IN THE CASE OF: BOARD DATE: 14 February 2022 DOCKET NUMBER: AR20210008311 APPLICANT REQUESTS: * removal of the general officer memorandum of reprimand (GOMOR), 5 October 2016, and any reference to it from his Army Military Human Resource Record (AMHRR) * retroactive promotion to colonel (COL)/O-6 * back pay and allowances associated with promotion to COL/O-6 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Letter from Applicant's Counsel, 23 March 2021 * Counsel's Memorandum in Support of Application for Correction of Military Records, 23 March 2021, with exhibits – * Exhibit 1 – * Character Reference Letters (2) * Email Examples (4) * Exhibit 2 – * Bronze Star Medal Certificate, 25 November 2008 * Officer Evaluation Reports (OERs) (14) * Exhibit 3 – Documented Performance Issues * Exhibit 4 – Approved Nurse Specialist Duties * Exhibit 5 – Army Regulation 600-8-10 (Leaves and Passes) (Excerpt) * Exhibit 6 – Email Correspondence with Commander * Exhibit 7 – Major (MAJ) Request for Audit * Exhibit 8 – * MAJ Complaint of Bullying * Army Regulation 600-20 (Command Policy) (Excerpt) * Exhibit 9 – Unapproved Policy – Supervisory Clinical Nurse, Evening/Night Nursing Supervisor * Exhibit 10 – Approved Policy – Walter Reed National Military Medical Center (WRNMMC) Organizational Manual * Exhibit 11 – Approved Policy Definitions * Exhibit 12 – Findings/Discussions/Opinions on Investigation Results (Partial) * Exhibit 13 – Fort Hood Sentinel Family Care Plan Article * Exhibit 14 – Letters of Support/Character Reference Statements (9) (Multiple Unsigned) * Exhibit 15 – Department of Defense Instruction (DODI) 1320.04 (Military Officer Actions Requiring Presidential, Secretary of Defense, or Under Secretary of Defense for Personnel and Readiness Approval or Senate Confirmation) Definitions (Excerpt) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) 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 defers to counsel. 3. Counsel states the underlying facts of the unjust GOMOR in this appeal highlight the retaliation military leaders face when attempting to hold subordinates accountable. The applicant was faced with a subordinate who repeatedly failed to report to work on time and, when at work, displayed a complete disregard for military principles. While working within the scope of his nursing duties at WRNMMC, the applicant reviewed the medical records of his subordinate's dependent child and reported the status of the patient to his superior; a process followed routinely without incident for many other WRNMMC staff members and their dependents. This process, however, was seized upon by his subordinate as an opportunity to deflect from her professional failings. The applicant was reprimanded even though he followed the departmental standard operating procedure (SOP) and past practice. This GOMOR was wholly undeserved and continues to stand in the way of justice. He further states: a. In regard to the applicant's work history at WRNMMC, from the beginning of MAJ time at WRNMMC under the applicant, she was frequently late for work, arrived at morning report out of uniform, wore bright colored glasses against regulatory guidance, vanished form the work areas for more than 1 hour at a time, refused to work past 1800 hours, refused to cover shifts on weekends, and was confrontational with both nursing staff and providers when they would attempt to coordinate patient care with her. This is a plethora of enumerated deficiencies in regard to MAJ b. When the applicant was initially assigned to WRNMMC, he was told he would be assigned to the Emergency Department. However, after he arrived, he was assigned to the Nurse on Duty Office and later placed in the role of ambulatory advisor for the Nursing Directorate. As part of the applicant's duties, it was customary for his immediate supervisor, COL to direct him to investigate various incidents within the hospital and report back to her. The nurses on duty were tasked to investigate command and special-interest patients throughout the hospital to ensure the patients were in appropriate units and the staff had the appropriate resources to care for their assigned patients. c. On 29 April 2015, the applicant was assigned as the Chief Nursing Officer of the Day. This is the same day MAJ abruptly left work to care for her sick child. One of the other nurses advised the applicant that MAJ brought her child to the emergency department. Part of the applicant's duties as the nurse on duty was to ensure proper staffing throughout the hospital, to include the pediatric ward. He was also MAJ supervisor. He knew many of the staff would be leaving work soon and wanted to ensure sufficient staff were available should MAJ daughter be admitted. The applicant wanted to ensure the utmost in care. This was not unusual as staff and their family members fell under the rubric of "Special Interest Patient" in which the applicant would be tasked by COL to investigate and report the status. d. The applicant quickly reviewed the medical record, saw MAJ daughter was not seriously ill, and verbally reported this to COL . He then conferred with the nursing leader in the Emergency Department who stated she would let him know if there was a significant change which might require the child to be admitted. e. On 30 April 2015, MAJ informed the applicant that she received 72-hours sick-in- quarters to take care of her child. Sick-in-quarters is uncharged leave governed by Army Regulation 600-8-10 and is to be used for "an absence wherein the Soldier is excused from duty for treatment, or medically directed self-treatment…It is not chargeable as leave." Sick-in-quarters only applies to the Soldier and does not extend to the care of family members. f. After several discussions with COL about the leave policy and the mission requirement due to the workload, the applicant recalled MAJ to work. COL was hesitant to enforce the regulation because she knew MAJ would push back. MAJ indicated she did not have appropriate care for her sick child and was subsequently found to not have a Family Care Plan. f. MAJ heard from the nurse leader in the emergency room that the applicant inquired about the status of her daughter. MAJ admittedly had no idea if the applicant had viewed any records at all. MAJ filed a request for an audit after she had been informed the applicant was to be her rater, requested her to return to work, and to find an alternate care giver for her daughter. After MAJ learned the applicant accessed her daughter's electronic health record, MAJ took that opportunity to add an additional allegation of bullying without specifics. Filing her complaint could be used to prevent the applicant from rating MAJ performance, or in the very least to create grounds for an appeal of her OER. g. Counsel contends: (1) The imposing authority for the GOMOR ignored or failed to properly consider the evident. (2) MAJ allegation is suspect in that she had knowledge of the procedures of reporting special interest patients, which included her daughter, and did not voice any objections until after she learned the applicant was to be her rater and that he was considering counseling her for her improper use of leave. This information was either not fully considered or its significance was not fully appreciated. (3) Issuing a GOMOR was unduly harsh given the applicant's service record. The GOMOR issuing authority failed to properly investigate the policy and exculpatory evidence and instead decided to issue a GOMOR. h. Removal of the GOMOR from the applicant's AMHRR is warranted because: (1) There is overwhelming evidence that the underlying facts as stated by the imposing authority are inaccurate. (2) Given the evidence contained in this application, there is no support for the GOMOR. If the information had been provided at the beginning of the investigation, the applicant would have been promoted to COL and would still be serving. (3) The applicant has no other reason to view the electronic health record of MAJ daughter other than staffing levels and to keep his chain of command apprised. 4. The WRNMMC SOP for Nursing Administration, 13 February 2013, approved by the Deputy Commander for Nursing shows the Special Interest Patient Category includes family members of WRNMMC staff. 5. The Defense Health Agency Nurse Specialist Position Description, 18 March 2013, shows: a. The incumbent is responsible for oversight in a wide variety of clinical unit specialties, which include the emergency department. b. The incumbent makes periodic rounds of work sites to evaluate quality of patient care and to ensure overall patient safety and welfare; assess condition of patients; provides nursing care; and advises patient and family members on overall health care needs, with full consideration of mental, emotional, cultural, social, and physical factors. c. The incumbent investigates occurrences and any other problems that may affect the quality of patient care, efficiency, or staff safety/satisfaction. d. The incumbent prepares required verbal and written reports for the Deputy Commander for Nursing, incoming nursing supervisor, or department chiefs, to include information regarding the condition and nursing care of special interest patients and any patient whose condition has unexpectedly deteriorated. 6. On 15 August 2014, the applicant signed the WRNMMC Confidentially Agreement. Paragraph 11 states: "I further agree to comply with INFOSEC [information security], privacy and confidentiality rules and regulations as forth in command and higher authority directives, the Privacy Act of 1974, and the Health Insurance Portability and Accountability Act (HIPAA)." 7. On 31 August 2014, the applicant completed the Privacy Act and HIPAA Clinical Refresher Course. The Privacy Act and HIPAA Clinical Refresher Course is taken within 30 days of onboarding and annually thereafter. 8. On 7 May 2015, the applicant emailed the company commander and first sergeant (1SG) regarding the applicant. The email shows the applicant wanted to counsel MAJ regarding the 72-hour quarters slip her daughter received, as well as for her Family Care Plan. On 28 May 2015, the 1SG replied to the email and recommended that the applicant counsel MAJ . The 1SG further provided appropriate language to include in the counseling. 9. On 2 June 2015, the applicant rendered a DA Form 4856 (Developmental Counseling Form) showing MAJ was being counseled in regard to child care for her sick child. It further shows MAJ daughter was placed in quarters for 72 hours on 29 April 2015. MAJ was instructed by the applicant to return to work on 1 May 2015, as her daughter was placed in quarters and not MAJ . The applicant cited Army Regulation 600-20, paragraph 5-5 (Family Care Plans), as well as Army Regulation 600-8-24 for authorized leaves and passes. The DA Form 4856 is not signed by MAJ or the applicant. 10. Email examples, between 16 October 2014 and 11 April 2015, show reports on command-interest patients written by MAJ and multiple other military and civilian health personnel. 11. An untitled document (exhibit 3) ranging in date from 16 October 2014 through 1 June 2015 shows the applicant was annotating MAJ performance issues. 12. On 30 June 2015, MAJ filed a HIPAA complaint. The HIPAA Complaint Template shows the complaint was filed on behalf of MAJ daughter and states the violation occurred at WRNMMC by the applicant on or between 29 April 2015 and 5 May 2015. MAJ alleges the applicant had unauthorized access/viewed health information. The complaint states MAJ was not notified of any violation; however, after a visit to the Emergency Department, MAJ was placed on 72-hours in quarters with her daughter. The applicant texted her and stated her quarters were only a suggestion to the command and she needed to find an alternate caregiver for her daughter. MAJ was also informed by the Emergency Room Service Chief, that the applicant was in the emergency room inquiring about her daughter's status. 13. On 10 July 2015, MAJ filed an additional HIPAA complaint. The HIPAA Complaint Template states the HIPAA violation was caused by the applicant on 29 April 2015. MAJ was made aware of the violation on 10 July 2015. In addition to the applicant's unauthorized access/view of health information, he used that information to bully MAJ . The complaint further states the applicant does not work in the emergency room and had no involvement in her child's care or any justifiable need to know the particulars of her daughter's condition or care. 14. On 13 July 2015, Privacy Officer, completed a DD Form 2959 (Breach of Personally Identifiable Information (PII) Report) in response to a complaint for an audit request from a beneficiary who suspected her supervisor inappropriately accessed her daughter's electronic health record. An Essentris (Clinical Information System) access audit conducted for the time period from 29 April 2015 to 5 May 2015 revealed a potential breach occurred on 29 April 2015 when the dependent's records were accessed without an apparent need to know. The sponsor of the affected dependent was notified about the accesses and subsequently submitted a complaint for investigation. classified the impact determination of the breach as "high." 15. An Essentris Access Audit Report (best copy) shows the applicant accessed the electronic health record of MAJ daughter on 29 April 2015. 16. On 16 July 2015, read and provided the applicant with a copy of his Article 31, Uniform Code of Military Justice, rights and fully informed the applicant of the allegations against him concerning the inappropriate accesses of a patient's electronic health record within the Clinical Information System without a need to know in violation of Role Based Access; outside the scope of his duties; absent of the HIPAA Provisions for Treatment, Payment, and/or Healthcare Operations; without an authorization and/or the patient's consent. a. The applicant invoked his right to end the interview after being asked why he accessed MAJ daughter's records on Essentris on 29 April 2015. b. The applicant stated he could not recall the reasons why he had accessed the records and requested the questions be provided to him in written form so he could review them and provide a response at a later time. 17. On 28 August 2015, interviewed COL . She stated no report was received from the applicant which would provide an accounting of the disclosure. She further stated the applicant did not need to review MAJ daughter's electronic health record per his official duties. 18. On 19 October 2015, the applicant provided responses to the interview questions submitted by wherein he stated: a. He was on duty on 29 April 2015. When MAJ arrived that morning, she stated her daughter was sick the night before with a significant fever. It was reported to him later that day that MAJ received a phone call from the Child Development Center who reported her daughter had vomited and spiked a fever. MAJ immediately left to get her daughter and brought her to the Emergency Department. b. Responsibilities in the nursing supervisors' office include reporting significant illness or injury that happens to command-interest patients, to include the staff and/or their families. It is routine for the nurse on duty to examine the records of command- interest patients. A synopsis is send in a report to the Deputy Director for Nursing, who reports to the Chief of Staff every business day. He previously raised concerns about the HIPAA and the potential of issues similar to this. c. In his professional opinion, any staff member who had a family member acutely ill enough to promptly leave duty, pick up that sick family member, and then rush the family member to the Emergency Department qualified for immediate investigation and reporting to higher levels of the nursing chain of command. In this particular case, he quickly looked (approximately 1 minute) into the record in his role as the nursing supervisor to ascertain the severity of the child's illness, potential for admission, and to determine the priority of reporting to the higher levels of authority. He verbally reported his findings to COL as appropriate for this command-interest patient. d. He recalled coming to the conclusion that the child was unlikely to be seriously ill and was unlikely to require admission based on the initial assessment and preliminary interventions. e. He previously discussed his concerns regarding harassment from the Nurse on Duty staff with an attorney. There have been multiple occurrences, to include libel and slander directed at him, which created a hostile work environment. The complaint against him seems to fit into a larger pattern of attempts to harass him through the use of complaints to Equal Opportunity, Inspector General, and the Occupational Safety and Health Administration. The request for this investigation was likely initiated by MAJ as she was attempting to disqualify him as her OER rater. Additionally, the request for investigation may be a response to deflect from her failure to have a Family Care Plan for which he was preparing to counsel her. f. He heard the Nurse on Duty staff in the past discuss the use of the complaint process to punish leaders they dislike or disagree with. The harassment has already caused him to ask for a transfer from the Nurse on Duty Office. 19. On 3 February 2016, asked additional questions of COL regarding the alleged HIPAA violation. She states: a. They are subject to HIPAA rules and are not permitted access to records of their employees or their beneficiaries unless they are command-interest patients. b. The Emergency Department nursing leadership attend the morning report on Monday through Friday to provide clarification on the Nurse on Duty Report if needed. The only Emergency Department data listed on the Nurse on Duty Report include: * total Emergency Department visits * admissions * transfers * left without being seen * patients who leave against medical advice 20. On or about 24 February 2016, issued a 7-page memorandum (Findings of the HIPAA Act Investigation) to the Chief of Staff, WRNMMC. The report details an investigation into allegations that the applicant impermissibly accessed the electronic health record for the dependent daughter of MAJ . At the time of the events in question, the applicant was MAJ supervisor, and he was also acting as the Chief of the Nursing Supervisors or the Nurse on Duty. This alleged breach was reported to higher headquarters, as required. The report shows: a. After reviewing the facts, references, and statements provided by the applicant and COL it was opinion that: (1) The access of MAJ minor daughter's electronic health record was a substantiated breach. In accordance with DOD 6025-18R (DOD Health Information Privacy Regulation), chapter 4, the applicant's access was not in compliance with treatment, payment, or healthcare operations. In addition, there was no evidence of authorization. The applicant would have a need for certain information about MAJ daughter's condition, but it should be limited to the minimum necessary. By accessing the electronic health record, it seems the applicant exceeded that amount. (2) The applicant, as the Nurse on Duty, likely would have a need to know that MAJ daughter was in the Emergency Department. DOD 5400.11-R (Department of Defense Privacy Program) provides that one can release PII to those within the agency with a need to know, but it should be limited to that much information that is needed. This means, although one has a need to know, it does not give the individual unfettered access to the PII. b. recommended that: (1) WRNNMC leadership notify the applicant's chain of command of the violation(s) to ensure appropriate actions are taken; (2) WRNNMC leadership ensure the applicant completes remedial HIPAA training via Joint Knowledge Online; (3) WRNNMC leadership suspends the applicant's clinical access as a result this breach of a patient record. WRNNMC leadership should determine how long the access should be suspended or if a clinical practice review should be conducted for this HIPAA violation. 21. On 5 October 2016, Brigadier General (BG) Acting Commander, issued the applicant a GOMOR for unlawfully accessing the medical records of one of his subordinate service member's dependents in violation of HIPAA. In addition, when questioned about accessing the records, the applicant was dishonest by claiming he acted in accordance with his duties as the Nursing Supervisor and that he verbally notified his supervisor of his findings. His duties did not require him to access his subordinate's records and he never made a report of the access to his supervisor. 22. On 7 October 2016, the applicant acknowledged receipt of the GOMOR and elected to submit written matters. 23. On 21 October 2016, the applicant submitted written rebuttal matters for consideration. He stated he acted in accordance with his duties as the Chief of Nursing Supervisors, HIPAA, DOD Policy, and the practices of WRNMMC when he accessed the medical records of MAJ on 29 April 2015. Furthermore, he states he was honest and forthright at all times. He did not lie when questioned about the incident by the investigating officer (IO) as he did verbally report the access of the medical record to his supervisor. His duties both authorized and required him to gain the necessary information on the patient. He believes his actions have come into question due to a professional conflict with and antagonism from MAJ . He further stated: a. The GOMOR alleges that he unlawfully accessed the medical record of MAJ dependent on 29 April 2015 in violation of HIPAA. DOD 6025-18R prescribes the uses and disclosures of protected health information and is based upon the requirements of HIPAA. DOD 6025-18R, chapter 4, paragraph C4.2.1, provides that "A covered entity may use or disclose protected health information for its own treatment, payment, or healthcare operations." b. The WRNMMC SOP requires all nursing personnel to provide reports on distinguished visitors or special-interest patients, as noted in "Distinguished Visitors." Special-interest patients include "Family members of WRNMMC staff." c. Based upon the guidance provided in DOD 6025-18R and WRNMMC policy, his actions on 29 April 2015 were proper and not a violation of HIPAA. DOD 6025-18R, DL 1.1.13, identifies healthcare operations, to include activities related to covered functions, to include "Conducting quality assessment and improvement activities...case management and care coordination...and related functions that do not include treatment." In accordance with paragraph C4.2.1, a covered entity may use protected health information for health care operations if the subject has a special relationship with the entity requesting the information and such activity is for quality assessment and care coordination. Here, MAJ child had a special relationship with the entity, the U.S. Army, as the dependent is considered a "special-interest patient," as defined by the WRNMMC SOP. d. Concerning the issue of alleged dishonesty, he contends he was at all times honest and transparent about reporting the findings to COL . He verbally reported to COL the summary of information, relaying to her that MAJ had left work and brought her daughter to the Emergency Department, and that it seemed her daughter did not need be admitted. He did not disclose any specifics about how he came to that conclusion, nor was he asked how he came to that conclusion. In the questioning by the IO, COL was asked about the command-interest reporting policy. The IO then requested a copy of the Nurse on Duty reports from 29-30 April 2015. The IO followed up with COL by asking if the information was presented to her about MAJ child "in a report." The questions that followed were centered on a written accounting of the report, and not whether the report was provided in a verbal manner as indicated in the applicant's statement. It was not customary to provide details on how he arrived at a conclusion, but if COL had expressed a concern, he would have told her that he looked at the vital signs, the initial assessment, and orders of the child to the Emergency Department. The applicant was not withholding information; it was not customary to disclose that information. As noted in COL letter of support, the applicant routinely provides verbal updates about patients throughout the hospital, including those in the Emergency Department. If this child were any other employee's child and he were made aware that the employee departed unexpectedly from work and rushed his/her child to the Emergency Department, he would be expected to provide the same level of oversight and reporting as he provided with MAJ child. He has remained honest in his assertions that he informed COL of the status of the child when she initially reported to the Emergency Department. e. He sincerely believes that MAJ of the alleged HIPAA violation is retaliation for professional issues that developed as he started to document her performance, and was an attempt by her to remove him as her immediate rater. At the time of the incident, he was MAJ immediate supervisor and rater. As her supervisor, he assigned MAJ multiple additional duties, including assigning her to represent the Nurses on Duty at the Code Blue Committee; write the Nurse on Duty schedules; and examine the policy and application for the distribution of parking permits. April and May were the months for her annual OER midterm evaluation. He noted MAJ was failing at these tasks and he began to examine her performance more closely. She failed to attend any of the Code Blue Committee meetings, she passed the scheduling task to another civilian nurse on duty, and she made false accusations against senior nurses of having both a parking permit as well as mass transit benefits. Over time, MAJ pushed the boundaries even further, despite several verbal counselings for minor infractions, such as arriving to work late, wearing glasses that did not conform to uniform standards, and attending morning report meetings in civilian clothes. MAJ eventually refused to work after 1700 hours or on weekends. Subsequent to the 29 April 2015 incident, he was actively working with the company commander as he considered counseling MAJ for violating multiple known standards. He requested reassignment due to the negative work environment and targeted attacks against him by the nurses on duty as a group, as identified in Navy Commander letter of recommendation. With these noted declines in performance, he strongly believes MAJ was attempting to manipulate the system to exclude him from writing her OER. 24. The applicant's chain of command recommended the following in regard to the applicant's GOMOR filing determination: a. The company commander recommended permanently filing the GOMOR in the applicant's AMHRR. He made this recommendation because the applicant "completed HIPPA [HIPAA] training as a provider, and has been well informed of his supervisory limits and rights. This patient was not of his own, and records should not have been entered. These actions are not in good standing with Army Values." b. The brigade commander recommended placing the GOMOR in the applicant's local unit file for a period of 3 years or until the applicant is reassigned outside of the general court-martial convening authority. He made this recommendation because he truly believes that, despite the applicant accessing the records of MAJ child for a reason that was not within the scope of his duties and responsibilities, the applicant's submission of additional matters raise questions that made him believe the correct filing action is placement of the GOMOR in the applicant's local unit file. 25. On 9 November 2016, BG reviewed the applicant's GOMOR rebuttal matters and directed permanently filing the GOMOR in the applicant's AMHRR. BG stated he finds "it much more likely than not that this records breach was performed because of non pt [patient] care related issues in direct violation of our positions of trust as health care professionals." 26. On 14 November 2016, the applicant acknowledged receipt of the GOMOR filing determination. 27. On various dates in 2018, nine civilian and military personnel in the health care field rendered character references to the Board of Inquiry in support of the applicant. (Note: Six of the character references are not signed.) All of the character references attest to the applicant's exemplary professional health care field acumen and exceptional leadership. 28. On 16 December 2020, COL (Retired) provided a character reference in support of the applicant. She states their policy while working together at WRNMMC for 2 years was to report command-interest patients, either verbally or through written means. She further states the applicant is a consummate professional who used sound, clinical judgment in the management of patient flow. His critical care and emergency nursing expertise proved invaluable. The applicant served admirably as an Army Nurse officer and clinical professional. 29. On 27 January 2021, Navy Commander (Retired) provided a character reference in support of the applicant. He states he was the Department Chief of Nursing Administration at WRNMMC and served with the applicant for 2 years. In regard to viewing the electronic health records of MAJ daughter, the applicant was in line with the mission requirement that was set forth by senior leadership at the time. It was standard practice to report sensitive personal health information of any command-interest patients admitted to the hospital and seen in the emergency room. In his opinion, there was high pressure form senior leadership to find and relay accurate and very detailed information for command-interest patients. The level of information that was requested on many occasions frequently "crossed the line" for personal health information and went beyond what would be considered the scope of what was needed for senior leadership. The actions by the applicant were in line with the expectations that were set forth by the senior leadership of the command. 30. On 30 June 2019, the applicant retired by reason of unacceptable conduct. He completed 21 years, 5 months, and 1 day of total active service. BOARD DISCUSSION: After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that relief was not warranted. The Board carefully considered the applicant’s contentions, military record, and regulatory guidance. The Board considered the provided character references. The Board noted the applicant’s experience and agreed that based on that experience, the applicant would have been aware of the Health and Insurance Portability and Accountability Act standards. Based on the preponderance of evidence available for review, the Board determined the evidence presented insufficient to warrant a recommendation for relief. 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, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 600-37 (Unfavorable Information), 10 April 2018, sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensured that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensured 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 3 (Unfavorable Information in Official Personnel Files) states an administrative memorandum of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the Soldier. The memorandum must be referred to the recipient and the referral must include and list applicable portions of investigations, reports, or other documents that serve as a basis for the reprimand. Statements or other evidence furnished by the recipient must be reviewed and considered before a filing determination is made. b. Paragraph 3-4 states non-punitive administrative letters of reprimand, admonition, or censure in official personnel files, such as a memorandum of reprimand, may be filed in a Soldier's AMHRR only upon the order of a general officer-level authority and is to be filed in the performance folder. The direction for filing is to be contained in an endorsement or addendum to the memorandum. If the reprimand is to be filed in the AMHRR, the recipient's submissions are to be attached. Once filed in the AMHRR, the reprimand and associated documents are permanent unless removed in accordance with chapter 7 (Appeals). c. Paragraph 7-2 (Policies and Standards) states 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 that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the AMHRR. d. Only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder of the AMHRR. Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would be in the best interest of the Army. The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met. 3. Army Regulation 600-8-104 (Army Military Human Resource Records Management), 7 April 2014, prescribes policies governing the Army Military Human Resource Records Management Program. The AMHRR includes, but is not limited to, the Official Military Personnel File, finance-related documents, and non-service related documents deemed necessary to store by the Army. Paragraph 3-6 provides that once a document is properly filed in the AMHRR, the document will not be removed from the record unless directed by the ABCMR or other authorized agency. 4. Army Regulation 600-8-29 (Officer Promotions), 25 February 2005, prescribed policies and procedures governing promotion of Army commissioned and warrant officers on the Active Duty List. a. Paragraph 1-10 (Promotion Eligibility) stated promotion eligibility is determined by the Deputy Chief of Staff, G-1, and approved by the Secretary of the Army. For centralized promotions, eligibility is based on an officer's active date of rank and time in grade. Lieutenant colonels must serve 1 year of time in grade to be considered for promotion to COL. b. Paragraph 1-11 (Approving Promotion Board Recommendations) stated promotion boards make recommendations to the President of the United States. The President has delegated authority to the Secretary of Defense to approve or disapprove promotion board reports. Promotions to the grade of major and above must be confirmed by the Senate. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210008311 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1