge, failure to exercise proper leave and reassignment procedures, and being disrespectful towards senior officers. Therefore, she had established no basis for restoration of any rights or an opportunity for assuming a command. 23. She reentered active duty on 4 June 2012 and served in Kuwait with Headquarters, Third Army, U.S. Army Central. She was honorably released from active duty on 3 June 2013. 24. She again entered active duty on 27 January 2014 and was assigned to AMC. She was considered by the FY16 Major APL Promotion Selection Board but she was not selected. 25. On 20 December 2016, she requested reconsideration of promotion to MAJ under the same criteria and instructions for the FY16 MAJ APL Promotion Selection Board. With her request, she submitted: * a letter to the promotion board president * an email to the HRC promotion branch * a memorandum from a JAG officer who conducted a legal review of her GOMOR 26. HRC responded via email that the applicant essentially did not state the reasons for her SSB nor did she qualify for an SSB. 27. During the latter part of 2016 and the early part of 2017, the applicant exchanged a series of emails with LTG (R) He__ (the officer who imposed the GOMOR in 2009). His last email to the applicant, dated 6 February 2017 reads, "Based on input I have received, I have decided to leave the letter as part of your permanent record." 28. On 6 September 2017, HRC issued her a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 29. She was honorably released from active duty on 30 September 2017. She was transferred to the USAR Sustainment Command, Birmingham, AL. Her DD Form 214 for this period of service shows she completed 3 years, 8 months, and 4 days of active service. 30. She provides a statement, dated 19 February 2016, from the Chief, Human Resources Operations and Support Division, AMC, to the Office of the Staff Judge Advocate, Redstone Arsenal, AL, subject: Personnel Officer Records Review of [Applicant]. The author states he reviewed the applicant's record and provides the following comments: a. The applicant's file has been previously evaluated and re-evaluated by several government agencies and senior level leaders in her chain of command from the rank of major up to the general officer level, who have supported her in many ways. The Army Central Clearance Facility (CCF) adjudicated her investigation and reinstated her top secret security clearance with Sensitive Compartmented Information (SCI) (TS-SCI) within three months of her active duty discharge. She had since deployed and had gone through two reinvestigation which were both favorable in her maintaining her TS-SCI clearance. Her previous command agreed with the decision made by CCF to reinstate her TS-SCI clearance and felt that her statements were deemed to have been true and empathized with the pain and discomfort that came of the investigation. They felt it necessary to remedy a great wrong. b. Based on reviewing the ABCMR's decision and the GOMOR, he contends that the GOMOR should have never been issued and a Commander's Inquiry could have resolve this situation. Furthermore, the IO prejudiced the investigating process and findings that ultimately were used in the issuance of the GOMOR. The GOMOR charged her with manipulating the Fort Bragg intra- post PCS system by not taking proper leave and therefore being unaccounted for during several weeks of her intra-post PCS between the 18th Fires Brigade and the 20th Engineer Brigade, unauthorized wear of the Pathfinder Badge, and disrespect. These allegations came forth from her commander after she had been in the new command only two weeks, and had reported a failed Brigade Unit Readiness Inspection which resulted in a Department of the Army level remedy. This inspection specifically was incorporated as one of the charges in the GOMOR under disrespect and grandstanding (conduct unbecoming an officer) during an out-brief of a unit readiness inspection. This event was the tip of the spear that spiraled down to her initiated investigation. c. She could not have violated the Fort Bragg intra-post PCS process because she had no control over when her PCS orders got published and subsequently amended. The personnel office responsible for ensuring her order got amended failed to initiate the action until 28 August 2009, and once she engaged the 18th Airborne Corps G-1, they gave her specific guidance as to when to come back and complete her out-processing. Prior to 28 August 2009, she completed the required offices/stations except those that were required based on the amended PCS order. She took leave, then completed the remaining offices/stations once the corrected PCS orders were provided to her. The General Court-Martial Convening Authority that issued the GOMOR (XVIII Airborne Corps Commander) charged her for violating the intra-post PCS process by not taking proper leave and therefore being unaccounted for for several weeks during a period when she was not under his authority, but the 82nd Airborne Division Commander (her losing command) was fully aware of the PCS order issue that prevented her from making her PCS move any earlier than she did, along with her duty and leave status. Since there was no issue in the losing command, it should not have had any bearing in her gaining command. Therefore, he (the author of this statement) did not see any violations of the process. He contends that her losing commander/organization did not see any violations as evident in their sworn statements. d. The GOMOR also charged her with unauthorized wear of the Pathfinder Badge. His review found the Pathfinder School published orders awarding the Pathfinder Badge to her and she started wearing the badge once she received the orders until she was directed to remove it by her then new organization, even before an investigation was initiated. Once directed to do so, she immediately stopped wearing the badge and continues to do so to date, even though the ABCMR proceedings indicated that it would remain a permanent part of her record. Therefore, she only wore the badge based on the legal documentation awarding it and clearly there was no unauthorized wear on her part. e. Regarding the GOMOR charge of disrespect, the documents used to bring about this charge include a statement from an XVIII Airborne Corps personnel clerk that was not addressed to the clerk's leadership or her chain of command. The clerk waited over three months (after her PCS) to make a statement and only after she was approached by the IO, which seemed odd since CPT Sa__ and Lieutenant Colonel (LTC) Wo__ were the individuals that she communicated with regarding her PCS orders. Additionally, CPT Sa__ and LTC Wo__ (the personnel clerk's leadership) never corroborated the personnel clerk's statement to the IO who oddly did not inquire of them about the alleged incident that included them and the applicant. CPT Sa__, the personnel clerk’s supervisor, did give a statement to Fort Bragg trial defense nearly two months after finding out about the personnel's clerk statement, which gave an accurate account of that day's meeting with the applicant and her chain of command in reference to her orders. Since it did not occur, nothing was ever mentioned of the applicant being disrespectful, nor did her command see any violations as reported by the personnel clerk as the concern was ensuring the orders were properly amended and actions were corrected in favor of the Soldier. She left her command in great standing with an outstanding evaluation, which contradicts any issues with her PCS to her new command. f. The statements referenced the applicant's conduct during her organization command inspection back-brief. She, in a professional manner, expressed to her leadership her commitment to helping the organization improve their readiness after a command inspection back-brief by giving examples of her credentials and by-name selection that was deemed "grand standing" and "unbecoming of an officer." This was purely a subjective statement as she had only briefed those accolades that were written of her success in past inspections by her previous command, and the very reason why this commander had by name selected her to help with his command’s inspections. Her exuberance was clearly mistaken for unprofessional conduct. This entire ordeal was an isolated incident that took place over a period of one week of, at that time, a fourteen year career. There was no other pattern of unprofessionalism in her career up until then nor beyond that has suggested anything other than her continuing stellar performance. g. The ABCMR reviewed her case, and within its proceedings concluded that the board was not the legal authority and could not handle the issue on wrongful investigations, but made the Pathfinder Badge orders a permanent part of her records and the DD Form 214 and will never be removed. Since the orders and badge will never be removed, it is also his (the author's) recommendation that the applicant be allowed to permanently wear the Pathfinder Badge on her uniform to support the ABCMR's decision and resolve the ongoing explanation that is given to every centralized selection board her OMPF appears before regarding why the Pathfinder badge is in her personnel records but not displayed on her uniform in her Department of the Army photograph. h. Throughout his review of the applicant's file, it was clear that the IO prejudiced the investigating process by failing to talk to key witnesses (CPT Sa__ and LTC Wo__) to corroborate the XVIII Airborne Corps personnel clerk's contention that the applicant was disrespectful. The IO also grossly manipulated the witnesses' statements that resulted in portraying a negative image of the applicant, deliberately misled the CG in the findings that all led to a key charge of the GOMOR, and influenced the signing of the GOMOR prior to the applicant providing her rebuttal and before expiration of the suspense date given to her. i. The applicant's character, moral traits, and leadership abilities continue to be on display as she is an upstanding, solid, physically fit, hardworking Soldier of uncompromising integrity. Nearly six years later after this unfortunate injustice, her performance is of the highest quality and professionalism that is sought after in a Soldiers today. In conclusion, this investigation was manifestly wrong, thus it is his recommendation that the GOMOR be removed from her official record based on the reasons listed above, and that the ABCMR relook her case with a legal review provided to assist the board. 31. She also provides a memorandum, dated 4 March 2016, from the Deputy Staff Judge Advocate at Redstone Arsenal, in response to the Chief, Human Resources Operations and Support Division, AMC, regarding his recommendation that the applicant obtain a legal review pertaining to her GOMOR, issued by LTG (R) Fr___ He__ on 15 December 2009. a. The applicant was provided with a copy of her GOMOR on 22 December 2009 and afforded the opportunity to submit rebuttal matters in accordance with AR 600-37 (Unfavorable Information). LTG He___ directed filing of the GOMOR in her OMPF. The ABCMR considered her request that the GOMOR be removed from her file and denied the application unanimously on 10 May 2011. b. As the facts and circumstances involving the issuance of the GOMOR have been addressed in detail both by the ABCMR and AMC G-1, this review will simply highlight the pertinent facts and the procedure. The packet provided appears to be incomplete; therefore this legal review will be limited to the evidence provided and reasonable inferences based on the evidence provided. Based on the documents provided by the applicant, there does not appear to be any procedural error in the issuance or filing of the GOMOR. She appears to have been afforded her right to rebut the GOMOR and there is no evidence to indicate LTG He_'s inability or unwillingness to consider her rebuttal before directing filing. c. The GOMOR appears to have been issued for unauthorized wearing of the Pathfinder badge, manipulating the PCS process, and displaying a lack of professionalism and military bearing toward superior commissioned officers between September and October 2009. The applicant does have orders authorizing her to wear the Pathfinder badge in her OMPF; it appears the commander did not seek removal of those records at the time based of the investigation, while such an action would have been within his purview. As that did not happen, it appears she is still authorized to wear the Pathfinder Badge. The evidence provided and viewing the actions of six years prior, it appears the skill badge was properly authorized while the circumstances are suspect. d. The evidence pertaining to the PCS process leaves a subjective interpretation as to fault. A commander could reasonably have found she failed to follow prescribed procedures; however a contrary finding could also have been reasonably concluded. Finally, the finding that she displayed a lack of professionalism and military bearing towards superior commissioned officers between September and October 2009 is similarly left to the commander's judgment. There is evidence in the packet to indicate possible disrespect, and deference will be given to the approving authority's approved findings. However, as the investigation was not included in the packet as it should be attached to the reprimand, he can only infer that LTG He__ approved the findings as evidenced by his issuing the reprimand. e. The applicant submitted an appeal to ABCMR requesting that her GOMOR be removed from her OMPF (date appeal was submitted cannot be determined based on documents provided). The ABCMR issued its determination on 11 May 2011, denying her request for relief. The ABCMR Record of Proceedings (attached) contains one administrative error: the cover page is for another person other than the applicant; all pages after the first appear to be correct. f. Although ABCMR denied her request for relief, it did directly discuss the awarding of the Pathfinder Badge and the fact it is still listed on her DD Form 214: "There is insufficient evidence to award her the Pathfinder Badge. However, this award is listed on her DD Form 214 and will not be deleted. It is policy of this Board not to take action that would result in a less than favorable outcome for the Soldier unless specifically requested by the Soldier" (ABCMR Record of Proceedings, Discussion and Conclusions section, paragraph 3). g. The applicant did not submit a request to ABCMR for reconsideration within one year of its decision as is required by AR 15-185, paragraph 2-1: "If the ABCMR receives a request for reconsideration more than 1 year after the ABCMR's original decision or after the ABCMR has already considered one request for reconsideration, then the case will be returned without action and the applicant will be advised the next remedy is appeal to a court of appropriate jurisdiction." h. Based on the documents provided, there does not appear to be any procedural error in the ABCMR review of her request. i. General officers who issued reprimands may request removal or correction. In accordance with AR 600-37, paragraph 7-2f: "An officer who directed the filing in the OMPF of an administrative letter of reprimand, admonition, or censure may request its revision, alteration, or removal, if later investigation determines it was untrue or unjust, in whole or in part. The basis for such determination must be provided the DASEB in sufficient detail so as to justify the request. An officer who directed the filing of such a letter in the OMPF may not initiate an appeal on the basis that the letter has served its intended purpose. However, a letter of support may be submitted with the recipient's appeal." The applicant had been advised of this procedural option. REFERENCES: 1. Army Regulation (AR) 600-37, in effect at the time, provides that an administrative memorandum of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the Soldier. The memorandum must be referred to the recipient and the referral must include and list applicable portions of investigations, reports, or other documents that serve as a basis for the reprimand. Statements or other evidence furnished by the recipient must be reviewed and considered before a filing determination is made. 2. A memorandum of reprimand may be filed in a Soldier's OMPF only upon the order of a general officer-level authority and is to be filed in the performance section. The direction for filing is to be contained in an endorsement or addendum to the memorandum. If the reprimand is to be filed in the OMPF, the recipient's submissions are to be attached. Once filed in the OMPF, the reprimand and associated documents are permanent unless removed in accordance with chapter 7 of AR 600-37. 3. AR 600-8-104 (Military Personnel Information Management/Records) governs the composition of the OMPF. The regulation is updated by the Army Personnel Records Division (APRD). ARD updates the list of Require Documents for filing in the AMHRR (Army Military Human Resources Record) quarterly. The new list of Required Documents supersedes the list in Table B-1. The regulation states that the performance section is used for filing performance, commendatory, and disciplinary data. Once placed in the OMPF, the document becomes a permanent part of that file. The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board. Administrative letters of reprimand, admonitions, and censures of a non- punitive nature are filed in the performance section of the OMPF. 4. DODI 1320.11 (Special Selection Boards), updates policy, responsibilities, and procedures for the implementation of section 628 of Title 10, U.S. Code, on the use of SSBs for commissioned officers on a Military Service’s active duty list. Section 3 states: a. It is DOD policy that each military department will use the SSB for the reasons listed in sections 628(a) or 14502(a) of Title 10, if the decision of the original board involved a material factual or administrative error, or if the board lacked some material information for consideration. b. An SSB must not, pursuant to section 628(b) or 14502(b) of Title 10, U.S. Code, consider any person who by maintaining reasonably careful records may have discovered and taken steps to correct that error or omission on which the original board based its decision against promotion. 5. AR 600-8-29 (Officer Promotions) prescribes policies and procedures governing promotion of commissioned officers and warrant officers on the active duty list. Chapter 7 provides for SSBs. a. Paragraph 7-2 (Purpose of boards) states an SSB may be convened under Title 10, U.S. Code, section 628, to consider or reconsider commissioned or warrant officers for promotion when HQDA discovers one or more of the following: (1) An officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error. This would include officers who missed a regularly scheduled board while on the temporary disability retired list and who have since been placed on the active duty list (10 USC 628(a)(1) (SSB required)). (2) The board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary). (3) The board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary). b. Paragraph 7-3 (cases not considered) states an officer will not be considered or reconsidered for promotion by an SSB when the following occurs: (1) The officer is pending removal from a promotion or recommended list, and the removal action was not finalized by the Secretary of the Army 30 days before the next selection board convened to consider officers of his or her grade. (2) An administrative error was immaterial, or the officer, in exercising reasonable diligence, could have discovered and corrected the error in the Officer Record Brief or OMPF. (3) Letters of appreciation, commendation, or other commendatory data for awards below the Silver Star are missing from the officer’s OMPF. (4) The consideration in question involved an officer below the promotion zone or if the promotion selection board did not see an official photograph, or the board did not consider correspondence to the board president that was delivered to HRC after the cutoff date for such correspondence established in the promotion board zone of consideration message. 6. AR 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the ARNG and of commissioned and warrant officers of the USAR. This regulation states: a. The minimum time-in-grade requirements for promotion from CPT to MAJ is 4 years in the lower grade and the maximum time in grade requirements is 7 years in the lower grade. b. Promotion reconsideration by an SSB may only be based on erroneous non-consideration or material error which existed in the record at the time of consideration. Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual's non-selection by a promotion board and, had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion. The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required military schooling. 7. AR 600-8-22 (Military Awards) provides policy, criteria and administrative instructions concerning special skill badges. It states upon successful completion of the Pathfinder Course conducted by the U.S. Army Infantry School a Soldier is eligible for the award of the Pathfinder Badge. Once an award has been presented, it may be revoked by the awarding authority if facts subsequently determined would have prevented original approval of the award had they been known at the time of presentation. Commanders authorized to award combat and special skill badges are authorized to revoke such awards. An award, once revoked, will not be reinstated except by Commander, HRC, when fully justified, unless otherwise noted. 8. The Pathfinder Course graduation requirements memorandum outlines the requirements for a student to successfully complete the United States Army Pathfinder Course. Paragraph 7 (Appeals) states a student has the right to appeal any grade that he/she receives if they feel that they have been unfairly graded or can present extenuating circumstances that may warrant consideration for a higher grade. Appeal procedures are as follows: a. A student has the exam reviewed to appeal the grade. Appeals occurring after the exam review will not be considered. Also, appeals for an initial examination will not be considered if the individual takes and fails the retest, then comes forward to appeal the initial examination. b. The student will start the appeals process with the test proctor for that exam. The test proctor will consider the nature of the appeal and try to rectify it satisfactorily at that level. c. If the appeal cannot be handled at the level it will then go to the Section Sergeant, then finally the Branch Chief. The Branch Chief has final authority on all appeals. DISCUSSION: 1. With respect to the Pathfinder Badge: a. The applicant was issued orders in June 2009 awarding her the Pathfinder Badge. However, these orders were revoked by an appropriate authority in November 2009. An award, once revoked, will not be reinstated except by Commander, HRC, when fully justified. b. The ABCMR did not award the Pathfinder Badge to the applicant. In the previous case, the Board stated that it is the policy of this Board not to take action that would result in a less favorable outcome for the Soldier unless specifically requested by the Soldier. That is why the Board elected not to remove the badge from her DD Form 214. c. The evidence, however, is clear that both the applicant's chain of command and the Pathfinder School conducted investigations into this issue and concluded that she failed to achieve course standards and she should not have been issued orders for this badge. The school's 1SG did not have the authority to hear her appeal or award her the Pathfinder Badge. Equally important is the fact that the award had already been revoked. 2. With respect to the GOMOR: a. The evidence of record shows the applicant received a GOMOR in December 2009 for wearing an unearned Pathfinder Badge, manipulating the intra-post PCS process, and for displaying a lack of professionalism and military bearing towards superior commissioned officers between September and October 2009. She was afforded the opportunity to review all of the evidence against her and to submit matters in her own behalf prior to a final filing decision. After carefully considering the circumstances surrounding the incident and all matters submitted by the applicant, the imposing officer ordered the GOMOR be placed permanently in her OMPF. b. A board of inquiry convened and recommended her retention in the Army. The purpose of the board of inquiry was to give the applicant a fair and impartial hearing to determine if she should be retained in the Army. The board of inquiry recommendations were limited to either retention or elimination and the board of inquiry's findings had no bearing on whether she was guilty of wearing an unearned Pathfinder Badge, manipulating the intra-post PCS process, and displaying a lack of professionalism and military bearing towards superior commissioned officers. c. The GOMOR is an administrative tool used by the imposing officer to train and rehabilitate. Once the GOMOR was filed on her OMPF, it became a permanent record and will not be removed from or moved to another part of the AMHRR unless directed by certain agencies, to include this Board. d. The GOMOR was properly administered in accordance with applicable regulations and properly filed in the performance section of her OMPF. There is no evidence of any violation of any of the applicant’s rights. e. The basis for removal of the GOMOR would be evidence of a clear and convincing nature showing it is untrue or unjust, in whole or in part. 3. With respect to her request for an SSB: a. The applicant was considered for promotion by the FY16 APL Promotion Selection Board, but she was not selected for promotion. By law and regulation, promotion selection boards cannot divulge the reason for non-selection of a particular officer. As such, any contention by the applicant that her non-selection was due to any specific reason is speculative at best. b. Promotion reconsideration is appropriate for non-selected officers whose records contained a material error when it was considered by a promotion board. A material error is defined as being of such nature that in the judgment of the reviewing official (or body), had it been corrected at the time the officer was considered by the board that failed to recommend him/her for promotion, it would have resulted in a reasonable chance that the officer would have been recommended for promotion. Here, the applicant does not explain the nature of such a material error that would warrant an SSB. c. A recommendation to move, remove, or modify the GOMOR addressed above would create a basis for an SSB. 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 AR201000016150 on 10 May 2011. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170004672 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170004672 20 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2