IN THE CASE OF:	  

		BOARD DATE:	  31 March 2011

		DOCKET NUMBER:  AR20100021448 


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 removal of the general officer memorandum of reprimand (GOMOR) from her official military personnel file (OMPF) or transfer of the GOMOR from the performance section to the restricted section of her OMPF.

2.  The applicant states that continued filing of the GOMOR in the performance section of her OMPF is unjust.

	a.  She has exhausted all other administrative remedies available to her, including the Department of the Army Suitability Evaluation Board (DASEB) and the Office of the Inspector General, under the provisions of Title 10, U.S. Code, section 1034 (Military Whistleblower Protection Act).

	b.  She states the governing Army regulation allows for removal of the GOMOR to correct an injustice or for its transfer once the intended purpose of the GOMOR has been served.  She adds it has been more than 2 years since the GOMOR was issued and she has received at least one Officer Evaluation Report (OER).

	c.  She states the current filing of the GOMOR constitutes continued punishment and does not allow her to repair her career and serve the Army to the fullest extent of her capability.  The punishment and ongoing consequences have far outweighed the alleged incident and the GOMOR has served its intended purpose.  She adds she has been adversely affected for promotion and specialized assignment selections.  Specifically, she was not selected for promotion to lieutenant colonel (LTC) from the primary zone in May 2010 and, as a result, she was also denied consideration for Family Life Chaplain Supervisor in Training.

	d.  She states she has dedicated herself to serving Soldiers and Department of the Army civilians (DAC's) and their families through counseling, religious programs, and other activities.  She also performs work in numerous special projects over and above her regularly-assigned duties.  She adds that the letters of support and reference she provides that are submitted on her behalf offer evidence of her continuing contributions.

	e.  She points out that the DASEB analyst in her case recommended transfer of the GOMOR to the restricted section of her OMPF; however, the board did not accept the analyst's recommendation and denied her request in March 2010.  The DASEB determined "she has not provided any evidence to show she had been disadvantaged or deprived of any rights or privileges normally afforded to those officers who uphold the standards associated with the Army Values" and "the applicant displayed unacceptable behavior by blatantly disobeying a lawful order."

		(1)  She notes the DASEB standard is not in the governing Army regulation.

		(2)  She states regarding the point in the GOMOR of "blatantly disobeying," that was not the case.  She states she acted according to the instructions in the email, dated 13 July 2007, where she was instructed, "[i]f for any reason that is not possible, then give me a reasonable date of completion [of the article]."  She adds she offered a solution, completed the article as she had said she would, and it met the publication deadline.  She has since learned never to assume anything and she is now extremely fastidious about such details.

	f.  She states after issuance of the GOMOR she was kept isolated from her intermediate and senior raters.  However, despite this, she remained faithful to doing her job and she continued to assist Soldiers, DAC's, and their families.

3.  The applicant provides copies of her Family Life Chaplain Supervisor in Training application, non-selection for promotion, GOMOR, a memorandum for record, four memoranda of support, two OER's, her Officer Record Brief, and the DASEB Record of Proceedings.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving on active duty in the Regular Army as a commissioned officer in the rank of major (MAJ) in the Chaplain Corps.

2.  On 24 August 2007, Brigadier General D____ J. H. P____, Commander, National Training Center (NTC) and Fort Irwin, issued a GOMOR to the applicant for departing Fort Irwin without having completed a draft article for publication in the installation newspaper and without the approval from her immediate supervisor and for not obtaining the required authentication of the company commander on her request for permissive temporary duty (PTDY) to attend a professional conference.

	a.  The GOMOR states the applicant violated Articles 92 and 86 of the Uniform Code of Military Justice (UCMJ) by failing to complete her assigned task and by being absent without leave.  She was reprimanded for her inappropriate conduct, unprofessionalism, and poor judgment.

	b.  The GOMOR was imposed as an administrative measure and not as punishment under Article 15, UCMJ.

3.  On 24 August 2007, the applicant acknowledged receipt of the GOMOR.

4.  On 29 August 2007, the applicant submitted her response to the GOMOR.  She offered information on her duties and an explanation of mitigating circumstances surrounding the events that led to her departure on PTDY prior to completing the required article and obtaining the approval of her supervisor.  She acknowledged that she displayed poor judgment and stated she was sorry for assuming that her absence was authorized.  The applicant requested the reprimand be placed in her local file.

5.  On 5 September 2007 after considering the applicant's response and the recommendations of her chain of command, the approving authority directed the GOMOR be filed in the applicant's OMPF.

6.  The GOMOR, dated 24 August 2007, referral document, applicant's response, chain of command recommendations, filing directive, and allied documents are filed in the performance section of the applicant's OMPF.

7.  On 24 December 2009, the applicant submitted a request to the DASEB for the transfer of the GOMOR to the restricted section of her OMPF because she continued to grow as an Army officer and professional and the GOMOR had served its intended purpose.  She provided a detailed summary of her continuing education, licensures and qualifications, educational activities and seminars, and pastoral leadership.

	a.  Four letters from Colonel (COL) R____ P. A____, Commander, Tobyhanna Army Depot, dated 28 July 2009; Chaplain (COL) K____ L. S____, Command Chaplain, U.S. Army Materiel Command, Fort Belvoir, dated 14 October 2009; Chaplain (LTC) D____ J. P____, Regimental Chaplain, 11th Armored Cavalry Regiment, Fort Irwin, dated 23 January 2008; and Chaplain (LTC) D____ J. P____, Command Chaplain, U.S. Army Recruiting Command, Fort Knox, dated 17 September 2009, attest to the applicant's exceptional character and outstanding duty performance as a chaplain.

	b.  Her OER for the period 1 May 2008 through 29 July 2009 while serving as Command Chaplain, Tobyhanna Army Depot, shows the applicant's rater evaluated her performance and potential as "Outstanding Performance, Must Promote."  The senior rater evaluated her promotion potential to the next higher grade as "Best Qualified."  He also commented, "Groom for demanding chaplaincy leadership positions.  Promote ahead of peers.  Select for advanced schooling in Family Life Supervisor Training."

8.  The DASEB Record of Proceedings, dated 18 March 2010, shows:

	a.  The analyst of record concluded that "the appellant has provided sufficient evidence to show the GOMOR has served its intended purpose and that it is in the best interest of the Army to transfer it at this time."

	b.  The presiding officer noted that "[n]otwithstanding the analyst's recommendation, the DASEB determined that the evidence submitted was not sufficient to warrant the relief requested."  Accordingly, by majority vote, the applicant's request was denied.

	c.  The DASEB decision memorandum, dated 2 April 2010, is filed in the performance section of her OMPF.  The DASEB Record of Proceedings, dated 18 March 2010, is filed in the restricted section of her OMPF.

9.  The applicant's OER for the period 30 July 2009 through 31 October 2009 shows she was serving as Command Chaplain, Tobyhanna Army Depot.  The applicant's rater evaluated her performance and potential as "Outstanding Performance, Must Promote."  The senior rater evaluated her promotion potential to the next higher grade as "Best Qualified."  He also commented, "She must be promoted to LTC immediately and selected for Senior Service School at the earliest opportunity.  Absolutely unlimited potential at the senior leader level."

10.  Headquarters, U.S. Army Communications-Electronics Command Life Cycle Management Command, Fort Monmouth, memorandum, dated 10 May 2010, subject :  Fiscal Year 2010 (FY10) Promotion Lists for LTC, Chaplains Competitive Category, notified the applicant that a Department of the Army selection board convened on 9 February 2010 to consider MAJ chaplains for promotion to LTC and that she was considered, but not selected for promotion.

11.  The applicant's OER for the period 1 November 2009 through 9 September 2010 shows she was serving as Command Chaplain, Tobyhanna Army Depot.  The applicant's rater evaluated her performance and potential as "Outstanding Performance, Must Promote."  The senior rater evaluated her promotion potential to the next higher grade as "Best Qualified."  He also commented, "This mission-focused, pastorally deep and caring Spiritual Leader's potential is unlimited. Promote now.  Send to War College in residence.  Assign as Family Life Training Program Supervisor immediately."

12.  In support of her application, the applicant provides the following additional documents.

	a.  Her application for the Family Life Chaplain Supervisor in Training Selection Board, dated 30 June 2010, and a Family Life Chaplain Training Center, Fort Benning, memorandum, dated 2 August 2010, same subject, show the committee of current Family Life Chaplain Training Center Directors determined the applicant lacked qualification for consideration as a supervisor in training based on her promotable status.

	b.  Four letters from Mr. G____ D. B____, past Deputy Commander, NTC Acquisition Command, dated 15 June 2010; Chaplain (LTC) D____ J. P____, Command Chaplain, U.S. Army Recruiting Command, Fort Knox, dated 15 June 2010; COL R____ P. A____, U.S. Army Materiel Command, Fort Belvoir, dated 7 June 2010; and Chaplain (COL) K____ L. S____, Command Chaplain, U.S. Army Materiel Command, Fort Belvoir, dated 8 June 2010, attest to their personal knowledge of the applicant's professional competence, outstanding ministry skills, exceptional work ethic, and her overall commitment to excellence.  They also recommend removal of the GOMOR from the applicant's OMPF.

13.  The U.S. Army Human Resources Command website at:  www.hrc.army.mil shows the consolidated selection boards schedule for FY11.   It shows the FY11 LTC Chaplain/MAJ Chaplain Selective Continuation Board is scheduled to convene from 15 to 18 March 2011 to consider eligible MAJ's on the Active Duty List for promotion to LTC.

14.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) provides policies, operating tasks, and steps governing the OMPF.  This regulation states that only those documents listed in table 2-1 and table 2-2 are authorized for filing in the OMPF.  Depending on the purpose, documents will be filed in the OMPF in one of three sections:  performance, service, or restricted.

	a.  Table 2-1 (Composition of the OMPF) provides regulatory guidance for filing administrative letters of reprimand, admonitions, and censures of a non-punitive nature.  It states the letter, referral correspondence, member's reply, and other allied documents (if they are specifically directed for file by the letter or referral correspondence) will be filed in the performance section of the OMPF.  All other allied documents not listed will be filed in the restricted section of the OMPF.

	b.  Paragraph 2-3 (Composition of the OMPF) provides that the restricted section of the OMPF is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of information in this section is controlled.  It may not be released without written approval from the Commander, U.S. Army Human Resources Command, or the Headquarters, Department of the Army, selection board proponent.  This paragraph also provides that documents in the restricted section of the OMPF are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the OMPF; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army.

15.  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 Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.

16.  Army Regulation 600-37, chapter 7 (Appeals and Petitions), provides the policies and procedures for appeals and petitions for removal of unfavorable information from the OMPF.

	a.  Paragraph 7-2 (Policies and Standards) shows 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 the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.

	b.  Paragraph 7-2b (Appeals for Transfers of OMPF Entries) contains guidance on transfers of OMPF entries.  It states only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted section of the OMPF.

		(1)  Appeals will normally be returned without action unless at least 1 year has elapsed since imposition of the letter and at least one evaluation report, other than academic, has been received in the interim.  It also shows that appeals approved under this provision will result in transfer of the document from the performance section to the restricted section of the OMPF.

		(2)  GOMOR's may be transferred upon proof that their intended purpose has been served or that their transfer would be in the best interest of the Army.  The burden of proof rests with the Soldier concerned to provide substantial evidence that these conditions have been met.

17.  Army Regulation 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system and supports the objectives of the Army's officer promotion systems, which include filling authorized spaces with the best-qualified officers.

	a.  Chapter 7 (Special Selection Boards) provides that special selection boards (SSB's) are governed by the same instructions provided to the boards that considered or should have considered an officer for promotion.

	b.  Paragraph 7-2 (Purpose of Boards) states that SSB's may be convened under Title 10, U.S. Code, section 628, to consider or reconsider commissioned or warrant officers for promotion when Headquarters, Department of the Army, discovers the board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the GOMOR filed in the performance section of her OMPF should be removed from her OMPF or at least transferred from the performance section to the restricted section of her OMPF because it has served its intended purpose.

2.  The evidence of record shows the GOMOR, referral document, applicant's response, chain of command recommendations, filing directive, and allied documents are properly filed in the performance section of the applicant's OMPF.

	a.  By regulation, in order to remove the documents in question from the OMPF, there must be clear and convincing evidence showing the documents are untrue or unjust.  No such evidence has been provided in this case.  Therefore, the documents in question should not be removed from the applicant's OMPF.

	b.  The approving authority did not direct that any of the allied documents be filed in the performance section of the applicant's OMPF.  Therefore, the allied documents, including the chain of command recommendations, should be transferred to the restricted section of the applicant's OMPF.

3.  The applicant's request for transfer of the GOMOR filed in the performance section of her OMPF has been carefully considered and is found to have merit.  By regulation, if at least 1 year has elapsed since imposition, an appeal related to a GOMOR can be approved based on proof the GOMOR has served its intended purpose and that the transfer would be in the best interest of the Army.

	a.  The evidence of record shows the incident for which the GOMOR was issued was based on an isolated lapse in judgment on the part of the applicant more than 3 1/2 years ago.  The applicant's professionalism, character, leader attributes, skills, and actions since the time of the incident, as documented by her OER's, clearly show the applicant has learned and grown, both personally and professionally.

	b.  The evidence of record shows that no less than three senior Army chaplains offer their endorsement of the applicant's personal character and professionalism, attest to her worth and potential as an Army officer and chaplain, and advocate her continued service in the U.S. Army Chaplain Corps in positions of increasing responsibility.

	c.  Therefore, there is substantial evidence to conclude that it would serve the best interest of the U.S. Army to grant the requested relief by transferring the GOMOR and all related documents to the restricted section of her OMPF which might assure the U.S. Army of the applicant's continued service.

4.  In view of the facts of this case, it would be appropriate to correct the applicant's record to show the GOMOR, dated 24 August 2007, and all allied documents were transferred to the restricted section of her OMPF effective 1 March 2011.  In addition, as a result of this action, it would be appropriate to correct her record to show the Headquarters, Army Special Review Boards, memorandum, dated 2 April 2010, was also transferred to the restricted section of her OMPF effective 1 March 2011.

5.  In view of the foregoing, if the applicant is not selected for promotion by the FY11 LTC Chaplain Consolidated Promotion Selection Board due to failure to timely process this Record of Proceedings or transfer the above mentioned documents, it would also serve the interest of equity to have the applicant's record placed before an SSB for promotion reconsideration under the criteria for the FY11 LTC Chaplain Promotion Selection Board.  Further, if the applicant is selected, her promotion effective date and date of rank should be assigned as if she had been originally selected under the FY11 LTC Promotion Selection Board criteria and she should be provided any and all back pay and allowances due as a result.

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:

	a.  showing the GOMOR, dated 24 August 2007, and all allied documents, and Headquarters, Army Special Review Boards, memorandum, dated 2 April 2010, were transferred to the restricted section of her OMPF effective 1 March 2011; and

	b.  if the above mentioned documents are not transferred in a timely manner and the applicant is not selected by the FY11 LTC Chaplain Promotion Selection Board, submitting her corrected record to a duly-constituted SSB for promotion consideration to LTC under the FY11 LTC Chaplain Promotion Selection Board criteria.

		(1)  If the applicant is selected for promotion by the SSB, her record should be corrected by establishing her LTC promotion effective date and date of rank as if she had been originally selected under the earlier criteria identified by the SSB, and by providing her any and all back pay and allowances due as a result.
		(2)  If the applicant is not selected for promotion by the SSB, she should be so notified by the appropriate U.S. Army Human Resources Command promotion officials.

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 removal of the unfavorable information from her OMPF.

3.  This Record of Proceedings and associated documents will be filed in the restricted section of the individual's OMPF.



      _________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)                                         AR20100021448



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ABCMR Record of Proceedings (cont)                                         AR20100021448



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