IN THE CASE OF: BOARD DATE: 23 August 2012 DOCKET NUMBER: AR20120000041 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests the General Officer Memorandum of Reprimand (GOMOR), dated 3 December 2010, be removed from her Official Military Personnel File (OMPF) or transferred to the restricted portion of her OMPF. 2. She states: * the punishment is unjust * the violation should be handled on a local level and if she violates it again then this magnitude of punishment is warranted * the punishment posted in her OMPF has disabled her career or any other meaningful position in the Army * the violation was she forgot to add a disclaimer with her photo inside her political brochure stating she was not endorsed by the Army * she intended no malice 3. She provides: * Self-authored statement * GOMOR, dated 3 December 2010 * Response to GOMOR with attachments * Character reference * Department of Defense (DOD) Directive Number 1344.10, Political Activities by Members of the Armed Forces on Active Duty CONSIDERATION OF EVIDENCE: 1. The applicant is currently serving in the U.S. Army Reserve in the rank of lieutenant colonel (LTC). 2. The applicant was appointed as a Reserve commissioned officer on 1 October 1986. She was appointed in the Army National Guard on 2 March 1989. She was separated from the Army National Guard on 5 June 1995 and was transferred to the U.S. Army Reserve Control Group (Reinforcement) on the following day. 3. In a 12 October 2010 memorandum, the commanding officer of the 1984th U.S. Army Hospital, 9th Mission Support Command, indicated she had conducted a preliminary inquiry on the applicant for an alleged violation of DOD Directive 1344.10, dated 19 February 2008, "Political Activities by Members of the Armed Forces" and Army Regulation 670-1 (Wear and Appearance of Army Uniforms and Insignia), dated 3 February 2005. Based on the findings of the inquiry, the commanding officer recommended the applicant be issued a GOMOR and that it be permanently filed in the applicant's OMPF. 4. On 3 December 2010, the applicant received a GOMOR for violating DOD Directive 1344.10 by disseminating a political ad campaign flyer during the general election period between August and October 2010, wherein the first page of the flyer had a picture of the applicant in military uniform without the required disclaimer. The GOMOR indicated that DOD Directive 1344.10, paragraph 4.3, provided if she included a photograph of herself in military uniform in her campaign literature, such photograph must be accompanied by a prominent and clearly displayed disclaimer that neither the military information nor photograph implied endorsement by the DOD or Department of the Army. The GOMOR was imposed as an administrative measure and not as punishment under Article 15 of the Uniform Code of Military Justice. On an unknown date, she acknowledged receipt of the GOMOR and elected to submit matters on her behalf. 6. On 24 January 2011, she submitted an appeal to the GOMOR indicating: * it was not appropriate or necessary to permanently file the GOMOR in her OMPF * she explained the events which occurred in her case and the steps she had taken to correct the error * she explained her understanding of the governing DOD Directive 1334.10 * she explained her mistake was not the result of indifference or disregard of her obligations as a Reserve officer 7. On 6 February 2011, the GOMOR imposing authority directed the GOMOR be permanently filed in the applicant's OMPF. 8. A review of the applicant's military records in the Interactive Personnel Electronic Records Management System revealed that the GOMOR and allied documents were filed on both the performance portion and restricted portion of the applicant's OMPF. 9. She provided a 2-page self-authored statement attesting: a. the GOMOR was erroneous, too harsh, and should have not risen to the level of a letter of reprimand. b. although it was her campaign committee that used her photo in a military uniform without an accompanying disclosure in her printed campaign postcards, she accepts full responsibility. c. she met with legal counsel to prepare a formal appeal to the general officer at the same time she was in the middle of a campaign. The general officer upheld the GOMOR. d. she met with the general officer to urge her to place the GOMOR in a restricted file. Since that time, she has made two separate attempts to meet with the general officer again, but to no avail. To date, the GOMOR is still in her OMPF. e. she has served as an elected official for the last 7 years, served in the Army as an active and Reserve officer for 24 years, and has never used her military photo in any of her previous campaigns. f. once she realized the omission, she immediately published a postcard with the disclosure to her entire constituency. The GOMOR was erroneously filed. g. she's an American with Filipino descent who is very proud and loyal to the United States and she would never do anything to disgrace the uniform especially the U.S. Army. 10. She provided a character reference from a congressman from the House of Representatives, State of Hawaii who stated he had known the applicant since her election to the Hawaii House of Representatives in 2005. The congressman listed the positions the applicant has served in and described her as diligent in her duties, hard working, willing to make difficult decisions, unafraid of sticking to her principles, and a successful businessperson. 11. Army Regulation 600-8-104 (Military Personnel Information Management/ Records) prescribes the policies governing the OMPF, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records. Paragraph 2-4 of this regulation states that once a document is placed in the OMPF 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 Army Board for Correction of Military Records (ABCMR), the Department of the Army Suitability Evaluation Board (DASEB), Army Appeals Board, Chief of Appeals and Corrections Branch of the U.S. Army Human Resources Command, the OMPF custodian when documents have been improperly filed, Human Resources Command, as an exception, Chief of the Appeals Branch of the Army Reserve Personnel Center and Chief of the Appeals Branch of the National Guard Personnel Center. 12. Army Regulation 600-37 (Unfavorable Information) prescribes policies and procedures regarding unfavorable information considered for inclusion in official personnel files. Chapter 3 covers unfavorable information in official personnel files. a. Paragraph 3-4 applies to filing of nonpunitive administrative letters of reprimand or censure in official personnel files. b. Paragraph 3-4(b) states that a letter, regardless of the issuing authority, may be filed in the OMPF maintained by the U.S. Army Human Resources Command, the Army Reserve Personnel Command, or the proper State Adjutant General (for Army National Guard Personnel) only upon the order of a general officer (to include one frocked to the rank of brigadier general) senior to the recipient by direction of an officer having general court-martial jurisdiction over the individual. Letters filed in the OMPF will be filed on the performance portion (P-portion). The direction for filing in the OMPF will be contained in an endorsement or addendum to the letter. Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer will 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. Appeals submitted under this provision will normally be returned without action unless at least one year has elapsed since the imposition of the letter and at least one evaluation report, other than academic, has been received in the interim. DISCUSSION AND CONCLUSIONS: 1. The applicant received a GOMOR on 3 December 2010 for violating DOD Directive 1344.10 by disseminating a political ad campaign flyer during the general election period between August and October 2010, wherein the first page of the flyer had a picture of the applicant in military uniform without the required disclaimer. 2. The evidence of record shows the GOMOR and allied documents were properly filed in the performance portion of the applicant's OMPF in accordance with applicable regulations. However, the GOMOR and allied documents were subsequently also placed in the restricted portion of her OMPF. 3. Although the applicant's GOMOR was erroneously filed on the restricted portion of her OMPF, it will remain filed on the restricted portion of her OMPF as it does not cause harm to the applicant. 4. The GOMOR was properly imposed against the applicant, and the evidence presented was insufficient to warrant the request for removal of the GOMOR. In addition, it is believed that due to the short period of time that has passed it is not evident that the GOMOR has met its intended purpose so to justify its transfer so it is only filed in the restricted section. BOARD VOTE: ________ ________ ________ 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. _____________x____________ CHAIRPERSON 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. ABCMR Record of Proceedings (cont) AR20120000041 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120000041 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1