ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 7 October 2019 DOCKET NUMBER: AR20170008198 APPLICANT REQUESTS: The applicant defers to counsel for submission of his request, statement, and evidence. COUNSEL’S REQUEST, STATEMENT, AND EVIDENCE: reconsideration of removal of the General Officer Memorandum of Reprimand (GOMOR) from the applicant Army Military Human Resource Record (AMHRR) or alternatively transfer it to the restricted file. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Exhibit 1 – Letter from Counsel, 20 April 2017 * Exhibit 2 – Power of Attorney (POA), 19 September 2013 * Exhibit 3 – Army Review Board Agency (ARBA) Decision Letter, 20 April 2016 and Record of Proceedings (ROP), 19 April 2016 * Exhibit 4 – Applicant Sworn Declaration, 18 April 2017 * Exhibit 5- GOMOR, 11 December 2012 * Exhibit 6 – DA Form 67-9 (Officer Evaluation Report) OER, for period covering 16 May 2012 through 15 May 2013 * Exhibit 7 – OER’s and DA Form 67-9-1 (OER Support Form), for periods covering: 19 December 2008 through 15 May 2012 * Exhibit 8 – DA Form 67-10-2 (Field Grade Plate OER) for period covering 16 May 2013 through 15 May 2014 * Exhibit 9 – Character Statement from Colonel (COL) A__ R__ District of Columbia (DC), U.S. Army Retired (RET) * Exhibit 10 – Character Statement from Lieutenant Colonel (LTC) J__ W__ U.S. Army Reserve (USAR) RET * Exhibit 11 – Character Statement from Major (MAJ) A__ B__ USAR RET FACTS: 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 AR20150009482 on 19 April 2016. 2. Counsel states this is a request for reconsideration of removal of GOMOR from AMHRR as all elements for removal have been met. It has been far more than a year since imposition, the GOMOR served and exceeded its intended purpose; the applicant received evaluations since the imposition. She was a major (MAJ) at least the rank of staff sergeant (SSG) at the time of her discharge. She received nonjudicial punishment (NJP), the GOMOR and a referred officer evaluation report (OER) all for the same isolated incident. This GOMOR has resulted in her not being able to get a job in her chosen profession. As such, she was currently unemployed and struggling. The GOMOR far exceeded its intended purpose. All regulatory elements were satisfied at the time of her initial application to have the GOMOR removed or transferred, but the relief was not granted. Additionally, the punishment for this isolated incident was extraordinarily harsh given her years of honorable and distinguished service in the Army. This request is based on new material evidence and arguments not yet considered by the Board. 3. Counsel provides: a. A certified letter dated 20 April 2017, addressed to ARBA in support of representing the applicant which states the applicant has exhausted all administrative remedies to this point and is asking for the Board’s equitable relief to withdraw and expunge AMHRR of the applicant’s GOMOR dated 11 December 2012. This has been prepared to request that an error and injustice be removed. Per Army Regulation (AR) 600-37 (Unfavorable Information) specifically permits the removal or the transfer of unfavorable information such as a GOMOR when: 1) It has served its intended purpose. 2) It has been in the AMHRR for a minimum of one year since its imposition. 3) The Soldier has obtained at least the rank of SSG. 4) The Soldier has received at least one OER since the filing of the unfavorable information. The applicant has since solicited sworn statements from senior military officers who knew her well. She has obtained three references. The applicant previously a MAJ in the U.S. Army was issued a GOMOR for an isolated incident of drinking and driving in 2012 while assigned in Germany. She was issued NJP, including forfeiture of pay, a referred OER. She was essentially punished three times, these punishments have devastated her life. The GOMOR was issued approximately four years ago. Every conceivable intended purpose has been satisfied. All elements for removal have been met for approximately three years but the GOMOR remains. The applicant was selected to the LTC list, but eventually discharged from the military following the many actions against her. She had to face embarrassment and fallout from this poor choice. She has also suffered in her civilian capacity as a dentist. Somehow the copy of the GOMOR was leaked to the state licensing agency and recorded in the National Providers Database. This has resulted in the applicant not being able to find meaningful employment. The ABCMR’s failure to properly address the request to have the GOMOR removed from the performance portion of the AMHRR was an error that this Board has the authority to correct. Whether the intentions of the GOMOR was to serve as an obstacle to promotion or be cause for discharge, the intended purpose was served. This GOMOR has resulted in the applicant not being promoted, discharged from the military service and she is now unemployed. The GOMOR has done far too much damage already. The applicant accepts full responsibility for her actions and is remorseful for the single poor decision she made in the middle of years of honorable service. The written documentation from multiple character reference letters demonstrating her good moral character and her superb performance and continuing self-sacrifice she endured in service to this nation justify the removal of this GOMOR. The applicant received many awards and served in many capacities through her years of military service (see detailed letter Exhibit 1). b. Power of Attorney, dated 19 September 2013 designating the law firm of Tully Rinckey, PLLC, to serve as her attorneys in all matters relating to and/or arising out of her employment by the federal government of the United States of America (see Exhibit 2). c. Letter from the ABCMR, dated 20 April 2016 which states her application was denied. The evidence presented did not demonstrate the existence of a probable error or injustice. Overall the merits of this case were insufficient as a basis for correction of the records (see Exhibit 3). d. Sworn statement from the applicant which reads: * She received a GOMOR on 19 December 2012, for drinking and driving. There is no excuse for her actions she has learned from her mistake and she does not intend to make the same mistake again * She took her father on a United Service Organization (USO) trip to a small German town of Bad Wimpfen for the Christmas Market in the morning of 2 December 2012 * It was a cold, icy and snowy day in retrospect, a bad decision on many accounts * She had two glasses of mulled wine at the market, her plan was to go back to base on a taxi; unfortunately, when they got back to base it was cold * Her father looked unwell and had many ongoing medical issues since 1978 and was extremely sick at that time * She had no cell phone reception on base and she did not want to make him walk to the gate, she made the rash decision to drive him home herself * The military police pulled her over on her way back; her intake of alcohol was negligible, she should have done a better job of planning this trip * This incident was a genuine unpremeditated error that she could have avoided had she figured out another way to travel or not consumed any wine * She served as training officer in Fort Hamilton from December 2003 through December 2008 * She has been assigned to Walter Reed Dental Activity (DENTAC) from December 2008 through August 2011 as a comprehensive dentist; she chaired the Walter Reed DENTAC Social Committee * She was officer in charge of Andrew Rader Dental Clinic at Fort Myer from September 2009 through June 2010 * Project Officer for the renovation of Andrew Rader Dental Clinic from September 2009 through July 2011 * She wants to directly address the incorrect perceptions and conclusions that were made regarding this unfortunate event * Alcohol is not a part of her life, further evidenced by the determination of counselors at the Army Substance Abuse Program (ASAP) that she did not have substance abuse issues * She has always been the designated driver, she is the greatest opponent to driving under the influence and was not a drinker of alcohol; she was unaware that the amount would affect her as much as it did * She needed to get her father home and did not consider the far more devastating possible consequences of driving under the influence * She requests that this whole situation be viewed as a one-time aberration and not a characterization of her ideals and values * She was in a state of shock and refrained from submitting a rebuttal to the GOMOR when it was administered * She joined the service after the occurrence of tragic events of 9/11; her need to give back to this country coupled with her New Yorker pride led her to enlist as a citizen Soldier * She lost her pass privileges in Germany and earned the disdain of everyone in her command; she lost the respect of her superiors, peers, junior officers and noncommissioned officers * After the incident in December 2012, she continued to serve at a high level of performance while assigned to Panzer Dental Clinic played a key role in critical planning phases of $10 million renovation project * She has withdrawn from family and friends due to remorse and guilt * The GOMOR was reported to the State Licensing Board and a report filed in the National Providers Data Base; these actions ensured that she would not be able to obtain suitable employment in her chose profession (see Exhibit 4) e. GOMOR memorandum 11 December 2012, issued by Headquarters, 215th Theater Sustainment Command in Stuttgart, GE which states she was reprimanded for driving under the influence of alcohol on 2 December 2012 at Boblingen, GE. Police attempted to conduct a traffic stop at the Panzer Main gate but she exited and proceeded to go off post. German police were notified and responded by administering a portable breath alcohol test with the result of .168 grams of alcohol. Despite extensive information about the tragic consequences of driving while intoxicated, she made the irresponsible and dangerous decision to drive while under the influence of alcohol. Her decision placed her and others at tremendous risk of death or serious injury. She acknowledged receipt of reprimand on 12 December 2012, and was given an opportunity to respond submitting a written rebuttal. She elected not to submit a rebuttal. On 19 December 2012, the administrative reprimand was filed permanently in her Official Military Personnel File (OMPF) (see Exhibit 5). f. Her DA Forms 67-9, which for the period of 16 May 2012 through 15 May 2013, shows Part IV Block B1 (Attributes) and Block B3 (Actions) the boxes for emotional and planning are checked off with “NO” does not display self-control, calm under pressure and does not develop detailed executable plans that are feasible, acceptable, suitable. It further shows in Part V Block B (Comment on Specific Aspects of the Performance) during this past year the applicant has failed in her professional obligation to uphold the Army Values by driving under the influence of alcohol and resisting apprehension. This lack of integrity, honor, and selfless service has undermined her abilities not only to serve as a future leader in the U.S. Army but has damaged her credibility as an officer and a dentist. This incident has placed her ability to perform her Army mission as a dentist in jeopardy. In addition this past year she has had several interpersonal conflicts with dental assistants, NCO’s, supervisors, and patients within the clinic. Part VII Blocks A, B, C, and D are mostly unfavorable (see detailed Exhibit 6). g. DA Form 67-9, 67-9-1, and DA Form 67-10-2 a total of 5 OER’s and 4 support forms which reflected in Part V the rater placed an “X” on the Outstanding Performance, Must Promote block and in Part VII the senior rater marked the “Best Qualified“ and “Center of Mass” block a and b (see attached OER’s and OER Support Forms from 19 December 2008 through 15 May 2012 and memorandum of input, dated 6 March 2012 from COL J__ B__) (see Exhibit 7). h. DA Form 67-10-2, OER after GOMOR for the period of 16 May 2013 through 15 May 2014, shows Part IV Block E “Capable” and Part VI Block A “Qualified”; the comments on Block C state the applicant is a talented general dentist and a fully capable officer. Her fine performance during the rated period is indicative of a trust and confidence that the command and the U.S. Army place in her abilities. She is very supportive of the Stuttgart Dental Clinic Command and the European Regional Dental Command. Select with peers for promotion within the U.S. Army Dental Corps (see Exhibit 8). i. Character reference letter from COL RET A__ R__, which states she worked with the applicant during the period of December 2008 through July 2011 while she was assigned to the Walter Reed Army Medical Center Dental Activity. She recommends that the GOMOR administered to the applicant be removed. She states the applicant is an outstanding clinician and compassionate dental officer who could be trusted with the very lives of our Wounded Warriors. A consummate professional often recognized by patients for her expertise. The applicant accomplished the major undertaking of relocation of the property, equipment and personnel during that period of the Fort Myer Dental Clinic relocation to the Andrew Radar Health Clinic without any loss of property and performing her normal duties as the clinic Comprehensive Dentist as well as Officer in Charge from 2009-2010. She had the opportunity to interact with her in many social and command sponsored events during the applicant’s assignment to the National Guard Capital Region where she never exhibited any alcohol abuse or incidents of driving under the influence of alcohol. She never had any incidents, any hints of misconduct or lapses in judgment. She was shocked when she was notified about the applicant’s incident in December 2012. This incident was totally out of character. She knows for a fact that the applicant has agonized about her mistake for the past 4 years. She deserves an opportunity to redeem herself (see Exhibit 9). j. Character reference letter from LTC USAR Ret J__ W__, which states he has known her since 2005 they met while mobilized in support of Global War on Terror. She told him while she attended New York University College of Dentistry she witnessed the events of September 11, 2001. Having watched the Twin Towers fall and enduring the aftermath of the event she was motivated to serve her country in its time of need. He crossed paths with her again while working at the Pentagon G-3/5/7 office and learned that she was assigned to Regular Army (RA) at Fort Myer as the Dental Project Officer for the $25 million renovation. She personally redesigned existing floor plans and solved pre-existing space issues. She also conducted research, obtained quotes, wrote sole source justifications and purchased requisitions for over $1.5 million of new clinic equipment. She was praised by her superiors for hard work and diligence that ensured completion of the project with minimal disruption or budgetary problems. When the applicant informed him of her current situation regarding the GOMOR he was at a loss to have learned of this. The incident which was the focus of the GOMOR should be viewed as something completely out of character. She was one of the best Dental Corps Officers that he had the pleasure to have known and worked with. She is organized, methodical, compassionate and knowledgeable. A truly remarkable person, she has put her patriotism, her sense of selfless duty, and service to others above all including herself and her own needs. He wholeheartedly and without reservation writes this in support of her request to have the GOMOR removed (see Exhibit 10). k. Character reference letter from MAJ USAR Ret A__ B__, which states she has known the applicant for over a decade while serving as her Company Commander at Fort Hamilton, NY. She found her to be a dedicated professional who thrives on challenges and exceeding expectations when accomplishing any task that she was presented while assigned as the Training Officer for her primary duty. She was also responsible for development of unit mission essential task list, yearly training brief, and training schedules. She planned and prepared major training events. She planned and coordinated the unit’s first Medical Readiness Training event to El Salvador for February –March 2008 with the strength of 50 personnel. She also facilitated training of the Combat Lifesaver Course, annual weapons training and qualification. She served as General Staff Dentist on active duty from November 2005-February 2006 at the Camp Atterbury Dental Clinic and Soldier Readiness Processing site an Indiana Power Projection Platform supporting 500 permanent party and approximately 3000 mobilizing/demobilizing Soldiers in support of the Global War on Terrorism (see Exhibit 11). 4. A review of the applicant’s service records shows: a. Having previously served in the U.S. Army Reserve, (USAR) she executed an oath of office and was appointed as captain (CPT/O-3) in the RA on 25 October 2005. She completed primary specialty 63A (Dentist Officer). She was promoted to Major/O-4 on 8 April 2008. b. Her DA Form 4037 (Officer Record Brief) shows she served in various assignments to include: * U.S. Army Dental Clinic (DENTAC) in Walter Reed Hospital Bethesda, MD, from 19 December 2008 to 31 August 2009 * Andrew Rader Dental Clinic, in Fort Myer, VA from 1 September 2009 to 31 July 2011 * U.S. Army Dental Clinic Command in Germany from 1 August 2011 to 9 December 2014 c. On 16 February 2006, her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was honorably released from active duty and served 1 year 3 months and 22 days of inactive service this period to support Operation Enduring Freedom. She was transferred to 7212 Medical Support Unit Detachment 21. at Camp Atterbury, Indiana. She was authorized or awarded: * Army Achievement Medal * National Defense Service Medal * Global War on Terrorism Service Medal * Armed Forces Reserve Medal with “M” Device * Army Service Ribbon * Marksmanship Qualification Badge with Pistol (9MM) d. Her DA Form 67-9 (OER) covering period 16 May 2011 through 15 May 2012 before the GOMOR. (1) Her rater COL J__ G__, Clinic Commander, U.S. Army Heidelberg DENTAC rated her “Outstanding” and wrote the comments "Very energetic and passionate officer. As the Comprehensive Dental Specialist at Patch Barracks Dental Clinic her practice encompasses the full range of dentistry form operative to implantology. She embraced her positions as Patient Safety Advocate, Record Audit Officer, Drug Audit Officer with enthusiasm.” Her senior rater rated her as “Best Qualified” and potential compared to other officers as “Center of Mass.” He also recommended her for promotion to LTC immediately and assign her as an Officer in Charge in Dental Clinic, Office of the Surgeon General (OTSG) Fellow, and Mentor. e. On 11 December 2012, she was reprimanded by the Commanding General, Headquarters, 21st Theater Sustainment Command for driving under the influence of alcohol. The GOMOR states: (1) She was reprimanded for her driving under the influence of alcohol in Boeblingen, Germany on 2 December, 2012. The military police (MP) attempted to conduct a traffic stop at the Panzer Main Gate but she exited the gate and proceeded off post. The MP pursued her vehicle for approximately 0.25 miles, when she finally brought her vehicle to a complete stop. An odor of alcohol was detected emitting from her. German police were notified, responded, administered a portable breath alcohol test, with the result of 0.168 grams of alcohol per 210 liters of breath. She was transported to the Sidelfingen Hospital and administered a blood alcohol test, with the result pending. The legal limit for operating a vehicle on German roadways was 0.05 grams. Despite extensive information about the tragic consequences of driving while intoxicated and the determined efforts of her chain of command to educate her on requirements for driving responsibly she made the irresponsible and dangerous decision to drive while under the influence of alcohol. Her decision placed herself and others at tremendous risk of death or serious injury. By driving under the influence of alcohol she exhibited a lack of regard for herself, fellow Soldiers, her unit and the host nation. In this case she did not live up to the standards the Army expects of professional Soldiers. (2) This reprimand is imposed as an administrative measure and not as punishment under Article 15, Uniform Code of Military Justice. The imposing officer intended to file this reprimand in the applicant’s OMPF unless she submitted statements or documents that provide a valid excuse for her conduct, or matters in extenuation and mitigation that convince him that such filing is not warranted. She acknowledged and understood her rights for the receipt of the GOMOR on 12 December 2012. She elected not to submit matters on her behalf. f. On 19 December 2012, the imposing general officer considered the circumstances surrounding this reprimand and ordered the GOMOR be permanently filed in the applicant’s OMPF. g. Her OER following receipt of the GOMOR which reflected in Part V the rater placed an “X” on the “Unsatisfactory Performance Do Not Promote” block and in Part VII the senior rater marked the “Do Not Promote” and “Below Center of Mass Do Not Retain” block for the period covered 16 May 2012 through 15 May 2013. h. On 15 April 2014, her DD Form 214 shows she was honorably released from active duty. It also shows she was awarded or authorized: * Army Commendation Medal * Army Achievement Medal (2nd Award) * Army Reserve Component Achievement Medal * National Defense Service Medal * Global War on Terrorism Service Medal * Army Service Ribbon * Overseas Service Ribbon * Armed Forces Reserve Medal with “M” Device i. Orders Number C-02-602647, dated 26 February 2016, show she was reassigned from the USAR Control Group (Reinforcement) to the Standby Reserve effective 26 February 2016. Orders Number D-03-605180, dated 3 March 2016, show she was honorably discharged from the USAR effective 2 March 2016. j. She appealed to the Army Board for Correction of Military Records (ABCMR) but, on 19 April 2016, her request to remove her GOMOR was denied. 5. By regulation, AR 600-8-104 (AMHRR) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR. Table 3-1 states that specific disciplinary information will be filed in the performance section of the OMPF unless directed otherwise by an appropriate authority (the Department of the Army Suitability Evaluation Board or this Board). The regulation further states: * 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 * thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF 6. By regulation, AR 600-37 sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found some relief was warranted. The applicant’s counsel contentions were carefully considered. The applicant was issued a GOMOR after being cited for DUI. The issuing official decided to place the GOMOR in her OMPF. Removal of a GOMOR is generally not warranted unless it is factually incorrect: the Board determined it is factually correct. However, the governing regulation authorizes transfer of a GOMOR to the restricted folder of the OMPF when it can be determined that it has served its intended purpose. The Board agreed the GOMOR has served its intended purpose, which would be a basis for transferring it and all allied documents to her restricted folder. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20150009482 on 19 April 2016. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by transferring the GOMOR, dated 11 December 2012, and allied documents from her performance folder to the restricted folder of her OMPF. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to removing the GOMOR from her OMPF. 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. REFERENCES: 1. Army Regulation 600-8-104 (AMHRR) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR. Table 3-1 states that specific disciplinary information will be filed in the performance section of the OMPF (Official Military Personnel File) unless directed otherwise by an appropriate authority (the Department of the Army Suitability Evaluation Board or this Board). The regulation further states: * 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 * thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF 2. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests 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. Chapter 7 (Appeals and Petitions) provides the policies and procedures for appeals and petitions for removal of unfavorable information from the OMPF. b. Paragraph 7-2 (Policies and Standards), paragraph a (Appeals for removal of OMPF entries), contains guidance on removals of OMPF entries. It states 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. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. Normally, consideration of appeals is restricted to grades E6 and above, to officers, and to warrant officers. Although any Soldier may appeal the inclusion of a document placed in his or her file under this regulation, the appeals of Soldiers in grades below E-6 will only be considered as an exception to policy. This does not include documents that have their own regulatory appeal authority such as evaluation reports and court- martial orders. Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170008198 12 1