IN THE CASE OF:	  

		BOARD DATE:	    24 August 2010

		DOCKET NUMBER:  AR20100007772 


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 immediate removal of a Department of the Army Suitability Evaluation Board (DASEB) memorandum, dated 25 November 2008; a general officer memorandum of reprimand (GOMOR), dated 9 June 1998; officer evaluation reports (OER's) for the periods 1 October 1997 through 9 June 1998 and 10 June 1999 through 21 February 2000; and all related documents from her official military personnel file (OMPF).

2.  The applicant states:

* in 2009 the issuing authority (now retired Major General H____) for the GOMOR wrote a letter of rescission recommending the GOMOR be removed from her permanent records because of the time period elapsed, her outstanding record, and the fact that failure to transfer this letter would result in more than the intended purpose
* in accordance with Army Regulation 600-37 (Unfavorable Information), paragraph 7-2b, 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 GOMOR, OER's, and all related documents should be removed from her OMPF
* the DASEB memorandum is not a disciplinary document
* upon review of her OMPF in preparation for the major promotion board she discovered the DASEB memorandum was viewable in her OMPF
* she will not receive a fair and true assessment of her performance based on these documents
* these documents are erroneously filed in her OMPF and promotion board file
* her current unit conducted a fraudulent investigation
* the Department of the Army G-1 states, "the unit's actions have no legal basis" and was returned without action
* the DASEB memorandum serves no purpose and has no legal basis

3.  The applicant provides:

* memorandum, dated 28 October 2008, from retired Major General H____
* DA Forms 67-9 (OER) for the periods 21 February 2008 through 20 February 2009 and 21 February 2007 through 20 February 2008
* DA Form 1059 (Service School Academic Evaluation Report)
* certificate of completion
* biotechnology certificate

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service in the Regular Army, the applicant was commissioned as a second lieutenant on 1 June 1991.  She was promoted to captain on 1 October 1995.

2.  The first contested OER is an 8-month relief-for-cause OER covering the period 1 October 1997 through 9 June 1998.

3.  This contested OER shows the applicant was rated "Unsatisfactory Performance, Do Not Promote" in Part Va (Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion) by her rater.  She was rated "Do Not Promote" in Part VIIa (Senior Rater/Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade).  She was rated "Below Center of Mass, Do Not Retain" in Part VIIb (Senior Rater/Potential Compared with Officers Senior Rated in Same Grade (overprinted by Department of the Army).

4.  On 9 June 1998, the applicant received a GOMOR for misconduct.  An Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers) investigation was the basis for the GOMOR.  The imposing authority, Major General H____, stated that after reviewing the Army Regulation 15-6 Report of Proceedings, dated 3 March 1998, a preponderance of evidence established the applicant created an abusive command climate which fostered charges of racism and sexism from her senior enlisted Soldiers, she resorted to threats and coercion against personnel whose interests she perceived as different from her own, she frequently verbally abused military subordinates as well as civilians, and she failed to provide leadership conducive to the morale and welfare of her Soldiers.  The preponderance of the evidence further established she breached her integrity by knowingly using the government fleet services card to purchase gasoline for her private automobile and by threatening her noncommissioned officers with bad ratings if they did not donate to the company cup and flower fund.  On 27 July 1998, the commanding general directed that the GOMOR be filed in the applicant's OMPF.

5.  The second contested OER is a 5-month permanent-change-of-station OER covering the period 10 June 1999 through 21 February 2000.

6.  This contested OER shows the applicant was rated "Other (Explain)" in Part Va by her rater.  The bullet comments indicate the applicant was being discharged from the Army under other than honorable conditions.  She was rated "Do Not Promote" in Part VIIa.  She was rated "Below Center of Mass, Do Not Retain" in Part VIIb.

7.  On 13 April 2001, the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 4-2b, for unacceptable conduct.

8.  On 1 November 2005, the applicant applied for a Reserve commission.  On 12 February 2007, she accepted an appointment as a Reserve commissioned officer.  She is currently serving in the U.S. Army Reserve in the rank of captain.

9.  A review of the applicant's performance section of her OMPF in the integrated Personnel Electronic Records Management System revealed a copy of the DASEB memorandum, GOMOR, and OER's in question.

10.  In March 2008, the applicant submitted an appeal to the DASEB requesting that the 9 June 1998 GOMOR be removed or transferred to the restricted section of her OMPF.  The DASEB found the evidence presented did not establish clearly and convincingly the GOMOR was untrue or unjust or that the presumption of regularity should not be applied.  Further, the evidence did not provide substantial evidence the GOMOR in question had served its intended purpose and that its transfer would be in the best interest of the Army.  On 20 November 2008, the DASEB voted to deny the applicant's request.  A memorandum, dated 25 November 2008, from the President, DASEB, to the Commander, U.S. Army Human Resources Command, St. Louis, Missouri, states that after careful consideration, the DASEB voted to deny the removal of the GOMOR, dated 9 June 1998.  The memorandum stated that a copy of this memorandum was to be added to the performance portion of the applicant's OMPF and the enclosed appeal correspondence and Record of Proceedings should be added to the restricted portion.

11.  The applicant provided an OER for the period 21 February 2007 through 20 February 2008 which shows she was rated "Outstanding Performance, Must Promote" in Part Va by her rater.  She was rated "Best Qualified" in Part VIIa.  The entry "No Box Check" was entered in Part VIIb on this OER.

12.  The applicant also provided an OER for the period 21 February 2008 through 20 February 2009 which shows she was rated "Outstanding Performance, Must Promote" in Part Va by her rater.  She was rated "Best Qualified" in Part VIIa.  The entry "No Box Check" was entered in Part VIIb on this OER.

13.  A memorandum, dated 20 April 2009, from the Department of the Army Office of the Deputy Chief of Staff G-1 states that a request to revoke the applicant's appointment was returned without action.  The memorandum also states that although the applicant should have received a waiver to be eligible for appointment, she was favorably recommended by an Army selection board and approved for appointment by the Secretary of Defense.  The applicant disclosed she had been previously discharged or resigned in lieu of elimination and there is no evidence indicating she committed fraud in obtaining her appointment.  Because an officer's appointment is considered administratively final absent evidence of fraud or statutory ineligibility, revocation of her appointment is not appropriate.

14.  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 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, the DASEB, Army Appeals Board, Chief of Appeals and Corrections Branch of the Total Army Personnel Command, the OMPF custodian when documents have been improperly filed, Total Army Personnel 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.

15.  Table 2-1 of Army Regulation 600-8-104 states, in pertinent part, that a DASEB document denying a request for removal of an administrative letter of reprimand from the performance section, administrative letters of reprimand, and OER's will be filed in the performance section of the OMPF.

16.  Army Regulation 600-37 prescribes policies and procedures regarding unfavorable information considered for inclusion in official personnel files.  Chapter 3 covers unfavorable information in official personnel files.  Paragraph 
3-4 applies to filing of nonpunitive administrative letters of reprimand or censure in official personnel files.  Paragraph 3-4(b) provides for filing in the OMPF.  It states that a letter, regardless of the issuing authority, may be filed in the OMPF maintained by the U.S. Army Human Resources 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 in the performance portion.  The direction for filing in the OMPF will be contained in an endorsement or addendum to the letter.

17.  Paragraph 7-2b(1) (Appeals for Transfers of OMPF Entries) of Army Regulation 600-37 states that only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted fiche.  Normally, such appeals will be considered only from Soldiers in grades E-6 and above, officers, and warrant officers.  (At lower grades, the OMPF is not used for centralized selection purposes.)  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.

18.  Army Regulation 623-105 (Evaluation Reporting System), in effect at the time, stated that an evaluation report accepted for inclusion in the official record of a rated Soldier's OMPF was presumed to be administratively correct, to have been prepared by the proper rating officials, and to have represented the considered opinion and objective judgment of the rating officials at the time of preparation.  The regulation also stated that the burden of proof rested with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that established clearly and convincingly that:  (1) the presumption of regularity referred to in paragraphs 3-39 and 6-7 would not be applied to the report under consideration and (2) action was warranted to correct a material error, inaccuracy, or injustice.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for immediate removal of the DASEB memorandum, dated 25 November 2008, was noted.  However, the governing regulation states a DASEB document denying a request for removal of an administrative letter of reprimand from the performance section will be filed in the performance section of the OMPF.  The DASEB memorandum was properly filed in the performance section of the applicant's OMPF.  Therefore, there is an insufficient basis for granting the applicant's request.

2.  The applicant's contention that the intended purpose for the GOMOR has been served and the comments and recommendation in the 28 October 2008 letter from the issuing general officer were carefully considered.  However, the governing regulation states that administrative letters of reprimand will be filed in the performance section of the OMPF.  There is no evidence that the GOMOR was improperly imposed.  The 9 June 1998 GOMOR was properly filed in the performance section of the applicant's OMPF.  The evidence does not provide substantial evidence that the GOMOR has served its intended purpose and that its removal would be in the best interest of the Army.

3.  The applicant's desire to have the GOMOR removed from her files based upon her subsequent service record is understandable.  However, in the event of a selection between two officers with an equal record of service, all information properly filed in an OMPF must be available to board members in order to equitably make their selection choice.  Given the above, the fact that the GOMOR was properly filed in her OMPF and the gravity of the offenses that caused the issuance of the GOMOR, it would not be equitable to remove the GOMOR from the applicant's OMPF.

4.  The applicant's request for immediate removal of the OER's in question was noted.  However, the contested OER's were prepared by properly-designated rating officials.  The applicant has not provided sufficient evidence to show the OER's did not represent the considered opinion and the objective judgment of the raters and senior raters at the time of preparation.  Therefore, there is an insufficient basis for granting the applicant's request to remove the OER's from her OMPF.

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 that 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)                                         AR20100007772



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)