IN THE CASE OF:	  

		BOARD DATE:	  10 March 2011

		DOCKET NUMBER:  AR20100018897 


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 a General Officer Memorandum of Reprimand (GOMOR) be completely expunged from her Official Military Personnel File (OMPF).

2.  The applicant states:

	a.  the GOMOR is based on nonfactual evidence and it is unjust and unfair punishment;

	b.   the GOMOR’s filing was done so with the guidance of her chain of
command in retribution against her because she discovered and reported classified information of LTC R_____'s operations section and senior ranking individuals;

	c.  she acknowledges her poor judgment and bad decision to take pictures
with bottles that appeared to contain alcohol and requests consideration be given to the circumstances and lack of any alcohol-related incident or general proof;

	d.  upon returning from pre-deployment assessment with secret information,
LTC R______, her direct supervisor and commander along with a noncommissioned officer (NCO), handed out classified documents on a thumb drive to all of the operations personnel, who downloaded the information onto their personal computers;

   e.  she discovered the classified information by accident while using a friend's computer and discreetly reported it to her chain of command and physical security personnel which led to a 15-6 investigation;

	f.  although she declined to press the issue when asked by the security
manager in an attempt to safeguard her commander and unit, and the investigation determined the leak was not malicious, LTC R ______ was defamed in the process; 

	g.  stolen pictures, wrongfully obtained from a camera, were the only potential
proof of any wrongdoing; however, Major (MAJ) G_____, the investigating officer, exaggerated the evidence and drew conclusions lacking any substantial facts;

	h.  there is no truth to the statement in the GOMOR which states she clearly
possessed and likely consumed alcohol, and there is no proof pointing to her consumption of alcohol;

	i.  she did not submit or sign a false official sworn statement, she did not
obstruct justice, and she was never given an opportunity to talk to the general officer who issued the memorandum; and

	j.  the favorable comments included in the character references she provides
implores the removal of the harmful, destructive, and unsubstantiated GOMOR.

3.  The applicant provides:

* self-authored statement, dated 26 April 2010
* DA Form 2627 (Record of Proceedings Under Article 15 , UCMJ)
* Document titled “Index for Commander’s Inquiry"
* 4 DA Forms 2823 (Sworn Statement)
* 7 photographs
* 2 DA Forms 3881 (Rights Warnings Procedure/Waiver Certificate)
* 2 Privacy Act Statements
* 2 AF IMT Forms 1168
* DA Form 67-9 (Officer Evaluation Report (OER))
* 7 – Statements of Support
* self-authored Memorandum for Record
* GOMOR
* GOMOR appeal
* GOMOR filing instructions


CONSIDERATION OF EVIDENCE: 

1.  The applicant’s record shows she was initially appointed a Reserve commissioned officer in the rank of second lieutenant (2LT), Aviation branch, from the Reserve Officers' Training Corps (ROTC) on 10 May 1997.

2.  On 2 June 2007, she was ordered to active duty as a member of the Army National Guard (ARNG) in support of Operation Iraqi Freedom (OIF).  On          29 September 2007, she was promoted to major (MAJ/O-4).

3.  While the applicant was serving as the S-2, Headquarters and Headquarters Detachment, 104th Military Police Battalion, New York Army National Guard (NYARNG), in Iraq, she, along with other Soldiers, was the subject of a commander’s inquiry.  A DA Form 2823 dated 16 January 2008, prepared by the investigating officer (IO), indicates:

	a.  as a result of an investigation into an incident that occurred on 25 December 2007, many Soldiers expressed concern regarding the unfairness that only one Soldier was prosecuted and not all who were involved;

	b.  because people would tell him unsubstantiated comments, the IO informed them he needed sworn statements, photos, or testimony to count as evidence;

	c.  on 15 January 2008, while at lunch, an unsolicited file containing photographs was placed on his desk from an unknown source;

	d.  having sought advice from his local Judge Advocate General (JAG) personnel on how to proceed with his investigation, he presented a copy of the photographs to the applicant’s battalion commander, LTC R_______, and was informed to continue his investigation specifically into the conduct of the applicant and one other Soldier, MAJ C_______.

4.  On 17 January 2008, having re-interviewed the applicant and MAJ C_______, two of the subjects in the photographs (the third subject refused to waive her rights and was involved in Article 15 proceedings at the time and therefore was not interviewed), the IO determined there was sufficient evidence to charge both the applicant and MAJ C________ with the following violations of the Uniform Code of Military Justice (UCMJ):
* 
Article 92 (General Order Number 1) - possession of and/or knowledge of possession of alcohol
* Article 107 – making a false official statement
* Article 134 – obstructing justice and false swearing
* Article 133 – conduct unbecoming of an officer

5.  On 29 February 2008, the Commanding General, 300 Military Police Brigade, Task Force MP South, Camp Bucca, Iraq issued the applicant a GOMOR for the following violations which seriously compromised her standing as an officer in the Army:

* violating General Order #1, by clearly possessing and likely consuming alcohol
* submitting and signing a false official sworn statement, regarding having no knowledge of alcohol possession or consumption during her entire deployment
* obstructing justice by contacting another suspect and warning her of the evidence and questions she would be presented with

6.  On 2 March 2008, she refused to acknowledge receipt of the GOMOR or indicate her understanding of the unfavorable information or whether she intended to submit matters in rebuttal.  

7.  On 4 March 2008, despite her refusal to acknowledge the GOMOR or indicate if she intended to submit a rebuttal, she provided a rebuttal to the GOMOR in which she requested the GOMOR be rescinded for the following reasons:

	a.  She took responsibility for the incident that took place on Thanksgiving Day, but believed her unit’s inappropriate and illegal conduct in the procedural execution of the investigation should more than show the lack of leadership and morals within the unit.

	b.  The command’s senior leadership committed some of the same charges brought against her.

	c.  The biased opinion of the IO leaped to conclusions and lied in his own statements.

	d.  She only spoke with the other suspect after her interview with the IO was completed.

8.  On 10 March 2008, after reviewing all the submitted material, the imposing officer directed the GOMOR be filed in the applicant’s permanent OMPF.
9.  The applicant’s OMPF includes a copy of her Department of the Army photograph which confirms she is one of the subjects who appears on the photographs in question.

10.  On 26 March 2008, the applicant was honorably released from active duty by reason of completion of required active service.  

11.  On 24 July 2010, she was ordered to active duty in support of Operation Enduring Freedom.

12.  She provides statements from individuals who supported her during the commander’s inquiry investigation prior to the issuance of the GOMOR and who now support her request for its removal from her OMPF.  These statements and the OER that she provides also indicate her many accomplishments and stellar service to her unit and the Army during the period in question.

13.  Army Regulation 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 soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. 

14.  Chapter 7 of the same regulation provides the policies and procedures for appeals and petitions for removal of unfavorable information from the OMPF.  Paragraph 7-2 states that once an official document has been properly filed in the OMPF, 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 OMPF. 

15.  Paragraph 7-2b of the same regulation contains guidance on transfers of OMPF entries.  It states, in pertinent part, that letters of reprimand, admonition, or censure 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.  Appeals approved under this provision will result in transfer of the document from the performance portion (P-Fiche) to the R-Fiche of the OMPF.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the GOMOR in question should be removed from her OMPF because all the evidence is nonfactual, the punishment is unjust and unfair, and it seeks retribution.  However, there is no evidence in this case to substantiate her claim.

2.  By regulation, a GOMOR accepted for filing in the OMPF is presumed to 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 to warrant its removal from the OMPF.  

3.  The evidence of record confirms the GOMOR in question was issued based on sufficient evidence the applicant violated Articles 92, 107, 134 and 133.  The GOMOR was supported by the findings and recommendations of the IO who conducted the commanders inquiry and the resulting GOMOR.

4.  The record shows the GOMOR was processed in accordance with the applicable regulation, and that the applicant was afforded all rights associated with the action.  It further shows she rebutted the GOMOR on basically the same grounds she now uses in her application to this Board, and this rebuttal along with all the evidence available was fully considered by the GOMOR imposing official prior to his rendering his filing decision.  

5.  The applicant failed to produce sufficient evidence to meet the burden of proof (preponderance) necessary to support relief.  Absent any evidence corroborating the applicant’s assertions that the investigation was based on nonfactual evidence, she received unfair and unjust punishment, and/or that the GOMOR she received was issued in retribution, there is insufficient evidence to support removal of the GOMOR.

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)                                         AR20100018897



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ABCMR Record of Proceedings (cont)                                         AR20100018897



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