BOARD DATE:	  28 January 2014

		DOCKET NUMBER:  AR20130014882 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests:

	a.  removal of the applicant's general officer memorandum of reprimand (GOMOR), dated 3 November 2011, from her Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File) or transfer to the restricted folder of her AMHRR; and

	b.  removal of all related documents to the GOMOR, dated 3 November 2011, from the restricted folder of the applicant's AMHRR.

2.  Counsel states:

	a.  Lieutenant General (LTG) J____ J____, the Commanding General (CG), 8th U.S. Army, issued a GOMOR to the applicant on 3 November 2011 for allegedly disrespecting two superior officers (a lieutenant colonel (LTC) and a colonel (COL)).  This GOMOR was filed in her AMHRR.

	b.  The incident in question arose out of retaliation for the applicant filing a Congressional inquiry and equal opportunity (EO) complaint against the two individuals.  This was not of such a severity as to warrant placement of a GOMOR in her AMHRR.

	c.  The applicant was attached to the Headquarters, 8th U.S. Army, as the Chemical, Biological, Radiological, and Nuclear (CBRN) Officer under the G-33 (Current Operations).  She served directly under the supervision of LTC M____ K____; also in her chain of command were COL P____ C____, Deputy Chief of Staff, and COL G____ R____, Current Operations Chief.  In July 2010, she participated in Exercise Ulchi Freedom Guardian 2010.  As a result of issues related to this exercise, she filed an EO complaint, an Inspector General (IG) complaint, and a Congressional inquiry.  The command, including COL P____ C____, COL G____ R____, and LTC M____ K____, immediately started a campaign of retaliation for her complaints.  The applicant's command conducted unfounded investigations into how she obtained the information for her complaints in violation of her rights as a whistleblower.  They also made false allegations against her for sexual harassment of a fellow Soldier.  None of the allegations were substantiated, nor was any punishment imposed on her by the command.

	d.  The applicant's supervising officer, LTC M____ K____, initiated an argument with her in May 2011 regarding counseling issues and during that conversation, the applicant was accused of using disrespectful language to LTC M____ K____ and for leaving the counseling session without permission.  As a result, she received a GOMOR that was placed in her official file.  Counsel contends the continued reprisal and harassment suffered by the applicant from her command was overly severe in light of her stellar record.

	e.  The applicant enlisted in the Army in 1992 and received a commission after graduating from the Reserve Officers' Training Corps Program and from Louisiana State University in May 1997.  She served in various military intelligence capacities throughout her career before being assigned to the 8th U.S. Army Headquarters as the CBRN officer under the G-33.

3.  Counsel provided an overview of actions taken by the applicant and her command on various dates in 2010 and 2011, such as:

	a.  The applicant submitted four memoranda (July 2010) requesting endorsements to attend the Command and General Staff College Interagency Fellowship Program.  The memoranda were her requests for endorsements to attend this course and obtain signatures from LTC J____ G____, COL P____ C____, Major General (MG) R____ W____, and Lieutenant General (LTG) J____ F____.  However, COL P____ C____ refused to return the endorsement to MG R____ W____ or LTG J____ F____.  COL P____ C____, who is male and Asian, recommended two white male officers to attend courses they had requested and he endorsed an Asian male officer's application to teach at the U.S. Military Academy.  COL P____ C____ relieved the applicant as lead battle major (MAJ) during a major exercise and replaced her with a white male.  No explanation was given regarding the decision.  At that time, the applicant was the only female in G-33.

	b.  The applicant filed an EO complaint on 24 September 2010 wherein she outlined the issues of discrimination.  The applicant requested that the complaint be kept confidential and a meeting was scheduled to discuss these matters with COL P____ C____.  The meeting didn't take place and other individuals who were scheduled to attend the meeting were informed of the EO complaint.  The applicant's name was later removed from a recommended list of awardees for her involvement in the visit by the President.

	c.  The applicant filed an IG complaint due to poor leadership exercised by COL G____ R____ and COL P____ C____ during Exercise Ulchi Freedom Guardian 2010.  These officers frequently yelled and screamed at the staff and used excessive profanity.  COL G____ R____ also illegally transferred some of his leave time from his Reserve orders to his active duty orders.  The applicant reported a security violation in which two Korean nationals with no security clearances were allowed to roam the building without escort.

	d.  The applicant filed a Congressional inquiry on 6 December 2010, complaining to her Congressman that the EO complaint was mishandled by the 8th U.S. Army which resulted in the command retaliating against her.

	e.  The applicant's command, at the instigation of COL P____ C____ and COL G____ R____, initiated an investigation in January 2011 regarding whether the applicant improperly obtained and released sensitive personal information.  This initially resulted in a GOMOR from LTG J____ F____, but this action was withdrawn after the applicant's counsel revealed the regulations cited in the investigating officer's (IO) report were inapplicable and that the information provided was pursuant to the Military Whistleblower Protection Act.

	f.  The applicant's command conducted further investigation in August 2011 alleging she had sexually harassed another MAJ in the command.  However, the IO found that the evidence failed to prove beyond the preponderance of the evidence that she was guilty of sexual harassment or communicating a threat.  The investigation did reveal that there was sufficient evidence to show the applicant violated a no-contact directive issued by an unnamed LTC.  The command ordered further investigation into the matter to determine whether there was different misconduct not identified in the original investigation.  However, the IO was unable to provide any substantiation to these additional allegations.

	g.  The command responded to the Congressional inquiry on 1 August 2011 concerning the applicant's receipt of the GOMOR for the release of information and stated the applicant was facing a second GOMOR for "proven misconduct."  However, the GOMOR had been removed and she had no other "proven misconduct" in her records.

	h.  The applicant's command took additional steps to ensure hardships were inflicted upon her, to continue to retaliate against her by involuntarily extending her foreign hardship tour, and by issuing her the GOMOR in question.  The applicant was not informed she was being referred to the CG for a possible GOMOR until November 2011, which was shortly before her rotation from theater.  The command didn't initiate an independent investigation to determine the facts of the matter.  Despite receipt of the GOMOR in question, the applicant received a remarkably good officer evaluation report for the period of her last service in Korea.  This evaluation report did not mention the GOMOR at all.  The command that issued the GOMOR recognized her as a superior performer and this was noted on her previous evaluation report ending 30 March 2011.  The applicant submits letters of support attesting to her professional duty performance.

4.  Counsel provides (as tabbed):

* applicant's statement, dated 8 August 2012
* DA Form 4856 (Developmental Counseling Form), dated 6 May 2011
* memorandum, Headquarters, 8th U.S. Army, dated 3 November 2011, subject:  GOMOR
* memorandum, Headquarters, 8th U.S. Army, dated 16 November 2011, subject:  Rebuttal Materials to Memorandum of Reprimand for (Applicant)
* memorandum, Headquarters, 8th U.S. Army, dated 22 November 2011, subject:  Filing of Reprimand – (Applicant), Operations Company, Headquarters and Headquarters Battalion, 8th U.S. Army
* Privacy Act Release Form, dated 4 December 2010
* Congressional Inquiry, dated 6 December 2010
* DA Form 1574 (Report of Proceedings by IO/Board of Officers), dated 6 January 2011
* memorandum, Headquarters, 8th U.S. Army, dated 4 April 2011, subject:  Rebuttal Materials to Memorandum of Reprimand for (Applicant)
* Executive Summary – Investigation of Allegations of Misconduct Committed by (Applicant), Headquarters and Headquarters Company, Special Troops Battalion-Korea
* memorandum, Headquarters and Headquarters Battalion, 8th U.S. Army, dated 20 October 2011, subject:  Appointment as Army Regulation 15-6 
* memorandum, Headquarters and Headquarters Battalion, 8th U.S. Army, dated 20 October 2011, subject:  Army Regulation 15-6 Investigation Concerning (Applicant), Headquarters and Headquarters Company, Special Troops Battalion-Korea
* letter to Congressional representative, dated 1 August 2011
* Eighth Army (EA) Form 641-E (Request for Change of Foreign Service Tour), dated 27 July 2011
* two DA Forms 67-9 (Officer Evaluation Report) for the periods ending 21 November and 30 March 2011
* Department of the Army Suitability Evaluation Board (DASEB) Record of Proceedings, dated 18 April 2013
* four letters of support, dated 9 July 2013, 16 June 2013, and 5 June 2013

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving on active duty in the rank of MAJ.

2.  After having prior enlisted service in the Army National Guard, the applicant was appointed as a Reserve commissioned officer on 15 May 1997 and entered extended active duty.

3.  She was promoted to the rank of MAJ on 13 June 2007.

4.  Counsel provided the following documentation in support of the applicant's request:

	a.  A Privacy Act Release Form, dated 4 December 2010, and a Congressional Inquiry, dated 6 December 2010, shows she submitted a request for an investigation within the 8th U.S. Army regarding the issues of EO, an IG complaint, and physical/personnel and operations security.

	b.  A DA Form 1574, dated 6 January 2011, shows the IO findings and recommendations revealed:

		(1)  The issue whether COL ____ misused a U.S. Government vehicle for his personal business was substantiated.  The IO recommended the issuance of a GOMOR to COL ____.

		(2)  The issue whether COL ____ violated the Army's EO policy by not endorsing or acknowledging the applicant's school attendance request and subsequently refusing to meet with the applicant to speak about her school attendance request was not substantiated.  The IO recommended a meeting between COL ____ and the applicant to discuss the applicant's concerns.
		(3)  The issue whether COL ____ and/or COL ____ violated the Army's EO policy by favoring Caucasian male officers in his selection recommendations and his duty position selection recommendations was not substantiated.

		(4)  The issue whether COL ____ made disparaging comments regarding Republic of Korea Army staff officers was not substantiated.  The IO recommended taking no further action.

		(5)  The issue whether COL ____ and/or COL ____ violated the Army's policy regarding sexual harassment by subjecting the applicant to a hostile environment was not substantiated.  The IO recommended that the 8th U.S. Army EO conduct classes on sexual harassment and a hostile work environment.

		(6)  The issue whether COL ____ and/or COL ____ violated the Army's EO policy by removing the applicant and MAJ ____ as battle MAJ's during Exercise Ulchi Freedom Guardian 2010 and replacing them with less-qualified Caucasian male officers was not substantiated.  The IO recommended taking no further action.

		(7)  The issue whether the applicant was retaliated against in violation of Army Regulation 600-20 (Army Command Policy) after she corresponded with the 8th U.S. Army EO Office and was subsequently removed from a mission involving a visit by the President of the United States on 11 November 2010 was not substantiated.  The IO recommended taking no further action.

		(8)  The issue whether personnel entered the 8th U.S. Army Headquarters building without proper security clearances was not substantiated.  The IO recommended signing and enforcing proper standing operating procedures.

		(9)  The issue whether COL ____ did not account for, receive, or transfer leave allotment dates that he was not entitled to was evaluated.  The IO recommended that COL ____ continue to collaborate with a staff sergeant in the 176th Finance Management Company to resolve the accrued leave issues.

	c.  An Executive Summary, undated, shows the IO concluded that there was supporting evidence to show the applicant violated Article 92, Uniform Code of Military Justice, for failing to obey a lawful order or regulation and recommended issuing the applicant a local memorandum of reprimand.

	d.  A DA Form 67-9 for the rating period 31 March 2010 through 30 March 2011 shows she was rated as a CBRN operations officer.  The rater marked the "Outstanding Performance, Must Promote" box.  The senior rater assessed her as "Best Qualified" and "Center of Mass."

	e.  A memorandum from Client Legal Services, Headquarters, 8th U.S. Army, dated 4 April 2011, subject:  Rebuttal Materials to Memorandum of Reprimand for (Applicant), shows a military attorney recommended withdrawal of the action against the applicant.  In part, the attorney stated:

		(1)  The IO and appointing authority's actions were a misstatement of law and Army regulation.

		(2)  The applicant committed no violation of Army regulation in her use of the information.

		(3)  The investigation lacked any legitimate support for the conclusion that the applicant engaged in any conduct contrary to law or Army regulation.

	f.  A DA Form 4856, dated 6 May 2011, shows she was counseled for being insubordinate and disrespectful to senior officers, failing to obey a lawful order, and conduct unbecoming an officer during senior rating counseling on 4 May 2011.

	g.  Two EA Forms 641-E, one dated July 2011 and one undated, show she requested extensions of her foreign service tours from 5 August to 5 October 2011 (60 days) and from 5 October to 5 November 2011 (30 days).

	h.  A letter to a Congressional representative, dated 1 August 2011, shows her commanding officer stated, in part:

		(1)  The applicant received a complete and accurate copy of the investigation into her own misconduct.

		(2)  The applicant responded to the adverse action and filed rebuttal matters to the CG.

		(3)  The applicant received one GOMOR as a result of her proven misconduct and was facing another GOMOR for additional proven misconduct.

		(4)  The Department of Defense IG declined to investigate the applicant's allegations based on a lack of evidence and failure to find any instance where anyone in the command retaliated against her for making a complaint through any channels.

		(5)  All of the applicant's concerns had been appropriately addressed and investigated through command, EO, and IG channels.  None of the applicant's EO or reprisal allegations were substantiated.  There was no evidence of reprisal on anyone's behalf against her and all members of the chain of command acted appropriately in handling her continued misconduct.

	i.  A memorandum from Headquarters and Headquarters Battalion, 8th U.S. Army, dated 20 October 2011, subject:  Appointment as Army Regulation 15-6 IO, shows the Deputy G-4 (an LTC), 8th U.S. Army, was assigned as the Army Regulation 15-6 IO to provide additional findings on matters regarding the applicant's misconduct.  On the same date, the IO provided a memorandum addressing the two issues that required clarification.

5.  On 3 November 2011, the applicant received a GOMOR for disrespecting superior commissioned officers and for using disrespectful language toward the spouse of a service member in a public forum.  On 4 May 2011 as she was being counseled by LTC M____ K____, she behaved disrespectfully toward COL G____ R____ by referring to him as "an incompetent O6" or words to that effect.  At this same counseling session, she called LTC K____ "a liar," "a sorry a--," and stated to him, "you are the worst officer I have ever met" or words to that effect.  Additionally, she was given an order by LTC K____ to not leave the room until after the counseling was completed, which she willfully disobeyed by walking out of the room.

6.  The GOMOR was imposed as an administrative measure under the provisions of Army Regulation 600-37 (Unfavorable Information), paragraph 3-4, and not as punishment under Article 15, Uniform Code of Military Justice.  The imposing official indicated he was considering filing the reprimand in the applicant's AMHRR.

7.  On 8 November 2011, the applicant acknowledged receipt of the GOMOR and elected to submit statements in her behalf.  In effect, she apologized for her behavior during her initial OER counseling session with LTC K____.  She understood that as a commissioned officer in the U.S. Army, her actions and manner are subject to an elevated level of scrutiny.  She stated:

	a.  During the 4 May 2011 counseling session, LTC K____ invited her to tell him what was bothering her about his portion of her OER.  She admitted she was slightly upset that it was not more favorable, was frustrated and dismayed that she was unable to cultivate a more positive and productive relationship with COL R____ and LTC K____, didn't feel supported by them, and felt like nothing produced was ever good enough for them.  In addition, she expressed that she never received any positive reinforcement from them.

	b.  She admitted she became increasingly upset during the session because she felt like this was her first opportunity to speak about her frustrations and speaking about them opened up a lot of emotions she had kept repressed.  She admitted that what was upsetting her had very little to do with the comments on her OER.  She felt her command never gave her a chance, she was written off due to her conflict with LTC E____, and she felt she was constantly discriminated against and belittled by LTC E____.  She always had good relationships with both her supervisors and subordinates, but LTC E____ created a miserable working environment for her.  As a result, she filed an IG complaint and a Congressional inquiry against LTC E____.  She felt like she was labeled and judged since that time.

	c.  She doesn't believe she ever used the word "incompetent" in regard to COL R____ and she didn't call LTC K____ a "sorry a--" on her way out of the commander's office.  She claimed LTC K____ didn't meet the time requirements as her senior rater according to Army Regulation 623-3 (Evaluation Reporting System), paragraph 2-7a(2).  This requirement was not met and was ignored by LTC K____ when she raised this issue.  She stated she was extremely sorry for her inappropriate conduct during this counseling session.  She accepted responsibility and understood the consequences of her actions.

8.  On 22 November 2011, the imposing authority directed:

	a.  redacting the entire portion of paragraph 3,

	b.  redacting the words "and by your conduct towards Mrs. M____" in paragraph 4, and

	c.  filing the redacted GOMOR in the applicant's AMHRR.

9.  Counsel also provided the following documentation in support of the applicant's request:

	a.  A DA Form 67-9 for the rating period 2 July to 21 November 2011 shows she was rated as a CBRN operations officer.  The rater marked the "Outstanding Performance, Must Promote" box.  The report does not include the senior rater's evaluation.

	b.  A statement from the applicant, dated 8 August 2012, shows she reiterated the contentions made by counsel.  She alleged her command retaliated following her filing an EO complaint, IG complaint, and Congressional inquiry and they conducted unfounded investigations regarding how she obtained information for her complaints in violation of her rights as a whistleblower.  In addition, she alleged her command made false allegations against her for sexual harassment of a fellow Soldier.  She discussed backdated documentation that prevented her from obtaining permanent change of station (PCS) orders and attending intermediate level education (ILE) at Redstone Arsenal, AL.  She mentioned a flagging action signed in June 2011 but was entered into the system in February 2011.  She was enrolled in ILE in September 2010, but she received an email cancelling the course reservation in March 2011.  She was later reenrolled in the course.  By the fourth investigation, the battalion commander ordered the schools and training noncommissioned officer (NCO) to cancel her ILE reservation without her knowledge.  She's now trying to complete ILE and the Advanced Operations Course before her primary zone LTC board.  She suffered a hardship and was almost homeless in Korea with no place to stay.  She stated LTC K____ withheld her PCS award which was submitted in March 2011 and stated she had an adverse action against her.  As a result, she departed Korea without an award.  She wasn't informed she was being referred to the CG for a possible GOMOR until shortly before she was due to rotate out of theater.

	c.  Four letters of support from military personnel attest that they worked with the applicant during her assignment in the 8th U.S. Army.  She was described as a dedicated professional who treated everyone with respect.

10.  On 1 May 2013, the DASEB denied the applicant's request for removal or transfer of the GOMOR to the restricted folder of her AMHRR.

11.  A review of the applicant's military records in the interactive Personnel Electronic Records Management System revealed the contested GOMOR with allied documents was filed in the performance folder of her AMHRR.

12.  Army Regulation 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 3 November 2011 for disrespecting her superior commissioned officers.

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 a Congressional inquiry and an EO complaint.  However, the applicant's service records are void of evidence which supports this claim.

4.  The Army Regulation 15-6 investigation did not substantiate counsel's claims that the applicant was retaliated against or that she was the victim of racial discrimination.  The Department of Defense IG also declined to investigate the applicant’s complaints based on a lack of evidence and failure to find any instances where anyone in the chain of command retaliated against her for making a complaint through any channels.  Other than her contentions, she also fails to send evidence supporting these complaints to this Board.

5.  The GOMOR and allied documents were properly filed in the performance folder of her AMHRR in accordance with the governing regulation.  Therefore, there is no basis for removal of this GOMOR from her AMHRR.

6.  Counsel has not 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)                                         AR20130014882



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ABCMR Record of Proceedings (cont)                                         AR20130014882



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