IN THE CASE OF: BOARD DATE: 24 February 2022 DOCKET NUMBER: AR20200009291 APPLICANT REQUESTS: a. Appearance before the board. b. Removal of a General Officer Memorandum of Reprimand (GOMOR) from the restricted folder of her Army Military Human Resource Record (AMHRR) and appearance before a Special Selection Board (SSB); or in the alternative, c. Correction of the false allegations contained in the GOMOR. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Legal Brief * Military Orders * GOMOR, dated 17 August 2017 * Request to Transfer GOMOR, dated 25 March 2019 * DA Form 1574-2 (Report of Proceedings by Board of Officers) with enclosures and exhibits * Department of the Army Suitability Evaluation Board (DASEB) Proceedings, dated 6 August 2019 * DASEB Proceedings, dated18 February 2020 * 2 DA Forms 67-10-01 (Company Grade Plate (O1-O3; WO1-CW2) Officer Evaluation Report (OER)), for the period 22 February 2019 through 1 July 2020 * 15 Letters of Recommendation FACTS: 1. The applicant states, in effect: a. She will be separated from the United States Army Reserve (USAR) as a result of being a two-time non-select for promotion to the rank of Major (MAJ/O-4). Her effective date for Mandatory Removal Date (MRD) is 1 January 2021. She respectfully requests an expedited review of this petition by the Army Board for Correction of Military Records (ABCMR) and correction of the material error in her files with subsequent consideration for promotion by an SSB due to improper and prejudicial information considered by the Fiscal Year 2020 (FY 20) MAJ Army Promotion List (APL) Army Reserve Active Guard Reserve Promotion Selection Board (AR AGR PSB). This was her above the zone PSB, which convened on 4 March 2020 and recessed on 31 March 2020. b. In addition, she requests that the GOMOR that is currently filed in the restricted folder of her AMHRR be removed or revised under Title 10, U.S. Code, Section 1552, because it contains inaccurate and inflammatory allegations, as proven by her Administrative Separation Board (ASB). To the extent it is required in order to meet a SSB, she also requests that the decision made by the DASEB on 18 February 2020 to transfer the GOMOR to the restricted portion of her AMHRR be made retroactive to 14 August 2019, because this was a reconsideration of the DASEB’s initial, unfavorable decision on 14 August 2019. c. In 2017, she misused her Government Travel Card (GTC). However, all of her unauthorized GTC charges were paid within a month. On 17 August 2017, she received a GOMOR and the issuing authority directed the GOMOR be filed in her AMHRR. On 22 February 2019, the issuing authority wrote a memorandum in support of transferring the GOMOR to her restricted file. d. On 14 April 2019, her ASB found that the more serious allegations listed on her GOMOR were not supported by a preponderance of the evidence. Her GOMOR currently states" ... you did receive counseling regarding the misuse of your government issued travel card. Furthermore, when asked by the investigation officer if you had ever received counseling about misusing your government card before your 2017 misuse, you provided a sworn statement in an attempt to deceive, saying you had not, a statement which was totally false, and was then known by you to be totally false. Your actions are in violation of the Uniform Code of Military Justice (UCMJ), Article 92, failure to obey an order or regulation and Article 107, false official statement." The applicant contends that her ASB found all of these allegations to be false, and recommended that she be retained in the service. e. In August of 2019 the DASEB denied her request to transfer the GOMOR. The DASEB determined that maintaining the GOMOR within the performance folder of her AMHRR was in the best interest of the Army. The applicant contends that the DASEB made this decision despite the fact that she met all of the GOMOR transfer requirements, to include providing a memorandum from the GOMOR issuing authority in support of the transfer, and having additional supporting recommendation from her current supervisors at the time. f. On 5 January 2020, she petitioned the ABCMR to review the DASEB's unfavorable decision to leave the GOMOR in the performance folder of her AMHRR. This request was considered by the DASEB as she had not exhausted all her administrative remedies. This request came just prior to the start of her above the zone consideration for promotion to MAJ. On 18 February 2020, the DASEB, having reconsidered their 1 August 2019 unfavorable decision, directed that the GOMOR be transferred to the restricted folder of her AMHRR. g. Her My Board File closed on 26 February 2020, and the PSB convened on 4 March 2020. The DASEB did not send notice of their decision to HRC until 18 March 2020. Her PSB recessed on 31 March 2020. In her opinion, and given that she met all of the GOMOR transfer requirements, to include having a transfer memorandum from the GOMOR issuing authority, the DASEB should have granted her initial request, and moved the GOMOR to her restricted folder in August 2019 or earlier. h. Nonetheless, the DASEB's reconsideration and decision to transfer the GOMOR into her restricted folder is dated 18 February 2020, which was made before the promotion board convened on 4 March 2020. Allowing this inaccurate and prejudicial GOMOR to remain before the promotion board resulted in her being a two-time non- select for promotion to MAJ. She contends that she met all of the other military and civilian education requirements, having graduated from the Captain Career Course in 2015 and receiving her Master's Degree in Organizational Leadership in 2014. i. She provides exhibits to fully explain her case. These exhibits include her current indefinite AGR Title 10 orders, the GOMOR that she received in 2017 with the false allegations, the summary and findings from her ASB, dated 14 April 2019, where the board determined that the more serious allegations listed on her GOMOR were not supported by a preponderance of the evidence, her appeal to the DASEB to move the GOMOR to the restricted portion of her AMHRR, her official notification of separation from the USAR on 1 January 2021, the DASEB's initial unfavorable decision, her petition to the ABCMR to reconsider the DASEB's unfavorable decision, the DASEB's favorable decision, and numerous letters supporting the transfer of the GOMOR. j. Her last two OERs show she was rated as “highly qualified” and each senior rater agreed she should be promoted and retained in the USAR. The comments from her rating chain include: * her wealth of operations knowledge will allow her to succeed as a BN Operations officer * must retain on the AGR program of the Army Reserves * promote with peers and send to ILE * promote to MAJ and send to Resident ILE * will excel in any position [s]he is given k. She is facing a discharge from the USAR due to a complete injustice and an inaccurate GOMOR. It is her sincere hope that the Board will rectify this injustice by directing a SSB and the removal, or revision, of the GOMOR she received. 2. The applicant’s counsel joins the applicant in her request detailed above and further states, in effect: a. In April of 2019, the applicant submitted a request to the DASEB to place the GOMOR into the restricted folder of her AMHRR in advance of her upcoming in the zone promotion board scheduled for August of 2019. This request was reasonable and was supported by the GOMOR issuing authority and others. On 14 August of 2019, the DASEB arbitrarily denied this request. b. On or about 5 January 2020, the applicant submitted an application to the ABCMR requesting that the Board order her GOMOR to be transferred to the restricted folder of her AMHRR in advance of her upcoming above the zone promotion board. Before receiving a decision from the ABCMR, the DASEB "reconsidered" their August 2019 decision and directed that the GOMOR be transferred to the restricted folder of her AMHRR. c. The timing and logistics of this decision bear further scrutiny. We respectfully submit that the August 2019 denial was arbitrary and capricious. Had the DASEB made the transfer at that time the applicant had a reasonable probability of promotion and this would not have been an issue. This unfairness is compounded by the timing of their reconsideration. The Board can see from the evidence that the DASEB's decision is dated 18 February 2020. The applicant’s promotion board convened on 4 March 2020 and recessed on 31 March 2020. The 18 February 2020 DASEB reconsideration decision states: "This decision is not retroactive and, therefore, does not constitute grounds for promotion reconsideration if previously non-selected." d. This GOMOR should have been transferred prior to the applicant’s in the zone promotion board that took place in August of 2019. In the alternative, the February 2020 DASEB reconsideration decision should have been retroactive since they were reconsidering the August 2019 request. Putting all of that aside, the DASEB's reconsideration decision was made on 18 February 2020, prior to her above the zone promotion board convened. For unknown reasons, this DASEB decision was not sent to U.S. Army Human Resources Command (HRC) until 18 March 2020. The applicant's above the zone promotion board considered and reviewed her GOMOR even though it was ordered to be transferred before they even convened. Even assuming a good reason existed to wait until 18 March 2020 to share the 18 February 2020 DASEB reconsideration decision with HRC, the GOMOR was still ordered to be placed into her restricted file before the promotion board recessed. The bottom line is this already inaccurate and prejudicial GOMOR should not have been considered by the applicant’s March 2020 promotion board. e. Allowing the applicant to have a fair review by an SSB is the right thing to do under the circumstances of this case. It is also the right thing to do for the Army. It is not common to receive personal letters of recommendation from flag officers in matters like this. The applicant has two, in addition to the many other letters of support that are attached. Removing or revising the inaccurate GOMOR and directing an SSB will rectify a material error and injustice. 3. A review of the applicant’s official records shows that having prior enlisted service, she was appointed as a Reserve Commissioned Officer, second lieutenant, on 15 May 2010. At the time of this request, the applicant was serving as a captain in the AGR. 4. On 17 August 2017, the applicant received a GOMOR. The GOMOR stated, in part: An Army Regulation 15-6 (Procedures for Administrative Investigations and Boards of Officers) reveled that on divers occasions between 1 March 2017 and 15 May 2017, she intentionally misused her GTC. The investigation also showed that she had misused her card in 2015. At that time her card was revoked and she was counselled regarding the misuse of the GTC. She also provided a sworn statement wherein she denied having been previously counselled about misusing her GTC prior to the 2017 misuse. A statement which was totally false and was known by her to be false. 5. On 12 September 2017, after consideration of the applicant’s rebuttal, the GOMOR issuing authority directed the document to be filed in the performance folder of the applicant’s AMHRR. The subject GOMOR was filed in her AMHRR on 5 March 2018. 6. On 25 March 2019, the applicant applied to the DASEB for transfer of the GOMOR to the restricted folder of her AMHRR. She stated the GOMOR had served its intended purpose and noted her achievements since the imposition of the GOMOR. In support of her request she provided a letter of recommendation from the GOMOR issuing authority, her supervisor, and another senior officer. She also provided her OER for the period 22 February 2018 through 21 February 2019. The GOMOR issuing authority memorandum is dated 22 February 2019, prior to the ASB. 7. On 14 April 2019, she was the subject of an ASB to determine if she should be retained or involuntarily separated. The ASB found in accordance with AR 600-8-24 (Officer Transfers and Discharges) - a. Paragraph 4-2b(1), under the provision of discreditable or intentional failure to meet personal financial obligation, the applicant DID NOT use her GTC for personal use in 2015; however, she DID misuse her GTC on 31 March 2017. b. Paragraph 4-2b(3), under the provision of mismanagement of personal affairs to the discredit of the Army, the applicant DID misuse her GTC in 2015 by using it for personal use while not on military orders and failed to pay the GTC in a timely manner. c. Paragraph 4-2b(3), under the provision of mismanagement of personal affairs to the discredit of the Army, the applicant DID misuse her GTC on 31 March 2017, resulting in a GOMOR, dated 17 August 2017, which was filed in her AMHRR. d. Paragraph 4-2b(4), under the provisions of intentional omission or misstatement of fact in official statements or records for the purpose of misrepresentation, the applicant DID NOT provide the investigation officer with an intentionally misleading or untruthful official statement regarding her previous misuse of her GTC for the purpose of misrepresentation. e. Paragraph 4-2b(5) under acts of personal misconduct, the applicant DID NOT intentionally misuse her GTC between 1 March 2017 and 15 May 2017, despite her knowledge of the rules, policies and regulation regrading use of GTC, its usage which is a violation of the UCMJ, Article 92. f. Paragraph 4-2b(8), she DID NOT commit conduct unbecoming an officer as supported by the above referenced GOMOR. g. Paragraph 4-2c(5), under provisions for derogatory information, for adverse information filed in the AMHRR, and the requirement issued within the Office of the Chief, Army Reserve memorandum, dated 23 June 2017, Subject: Involuntary Separation of Army Reserve Officers and Warrant Officers, paragraph 6(d), commanders will initiate involuntary separation proceeding for officers “when adverse information has been filed in the Soldier’s AMHRR since the last centralized selection board reviewed in the Soldier’s records,” the applicant DID receive a GOMOR, dated 17 August 2017, which was filed in her AMHRR. 8. The ASB recommended the applicant be retained. The applicant’s record is void of a request to have the content of the GOMOR altered or revised based on the ASB findings and recommendation. 9. The DASEB denied the applicant’s request on 14 August 2019, stating the evidence presented did not provide substantial evidence that the document in question had served its intended and that its transfer would be in the best interest of the Army. 10. The applicant provides a memorandum, dated 5 January 2020, wherein she petitioned the ABCMR to transfer the GOMOR from the performance folder to the restricted folder of her AMHRR. This case was reconsidered by the DASEB, as the applicant had not exhausted all administrative remedies. 11. On 18 March 2020, the DASEB notified the applicant that her request to transfer the GOMOR, dated 17 August 2017, to the restriction folder of her AMHRR was approved. The DASEB further noted that this action was not retroactive and, therefore, did not constitute grounds for promotion reconsideration if previously non-selected. The applicant’s AHMRR shows the DASEB’s decision was filed in the restricted folder on 20 March 2020. 12. On 29 July 2020, the Director, Officer Personnel Management Directorate, notified the applicant of her 1 January 2021 MRD due to non-selection for promotion by the Army Reserve Component FY 20, Reserve Component, MAJ, PSB. 13. The applicant was honorably discharged with separation pay, due to non-selection for permanent promotion on 1 February 2021. She completed 9 years, 4 months, and 4 days of active service for the period. 14. The applicant provided the following additional evidence: a. A sworn statement wherein she contends that she used her GTC for other than official business between 1 March 2017 and 15 May 2017, because she misplaced her personal debt card and credit cards. In a subsequent sworn statement, she admitted to forgetting about an issue with a GTC approximately 2 years before this incident because she had resolved the matter by paying off the balance. b. Two OERs for the period 22 February 2019 through 1 July 2020, which show she received ratings of “proficient and highly qualified,” while serving as the Operations Officer and the Readiness Officer, for the Expeditionary Sustainment Command. The latter evaluation contains the senior rater comment “Promote to Major and send to ILE.” c. Numerous letters of recommendation for retroactive transfer of the GOMOR. These letters are written by senior officers and include two letters from general officers. The letters from the senior officers attest to her technical skills and leadership ability, and contend that the applicant had met the regulatory transfer requirements when she initially applied to the DASEB, therefore, should receive a retroactive transfer of the GOMOR to August 2019, with consideration by a SSB. c. Of note is the recommendation from the GOMOR issuing authority stating that he strongly recommends the ABCMR make the transfer to the GOMOR retroactive to the DASEB’s initial unfavorable determination of 14 August 2019. The GOMOR issuing authority stated: (1) The applicant had to appeal to the ABCMR to correct this injustice and it was finally approved on 18 March 2020. The receipt of the GOMOR already caused her to be one year behind her peers as she was flagged pending an ASB during the FY19 MAJ APL board. (2) Although the GOMOR was still in her files during the FY 20 MAJ APL board, the effective date of the transfer was on 18 March 2020, and her board file had already been closed on 26 February 2020; a 21-day discrepancy that could have been avoided had the DASEB granted the initial request as opposed to an unfavorable determination. The factors considered by the DASEB in reaching their initial conclusion were not transfer requirements as outlined in AR 600-37 and therefore, the request should have been granted. (3) It is undoubtedly evident the applicant should be retained in the USAR and be given the opportunity to appear before a SSB for promotion to MAJ. (4) The GOMOR issuing authority memorandum is void of a request to alter the content of the GOMOR. 15. The Officer Promotions, Special Actions, Team Lead, provided an advisory opinion for this case on 28 April 2021. This official stated: a. Based on a review of our records and the information provided, we found that the applicant’s request does not have merit. She is requesting a SSB based on the transfer of a GOMOR from the performance folder of her records to her restricted folder. The DASEB ruled in favor of the transfer of the documents on 18 March 2020 but they did not make the action retroactive nor did they approve reconsideration for promotion. b. Although the transfer of the GOMOR was approved, MILPER message 19-351, issued on 1 November 2019, states in paragraph j, the rules for masking documents (moving documents from performance folder to restricted folder). It further states in paragraph j(4) that, if applicable, documents in the disciplinary folder will be part of the board file. c. Reconsideration can only occur as a directive by the ABCMR. 16. The applicant was provided a copy of the advisory opinion for comment on 12 May 2021; however, she did not respond. 17. By regulation: a. An applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. b. An officer who directed the filing in the AMHRR of an administrative memorandum of reprimand, admonition, or censure, may request its revision, alteration, or removal, if evidence or information indicates the basis for the adverse action was untrue or unjust, in whole or in part. An officer who directed such a filing must provide the DASEB a copy of the new evidence or information to justify the request 18. FY 20 AR AGR MAJ APL guidance required that documents in the Performance- Disciplinary folder of the AMHRR would be part of the My Board File. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, a majority of the Board found relief is not warranted. The Board unanimously found the available evidence sufficient to fully and fairly consider this case without a personal appearance by the applicant. 2. The Board found insufficient evidence of a clear and compelling nature indicating the GOMOR the applicant received contained inaccurate information regarding the misconduct that was the basis for the reprimand. The Board determined the GOMOR should not be amended nor should it be removed from her AMHRR. 3. A majority of the Board further found insufficient evidence to support referring her records to an SSB. While the timing of the transfer of the GOMOR to the restricted portion of her AMHRR left it visible to the promotion board, the Board determined that this did not constitute a material error in her board file as the DASEB clearly stated its decision, dated 18 March 2020, made after the date the applicant's board file had closed on 26 February 2020 per the Military Personnel message that announced the promotion board, was not retroactive and did not constitute grounds for promotion reconsideration. A majority of the Board determined the presence of the GOMOR in her board file was not in error or unjust. 4. The member in the minority found the timing of the transfer of the GOMOR to the restricted folder of the applicant's AMHRR to be unjust. The applicant was, in effect, at the mercy of the DASEB's schedule, and had the DASEB issued a decision merely 30 days earlier, the applicant's GOMOR would have already been in the restricted folder of her AMHRR or, if not transferred prior to her board file closing, she would have had a clear basis for an SSB. The member in the minority determined the applicant's records should be referred to an SSB with the GOMOR masked. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : :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. Army Regulation (AR) 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that: a. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The Board is not an investigative body. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. AR 600-8-104 (Army Military Human Resource Records Management (AMHRRM)) prescribes the policies governing the AMHRRM program. a. It provides that once a document is placed in the AMHRR, it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the ABCMR or other authorized agency. b. The restricted folder contains documents that may normally be considered improper for viewing by selection boards or career managers. Includes masked documents. 3. 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) provides the policies and procedures for appeals and petitions for removal, alteration, or transfer of unfavorable information from the AMHRR. b. Paragraph 7-2 (Policies and Standards), states an officer who directed the filing in the OMPF of an administrative memorandum of reprimand, admonition, or censure, may request its revision, alteration, or removal, if later investigation determines such information is untrue/unjust in whole or in part. The basis for such determination must be provided to the DASEB in sufficient detail so as to justify the request. (1) Removals. There is no time restriction for submitting an appeal for removal of unfavorable information from the AMHRR. The recipient has the burden of proof to show, by clear and convincing evidence, to support assertion that the document is either untrue or unjust, in whole or in part. Evidence submitted in support of the appeal may include, but is not limited to: an official investigation showing the initial investigation was untrue or unjust; decisions made by an authority above the imposing authority overturning the basis for the adverse documents; notarized witness statements; historical records; official documents; and/or legal opinions. (2) Transfer. GOMOR's may be transferred upon proof that their intended purpose has been served or that their transfer would be in the best interest of the Army. The burden of proof rests with the Soldier concerned to provide substantial evidence that these conditions have been met. Transfer require that the Soldier must have received at least one evaluation (other than academic) since the imposition, proof substantiating evidence that the intended purpose of the document has been served, and indicate how the transfer would be in the best interest of the Army. c. In addition to board instructions, Promotion Selection Boards will receive the following (not all inclusive) performance folder of the AMHRR, including authorized documents not in the My Board File, the DA Form 4037 (Officer Record Brief), an official Department of the Army photograph, and if available, separation documents, correspondence to the board, and access to the restricted folder as governed by appropriate regulation. d. An officer who directed the filing in the AMHRR of an administrative memorandum of reprimand, admonition, or censure, may request its revision, alteration, or removal, if evidence or information indicates the basis for the adverse action was untrue or unjust, in whole or in part. An officer who directed such a filing must provide the DASEB a copy of the new evidence or information to justify the request. 4. AR 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system. It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support officer promotions. a. A post-board screening will be conducted on officers selected for promotion to captain to colonel, and chief warrant officer 3 to chief warrant officer 5 before the results of the PSB are forwarded to the Secretary of the Army. b. Before the selection board report is approved by the President or his designee, the name of an officer in a grade above second lieutenant, recommended for promotion by a selection board, may be removed from the report of the board only by the President. A PRB will consider the following: (1) An officer’s official military personnel record, consisting of the OMPF (including relevant portions of the restricted fiche), Officer Record Brief, and official photo, as those records exist when the board convenes. (2) Additional information received by HQDA, but not filed in the OMPF, which the referral authority finds is substantiated and relevant, and might reasonably and materially affect a promotion recommendation, provided the information has properly been referred to the officer for comment. (3) Any submission to the board by an officer under consideration. An officer may include the opinion and statements of third persons in his or her submission. b. Chapter 7 provides that Special Selection Boards (SSB) may be convened to consider or reconsider commissioned or warrant officers for promotion when Headquarters, DA (HQDA) discovers the board that considered an officer from in or above did not have before it some material information wherein an SSB is discretionary. 5. The Fiscal Year 2020, Reserve Component, Army Reserve Active Guard Reserve, Army Reserve Non-Active Guard Reserve, and Army National Guard of the United States, Major, Army Promotion List, Competitive Categories, Promotion Selection Board Zones of Consideration, issued on 1 November 2019, states that the rules for masking documents (moving documents from the Performance folder to the Restricted folder) includes moving documents in the Performance-Disciplinary folder of the AMHRR to the My Board File. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200009291 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1