IN THE CASE OF

		BOARD DATE:	  2 September 2014

		DOCKET NUMBER:  AR20140000761 


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, in two separate applications, that her records be corrected to show that she was not absent without leave (AWOL) during the period 19 September – 29 September 2013 and that she be paid all back pay and allowances for that period, revocation of the Administrative Separation Board Findings and Recommendations, that her general discharge be voided and she be honorably retired by reason of permanent disability and that her general officer memorandum of reprimand (GOMOR) be removed from her official records.  

2.  The applicant states that her general discharge, Administrative Separation Board Findings and Decisions, and GOMOR are all based on the assumption that she altered and falsified a DA Form 705 (Army Physical Fitness Test Scorecard).  She was in compliance with the commander’s orders and should not have been reported as being AWOL.

3.  The applicant provides copies of the memorandum from her commander notifying her to return to work, her response to the notification, her request for assistance in receiving pay, a note from her physician, a copy of an email, Army Regulation 15-6 investigation, Administrative Separation Board Findings and Decisions, Army Board of Review for Eliminations Packet, and her appeal to the Officer Elimination Proceedings.




CONSIDERATION OF EVIDENCE:

1.  After serving in the Alabama Army National Guard and the U.S. Air Force, the applicant was commissioned as a U.S. Army Reserve (USAR) second lieutenant on 8 November 2001.  She completed her training and was assigned to a troop program unit.  She continued to serve and was promoted to the rank of captain on 11 April 2007. 

2.  The applicant was serving in the Active Guard Reserve (AGR) Program as the adjutant of a combat support hospital in Alabama when the Commanding General of the 3rd Medical Command at Forest Park, Georgia issued the applicant a GOMOR for altering and falsifying her Army Physical Fitness Test (APFT) Scorecard on 10 April 2010.  The applicant responded to the GOMOR contending that it was never her intent that the scorecard be submitted as a record scorecard and it was never her impression to misrepresent to anyone that the information on the card was to imply that she had taken the test with those results.  She requested that she be given another chance and requested that the GOMOR be filed locally.
 
3.  On 29 October 2010, her commander (a colonel) appointed an officer to conduct an informal investigation under the provisions of Army Regulation 15-6 regarding the allegation that the applicant had falsified an APFT Scorecard.

4.  On 10 November 2010, the investigating officer provided his findings and recommendations which opines that the applicant did falsify her scorecard and recommended that the applicant receive a letter of reprimand and appropriate action under the Uniform Code of Military Justice (UCMJ).  The GOMOR is not available for review.

5.  Although all related information is not present in the available evidence, it appears that the applicant appeared before an administrative separation board on 28 April 2011 at Fort Gillem, Georgia to show cause why she should be retained in the USAR.  The board recommended that the applicant be involuntarily eliminated from the U.S. Army based on misconduct or moral or professional dereliction with a discharge under honorable conditions.

6.  On 28 June 2012, a Physical Evaluation Board (PEB) recommended that the applicant be retired by reason of permanent disability.

7.  The applicant’s commander dispatched a memorandum on 26 August 2013 informing the applicant that she was directed to return to work no later than 
16 September 2013 or she would be reported as being AWOL.  He also advised her that if she was unable to return to work by 16 September she must acknowledge receipt of the memorandum and contact him by written response or telephonically and failure to do so would result in the suspension of pay.  He further advised her that if she had medical documentation that prevented her from returning to duty on 16 September 2013, she must provide him a copy prior to her report date. 

8.  A review of the available evidence failed to show any indication that the applicant submitted a request for convalescent leave.

9.  On 12 September 2013, the Department of the Army Board for Review for Eliminations recommended that the applicant be involuntarily eliminated from the Army based on misconduct and moral or professional dereliction with a General (Under Honorable Conditions) characterization of service.  The findings and recommendations of the board were approved on 8 October 2013.

10.  The applicant also submitted an appeal to her elimination proceedings on   12 September 2013 in which she objected to the findings and recommendations of the board of inquiry contending that she did not alter her APFT Scorecard with intent to deceive. 

11.  The applicant provides a letter dated 13 September 2013, which is presumably to the applicant’s commander and acknowledges his memorandum of 26 August 2013.  She informed the commander that she was unaware that her retirement orders were revoked and that her medical condition had not changed.  She further indicated that she was under a doctor’s care and requested new retirement orders.

12.  The applicant also provides a letter dated 13 September 2013 titled “Request for immediate assistance to receive pay due to financial hardship.”  The letter is not addressed to anyone and it appears unlikely that it was dispatched on 13 September 2013 as it contains a timeline of events that describe events from 28 September – 4 October 2013.

13.  The applicant was reported as being AWOL during the period 16 through 
29 September 2013.

14.  The doctor’s statement provided by the applicant is from a civilian physician in Northport, Alabama, is dated 2 October 2013, and indicates that the applicant was under her care and was unable to work during the period 16 September through 6 October 2013 and that she would return to work on 7 October 2013.
  
15.  On 6 November 2013, the applicant was discharged under honorable conditions under the provisions of Army Regulation 600-8-24, paragraph 4-2b, due to unacceptable conduct.  She had served 9 years, 3 months, and 19 days of active service this period and had 7 years, 1 month, and 6 days of prior active service.

16.  Army Regulation 630-10 (Personnel Absences), and table 1-3-4 of the Department of Defense Pay and Entitlements Manual (DODPM) provides, in pertinent part, that members are reported as being AWOL when they fail to return to duty within 24 hours of their last day of authorized absence.  It also provides that before an unauthorized absence may be excused as unavoidable, the responsible commander must decide if the following occurred:

* The absence was not caused by the member’s own misconduct
* The member acted as prudently and responsibly as could be expected to avoid the absence
*  Representatives of the Army also acted as prudently and responsibly as could be expected to avoid the absence

17.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual personnel files.  Paragraph 7-2 (Policies and Standards) states 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 that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF or that it has served its intended purpose to support transfer from the performance folder to the restricted folder of the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the period in which she was reported as being AWOL (19 September – 29 September 2013) should be voided and that she should be paid all back pay and allowances has been noted and appears to lack merit.

2.  The applicant’s commander notified her in August 2013 that she must return to duty no later than 16 September 2013 or she would be reported as being AWOL.  He also advised her that if there were medical reasons for her absence she must provide documentation to establish such before 16 September.  However, the applicant did not obtain a letter from her physician until 2 October 2013.  Accordingly, by virtue of her failure to comply with her commander’s directions she was in fact AWOL.
3.  It should also be noted that the applicant has not submitted evidence to show that she requested convalescent leave during the period in question or that she made reasonable attempts to keep her commander informed of her status.  The applicant was a full-time active duty officer serving as a hospital adjutant and it is reasonable given her years of service that she would have been aware of the serious nature of her actions.  This is especially true given that she took the time to appeal her elimination proceedings during that time.

4.  Therefore, given the circumstances in this case, it appears that the commander was within his authority to report her as being AWOL and she has failed to provide sufficient evidence to show otherwise.

5.  The applicant’s contention that her GOMOR should be removed from her OMPF has also been noted and found to lack merit as she has provided insufficient evidence to show that the allegations against her, as substantiated by an informal investigation were unfounded.  In the absence of such evidence there appears to be no basis to remove the GOMOR.

6.  The applicant’s contentions that her general discharge should be voided and that she should be honorably retired by reason of permanent disability has also been carefully considered and found to lack merit.

7.   The applicant was recommended for elimination by a show-cause board prior to the determination by the PEB that she be retired by reason of physical disability and her case was properly forwarded to the Department of the Army Board for Review for Eliminations who was aware of the determination by the PEB before its deliberations and after considering all of the available evidence directed that she be involuntarily discharged for misconduct and moral or professional dereliction.  

8.   Accordingly, it appears that she was properly discharged in accordance with the applicable laws and regulations in effect with no indication of any violations of the applicant’s rights.

9.  The applicant contends that her discharge was unjust because it was all based on the assumption that she falsified a APFT Scorecard; however, she has failed to provide sufficient evidence to support her contention.

10.  Accordingly, there appears to be no basis to grant her requests.




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)                                         AR20140000761





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ABCMR Record of Proceedings (cont)                                         AR20140000761



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