BOARD DATE:	  20 December 2012

		DOCKET NUMBER:  AR20120007855 


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 unfavorable information from her Official Military Personnel File (currently known as Army Military Human Resource Record (AMHRR)), which includes the:

   a.  General Officer Memorandum of Reprimand (GOMOR), dated 
20 March 2009;

   b.  DA Form 67-9 (Officer Evaluation Report (OER)) for the period ending 3 March 2009 (hereafter referred to as the contested OER); and 
   
	c.  if her request is not favorably considered, as an alternative, she requests that the 150 pages of irrelevant financial records be permanently removed from her AMHRR. 

2.  The applicant states she is appealing this matter on the basis of injustice, in addition to the belief that the intended purpose of this adverse administrative action has been served.  The evidence she provides substantiates her claim.

3.  Additionally, the applicant states the GOMOR imposing authority directed that the GOMOR be filed in her AMHRR, but filed along with the GOMOR are 197 pages of financial information spanning the period between 1989 and 2009.  Only 27 pages are relevant to the period 2006 through 2007, which was the focus of the investigation.  Therefore, she also requests that these irrelevant financial records be permanently removed from her AMHRR.

4.  She provides:

* Two Self-authored statements
* GOMOR
* Response to GOMOR without attachments
* Rental expense spreadsheet
* Contested OER
* Seven additional OERs
* U.S. Army Criminal Investigation Command (CID) Report of Investigation
* DA Form 4037 (Officer Record Brief)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was appointed as a Reserve commissioned officer in the Adjutant General Corps on 10 May 1986.  After serving in a variety of positions of increasing responsibility, she ascended to the rank/pay grade of major/O-4.

3.  On 28 March 2003, the applicant was voluntarily ordered to active duty in support of Operation Enduring Freedom for duty at U.S. Army Personnel Command (currently known as the U.S. Army Human Resources Command (HRC)).

4.  She was promoted to the rank/grade of lieutenant colonel (LTC)/O-5 on 7 December 2006.  She is currently serving in the U.S. Army Reserve in the rank/pay grade of LTC/O-5.

5.  The applicant's record contains (and she also provides) a CID Report of Investigation, dated 23 September 2008, which shows an investigation was conducted in order to determine the validity of numerous travel vouchers submitted by the applicant during the period September 2006 through February 2007 which were suspected to contain fraudulent receipts.  The investigator determined the applicant had intentionally committed the offenses of making a false official statement, larceny, fraud, and wire fraud when she submitted vouchers containing fraudulent receipts indicating she leased a 48-inch high definition television.  Further investigation disclosed the applicant paid off the television, on 15 August 2006, and kept the television for her own personal use.  Additionally, the applicant continued to submit altered rental receipts to obtain funds she was not entitled to receive.  Based on the findings of the investigation, the applicant's company, battalion, and brigade level commanding officers recommended the applicant be issued a GOMOR.

6.  On 20 March 2009, the applicant received a GOMOR from the Commanding General (CG) of the U.S. Army Military District of Washington, Fort Lesley J. McNair, DC:

	a.  She was reprimanded for violating Joint Federal Travel Regulation (JFTR), paragraph U413(b)(3) by intentionally submitting fraudulent travel vouchers to the Defense Finance and Accounting Service (DFAS) on six separate occasions from September 2006 through February 2007 claiming monthly rental payments for a television which she owned as of August 2006.  In support of these claims, she created fraudulent receipts and bills using old receipts and bills that she physically altered.  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.

	b.  In August 2008, after coming under investigation, she made a verbal statement to a CID agent denying alteration of the receipts and invoices, claiming that she did not intentionally submit fraudulent vouchers to DFAS, which was later determined to be a blatant lie.

	c.  The CG informed the applicant she was hereby reprimanded.  He stated her behavior was completely unacceptable for a field-grade officer in the U.S. Army.  He added that her utter lack of honesty in submitting fraudulent claims to DFAS, compounded by complete misrepresentation of her actions to both CID and DFAS, was intolerable.  Her actions reflected a profound lack of integrity - the very cornerstone of being an officer in the U.S. Army.  She put her reputation at risk for money and a television.  The CG reminded her that officers are expected to be role models of professionalism, self-discipline, and dignity and her behavior demonstrated that she was devoid of these fundamental qualities and her actions called into serious question her suitability to hold any position in today's Army.

	d.  The CG advised the applicant this reprimand was imposed as an administrative measure and not as punishment under the provisions of Article 15, Uniform Code of Military Justice.  In accordance with Army Regulation 600-37 (Unfavorable Information), he was considering filing this reprimand in her AMHRR and she was given 10 days to submit matters in writing for consideration.  The applicant was advised that if she did not meet the deadline and did not request an extension, her right to submit matters would be deemed to be voluntarily waived and he would proceed with his filing decision.

7.  On 6 April 2009, the applicant submitted an appeal to the GOMOR indicating she:

	a.  wanted the CG to consider not filing the GOMOR in her AMHRR;

	b.  accepted full responsibility for her actions, perceived and actual, associated with the rental of the television;

	c.  admitted exhibiting a serious flaw in judgment as evidenced by her fraudulent actions;

	d.  agreed with the CG's opinion that she had compromised her integrity, commission, and reputation;

	e.  was humiliated, ashamed, and very remorseful for her actions;

	f.  contended the dollar amount for which she submitted fraudulent claims was actually less than the amount specified in the CID investigation because DFAS had failed to reimburse her for the entire amount she claimed;

	g.  admitted that she took the easy wrong over the hard right in order to recoup payments not received from DFAS by purposefully modifying a receipt and invoice, but contended she did not try to gain any more than she considered was due to her;

	h.  attempted to return the television to the merchant, because the JFTR prohibited her from keeping it, but the merchant declined;

	i.  intended to contact DFAS to make arrangements to reimburse the government the money she received for the television she now owned;

	j.  intended to donate the television to the Fisher House where it could be of use and benefit to the visiting families of our wounded warriors;

	k.  desired that the CG consider the following prior to rendering a decision:

* her OERs which showed the caliber of officer she had been thus far
* the exceptional characteristics she had demonstrated throughout her 20 plus years of unselfish service
* she had sacrificed her civilian job and marriage by remaining mobilized in support of contingency operations since 2003
* should one instance of unacceptable behavior abruptly end a very successful Reserve career with the filing of the GOMOR in her AMHRR

	l.  provided the following documents for the CG's consideration:

* Lease agreement
* Financial history report
* Rental expense spreadsheet
* DFAS Travel Voucher summaries
* Original invoice and receipt from the merchant
* OERs

8.  On 6 February 2011, after careful consideration of the facts and circumstances pertaining to the applicant, the GOMOR imposing authority directed the GOMOR be permanently filed in the applicant's AMHRR.  

9.  A review of the applicant's military records in the interactive Personnel Electronic Records Management System (iPERMS) revealed the GOMOR and allied documents were filed in the performance portion of the applicant's AMHRR.

10.  The contested report is an annual OER covering the period 4 March 2008 through 3 March 2009.  This report indicates the applicant was rated as the Deputy Chief, Soldier Programs and Services Division, HRC, The Adjutant General Directorate, Alexandria, VA.

11.  The contested OER shows:

	a.  the rater is listed as Colonel W. H. J______, Chief, Soldier Programs and Services Division, and he digitally signed the report on 3 June 2009;

	b.  the senior rater (SR) is listed as Brigadier General R. D. J____, The Adjutant General, and he digitally signed the report on 12 June 2009;

	c.  the applicant did not digitally sign the report;

	d.  in Part IId, the OER was a referred report;

	e.  the rater placed an "X" in the "No" box in Part IV (Performance Evaluation – Professionalism (Rater)), item a (Army Values) for the following sub-items:

* (1) Honor
* (2) Integrity
* (7) Duty

	f.  in Part Va (Performance and Potential Evaluation (Rater)), the rater marked the "Unsatisfactory Performance, Do Not Promote" box; 

	g.  in Part Vb (Performance Narrative), the rater provided very positive comments about the applicant's performance during the rated period, with the exception of the following:  "Regrettably, she made a false statement to a CID agent during this period.  This single lapse of judgment overshadowed an otherwise magnificent performance";

	h.  in Part Vc (Potential for Promotion Narrative), the rater stated:  "[The applicant] should not be promoted to Colonel.  However, she can and will serve the Army with great success in her current grade"; and 

	i.  in Part VIIa, b and c (SR – Comment on Performance/Potential), the SR marked "Do Not Promote" box; evaluated her as below center of mass, and recommended that she be retained in the Army.  The SR provided very positive comments about the applicant's performance during the rated period, with the exception of the following:  "[The applicant’s] single lapse of judgment tainted an otherwise brilliant performance that would have put her in the top 15% of the LTC's I senior rate."

12.  A review of the applicant's military records in iPERMS revealed the OER was filed in the performance portion of her AMHRR along with a memorandum rendered by the SR which shows the report was referred to the applicant under the provisions of Army Regulation 623-3 (Evaluation Reporting System), paragraph 2-12, on 12 June 2009, and it was resent to her as late as 14 May 2010.  Although the applicant indicated she desired to make comments, she failed to produce any and did not digitally sign her evaluation.  The SR stated the applicant had an ample opportunity to review the OER and submit comments. As a result, the SR submitted the OER without the applicant's comments to allow the report to be completely processed for posting in her AMHRR.


13.  The applicant's record is void of any evidence that shows she submitted an appeal or a request to the Department of the Army Suitability Evaluation Board (DASEB) for removal or transfer of Unfavorable Information from the performance portion of her AMHRR.

14.  The applicant provides a self-authored statement wherein she essentially states:

	a.  She is appealing to have the GOMOR and contested OER removed from her AMHRR under the basis that it is unjust and it has truly served its intended purpose.

	b.  As a Reservist, she was involuntarily mobilized to active duty for a year and then volunteered to remain on active duty for an additional 6 years.

	c.  For an extended part of this time, she was in a temporary duty status and was required to file travel vouchers on a recurring monthly basis.

	d.  She rented a television and filed for reimbursement of the rental expense in her monthly travel vouchers, but was only reimbursed for 6 of the 12 months that she leased the television.

	e.  She continued to submit claim vouchers for the rental amount for an additional 6 months beyond the 12-month contract period in an effort to recoup her losses for the payments she had made to the merchant and DFAS paid her promptly.

	f.  After a year had passed, she was contacted by a CID agent and informed she was the subject of an investigation.

	g.  She contends the CID agent miscalculated the dollar amount lost by the government, which resulted in a figure higher than the actual loss.

	h.  Due to a single lapse in judgment she was subject to administrative admonishment in the form of a GOMOR and a referred OER.

	i.  The GOMOR imposing authority directed that the GOMOR be filed in her AMHRR, but 197 pages of financial information spanning a period between 1989 and 2009 are filed with it.  However, only 27 pages are relevant to the period between 2006 and 2007, which was the focus of the investigation.  Therefore, she further requests that these irrelevant financial records be permanently removed from her AMHRR should her overall request not be favorably considered.
	j.  At the onset of her investigation, after meeting with the CID agent, she sought assistance from Trial Defense Services (TDS) to get legal representation and the only assistance she received was one brief office visit with an attorney.  They discussed her situation and her need for counsel, but no plan of action.  About a week later, the attorney informed the applicant she was being deployed and the applicant's case would be assigned to another attorney.  She attests she made numerous calls to TDS, but was repeatedly told that someone would contact her when her case was reassigned.  She contends that throughout the investigation and up until the issuance of the GOMOR she was never afforded legal counsel to represent or assist her and her request for an extension of the suspense for responding to the GOMOR for the purpose of obtaining counsel was denied.  In fact, she never prepared and/or provided a sworn statement detailing her recollection of events.

	k.  She contends that as a result of having the unfavorable information in her OMPF, she has been denied two career-enhancing opportunities and continues to suffer negative second and third order effects.  Prior to this incident, she had a very competitive AMHRR and stood a very good chance of being selected for promotion based upon her active duty service and completion of the Command and General Staff College.  She adds that she was considered for promotion by the board that convened in July 2011, but she was not selected primarily because of the GOMOR and accompanying referred OER in her AMHRR.

	l.  Prior to ending her period of active duty, she applied for several civilian civil service positions and was given a firm job offer with the Department of the Army, which she accepted.  The day before she was supposed to report to the civilian personnel office for processing she was advised that the offering agency had revoked their offer after the discovery of the unfavorable GOMOR in her AMHRR.
As a result, she was devastated, ashamed, and humiliated.  Having been denied Federal Government employment and non-selected for promotion to colonel, it is undeniable to conclude that the unfavorable information in her AMHRR has indeed served its intended purpose.

	m.  Her OER for the period immediately following the referred OER serves to show her performance and commitment to excellence never wavered and her leadership has faith in her sustained performance and potential for future service.

15.  The applicant provides a self-authored statement, dated 6 December 2012, wherein she essentially states that since she will not attain 20 years of qualifying service for retirement pay prior to reaching her mandatory release date, leaving the derogatory information in her AMHRR serves no military purpose and should therefore be removed as she brings her military service to an end.

16.  Army Regulation 600-8-104 (Army Military Human Resources Record Management) prescribes the policies governing the AMHRR, 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 AMHRR 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 ABCMR, the DASEB, Army Appeals Board, Chief of Appeals and Corrections Branch of HRC, the AMHRR custodian when documents have been improperly filed, HRC, 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.

17.  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.  

	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 AMHRR maintained by HRC, 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 AMHRR will be filed on the performance portion (P-portion).  The direction for filing in the AMHRR 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.

18.  Army Regulation 623-3 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  This includes the DA Form 67-9.

   a.  Paragraph 1-9 states Army evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or noncommissioned officer corps.  Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework, and responsibilities identified on the evaluation forms, counseling forms.  Consideration will be given to the following:  (a) the relative experience of the rated officer; (b) the efforts made by the rated officer; and (c) the results that could be reasonably expected given the time and resources available.  Potential evaluations will be performance-based assessments of the rated officers of the same grade to perform in positions of greater responsibility and/or higher grades.  Assessment of potential will apply to all officers, regardless of their opportunity to be selected for higher positions or grades and ignores such factors as impending retirement or release from active duty; this assessment is continually changing and is reserved for HQDA.

   b.  Paragraph 3-36 states evaluation reports accepted for inclusion in the official record of a Soldier 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 Soldier 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 Soldier.

DISCUSSION AND CONCLUSIONS:

1.  The applicant received a GOMOR on 20 March 2009 for violating the JFTR by intentionally submitting fraudulent travel vouchers to DFAS on six separate occasions, creating fraudulent receipts and bills, and rendering a false official statement to a CID special agent.

2.  The evidence of record shows that after consideration of the applicant's rebuttal, the GOMOR and allied documents were properly filed in the performance portion of the applicant's AMHRR in accordance with applicable regulations.

3.  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 as to justify its transfer to the restricted section of her AMHRR.  

4.  The applicant has not provided sufficient evidence to show the contested OER was not processed in accordance with applicable laws and regulations.

5.  The contested OER does not reference the GOMOR that was finalized and approved for placement in her AMHRR.
6.  The applicant has not provided sufficient evidence to show the ratings on the contested OER were in error or that they were not the opinions and objective judgments of the rating officials at the time the report was rendered.  Further, she has not provided any compelling evidence to refute the ratings and evaluations rendered by the rating officials.

7.  The applicant has not provided sufficient evidence showing the contested OER was inaccurate, unjust, or otherwise flawed.  In fact, she readily admits to her lapse in judgment and the subsequent wrongdoing.  Therefore, there is an insufficient evidentiary basis for removing the OER from the performance portion of her AMHRR or transferring it to the restricted portion of her AMHRR.

8.  Additionally, the applicant's contention that documents containing irrelevant financial information spanning the period between 1989 and 2005 are unnecessarily filed in her record was determined to lack merit.  A review of these documents revealed they were part of the evidence considered during the CID investigation in order to determine the period for which she had filed fraudulent claims for reimbursement and as such, they are considered related documents which were appropriately filed along with the GOMOR.

9.  The applicant's contention that the derogatory information in her AMHRR serves no military purpose because she will not attain 20 years of qualifying service for retirement pay prior to reaching her mandatory release date is unfounded.  As long as she continues to serve these documents will be available for review by military authorities who may be considering her for a special assignment or position of greater responsibility.

10.  The applicant's contentions that the presence of this derogatory information in her AMHRR resulted in her being denied Federal Government employment and non-selected for promotion to colonel are duly noted, however, they are not sufficiently mitigating to warrant granting relief in this case.

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)                                         AR20120007855



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ABCMR Record of Proceedings (cont)                                         AR20120007855



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