ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 May 2019 DOCKET NUMBER: AR20170011863 APPLICANT REQUESTS: * Removal of a general officer memorandum of reprimand (GOMOR) from her official military personnel file (OMPF) * Removal of the Department of the Army Suitability Evaluation Board (DASEB) decision * Change her transfer to the Retired Reserve from in lieu of to voluntary APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Attorney letter to the Army Review Boards Agency (ARBA) * Exhibit A, GOMOR, dated 31 August 2012 * Exhibit B, Awards & 2005 Officer Evaluation Report (OER) * Exhibit C, Staff Judge Advocate (SJA) Memorandum of Input on Duty Performance and 2006 OER, dated 25 August 2006 * Exhibit D, 2007 OER * Exhibit E, SJA Memorandum of Input on Duty Performance, 2008 OER, and Awards, dated 10 January 2008 * Exhibit F, Award & 2008-2010 OERs * Exhibit G, 2010 OER * Exhibit H, 2011 OER and Award * Exhibit I, 2011-2012 OER * Exhibit J, United States (U.S.) Army War College Degree, dated 26 July 2013 * Exhibit K, Memorandum Request for Removal of GOMOR * Exhibit L, Three character references to the Army Grade Determination Review Board (AGDRB) * Office of the Judge Advocate General (OJAG), Professional Responsibility Branch (PRB) Response, 21 January 2015 * Orders C-01-500835, Retired Reserve Order, 13 January 2013 * FACTS: 1. The applicant states the reprimand was placed in her file in error because it fails to specify a filing intention, which violates the applicable regulation. The reprimand is unjust because of her impeccable military record. When the reprimand was given to her it was insinuated that it would be filed locally. 2. The applicant provides: a. Attorney letter to the ARBA, dated 4 May 2017, states that the request to remove the applicant’s GOMOR is made for two reasons. One, the GOMOR is improperly filed in the OMPF and two, the removal as a matter of equity. As a preliminary matter, the applicant has exhausted her other administrative remedies. The applicant’s request was denied by the DASEB Board on 5 September 2014. (1) Some of the objectives of Army Regulation (AR) 600-37-1 (i.e. AR 600-37) (Unfavorable Information) are to apply fair and just standards to all Soldiers, and to protect the rights of individual Soldiers as well as to permit the Army to consider all available relevant information. AR 600-37-1 (i.e. AR 600-37) paragraph 1-4, to create just standards, the regulation contains several standards for filing a letter in the OMPF. Under AR 600-37-1 (i.e. AR 600-37), subparagraph 3-4 (4) b (1), to file a reprimand in the OMPF the reprimand must among other things have the order of a general officer (to include one frocked to the rank of brigadier general) senior to the recipient or by direction of an officer having general court-martial jurisdiction over the individual. Letters filed in the OMPF will be filed on the performance portion (P-fiche). The direction for filing in the OMPF will be contained in an endorsement or addendum to the letter. A letter to be included in a Soldier's OMPF will, (1) be referred to the recipient concerned for comment according to paragraph 3-6. The referral will include reference to the intended filing of the letter. (2) AR 600-37-1 (i.e. AR 600-37) regulatory guidance is mandatary, and was not done in this case. In this case the reprimand states "I may decide to file this reprimand in your local file or in the alternative, to recommend to Major General (MG) G, that he file this reprimand in your OMPF." This is not a reference to the intended filing which is what the regulation requires. As a result, the reprimand was improperly filed in the OMPF in the first place. Federal law dictates that an agency and government officials, including the Army "must follow their own regulations." IVagiier v. U.S., 365 F.3d 1358, 1361 (Fed. Cir. 2004). This was not done here. Indeed the implication in the reprimand itself is that it is being considered for local filing or a recommendation to the commander. It does not state a filing intention. It is important to note the individual who wrote the memorandum was at the time a colonel (COL), and the SJA for the command. Accordingly, it is reasonable to expect that if the reprimand was to be filed in the OMPF that the SJA would have complied with the regulation and stated a filing intention. (1) Additional information from the attorney may be reviewed (detailed letter enclosed in packet). b. Exhibit A, GOMOR from COL X, SJA for misconduct, dated 31 August 2012, that reads: (1) During July 2012, the applicant presented factually inaccurate information and overinflated accomplishments to COL X and intended to present the same to MG BG, the Commanding General of the 80th Training Command and applicant's senior rater, on her digitally signed OER support form and draft OER comments covering the period of 1 July 2011 - 30 June 2012. She misrepresented information pertaining to her actual height and weight, as well as overinflating other data she attributed to herself as accomplishments during the aforementioned period of performance. Her failure to verify important statistics before incorporating them on an official department of the Army official document causes COL X to question her integrity and to hesitate before trusting that any information the she provides COL X as factual, accurate and true. (2) On 15 July 2012, she failed to follow instructions when she went directly to Major (MAJ) X, the Headquarters 80th Headquarters and Headquarter Company Commander, and requested via email to RST (Rescheduled Training) for the September 2012 battle assembly after COL X announced the proper process for approval of RST requests. When MAJ X, replying by email, sent back the applicant’s request and reiterated the RST approval process, the applicant responded to him via email that lieutenant colonel (LTC) X had told her just the opposite. That statement about LTC X was misleading and false since the applicant was present at the office of the SJA staff meeting when COL X gave instructions on the RST approval process long after the [Applicant] purported conversation with LTC X. Again, she demonstrated behavior that places the [Applicant’s] integrity and trustworthiness at risk. (3) The applicant is reprimanded. Her misconduct is unbecoming of an officer and is prejudicial to the military good order and discipline. Her behavior brings discredit to her, the Judge Advocate General's Corps, and the U.S. Armed Forces. She has established a pattern of intentionally providing false and misleading information that diminishes her character and credibility. As a senior officer, she occupies a position of trust and bear particular responsibility to be honest in word and deed. Her behavior exhibits a complete disregard for the high moral and ethical standards that COL X expects of her. (4) This reprimand is imposed as an administrative measure, in accordance with AR 600-37, and not as punishment under the uniform code of military justice, article 15. COL X may decide to file this reprimand in her local file or in the alternative, to recommend to MG X that he file this reprimand in her OMPF. (1) c. Exhibit B, Army achievement medal, certificate of appreciation both awarded in 2005 and OER from 21 March – 1 July 2005, achieved best qualified. d. Exhibit C, SJA Memorandum of Input on Duty Performance, dated 25 August 2006 for performance at annual training in support of the office of the SJA, U.S. Army Reserve Command, Fort McPherson, GA from 13-25 August 2006. The applicant’s performance was absolutely fantastic. Additional duty performance may be reviewed). Also in Exhibit C is an OER from 10 February 2006 – 9 February 2007, achieved best qualified. e. Exhibit D, OER from 10 February – 31 December 2007, achieved best qualified. f. Exhibit E, SJA Memorandum of Input on Duty Performance, dated 10 January 2008 for performance at the 2174th Garrison Support Unit. She worked in multiple senior positions and performed them absolutely brilliant. Additional duty performance may be reviewed (letter enclosed in packet). Also in this Exhibit is an OER from 1 January – 5 June 2008, achieved best qualified, meritorious service medal awarded in 2008 and seven seal award. g. Exhibit F, Army Reserve Components Achievement Medal awarded in 2009. Also in this Exhibit are OERs from 6 June 2008 – 5 June 2009 and 6 June 2009 – 10 February 2010, achieved best qualified on both. h. Exhibit G, OER from 11 February 2010 – 10 February 2011, achieved best qualified. i. Exhibit H, OER from 11 February – 30 June 2011, achieved best qualified. Also in this Exhibit is a meritorious service medal awarded in 2011. j. Exhibit I, OER from 1 July 2011 – 30 June 2012, achieved best qualified. k. Exhibit J, U.S. Army War College Degree, graduated with a master of strategic studies on 26 July 2013. l. Exhibit K, MG XX’s memorandum to the DASEB, dated 27 March 2014 request for removal of the applicant’s GOMOR. m. Exhibit L, three character references to the AGDRB in support of the grade retention of the applicant: (1) MG (Retired) X letter dated 2 March 2015 states the applicant was assigned as an assistant SJA for their command during his three years as the commanding officer of the 80th Training Command. Throughout his many interactions with the applicant, the applicant always provided him with sound and outstanding legal advice for many decisions concerning both the command and members of the (1) command. He recommended removal of the GOMOR from the applicant’s Army Military Human Resources Record (AMHRR). (2) COL (Retired) X letter dated 5 March 2015 states he recruited the applicant to join the 2174th Garrison Support Unit in 2006. The applicant immediately proved herself a senior leader and strong officer, enabling him to meet his number one priority, that all Soldiers in their organization performed and mastered the critical battle tasks of the time. As a result of the applicant’s efforts, their officers and paralegal noncommissioned officers (NCO) were 100% duty military occupational specialty qualified and deployable. The applicant engaged the NCOs and tasked these responsibilities down to the lowest levels. COL D was immediately impressed by the applicant’s accomplishments. (3) Brigadier General (BG) X letter dated 5 March 2015, states he has known the applicant for eight years as either an immediate supervisor, or as a senior officer with oversight for her responsibilities. They interacted regularly on SJA actions, recommendations, and administration. The applicant always performed her duties with the upmost respect, extreme diplomacy and sensitivity, and always as a professional Army officer. The applicant performed her duties at the highest level in garrison, and also executed her duties and responsibilities with extreme professionalism as an Army officer in the field. n. OJAG, PRB’s response to the applicant dated 21 January 2015. On 31 October 2014, she requested documents involving COL X. The PRB denied her request. o. Orders C-01-500835, Retired Reserve order. 3. A review of the applicant’s service record shows: a. Having had prior service in the U.S. Army Reserves (USAR) and the Army National Guard, she was appointed as a Judge Advocate commissioned officer and executed an oath of office on 19 January 1989. b. She executed an oath of office in the Virginia Army National Guard (VAARNG) on 7 May 1993. She was separated from the VAARNG on 31 march 1996 and transferred to the USAR. c. She was promoted to LTC on 1 December 2004. She entered active duty on 21 March 2005 and she was honorably released from active duty on 9 July 2005. d. On 31 August 2012, the applicant received an administrative GOMOR which reflected the following: (1) "During July 2012, you presented factually inaccurate information and overinflated accomplishments to me and intended to present the same to MG X, the (1) Commanding General of the 80th Training Command (TC) (TASS) and your senior rater, on your digitally-signed OER Support form and draft OER comments covering the period of 1 July 2011- 30 June 2012. You misrepresented information pertaining to your actual height and weight, as well as overinflating other data you attributed to yourself as accomplishments during the aforementioned period of performance. Your failure to verify important statistics before incorporating them on an official Department of the Army official document causes me to question your integrity and to hesitate before trusting that any information you provide me as factual, accurate and true. (2) On 15 July 2012, you failed to follow instructions when you went directly to MAJ G, the HQ 80th HHC Commander, and requested via email to RST for the September 2012 Battle Assembly after I announced the proper process for approval of RST requests. When MAJ X, replying by email, sent back your request and reiterated the RST approval process, you responded to him via email that LTC X had told you just the opposite. That statement about LTC X was misleading and false since you were present at the OSJA staff meeting when I gave instructions on the RST approval process long after your purported conversation with LTC X. Again, you demonstrated behavior that places your integrity and trustworthiness at risk. (3) You are reprimanded. Your misconduct is unbecoming of an Officer and is prejudicial to the military good order and discipline. Your behavior brings discredit to you, the Judge Advocate General’s Corps, and the United States Armed Forces. You have established a pattern of intentionally providing false and misleading information that diminishes your character and credibility. As a senior Officer, you occupy a position of trust and bear particular responsibility to be honest in word and deed. Your behavior exhibits a complete disregard for the high moral and ethical standards that I expect of you." e. The GOMOR was imposed as an administrative measure and not as punishment under the provisions of Article 15 of the UCMJ. f. The applicant submitted a rebuttal statement to the GOMOR imposing authority, dated 4 September 2012. In the statement, she presented the circumstances surrounding her rational for presenting the inaccurate information which was the basis for the GOMOR. She also indicated there was no excuse for actions, and it will never happen again. g. On 20 September 2012, after carefully reviewing the GOMOR, the supporting documentation, and her written response, the imposing general officer directed the GOMOR be filed in the performance portion of the appellant’s AMHRR. h. She was transferred from the USAR Control Group (Reinforcement) to the Inactive Reserve on 2 January 2013. a. i. On 21 August 2014, the DASEB reviewed her request for removal of the contested GOMOR. However, the DASEB determined that the evidence presented did not clearly and convincingly establish that the document under consideration is untrue or unjust, and as a result, the presumption of regularity applies. Therefore, by unanimous vote, the DASEB determined the overall merits of this case do not warrant the requested relief. The DASEB directed the decision memorandum will be filed in the applicant's AMHRR, and the appeal documentation will be filed in the restricted section of her AMHRR. j. On 13 January 2015, the U.S. Army Human Resources Command published Orders C-01-500835 transferring her from the USAR Control Group (Reinforcement) to the Retired Reserve on 13 January 2015 by reason of completion of 20 or more years of Reserve duty. The orders state at the bottom the entry “Retirement in Lieu." k. On 9 August 2017, the U.S. Army Human Resources Command published orders placing her on the Retired List in the retired grade of LTC effective 21 October 2017 (her 60th birthday). 4. By regulation: a. An officer who directed the filing in the OMPF of an administrative GOMOR, 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. b. AR 600-8-104 (Army Military Human Resources Records Management (AMHRR)), DASEB document deny/approved request for removal of adverse information will be in the “Performance” folder only if denied or partially denied. If DASEB approves the request and directs the transfer of the adverse action to the “Restricted” folder, the document directing this action will be filed in the “Restricted” folder along with the adverse action. File allied documents related to denied requests in the “Restricted” folder. If the DASEB approves a request and directs removal from the AMHRR, do not file the document directing the removal. File allied papers relating to approval requests only if directed by the DASEB. c. AR 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers), paragraph 6-2a, Orders transferring soldiers to the Retired Reserve will cite this paragraph and state the reason for transfer. a. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there was insufficient evidence to grant relief. The proper authority for filing GOMORs decided to file it in her file and it was completed and filed appropriately. There is evidence in her rebuttal that she owned up to her conduct and gave family concerns as the reason for providing false information, but based upon the totality of the circumstances, the Board concluded there is insufficient evidence to show that an error or injustice is present which would warrant changing the applicant’s record. For that reason, the Board recommended denying the applicant’s requested relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X X 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. 5/30/2019 X CHAIRPERSON Signed by: 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. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 600-8-104 (Army Military Human Resources Records Management (AMHRR)), in effect at the time, provides policies, operating tasks, and steps governing the AMHRR. This regulation states that only those documents listed in Appendix B are authorized for filing in the AMHRR and/or in the Interactive Personnel Electronic Records Management System (iPERMS). a. Paragraph 3-6, the AMHRR is reflective of an individual Soldier record and is stored in iPERMS. Within the AMHRR there are various folders that house information regarding an individual military career. Not every Soldier and subsequent AMHRR will have the same number and type of folder. The type and number of folders contained within the AMHRR differ based on career path and status. For a complete listing of folders authorized for inclusion in the AMHRR see table 3–1. b. Table 3-1 (AMHR) contains the performance, service, restricted , medical, other, state/territory folders. The performance folder contains performance related information to include evaluations, education, commendatory, and disciplinary documents. The restricted folder contains documents that may normally be considered improper for viewing by selection boards or career managers. c. AR 600-8-104 (Army Military Human Resources Records Management (AMHRR)), DASEB document deny/approved request for removal of adverse information will be in the “Performance” folder only if denied or partially denied. If DASEB approves the request and directs the transfer of the adverse action to the “Restricted” folder, the document directing this action will be filed in the “Restricted” folder along with the adverse action. File allied documents related to denied requests in the “Restricted” folder. If the DASEB approves a request and directs removal from the AMHRR, do not file the document directing the removal. File allied papers relating to approval requests only if directed by the DASEB. 3. AR 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers), Orders and certificates. a. Paragraph 6-2a, orders transferring Soldiers to the Retired Reserve will cite this paragraph and state the reason for transfer. b. Soldiers transferred to the Retired Reserve will be furnished a DA Form 977 (Certificate of Transfer to Retired Reserve), except as follows. A DA Form 977 is not a. required for Soldiers transferred to the Retired Reserve in the same grade as shown on their DD Form 363A (Certificate of Retirement). 4. AR 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.