IN THE CASE OF:	  

		BOARD DATE:	  5 May 2011

		DOCKET NUMBER:  AR20100020392 


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 her Officer Evaluation Report (OER) for the period      1 July 2008 through 30 June 2009 and a General Officer Memorandum of Reprimand (GOMOR) be removed from her official military personnel file (OMPF).

2.  She states she has truly learned the severity of her issues and knows how the decisions of her actions have impacted on her career.  She feels the GOMOR has served its intended purpose and requests that both the GOMOR and the OER be removed in order for her to better serve her country and the Army.  She concludes that the GOMOR and the OER are hindering her from obtaining her goal to continue in the Army and retire.

3.  She provides four supporting statements.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows she is currently a captain in the Regular Army with a date of rank of 9 March 2011.  

2.  On 6 June 2009, an Army Regulation (AR) 15-6 Investigation was conducted into the allegations that the applicant allegedly publicly disrespected a commissioned officer and a noncommissioned officer with threatening statements, gestures, and conduct that dishonored or disgraced the officer.  On 6 June 2009, the investigating officer (IO) reported his findings, conclusion, and recommendations.
3.  He recalled several incidents in which the applicant confronted the commissioned officer in an aggressive, disrespectful, and/or intimidating manner. The IO said the applicant's behavior towards the commissioned officer was not compatible with her profession.  He opined that approaching someone in the manner in which she approached the commissioned officer was uncalled for and not the way a decent person confronts another about a problem.  He said her actions clearly violated the Army value of respect.  He continued that this type of behavior had the potential to instill credible fear for the safety of the person being affected by it.  The IO recommended the applicant be considered for a formal reprimand.  

4.  On 17 June 2009, a legal review of the AR 15-6 Investigation was completed. The review determined that the investigation was legally sufficient.

5.  On 27 June 2009, she was reprimanded for making profane and unprofessional comments toward a commissioned officer and a noncommissioned officer.  The Commanding General said that on 31 May 2009 and 1 June 2009, the applicant approach these Soldiers in an intimidating manner and cursed at them in a loud voice at their work space and living quarters in the presence of other Soldiers.  He said her inability to control her anger had a detrimental effect on all Soldiers and created an intimidating, hostile, and offensive work environment.  

6.  On an unspecified date, the GOMOR was forwarded to the applicant for her acknowledgement and/or rebuttal.  She elected not to submit any matters on her behalf.  On 18 July 2009, the Commanding General directed that the GOMOR be filed in the performance section of her OMPF.  

7.  The applicant's record shows she received an annual OER while serving in the rank of first lieutenant (1LT) for the period 1 July 2008 through 30 June 2009 as the Supply and Services Officer, Headquarters and Headquarters Company, 100th Brigade Support Battalion.  She was rated by the Support Operations Officer, a captain, and senior rated by the Battalion Commander, a lieutenant colonel.  The rater's, senior rater's, and her signatures are dated 8 July 2009, 
21 July 2009, and 25 July 2009, respectively.  In Part IId (This is a referred report, do you wish to make comments?) is checked as well as the "No" block indicating that she elected not to provide comments. 

8.  In part V, the rater assessed the applicant’s performance and potential as "Outstanding Performance, Must Promote" with supporting comments.  In part VII the senior rater assessed the applicant’s promotion potential as "Fully Qualified" with the following comments:

[Applicant's] performance as the Supply and Services Officer has been outstanding.  Her technical expertise in class I and III(B) has been an invaluable asset to the battalion.  However, [applicant] has made some judgment errors concerning her rapport with other officers.  So much so, she received a GOMOR.  A prior service officer, [applicant], has brought invaluable experience to the unit, however getting along with peers is troublesome.  She demonstrated a distinct lack of judgment.  Her behavior indicates a failure to internalize the Army Values and a failure to adapt to the responsibilities of being a Commissioned Officer.  But, this talented young officer could overcome her failures and has the potential to lead Soldiers.  If properly groomed, she could serve in positions of increased responsibility.  

9.  The four supporting statements from superiors speak highly of the applicant's leadership, dependability, and willingness to go the extra mile.  Her superiors stated that they fully support the removal of the GOMOR from her OMPF.

10.  On 22 July 2010, she appealed to the Army Special Review Board to have the GOMOR and the OER removed from her OMPF.  The request to remove the GOMOR was denied on 9 September 2010 citing that she failed to provide evidence to show the GOMOR was untrue or unjust.  Her request for the removal of the contested OER was returned without action on 23 September 2010 citing that she did not provide any issues of substantive error or inaccuracy in her OER. She merely contended that she had learned her lesson from her actions and those actions had impacted on her career.

11.  A review of her records shows she was awarded the Army Commendation Medal (ARCOM) from 2 December 2008 to 1 December 2009 and the Army Achievement Medal (AAM) from 26 September 2009 to 26 September 2009.  Additionally she received two OERs from 1 July 2009 through 22 January 2010 and from 23 January 2010 to 21 August 2010 in which she was assessed as "Outstanding Performance, Must Promote" and "Best Qualified" by both raters and senior raters, respectively, on both reports.

12.  Army Regulation 600-37 (Unfavorable Information) states 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 object 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.



13.  Army Regulation 600-37 states that the Department of the Army Suitability Evaluation Board will transfer from the performance to the restricted portion of the OMPF those administrative letters of reprimand, admonition, or censure that are determined upon appeal to have served their intended purpose, when such transfer would be in the best interest of the Army. 

14.  Army Regulation 623-3 (Evaluation Reporting System) states that evaluation reports accepted for inclusion in the official record of an officer are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.  To justify deletion or amendment of a report, the applicant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  The burden of proof rests with the applicant.

DISCUSSION AND CONCLUSIONS:

1.  The applicant maintains that the GOMOR has served its intended purpose and, therefore, it should be removed from her OMPF.  

   a.  The evidence of record shows the GOMOR was rendered based on the profane and unprofessional comments she made toward a commissioned officer and a noncommissioned officer.  Her unprofessional behavior toward the commissioned officer was cited in the AR 15-6 investigation.  The IO recalled several incidents in which she confronted the commissioned officer in an aggressive, disrespectful, and/or intimidating manner.  She has provided no evidence to discount this information.  Therefore, there is no basis to remove the GOMOR from her OMPF. 

   b.  Further, there is no regulatory guidance to remove documents from the OMPF based on "intent served."  However, the regulation allows for the transfer from the performance to the restricted portion of the OMPF letters of reprimand that are determined upon appeal to have served their intended purpose.

   c.  Evidence of record shows the GOMOR was rendered almost two years ago while she served in the rank of 1LT.  She has since been promoted to captain, received two outstanding OERs, and was awarded the ARCOM and the AAM.  Her outstanding performance of duty rendered after the issuance of the GOMOR, her promotion, and the fact that the GOMOR is listed on her contested OER are sufficient evidence to show the intent of the GOMOR has been served and it is in the best interest of the Army to transfer the GOMOR to the restricted portion of her OMPF.

2.  There is no evidence and she has not provided any to show the contested OER was rendered in error or that it was unjust.  Her argument that the OER be removed in order for her to better serve her country and the Army is not sufficient as a basis to approve her request.  In view of these facts, there is no basis to remove the contested OER.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ___X____  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by transferring the 27 June 2009 GOMOR to the restricted portion of her OMPF.  The decision of the Board is not retroactive and does not serve as a basis to grant the applicant consideration by a Special Selection Board.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the removal of the GOMOR and the OER.



      ____________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)                                         AR20100020392



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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