ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 13 September 2019 DOCKET NUMBER: AR20180011617 APPLICANT REQUESTS: removal of the following documents from her Official Military Personnel Record (OMPF) or at the very least masked: * General Officer Memorandum of Reprimand (GOMOR) dated 26 July 2012 * DA Form 67-9 (Officer Evaluation Report) for period covering 6 July 2011 through 5 July 2012 * DA Form 67-9 for period covering 6 July 2012 through 10 September 2012 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provision of Title 10. U.S. Code, Section 1552) * DA Forms 67-9, for periods covering 20 June 2007 through 26 November 2007, 27 November 2007 through 6 June 2008, 7 June 2008 through 15 May 2009, 24 December 2009 through 5 December 2010, 6 December 2012 through 8 July 2011, 6 July 2011 through 5 July 2012, * Roster, Class 019 Trainee 2012, dated 25 February 2012 * Memorandum, D Company, 2nd Battalion, 10th Infantry Regiment, Fort Leonard Wood, MO, dated 9 April 2012, subject: Unprofessional Bearing and Prejudged by Investigating Officer (IO) * Message, Commander, U.S. Army Human Resources Command (HRC), Fort Knox, KY, dated 8 June 2012, subject: Separation – Unqualified Resignation * Memorandum, D Company, 2nd Battalion, 10th Infantry Regiment, Fort Leonard Wood, MO, dated 2 August 2012, subject: Rebuttal – Memorandum of Reprimand (Applicant), dated 26 July 2012, with enclosures * Memorandum, Applicant, dated 29 September 2012, subject: Comments to Accompany OER into My Official File, in accordance with Chapter 6, Army Regulation 623-3 (Evaluation Reporting System) dated 27 September 2012, OER Referral (20110706-20120705) (Applicant) * Memorandum, Applicant, dated 29 September 2012, subject: Comments to Accompany OER into My Official File, in accordance with Chapter 6, Army Regulation 623-3 dated 28 September 2012, OER Referral (20120706- 20120910) (Applicant) * Memorandum, U.S. Army Chemical, Biological, Radiological and Nuclear School, Fort Leonard Wood, MO dated 10 October 2012, subject: Supplementary Review of Relief for Cause OER (20120706 thru 20120910) * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 1 December 2012 * Points of Contacts, 2012 Investigation * DA Form 2166-8 (Noncommission Officer Evaluation Report (NCOER) for periods 20 December 2013 through 19 December 2014, and 19 December 2014 through 18 December 2015 * Letter, Office of the Inspector General, dated 21 October 2014 * Witness Statements, J.M. Sabo Investigations, Roseville, CA * DA Form 2166-9-2 (NCOER (Staff Sergeant – First Sergeant (1SG)/Master Sergeant)) for periods covering 19 December 2015 through 18 December 2016 and 19 December 2016 through 2 February 2018 * Memorandum, Alpha Troop, 2nd Squadron, 398th Regiment, Madisonville, KY, dated 21 September 2016, subject: Character Statement for (Applicant) * Memorandum, 416th Civil Affairs Battalion (Airborne), San Diego, CA, dated 27 July 2017, subject: Character Statement for (Applicant) * Reserve Component Manpower System Automated Record Brief, dated 3 October 2017 * Memorandum, 443d Civil Affairs Battalion, Newport, RI, dated 11 October 2017, subject: Letter of Character for (Applicant) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: * the accusations leveled against her were completely without grounds * the investigation for which she received a GOMOR, was relieved from her company command, and received malicious negative annual evaluation was deliberately falsified by the chain of command * she was not flagged or told she was the subject of an investigation until 28 July 2012 when she received a GOMOR * her annual evaluation was deliberately withheld without being given a reason * the investigating officer (IO) threatened all to the company cadre * her and her 1SG had no knowledge of the investigation until August 2012 when they were both suspended from their duties * she would like the documents associated with the investigation expunged from her permanent records so that she may retire with honor and a clear conscious 3. Review of the applicant’s service records shows: a. Having had prior service, she entered active duty as a commissioned officer on 24 September 2006. She held an engineer specialty and she was promoted to captain (CPT) in October 2009. b. At the time of her reprimand, she was assigned as a commander of a basic training company, Company D, 2d Battalion, 10th Infantry Regiment, 3rd Chemical Brigade, Fort. Leonard Wood, MO. c. On 8 June 2012, her request for separation – unqualified resignation, was approved with an effective date of 1 December 2012. d. She received a GOMOR on 26 July 2012 for her failure to follow and enforce Army regulations that ensure trainees are treated with dignity and respect as they transform into Soldiers. An investigation established that she failed to properly address allegations of trainee abuse and having committed by the cadre of her unit. Although she attempted to verbally correct her Drill Sergeants' abuses to trainees, she did not report the misconduct up the chain of command and did not take sufficient steps to address the continued abuses. Her leadership failure allowed Drill Sergeants to continue abusing the trainees by subjecting them to extreme and excessive profanity, maltreatment, and the endangerment of their well-being. The Commanding General directed permanent placement of the GOMOR in the applicant's OMPF. e. On 27 September 2012, she signed her contested annual OER for the period covering 6 July 2011 through 5 July 2012. The OER shows: (1) Part IVa (Army Values) shows her rater marked "NO" for Honor and Duty. (2) Part IVb2 (Skills) shows her rater marked "NO" for Conceptual. (3) Part IVb3 (Actions) shows her rater marked "NO" for Decision Making, Executing, and Learning. (4) Part V (Performance and Potential Evaluation) shows her rater marked "Unsatisfactory Performance, Do Not Promote." Her rater commented "[Applicant's] performance during this rating period was marginal. [Applicant] did not display sound judgement and condoned malicious acts of trainee abuse during this period." (5) Part Vc (Comment on Potential for Promotion) shows her rater commented "[Applicant] does not possess the potential for promotion, or to serve in positions of increased responsibility." (6) Part VII (Senior Rater) shows her senior rater marked "Do Not Promote" and marked "Below Center of Mass – Do Not Retain." Her senior rater commented "[Applicant] failed to uphold her obligations as a Company Commander. She clearly does not possess the ability to lead and train Soldiers. She also demonstrated an inability to effectively manage training resources which had a negative impact on training at the detriment of hundreds of initial entry trainees. [Applicant] should not be afforded the opportunity to lead Soldiers. Do not promote." f. On 28 September 2012, she signed her contested relief for cause OER for the period coving 6 July 2012 through 10 September 2012. The OER shows: (1) Part IVa (Army Values) shows her rater marked "NO" for Honor and Duty. (2) Part IVb2 (Skills) shows her rater marked "NO" for Conceptual. (3) Part IVb3 (Actions) shows her rater marked "NO" for Decision Making, Executing, and Learning. (4) Part V (Performance and Potential Evaluation) shows her rater marked "Unsatisfactory Performance, Do Not Promote." Her rater commented "[Applicant's] was the subject of an Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers) investigation which verified various infractions of trainee abuse and hazing committed by her cadre. [Applicant], as the unit commander, failed to follow and enforce the Army regulations for reporting misconduct, failed to take steps to address the abuses, and allowed the Drill Sergeants to continue to abuse the Soldiers by not enforcing the Drill Sergeant standards of conduct. Having lost confidence in her ability to command, she was relieved from her position as company commander." (5) Part Vc (Comment on Potential for Promotion) shows her rater commented "[Applicant] does not possess the potential for promotion, or to serve in positions of increased responsibility." (6) Part VII (Senior Rater) shows her senior rater marked "Do Not Promote" and marked "Below Center of Mass – Do Not Retain." Her senior rater commented "[Applicant] lost the confidence of her superiors by not enforcing standards of discipline. Therefore, I relieved her of command. Do not afford this officer future opportunities to lead Soldiers. Do not promote." g. On 16 August 2012, she submitted a Request for Redress and Complaint of Wrong to her senior rater. There was no evidence of her senior rater's response in her OMPF. h. On 10 October 2012, a Supplementary Review of Relief for Cause OER for period 6 July 2012 through 10 September 2012 determined the OER was complete and correct as written and required no further comment from the reviewer. i. She was honorably discharged from the Regular Army on 1 December 2012. Her DD Form 214 shows separation authority of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 3-5 (unqualified resignation). She completed 10 years, 6 months and 3 days of total active service. j. On 25 November 2013, she appealed to U.S. Army Human Resources Command to have her contested OERs removed from her OMPF. k. On 29 May 2014, the Officer Special Review Board (OSRB) determined the evidence presented does not establish clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice. The OSRB denied her request. l. On 11 April 2019, the Department of the Army Suitability Evaluation Board determined the evidence presented was sufficient to warrant transfer of the GOMOR to the restricted portion of the applicant's Army Military Resource Record. 4. By regulation (AR 600-37), paragraph 7-2 provides that once an official document has been properly filed in the AMHRR, 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 the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the official records. 5. By regulation (AR 623-3), evaluation reports accepted for inclusion in the Soldier's official record are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation. To justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature; not merely proof of the possibility of administrative error or factual inaccuracy. The burden of proof rests with the applicant. ? BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not warranted. The applicant’s contentions were carefully considered. Based upon the documentary evidence provided by the applicant and found within the military service record, to include previous Boards with administrative authority to grant relief, the Board concluded there was insufficient evidence to grant any further relief. The Board found that the GOMOR was previously transferred to the applicant’s restricted file and the based upon the short term of time since the events, the Board concluded no other relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 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. 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) 15-6 (Procedures for Investigating Officers and Board of Officers), in effect at the time, established procedures for investigations and boards of officers not specifically authorized by any other directive. An investigating officer will be senior to any person whose conduct or performance of duty may be investigated, or against whom adverse findings or recommendations that may be made, except when the appointing authority determines that it is impracticable because of military exigencies. 3. AR 600-8-24 (Officer Transfers and Discharges) prescribes policies and procedures governing transfer and discharge of Army officer personnel. Paragraph 3-5 (Rules for processing unqualified resignation) states any officer on active duty may tender a resignation under this paragraph except when action is pending that could result in resignation for the good of the Service; officer is under a suspension of favorable actions, pending investigation, under charges; or any other unfavorable or derogatory action is pending. 4. AR 600-37 (Unfavorable Information), sets forth policies and procedures to authorize placement of unfavorable information about Soldiers in individual official personnel files. a. Paragraph 1-1 states, in relevant part, that the intent of Army Regulation 600-37 is to ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and, to ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. b. Paragraph 1-4 stipulates that the objectives of Army Regulation 600-37 are to apply fair and just standards to all Soldiers; protect the rights of individual Soldiers and, at the same time, permit the Army to consider all available relevant information when choosing Soldiers for positions of leadership, trust, and responsibility; to prevent adverse personnel action based on unsubstantiated derogatory information or mistaken identity; to provide a means of correcting injustices if they occur; and, to ensure that Soldiers of poor moral character are not continued in Service or advanced to positions of leadership, trust, and responsibility. c. Paragraph 3-2c states that unfavorable information that should be filed in official personnel files includes indications of substandard leadership ability, promotion potential, morals, and integrity. These traits must be identified early and shown in permanent official personnel records that are available to personnel managers and selection board members for use in making decisions that may result in selecting Soldiers for positions of public trust and responsibility, or vesting such persons with authority over others. Other unfavorable character traits of a permanent nature should be similarly recorded. d. Paragraph 7-2a, states that once an official document is properly filed in the AMHRR, it is presumed to be administratively correct and filed pursuant to an objective decision by competent authority. e. Paragraph 7-2b(1) states that unfavorable documents may be appealed on the basis of proof that their intended purpose has been served and their transfer would be in the best interest of the Army. The burden of proof rests with the appellant to provide substantial evidence that these conditions have been met. 5. AR 600-8-104 (AMHRR Management) governs the composition of the AMHRR and states that the performance section is used for filing performance, commendatory, and disciplinary data. Once placed in the AMHRR, the document becomes a permanent part of that file. The document will not be removed from or moved to another part of the AMHRR unless directed by certain agencies, to include this Board. Table B-1 covers authorized documents. Army Personnel Records Division (APRD), will update the list of authorized documents for filing in the AMHRR quarterly. The new list of authorized documents will supersede the list in Table B-1, Appendix B of AR 600-8-104. File only Letters of Reprimand designated for filing in the OMPF. 6. AR 623-3 (Evaluation Reporting System), in effect at the time, prescribed the policy and tasks for the Army's Evaluation Reporting System, including officer, NCO, and academic evaluation reports focused on the assessment of performance and potential. An additional review of "Relief for Cause" OERs is required following referral to the rated officer. a. Paragraph 3-26 (Referred OERs) stated OERs with any negative or derogatory comments will be referred to the rated officer by the senior rater for acknowledgment and an opportunity to comment before being submitted to Headquarters, Department of the Army. b. Chapter 4 (Evaluation Report Redress Program) stated the program is both preventive and corrective, in that it is based upon principles structured to prevent and provide a remedy for alleged injustices or regulatory violations, as well as to correct them once they have occurred. c. Paragraph 4-7 (Policies) stated an evaluation report accepted for inclusion in the official record of a rated Soldier's OMPF is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation. Alleged bias, prejudice, inaccurate or unjust ratings, or any other than administrative error are substantive in nature and will be adjudicated by the Army Special Review Board (ASRB). After resolution of the appeal, the appropriate reviewing agency amends the rated Soldier's records. If the rated Soldier has been nonselected for promotion, the ASRB will also determine if promotion reconsideration is warranted as a result of the change to the evaluation report. d. Paragraph 4-8 (Timeliness) provided that because evaluation reports are used for personnel management decisions, it is important to the Army and the rated individual that an erroneous report be corrected as soon as possible. Substantive appeals will be submitted within 3 years of an OER through date. Failure to submit an appeal within this time will require the appellant to submit his or her appeal to the ABCMR. The ASRB will not accept appeals that are over 3 years old or appeals from Soldiers who are no longer on active duty or part of the U.S. Army Reserve or Army National Guard. e. Paragraph 6-7 (Evaluation Appeals – Policies) provided that an evaluation report accepted for inclusion in the official record of a rated Soldier's OMPF is presumed to represent the considered opinion and objective judgment of the rating officials at the time of preparation. 7. Department of the Army Pamphlet 623-3 (Evaluation Reporting System), in effect at the time, prescribed the procedures for completing Army Evaluation report for Officers and Noncommissioned Officers. Paragraph 5-2 (Officer evaluation report and noncommissioned evaluation report forwarding requirements) stated reports must be forwarded to reach Headquarters Department of the Army within the period up to 90 days after the thru date on the report. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180011617 6 1