IN THE CASE OF: 

		BOARD DATE: 9 May 2023

		DOCKET NUMBER: AR20220009752


APPLICANT REQUESTS:  

*	To direct removal of Summary of Credible Adverse Information from her Army 
Military Human Resources Record (AMHRR)
*	Special Selection Board (SSB) for reconsideration for promotion to the 
rank/grade of major (MAJ)/O-4

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	Legal brief from counsel
*	Summary of Credible Adverse Information
*	Headquarters (HQs), U. S. Army Special Operations Command General Officer 
Memorandum of Reprimand (GOMOR) – Filing Decision
*	Alpha Company, 369th Adjutant General Battalion Memorandum for Record
*	Character Reference from Colonel (COL) 
*	Character Reference from COL 
*	Character Reference from COL 
*	Character Reference from Lieutenant Colonel (LTC) 
*	Character Reference from LTC 
*	Character Reference from LTC 
*	Character Reference from LTC 

FACTS:

1.  The applicant states in effect, she requests a SSB to be convened to reconsider her 
promotion to the rank of MAJ by a new promotion selection board after unsubstantiated 
derogatory information is removed from her promotion board file, along with all direct or 
indirect references to the matter. She does not believe she received a fair chance at 
promotion to the rank of MAJ. 

2.  The applicant states through counsel, the Board direct the expeditious removal of 
summary of credible adverse information from her AMHRR and to convene a SSB to 
reconsider her promotion to the rank of MAJ. The government unlawfully disclosed a 
legally unsubstantiated derogatory narrative to a promotion board regarding the 
applicant and the locally filed GOMOR should have been destroyed.

	a.  Title 10 United States Code (USC), section 615 (a) (3) states in the case of an 
eligible officer consideration for promotion any credible information of an adverse 
nature, including any substantiated adverse finding or conclusion from an officially 
documented investigation or inquiry, shall be furnished to the selection board, when 
credible information of an adverse nature, including substantiated adverse finding or 
conclusion from an officially documented investigation or inquiry is discovered. The 
regulation only permits disclosure of derogatory narrative if the information constitutes a 
substantiated adverse finding or conclusion. The law did not define the standard of 
proof applicable to when an allegation has been substantiated. 

	b.  The alleged Summary of Credible Adverse Information opined by a Judge 
Advocate that probable cause existed to believe the applicant committed the offenses of 
Larceny of Government Funds, Frauds Against the Government, and False Official 
Statement. Despite no clear definition of "substantiated" the government applied the 
lowest standard. The U. S. Supreme Court has long held that the bar for handing down 
a valid indictment was the probable cause standard. Under the weak evidentiary 
standard called probable cause there is always mathematically more evidence of 
innocence than of guilt. The local filing of the GOMOR and no court-martial or board of 
inquiry, exemplifies the fact that the allegations were unsubstantiated.

	c.  The board of inquiry finding of probable cause must result in an unsubstantiated 
finding which directly supports the commonsense contention that probable cause is 
insufficient to open the defamatory door. Hence the door in this case should have 
remained locked as the more than likely not standard is applicable to Title 10 USC, 
section 615 (a) (3). Army Regulation 15-6 (Procedures for Administrative Investigations 
and Board of Officers) also states that to qualify as adverse information, the findings 
must be credible, using the preponderance of the evidence standard, and derogatory, 
unfavorable, or of a nature that reflects clearly unacceptable conduct, integrity, or 
judgement. There was a due process violation embedded in equity that the applicant 
had unsubstantiated derogatory matters reviewed by the promotion board that denied 
her promotion.

	d.  On 28 January 2021, Major General (MG) locally filed a GOMOR in the 
applicant's unit personnel file for the next 18-months or until the applicant was 
reassigned under another General Court-Martial Convening Authority (GCMCA), which 
was directly related to the alleged summary of credible adverse information. On or 
about 1 April 2020, the applicant was reassigned under another GCMCA. At which time, 
the GOMOR should have been destroyed. The GOMOR was not rightfully destroyed as 
required by Army Regulation, if it were, it would not have been considered by the 
promotion board. Fairness is a constitutional due process concept; the men and women 
of the Armed Forces do not leave constitutional safeguards and judicial protections 
behind when they enter into military service.

	e.  The GOMOR and all other related information should not have been known to the 
Criminal Investigative Division (CID), the whole point of a local file is effectively 
provided, without it being brought up again. CID failed to adhere to the rule and reported 
the derogatory information as an arguable means of retribution which resulted in non-
prosecution on account of the same reasons that the CID allegation were locally filed 
and to be forgotten about.

	f.  The board acted contrary to law, regulation, or guidelines, the Secretary may 
modify, withdraw or supplement such information or guidelines as part of a written 
explanation to the board. Thus, we respectfully request one convene a SSB under the 
provisions of Title 10, USC, section 628. There is no doubt the U.S. Army has imposed 
the more likely than not standard to seemingly protect its members. Counsel 
encourages the Board to take a stand and stop the use of unsubstantiated claims from 
irreparably harming careers when clearly the law intends both in spirit and in practice, to 
protect service members from suffering such miscarriage of justice.

2.  A review of the applicant's service record shows:

	a.  With prior Regular Army (RA) and U. S. Army Reserve (USAR) enlisted service, 
the applicant was appointed a RA commissioned officer on 24 November 2010 in the 
rank/grade of second lieutenant (2LT)/O-1.

	b.  The applicant's officer record brief shows the applicant was assigned to:

*	Headquarters and Headquarters Battalion (HHBN), Fort Bragg, NC, on 
26 January 2019
*	Army Special Operations Command on 26 January 2020
*	HHBN on 1 April 2021
*	266th Financial Management Support Center on 31 January 2022

	c.  On 23 April 2012, Orders Number 114-009, issued by Headquarters (HQs), U.S. 
Army Human Resources Command (HRC), promoted the applicant to the rank/grade of 
first lieutenant (1LT)/O-2, effective on with a Date of Rank (DOR) of 24 May 2012.

	d.  On 19 April 2017, Orders Number 109-003, issued by HRC, promoted the 
applicant to the rank/grade of captain (CPT)/O-3, effective on with a DOR of 
6 October 2015.

	e.  The applicant successfully completed the Financial Management Captains' 
Career Course during the period of 24 July through 15 December 2017.
	f.  DA Form 67-10-1 (Company Grade Plate O1 through O3, WO1 through CW2) 
Officers Evaluation Report) for the rating period of 22 December 2018 through 
25 January 2020 shows the applicant was rated as a Budget Officer assigned to 
Company A, Signal Intelligence, Fort Bragg, NC. The applicant's rater rated her overall 
performance as "Capable." The rater commented the applicant had adequate military 
bearing, professionalism, and resilience. She had adequate completion of assigned 
work and understanding of resource management concepts to include field budget 
estimates. She received one on one mentorship to develop budget skills. Received 
supervision and training through completion of tasks and worked towards becoming a 
team player and developing professional relationships. She adequately pulled required 
daily reports, attended meetings and delegated assigned tasks. She frequently 
employed reactive skills in executing assigned duties. The applicant's senior rater rated 
her potential as "Qualified." The senior rated commented the applicant was capable, 
resourceful and determined. Continue to groom and develop the applicant as she 
demonstrates potential. 

	g.  DA Form 67-10-1 for the rating period of 26 January 2020 through 
31 March 2021 shows the applicant was rated as a Budget Officer assigned to the Army 
Special Operations Command, Fort Bragg, NC. The applicant's rater rated her overall 
performance as "Proficient." The rater commented the applicant established a cross 
training program and developed systematic processes to build redundancy within the 
staff ensuring routine completion of tasks. She displayed a flexible mindset which 
allowed for the coordination and dissemination of taskers in support of General Fund 
Enterprise Business System (GFEBS) implementation to multiple subordinate units. The 
applicant's senior rater rated her potential as "Highly Qualified." The senior rater 
commented the applicant tackled complex problems and operated effectively with 
supervision and touch points. The applicant should be considered for promotion to the 
rank of MAJ.

	h.  DA Form 67-10-1 for the rating period of 1 April 2021 through 30 January 2022 
shows the applicant was rated as the Operations Officer assigned to Company HQs and 
Support, Fort Bragg, NC. The applicant's rater rated her overall performance as 
"Proficient." The rater commented the applicant was a highly competent and gifted 
officer whose work ethic was unmatched. Her extraordinary capacity to handle an 
innumerable number of complex tasks solidified her selection over her peers to be the 
battalion assistant S3. The applicant's senior rater rated her potential as "Most 
Qualified." The senior rater commented the applicant could operate in complex and 
ambiguous environments with ease. Must select her now for Intermediate Level 
Education and promote to MAJ.

	i.  DA Form 67-10-1 for the rating period of 10 June 2022 through 2 January 2023 
shows the applicant was rated as the Assistant Operations Officer, Future Operations 
assigned to the Military Entrance Processing Station, Fort Hamilton, NY. The applicant's 
rater rated her overall performance as "Excels." The rater commented the applicant was 
dedicated with a strong desire to accomplish the mission. She mentored new personnel 
and guided them with the proper tools and resources to be successful. The applicant's 
senior rater rated her potential as "Highly Qualified." The senior rater commented the 
applicant was eager to apply herself to the operational needs. She had the potential to 
complete complex missions that may have been difficult for others. The applicant should 
be selected for MAJ. The applicant refused to sign the evaluation.

3.  The applicant provides:

	a.  Summary of Credible Adverse Information shows the adverse information was 
reported to CID for substantiated findings of larceny of government funds, frauds 
against the government and false official statement. The investigation/inquiry approval 
date was 4 December 2020. The law enforcement investigation revealed the applicant 
received Basic Allowance for Housing (BAH) for the incorrect locations while her 
daughter was not in her custody. The child lived in with a relative of the applicant's 
during the period of October 2014 through May 2017. The child then lived with the 
applicant during the period of through December 2017 at Fort Jackson, SC. The child 
then lived in during the period of 21 December 2017 through 15 November 2018. The 
child's father was then awarded custody on 16 November 2018 and remained in his 
custody since. The loss to the government was in the amount of $52,321.55. A Judge 
Advocate opined probable cause existed to believe the applicant committed the 
offenses of larceny of government funds, frauds against the government, and false 
official statement. The disposition shows a DA Form 4833 (Commander's Report of 
Disciplinary or Administrative Action), stated the officer received a locally filed GOMOR 
on 28 January 2021 and an adverse record entry (flag).

	b.  HQs, U.S. Army Special Operations Command memorandum dated 
28 January 2021, Subject: General Officer Memorandum of Reprimand – Filing 
Decision stated Brigadier General (BG) reviewed the documents and GOMOR issued to 
the applicant who was assigned to HQs and HQs Company, U.S. Army Special 
Operations Command dated 19 November 2020. He directed the GOMOR to be filed in 
the applicant's local unit personnel file, where it was to remain for 18-months or until she 
was transferred to another GCMCA whichever was sooner.

	c.  Alpha Company, 369th Adjutant General Battalion, memorandum for record 
dated 23 September 2020 stated on 1 April 2020, the applicant was transferred to 
HHBN, XVIII Airborne Corps which changed her GCMCA.

	d.  Character reference from COL stated he observed the applicant for almost 18-
months while assigned to HHBN in his capacity as the battalion commander and later 
as the executive officer to the commanding general during the period of 2020 through 
2021. The applicant was an Army officer with impeccable work ethic, professionalism, 
and ability to lead. She impressed him and the command team with her maturity, 
intelligence, and perseverance throughout her tenure with the unit. Her drive and 
motivation played a key role in the accomplishment of the unit's financial and 
operational mission. She would arrive early and leave late as needed to ensure the daily 
tasks were met and to prepare for the next day. She would selflessly sacrifice her time 
on countless occasions, to lift the weight off her struggling peer's. When the applicant 
informed him, she received a GOMOR while assigned to the U.S. Army Special 
Operations Command for BAH fraud based on an allegation which stemmed from an 
ongoing custody battle, he was surprised.

	e.  Character reference from COL stated the applicant has his strongest 
recommendation to be promoted to the rank of MAJ. He has had the privilege of 
knowing the applicant since 2009 when she was a sergeant in Korea. He could 
personally confirm her superior leadership qualities and capability as a person and an 
Army officer. To his understanding the applicant received a locally filed GOMOR, which 
means to him the General did not think it was serious enough to be filed in her 
permanent record. So how did it get there? According to Army Regulation, anonymous 
communications will not be filed in a Soldier's AMHRR or filed locally. The applicant was 
never told the GOMOR would be transferred to her permanent record, but it would be 
filed locally. The applicant is a natural born leader, and her stellar performance was 
indicative of her professionalism and steadfast loyalty to the U.S. Army, the nation, and 
exemplifies the spirit of Duty, Honor, and Country. His recommendation would be to 
vacate the GOMOR and promote her to MAJ.

	f.  Character reference from COL stated the applicant is a proud Financial 
Management Officer, proud of her accomplishments and even prouder of her team's 
accomplishments. She is a competent leader, responsible, and mature. The applicant is 
a strong asset to any command and a force multiplier to the Army. She demands high 
quality results that enables the unit to carry out the mission to the highest standards. 
The applicant had suffered many unfounded accusations as part of a custody dispute, 
obviously he was not there, but he could say the applicant is an exceedingly reliable 
officer.

	g.  Letter of recommendation from LTC stated he met the applicant upon 
redeployment from Operation Inherent Resolve and he was her direct supervisor. She 
tackled requirements with professional maturity and independence looking to provide 
the best product possible. The applicant strives for leadership opportunities and that 
drive embodies what the Army is looking for in senior leaders. The incident between the 
applicant and her peers was an anomaly in his opinion, way out of character and does 
not define the applicant.

	h.  Character reference from LTC stated the applicant has served honorably for over 
10-years and he had known her for several years. She demonstrated superb 
performance and care for those she worked with. The applicant possesses the utmost 
professionalism and is an excellent steward of our profession. She is an officer of high 
character, integrity, and respect. During the time he has known the applicant her 
performance and conduct was that expected of a commissioned officer. The Army 
needs young officer with the applicant's talent, experience, and motivation to continue to 
serve.

	i.  Character reference from LTC stated he met the applicant in 2014 while stationed 
in Germany when she was a company commander. The applicant is an officer of 
character, integrity, and respect. She is talented and a rising star in the Finance Corps. 
He found the applicant to be honest and trustworthy. He requests the applicant be given 
the benefit of the doubt as she is also presumed innocent.

	j.  Character reference from LTC stated the applicant is tactically sound and 
technically proficient. She does not rest until the task is accomplished to standard and 
beyond. The applicant is a strong asset to any command, a force multiplier to the Army 
and a very resilient person. He requests the applicant be given the benefit of the doubt, 
she is a person of immense integrity.

4.  On 10 March 2023, in the processing of this case, HRC, Team Lead, Officer 
Promotions Special Actions, provided an advisory opinion regarding the applicant's 
request for a SSB. 

	a.  Based on a review of their records and the information provided, they found that 
the applicant’s request for a special selection board does not have merit at this time. 
The applicant is requesting that she be reconsidered for promotion to the rank of Major 
(MAJ). The records indicate that there was an Adverse Summary placed in the board 
file due to derogatory information. A special selection board can only be granted if the 
ABCMR rules in the favor to have that information removed and cleared through the 
Criminal Investigation Divisions data base.

	b.  As defined in Department of the Defense Instruction (DoDI) 1320.04, adverse 
information is any substantiated adverse finding or conclusion from an officially 
documented investigation or inquiry or any other credible information of an adverse 
nature. To be credible, the information must be resolved and supported by a 
preponderance of the evidence. Officers should contact their servicing Legal Assistance 
Office or Trial Defense Services for assistance if they believe an adverse summary in 
their file is not required to be considered by the promotion board.

5.  On 15 March 2023, the Army Review Boards Agency, Case Management Division 
provided the applicant through her counsel, the advisory opinion for review and 
comment, the applicant has not responded.

BOARD DISCUSSION:

After reviewing the application, all supporting documents, and the evidence found within 
the military record, the Board found that relief was not warranted. The applicant’s 
contentions, the military record, and regulatory guidance were carefully considered. The 
evidence of record shows a USACID investigation, together with a legal review, 
established probable cause existed to believe the applicant committed the offenses of 
larceny of government funds, frauds against the government, and false official 
statement. The disposition shows a DA Form 4833 stated the officer received a locally 
filed GOMOR on 28 January 2021 and an adverse flag. The Board found no GOMOR 
filed in the applicant’s AMHRR. Removal of the applicant’s name from the USACID 
Report of Investigation should first be addressed by the applicant to USACID. Since the 
applicant has not petitioned USACID and/or received approval to remove the derogatory 
information from the CID records, there is no material error. The Board determined she 
is ineligible for an SSB at this time. 

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.  Army Regulation (AR) 600-8-29 (Officer Promotions), prescribes the officer 
promotion function of military human resources (HR) support operations.

	a.  Paragraph 2-7a (4) (Captain, major, and lieutenant colonel), these officers must 
serve at least 3 years of Time in Grade to be considered for promotion. This 
requirement may be waived by the Secretary of the Army (SECARMY) only for 
consideration from below the zone (BZ).

	b.  Paragraph 2–12a, a post-board screening initiated by the DMPM will be 
conducted on officers selected for promotion to CPT through COL and CW3 through 
CW5 before the results of the PSB are forwarded to the SECARMY. A post-board 
screening will include, but is not limited to, a review of information in official files 
maintained by U.S. Army Criminal Investigation Command, the Department of the Army 
Inspector General (DAIG), the restricted portion of the AMHRR, and a query for 
suspension of favorable personnel actions. A board convened at Headquarters 
Department of the Army (HQDA) will review any derogatory information from the post-
board screening and advise the DCS, G–1 or designee whether the information is 
substantiated, relevant, and might reasonably and materially affect a promotion 
recommendation. An officer with adverse or reportable information that might 
reasonably and materially affect a promotion recommendation may not meet exemplary 
conduct requirements for promotion and may be recommended for a delay in promotion 
and referred to a Promotion Review Board (PRB). An officer who is pending 
investigation into potential adverse information may not meet exemplary conduct 
requirements for promotion and will be recommended for a delay in promotion until the 
matter is resolved.

	c.  Paragraph 6–2 (Special Selection Board),a. SSBs may be convened under Title 
10, USC, section 628 to consider or reconsider commissioned or warrant officers for 
promotion when HQDA determines that one or more of the following circumstances 
exist:

      (1) Administrative error (SSB required). An officer was not considered from in or 
above the promotion zone by a regularly scheduled board because of administrative 
error.
      
      (2) Material unfairness (HRC discretionary), (a) The action of the promotion 
board that considered the officer from in or above the promotion zone was contrary to 
law in a matter material to the division of the board or involved material error of fact or 
material administrative error or (b) The board that considered the officer from in or 
above the promotion zone did not have before it for its consideration material 
information.
   d.  Paragraph 6–7 (Information provided to SSBs), an SSB will consider the record 
of the officer as it should have been considered by the original board. The record will be 
compared with a sampling of those officers of the same competitive category, who were 
recommended and not recommended for promotion by the original selection board.

	e.  Paragraph 7–2 (Basis for referral to Promotion Review board), HQDA will 
continuously review promotion lists to ensure that no officer is promoted where there is 
cause to believe that he or she is mentally, physically, morally, or professionally 
unqualified to perform the duties of the higher grade. An officer may be referred to a 
PRB for the following reasons (the list is not exclusive):

*	a referred evaluation reports
*	punishment under UCMJ, Art. 15 (whether filed in the restricted or performance 
file of the AMHRR)
*	any court-martial conviction
*	a memorandum of reprimand placed in the AMHRR
*	adverse documentation filed in the AMHRR
*	initiation of elimination action 
*	failure to make satisfactory progress in the Army Body Composition Program
	other adverse information received by HQDA but not filed in the AMHRR, if the 
referral authority finds that the information is substantiated, relevant, and might 
reasonably and materially affect a promotion recommendation

2.  Title 10 USC, section 628 (Special Selection Boards), (a) Persons Not Considered 
by Promotion Boards Due to Administrative Error. (1) If the Secretary of the military 
department concerned determines that because of administrative error a person who 
should have been considered for selection for promotion from in or above the promotion 
zone by a promotion board was not so considered, the Secretary shall convene a SSB 
under this subsection to determine whether that person should be recommended for 
promotion. (b) Persons Considered by Promotion Boards in Unfair Manner. (1) If the 
Secretary of the military department concerned determines, in the case of a person who 
was considered for selection for promotion by a promotion board but was not selected, 
that there was material unfairness with respect to that person, the Secretary may 
convene a SSB under this subsection to determine whether that person (whether or not 
then on active duty) should be recommended for promotion.

3.  Army Directive 2010-10 (Enhancement of the Promotion Review Board Process), 
Meeting the leadership needs of our Army demands that we promote the best qualified 
officers. Officers must meet statutory requirements for exemplary conduct, set forth in 
Title 10, USC, section 3583. To this end, Department of the Army policy mandates the 
review of promotion lists to ensure that no officer is promoted when there is cause to 
believe that he or she is mentally, physically, morally or professionally unqualified or 
unsuited to perform the duties of the next higher grade to which he or she was selected 
for promotion.

4.  AR 600-37 (Unfavorable Information), sets forth policies and procedures to ensure 
the best interests of both the Army and Soldiers are served by authorizing unfavorable 
information to be placed in, transferred within, or removed from an individual's AMHRR. 
Paragraph 3–5, filing of nonpunitive administrative memoranda of reprimand, 
admonition, or censure a.  Authority for filing in the local file.  There are only two filing 
options: filing in the performance portion of the AMHRR, or local filing. Commanders do 
not have the option to file memoranda in the restricted portion of the AMHRR. If local 
filing is intended, the memorandum does not need to be referred to a higher authority 
for review.

5.  Title 10 USC, section 615 (Information furnished to selection boards), (3) (A) in the 
case of an eligible officer considered for promotion to a grade, any credible information 
of an adverse nature, including any substantiated adverse finding or conclusion from an 
officially documented investigation or inquiry, shall be furnished to the selection board in 
accordance with standards and procedures set out in the regulations prescribed by the 
Secretary of Defense. a.  Adverse Information.  Adverse information is any 
substantiated adverse finding or conclusion from an officially documented investigation 
or inquiry or any other credible information of an adverse nature. To be credible, the 
information must be resolved and supported by a preponderance of the evidence. To be 
adverse, the information must be derogatory, unfavorable, or of a nature that reflects 
clearly unacceptable conduct, integrity, or judgment on the part of the individual.

6.  AR 600-8-104 (Army Military Human Resources Records Management governs the 
composition of Official Military Personnel File (OMPF) and states the performance 
section is used for filing performance, commendatory, and disciplinary data. Once 
placed in the OMPF, the document becomes a permanent part of that file. The 
document will not be removed from or moved to another part of the OMPF unless 
directed by certain agencies, to include this Board.

7.  Title 10, USC, section 14104 states, the proceedings of a selection board convened 
under section 14101 or 14502 of this title may not be disclosed to any person not a 
member of the board, except as authorized or required to process the report of the 
board. This prohibition is a statutory exemption from disclosure, as described in section 
552(b)(3) of title 5. (b)Prohibited Uses of Board Discussions, Deliberations, Notes, and 
Records.—The discussions and deliberations of a selection board described in 
subsection (a) and any written or documentary record of such discussions and 
deliberations—(1)are immune from legal process; (2)may not be admitted as evidence; 
and (3)may not be used for any purpose in any action, suit, or judicial or administrative 
proceeding without the consent of the Secretary of the military department concerned.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20220009752


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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