IN THE CASE OF:	  

		BOARD DATE:	  4 March 2014

		DOCKET NUMBER:  AR20130003681 


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 a General Officer Memorandum of Reprimand (GOMOR), dated 5 April 2010, and all allied documents from her Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File.
 
2.  The applicant states:

	a.  She is appealing a GOMOR she received while deployed to Iraq as an untrue and unjust act of retribution for filing a complaint against the 49th Military Police (MP) Brigade staff officers.

	b.  She was reprimanded for allegations of disobedience of lawful orders from a commissioned officer, being disrespectful and insubordinate toward a commissioned officer, bypassing the chain of command, violating lawful orders regarding the disposal or burning of maps, and sending correspondence and coordinating outside of the command. 

	c.  The members of her unit and the GOMOR appellate authority continued to aggressively target her, prompting her to file multiple congressional complaints to prevent further damage to her military career.

	d.  The appellate authority must be free from bias, prejudices or vested interest and cannot influence the outcome of an investigation.  The brigade commander demonstrated a tolerance for administrative prejudice and injustice against her by his staff and jumpstarted the investigation against her for revealing unethical conduct by his brigade personnel.

	e.  Her 32-page timeline identifies injustices produced by the GOMOR/ appellate authority, his staff, as well as the Judge Advocate General (JAG) Defense Report identifying the inconsistencies of her investigation and interviews from other Soldiers.  

	f.  Her Officer Evaluation Reports (OER), DD Form 214 (Certificate of Release or Discharge from Active Duty), and her military and civilian performance during that period do not coincide with the GOMOR.

	g.  There was no evidence "the GOMOR disposition was ever placed" in her AMHRR.

	h.  The primary reason for her appeal is the violation of Army Regulation (AR)
600-37 (Unfavorable Information), which involved the mishandling of evidence, not advising her with a proper rights warning, not providing her the entire file, and strategically moving her into a position outside of her specialty and that required her to execute new duties while currently rebutting the GOMOR.

3.  The applicant provides:

* her request for an appeal
* a 32-page timeline of chronological events and experiences
* a DA Form 3881 (Rights Warning Procedure/Waiver Certificate)
* a JAG Defense Report

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests:  

   a.  correction of the applicant's AMHRR by directing the removal of the GOMOR, dated 5 April 2010, and all allied documents, including her rebuttal. 

   b.  as an alternative, transfer the GOMOR to the applicant's restricted file, and remove all adverse material and allied documents the applicant received under the leadership of Major (MAJ) H of the 49th MP Brigade.

2.  Counsel submitted a 13-page supplemental statement wherein he essentially states the GOMOR and all adverse materials the applicant received while under the leadership of MAJ H should be removed for the following three reasons:

	a.  First.  The GOMOR was illegal reprisal for acts protected under the military whistleblower's protection act.  The applicant was bullied and hazed from the moment she joined the 49th MP Brigade resulting in her filing a complaint with the Inspector General (IG) that resulted in more abuse and the GOMOR at issue.  The applicant was within her rights to contact the local representative of the IG and her higher chain of command when reporting her illegal and abusive treatment while under the command of MAJ H.  

	b.  Second.  Allegations within the GOMOR are not supported by sufficient evidence within the Army Regulation (AR) 15-6 (Procedures for Investigating Officers (IO) and Boards of Officers) reports as required by the regulation.  Additionally, the GOMOR is unsupported by her OERs and awards issued during the timeframe in question.   

	c.  Third.  Her military character provides evidence that contradicts the misconduct alleged in the GOMOR.  

3.  Counsel provides the following:

* the GOMOR, dated 5 April 2010, with applicant's rebuttal, dated 21 April 2010, and filing determination, dated 29 April 2010 
* AR 15-6 Investigation
* eight DA Forms 4856 (General Counseling Form) 
* seven DA Forms 67-9 (Officer Evaluation Report) 
* 12 pages of medical records
* two DA Forms 2823 (Sworn Statement)
* a DA Form 638 (Recommendation for Award)
* a DD Form 214 (Certificate of Release or Discharge from Active Duty)
* seven affidavits
* eight supporting statements
* 14 memoranda
* 10 pages from the website Defense Video and Imagery Distribution System (DVIDS)
* a staff judge advocate (SJA) matrix
* the unit's Command Climate Report during Operation Iraqi Freedom (OIF) 
* one email
* a platoon roster
* seven photographs




CONSIDERATION OF EVIDENCE:

1.  After prior enlisted service, on 21 October 2003 the applicant was commissioned as an officer in the California Army National Guard (CAARNG). She is currently serving on active duty in the Active Guard Reserve as a captain (CPT) in area of concentration 35D (Military Intelligence).  She was promoted to CPT with a date of rank and effective date of 8 September 2008.

2.  The applicant submitted:

	a.  a 32-page self-authored timeline of chronological events and experiences of inappropriate behavior and retaliation against her by the 49th MP Brigade and CAARNG. 

	b.  five personal statements, dated from 21 July 2003 to 26 September 2011, attesting to her professionalism, expertise, devotion to duty, and work ethic in numerous assignments throughout her career. 

	c.  a DA Form 3881, dated 27 March 2010, explaining her rights in regard to being questioned about her dereliction of duties by improperly handling classified information, disobeying a lawful order, and being disrespectful toward a commissioned officer. 

3.  Counsel submitted:

   a.  OERs rendered for rating periods between 19 September 2005 and 
15 August 2009, 1 April and 31 July 2010, and 1 October 2010 to 
30 September 2012 which basically show she received outstanding performance, must promote ratings and mostly favorable comments.

	b. Three counseling statements rendered by MAJ H, dated between 
22 March and 25 July 2009, outlining her lack of performance. 

	c.  Twelve pages of her medical records and allied documents, dated between 13 August 2009 and 30 November 2010, which show on:

        (1)  13 August 2009, she underwent surgery for a laparoscopic cauterization of endometriosis ovarian cystectomy;

        (2)  10 September 2009, she underwent an exploratory laparotomy and bilateral ovarian cystectomy;
 

        (3)  2 April 2010, she received a temporary "3" profile for no lifting over    15 pounds and no physical training until 2 April 2010; and

	     (4)  10 October 2010, she underwent an exploratory laparotomy and ovarian cystectomy.

	d.  Five counseling statements dated between 24 November and
15 December 2009 for performance counseling; failure to utilize her chain of command; basic Soldier expectations to include accountability, failure to obey lawful orders, and insubordination; overstepping her authority; and being confused about her role in the section.

	e.  A memorandum, dated 1 December 2009, from the CAARNG, Headquarters, 250th Military Intelligence Battalion, Subject:  Request for Non-Rated Time for the applicant stating that due to the lack of rater qualification she would not receive an OER for the period 16 August to 10 October 2009.  However, her outstanding performance was acknowledged.

	f.  An email, dated 4 December 2009, from the brigade executive officer to the brigade operations officer-in-charge indicating the applicant was desperate to leave the section.

	g.  A memorandum from Headquarters, 49th MP Brigade, Camp Liberty, Iraq, dated 20 October 2009, Subject:  Command Policy Memorandum, Number 22, Senior Leader Misconduct Reporting, which outlines the policy for allegations of misconduct pertaining to Soldiers in the rank of E7 and above and pertaining to all officers.

	h.  A memorandum from the CAARNG, dated 1 December 2009, Subject:  Request for Non-Rated Time for the applicant, which shows during her non-rated period from 16 August to 10 October 2009, an OER was not authorized due to the lack of rater qualification.

	i.  A 9-page Memorandum for Record from the applicant, dated 13 December 2009, Subject:  Request for Transfer, requesting assistance from the command and requesting to be transferred to another section due to unbearable conditions in the G2 shop.

	j.  A memorandum for the applicant, from the 49th MP Brigade, dated 
21 December 2009, Subject:  Initial Counseling/Philosophy, which outlines the command's policy on leadership, standards, and expectations.  The applicant's signature indicated she read and understood the initial counseling. 

	k.  Two memoranda from Headquarters, 49th MP Brigade, dated 2 February and 14 February 2010, respectively, Subject:  Report of Unfavorable Information, requesting the informal security clearance suspension of the applicant due to security violations on 30 December 2009 and 15 January 2010. 

	l.  Two DA Forms 2823, dated:

		(1)  4 February 2010, from the Chief of Staff, in regard to MAJ H's difficulty in managing the applicant during the period 2 December 2009 to 
24 January 2010; and 

		(2)  8 June 2010, to record the facts and influence from Soldiers of the 49th MP Brigade involved in the events pertaining to 1LT M's visit to her room.

4.  On 8 February 2010, the Commander, 49th MP Brigade, Camp Liberty, Iraq, appointed an IO to conduct a Commander's Inquiry under the provisions of AR 15-6.  The commander tasked the IO to investigate allegations that the applicant was derelict in her duties (she violated Article 92 of the Uniform Code of Military Justice (UCMJ) by improperly handling classified information in violation of AR 380-67 (Personnel Security Program).  Specifically, the inquiry was to include but was not limited to the following:

   a.  was the applicant derelict in her duties or in violation of security policies with respect to any classified information in violation of Article 92, UCMJ or 
AR 380-67?

	b.  Was the applicant derelict in her duties or in violation of security policies by misclassifying documents for release to the Government of Iraq (GOI) in violation of Article 92, UCMJ or AR?

	c.  Was the applicant derelict in her duties or in violation of securities polices with classified information sent to members of the Police Training Team for disseminating to the Iraqi Police in violation of Article 92, UCMJ or AR 380-67?

	d.  Did the applicant violate any lawful order(s) from MAJ H in violation of Article 92, UCMJ? 

	e.  Did MAJ H order the applicant to provide him with an opportunity to review all outgoing G2 documents prior to release, or did she disobey him in violation of Article 92, UCMJ?

	f.  Did the applicant violate a lawful order from MAJ H regarding disposal or burning of classified maps in violation of Article 92, UCMJ?
	g.  Was the applicant disrespectful or insubordinate to MAJ H in violation of Article 89 of the UCMJ? 

5.  The applicant's record contains a DA Form 3881 which shows the IO advised the applicant of her rights during the investigation on 27 March 2010.

6.  The IO conducted the investigation and rendered her Commander's Inquiry - Findings and Recommendations in a memorandum, dated 24 March 2010.  In part, her report included the following:

	a.  Findings:  After investigating the allegations that the applicant was derelict in her duties by negligently handling classified information, disobeyed a lawful order, and was disrespectful toward a commissioned officer, it was the IO's belief based upon the evidence she found that:

		(1)  The applicant was derelict in her duties by being negligent and did violate policy by improperly handling classified information for release to the GOI.  

		(2)  The applicant was derelict in her duties by being negligent and did violate policy by improperly handling and misclassifying classified information.

		(3)  The applicant was derelict in her duties by being negligent and did violate policy by improperly handling classified information sent to the Police Training Team.  

		(4)  The applicant violated a lawful order after being told several times by MAJ H to go through her chain of command and was formally counseled to do so, she continued to bypass her chain of command.

		(5)  The applicant disobeyed MAJ H's order to provide him an opportunity to review all outgoing G2 documents prior to release. 

		(6)  The applicant did violate a lawful order by burning classified maps during an assigned project and requesting assistance from the first sergeant to burn additional maps. 

		(7)  The applicant was disrespectful and insubordinate to a commissioned officer when, after being gone for several hours, she told MAJ H her whereabouts were none of his concern, giving counseling did not impress her, and that she was writing rebuttal to counseling statements, but none were produced, either for this investigation or for any of the counselings.

	
b.  Recommendations were that the applicant:

	(1)  Maintain current security clearance. 

		(2)  Receive a GOMOR for disobeying a direct order and disrespect to a superior commissioned officer (MAJ H). 

		(2)  Receive a formal counseling for improperly classifying information and lack of attention to detail.

		(3)  Attend mandatory training through U.S. Forces-Iraq (USF-I) for proper classification and release of classified information. 

		(4)  Be assigned to another headquarters section or subordinate unit for S2 support.

		(5)  If the applicant has any additional incidents related to classification or handling of classified material, recommend her current security clearance be formally revoked.

		(6)  If the applicant has any additional incidents relating to disobeying a direct order and disrespect toward a commissioned officer recommend UCMJ action.

7.  Additionally, the recommendation was that:

   (1)  MAJ H receive formal counseling for failure to provide the applicant initial counseling that would have provided clear and specific guidance in reference to her duties and expectations. 

   (2)  1LT M receive formal counseling for being disrespectful toward a commissioned officer (the applicant).  

8.  The applicant submitted a memorandum from the Commander, 49th MP Brigade, to the Commanding General, II Corps, Camp Victory, Iraq, dated 
24 March 2010, Subject:  Request for Delegation of Authority to Dispose of Senior Leader Misconduct [the applicant]. 

9.  The applicant's GOMOR, dated 5 April 2010, for disobedience of lawful orders, disrespect and insubordination.  The GOMOR was imposed as an administrative measure and not as punishment under Article 15 of the Uniform Code of Military Justice.  Her suspense date for rebuttal or acknowledgement of the GOMOR was 15 April 2010.  After a review of the applicant's rebuttal and comments the imposing authority directed that the GOMOR be filed in the applicant's AMHRR in accordance with AR 600-37, paragraph 3-4b.  The GOMOR is filed in the performance portion of her AMHRR.  

10.  On 11 April 2010, the applicant acknowledged receipt of the GOMOR and indicated she intended to submit a response by 19 April 2010.

11.  On 21 April 2010 she submitted a response to the GOMOR and stated that:

   a.  AR 15-6 investigation findings are referenced throughout this rebuttal.

   b.  She took full for responsibility for being disrespectful toward a superior commissioned officer.

   c.  She hoped to show that her actions were completely out of character for her and were by no means indicative of a propensity toward bad behavior.

   d.  She believed her predicament to be due to the following incidents that shaped her misconduct:

        (1)  she was treated unfairly by MAJ H and 1LT M during the map project addressed in the GOMOR, MAJ H misrepresented the truth about coordinating help and the urgency of sorting of maps.

        (2)  with no training and a schedule change, she failed in a major project which MAJ H knew was substandard.

        (3)  MAJ H, as her officer in charge, gave her several negative counselings with untruthful remarks and never annotated leadership responsibilities.

        (4)  MAJ H allowed 1LT M to send her disrespectful emails.

        (5)  1LT M continuously displayed his unprofessionalism toward her.
   
        (6)  She was treated unfairly by MAJ H and 1LT M (now CPT).

        (7)  She requested that the reprimand be filed locally.

        (8)  MAJ H watched her in an intimidating manner.

        (9)  She was never given a timeframe for completing her rebuttal.

        (10)  MAJ H ridiculed her in front of the section.
        (11)  MAJ S was biased toward her and never gave her a chance.

12.  On 29 April 2010, after considering the applicant's response, the commanding general directed the GOMOR be filed in the applicant's AMHRR.

13.  Counsel also submitted:  

   a.  DA Form 638, dated 13 June 2010, showing she was awarded the Army Commendation Medal for exceptionally meritorious service during OIF 
2009-2010. 

	b.  DD Form 214 which shows she was released from active duty and transferred to the CAARNG on 19 October 2010, after serving for a period of
11 months and 13 days.

	c.  The applicant's Department of the Army Suitability Evaluation Board (DASEB) Record of Proceedings, which shows that on 28 June 2011 the DASEB denied her request for removal or transfer of her GOMOR from her records.

	d.  A memorandum from the Area Mobilization Command, District of Columbia National Guard, dated 11 May 2011, Subject:  Request for Non-Rated Time for [the applicant], which shows during her non-rated period from 1 August to 30 September 2010 she was on leave and moved to Washington, DC to commence an active duty tour. 

	e.  A memorandum, dated 18 August 2011, from an attorney employed by the JAG Defense to the

	f.  A memorandum, dated 24 April 2013, wherein she indicates she is submitting Affidavits, dated between 19 December 2010 and 8 July 2013, from personnel who were assigned with her at the 49th MP Brigade and who also experienced retaliatory acts by the general officer who issued the GOMOR.
 Board supporting the applicant's request for removal of the GOMOR from her records based on her allegations of improper treatment and retaliation for filing a protected IG complaint, which is unavailable to this Board.

	g.  Four memoranda, dated between 19 January to 2012 and 13 March 2013, from personnel who indicate they were assigned to the 49th MP Brigade and are requesting assistance with complaints against the Commander, CAARNG. 

	h.  A 13-page draft copy of the 2009 - 2010 49th MP Brigade, Unit's Command Climate During OIF X based on interviews, affidavits, and documents received by former members of the 49th MP Brigade.
	i.  Tab B of the SJA Investigation Matrix to Appendix 1 of the Command Reporting, Investigating, Appointing, and Approval Requirements to Annex U Legal Services to Multi-National Corps-Iraq Operation Orders describing incidents and their processing procedures.

	j.  A webpage from DVIDs which highlighted the role the 705th MP Battalion played in USF-I Detention operations in Iraq in 2009.

	k.  Six undated pictures of Soldiers and stacks of paper.

14.  AR 600-37 prescribes policies and procedures regarding unfavorable information considered for inclusion in official personnel files.

	a.  Paragraph 3-4 applies to filing of nonpunitive administrative letters or memoranda of reprimand or censure in official personnel files.

	b.  Paragraph 3-4(b) states that a letter (or memorandum), regardless of the issuing authority, may be filed in the AMHRR 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 (or memoranda) filed in the AMHRR will be filed in the performance folder.  The direction for filing in the AMHRR will be contained in an endorsement or addendum to the letter (or memorandum).

	c.  Paragraph 7-2b(1) states that unfavorable 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 burden of proof rests with the recipient to provide substantial evidence that these conditions have been met.

DISCUSSION AND CONCLUSIONS:

1.  The applicant received a GOMOR on 5 April 2010 for disobedience of lawful orders, disrespect toward a commissioned officer, and insubordination.  The evidence shows she acknowledged receipt of the GOMOR on 11 April 2010, rebutted the GOMOR on 21 April 2010, and it was directed to be filed in her AMHRR on 29 April 2010.



2.  The evidence of record shows she applied to the DASEB for removal or transfer of the GOMOR.  The DASEB denied her request for removal or transfer of the GOMOR and allied documents to the restricted folder of her AMHRR.

3.  Counsel contends the applicant received the GOMOR as a result of retaliation for filing an IG complaint.  However, the applicant's service records are void of evidence and she has not provided sufficient evidence which supports this claim.

4.  The evidence clearly shows the applicant was advised of her rights during the AR 15-6 investigation.  The investigation did not substantiate counsel's claims that the applicant was retaliated against or that she was the victim of hazing and bullied.  Although the applicant and counsel submit documents from other personnel alleging these complaints, again her service record is void of evidence which support these claims.

5.  The GOMOR is primarily used as a tool for teaching proper standards of conduct and performance.  Given the relatively short elapse of time and the seriousness of the misconduct, it is determined that the GOMOR has not served its intended purpose.

6.  There is no evidence of bias on the part of the appellate authority.

7.  There is no evidence the applicant filed a whistle blower complaint.  She does not provide any IG investigation results.  After a comprehensive review of the evidence in the applicant's AMHRR, the applicant's contentions and arguments, and the evidence submitted in support of her application, other than her dissatisfaction, neither counsel nor the applicant have provided compelling evidence to indicate the applicant's GOMOR was improperly filed.  Therefore, there is no basis for 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 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)                                         AR20130003681



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ABCMR Record of Proceedings (cont)                                         AR20130003681



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