IN THE CASE OF:  	  

		BOARD DATE:  18 December 2014	  

		DOCKET NUMBER:  AR20140001721 


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 the applicant's records be corrected by:

	a.  removal of a referred Officer Evaluation Report (OER) for the period 
1 August 2011 through 4 March 2012 from her Official Military Personnel File (OMPF);

	b.  removal of a General Officer Memorandum of Reprimand (GOMOR), dated 3 October 2011, from her OMPF;

	c.  restoration of all pay, allowances, entitlements, rights, and privileges which were affected by the referred OER and GOMOR; and 

	d.  that she be awarded the Army Commendation Medal (ARCOM), which she was previously recommended for but not awarded.

2.  Counsel states:

	a.  In determining the merits of the applicant's request for relief, consideration must be given to several factors:

		(1)  the applicable statutory and regulatory provisions which provide guidance as to resolution of the issues before this Board;

		(2)  the historic handling of the applicant's case by the U.S. Army; and

		(3)  the requirement that the applicant be ensured fundamental fairness and due process of law.

	b.  Mr. S, Director, Defense Military Pay Office (DMPO), Fort Bragg, NC, testified before the Board of Inquiry (BOI) and documented memoranda upon his professional knowledge and review of the applicant's Army finance record, including the appropriate relevant regulatory guidance.

	c.  Mr. S stated the applicant properly claimed all expenses and reimbursements associated with her permanent change of station (PCS) move from Fort Bragg, to Richmond, VA, according to the Joint Federal Travel Regulation (JFTR).  In addition, Mr. S found, pursuant to the JFTR, that the applicant correctly received dislocation allowance (DLA), temporary lodging expenses, and dependent travel pay as part of her move.

	d.  Mr. S also advised the applicant's basic allowance for housing (BAH) rate was correctly changed to the Richmond rate.  Mr. S stated the applicant received the correct per diem meals and incidental allowances in the Defense Travel System (DTS).

	e.  On 23 March 2012, show cause board members boarded the applicant as a Reserve officer under the provisions of Army Regulation (AR) 135-175 (Army National Guard and Army Reserve Separation of Officers).  The correct regulation for Regular Army (RA) officers is AR 600-8-24 (Officer Transfers and Discharges).

	f.  The applicant is an active duty officer who executed a PCS move to Richmond, VA, from Fort Bragg.  If she was a Reservist, she would have been on mobilization orders to Fort Bragg or Richmond and BAH would have been based on her home of record or dependent location.  She would have received per diem and not be entitled to PCS funds or DLA as indicated in the GOMOR.

	g.  The adverse actions taken against her were based upon allegations that she falsified a DD Form 1351-2 (Travel Voucher or Subvoucher) by indicating she changed stations from Fort Bragg, to Richmond, based on the improper AR 15-6 (Procedures for Investigating Officers and Board of Officers) investigation.  The investigating officer (IO) alleged the applicant had not moved to Richmond, as she had stated on her travel vouchers and statements; thereby, she fraudulently claimed expenses and reimbursement as if she had completed the move, then received BAH for Richmond when not entitled to that allowance.

	h.  It is evident the IO rushed to judgment and refused to accept the official documents and legitimate proof she was presented.  She refused to acknowledge the applicant's legitimate PCS documents, to include the official 
DD 1351-2 which reflects the signature and telephone number of the finance representatives at Fort Lee, VA.  The applicant provided personal bank statements to prove her travel and purchases while residing and working in Richmond.  The IO's decision to take the easy right, instead of the hard left, caused the applicant and her family a detrimental hardship.

	i.  On 4 November 2012, the Department of the Army Suitability Evaluation Board (DASEB) determined the command investigation was flawed [based on the following statement]:  "It is not clear from CPT W's (the IO) memorandum what her specific findings are.  Her memorandum presents a number of findings and other allegations that are not clearly evident from the evidence.  They may be proper conclusions - and may, in fact, be true - but are simply not supported by the evidence presented."  The DASEB also acknowledged the applicant did provide a lease and affidavit for her residence in Richmond.  The applicant had PCS orders for Richmond, VA, in accordance with the JFTR.  BAH for quarters is based on the Soldier's permanent duty station (PDS) which was Richmond. 

	j.  According to the JFTR, the applicable statutory and regulatory provisions which provide guidance as to resolution of the issues before this Board, states: "A member who detaches (signs out PCS) from the old PDS, performs temporary duty (TDY) en route elsewhere, and returns TDY en route to the old PDS is authorized per diem at the old PDS (B-161267, 30 August 1967).  Example:  A member departs the Pentagon (Arlington, VA) PCS on 15 June, performs TDY en route at Fort Leavenworth, KS, 1-31 July, returns TDY en route to the Pentagon 5-15 August, and then signs in PCS to Fort Polk, LA, on 31 August.  The member is authorized per diem at the Pentagon (old PDS) 5-15 August.  If the member had departed on 15 June but performed TDY in Arlington, VA, first, no per diem is payable for the TDY in Arlington immediately after detachment."

	k.  The applicant encountered a similar scenario and/or situation as stated above.  She completely cleared and out-processed from Fort Bragg, in February 2010; she then arrived to in-process at Fort Lee, VA and Richmond in March 2010.  She signed in and completed her in-processing at her new PDS, 1/311th CSS Battalion, Richmond and Fort Lee, in March 2010; she followed the directive stated on her official Department of the Army (DA) PCS Orders Number 035-21.  In March 2010, she was also directed, per her battalion and brigade commanders to continue additional in-processing at the 189th Infantry Brigade, Fort Bragg, returning to her old PDS.

	l.  The applicant volunteered and received permission from the 1/311th Executive Officer (XO) to work as a staff officer for the battalion while at the Richmond office and to perform duties as the Medical Officer for the 189th Infantry Brigade while at Fort Bragg.  She understood that her DA PCS Orders Number 035-21 would remain the same and she would travel back and forth from Richmond, to Fort Bragg on TDY orders.  She was entitled and authorized meals, incidentals, and TDY entitlements by her chain of command.

	m.  The JFTR states:  "A member, who lodges with friends or relatives, is authorized the TDY location meals and incidentals rate."  The applicant did not violate any policies or regulations in the above category.  She visited and stayed with friends and/or family member(s) while on TDY at Fort Bragg.

	n.  The JFTR states:  "BAH is paid based on the members' PDS."  The applicant's PDS was Richmond, VA, and her BAH was paid according to her official DA PCS orders.  A lease agreement, memorandum, or affidavit is not required by the Defense Finance and Accounting Service (DFAS) to receive the appropriate allowance.

	o.  The applicant and her spouse executed a lease agreement and rented a fully furnished home in Henrico County, VA, and did not violate any policies or regulations.

	p.  On 23 March 2012, the BOI convened and adjourned, having found the applicant did not fraudulently claim expenses and reimbursements, including DLA and BAH for Richmond, VA, which she was not entitled to as stated in the GOMOR.  The applicant received the GOMOR for conduct not sustained for moving her spouse and household goods (HHG) to Richmond and receiving the right BAH.  However, the board found conduct sustained indicating she had wrongfully claimed to have moved from Fort Bragg to Richmond.  The sustained findings are totally inconsistent with her actions, supporting documentation, the JFTR, and the statement by Mr. S, the DMPO Director.

	q.  According to AR 600-37 (Unfavorable Information), the DASEB is required to adequately document its findings.  On 8 November 2012, the DASEB made several mistakes and submitted inaccurate information regarding the applicant's BOI findings.  The DASEB reported the applicant fraudulently claimed expenses and reimbursements, including DLA and BAH for the Richmond area, which she was not entitled to and wrongfully filed travel vouchers through the DTS claiming meals and incidental expenses for travel to Fort Bragg, when she lived and worked at Fort Bragg.  

	r.  The OER covering the period 1 August 2011 through 4 March 2012 is prior to the applicant's BOI.  The report was not completed and signed by the rater and senior rater until well after the BOI (23 March 2012); therefore, in the interest of fairness to the applicant, the board's findings should have been considered in the preparation of this report.  The report, as written, implies she falsely claimed PCS entitlements.

	s.  On 4 February 2010, the applicant received PCS orders to Richmond with a report date of no later than 12 March 2010.  On 24 February 2010, shortly after receiving PCS orders, she officially out-processed from Fort Bragg completing the requisite installation clearance.  She and her husband physically moved to Richmond in March 2010 and began normal in-processing procedures.  She and her husband then established proper residency in the area.  

	t.  On 12 March 2010, she arrived at Richmond for in-processing and on 
18 March 2010, she submitted her travel voucher for the PCS move to the DMPO.  Due to the nature of the Active Component/Reserve Component (AC/RC) organization and the 1/311 CSS Battalion being assigned to Richmond, with the brigade headquarters assigned to Fort Bragg, she was required to in-process at both, the Fort Lee and Fort Bragg locations.  She was provided a memorandum by the S-1 which clearly states she was assigned to Richmond with duty at Richmond, which is consistent with her PCS orders.

	u.  The applicant volunteered and received permission from the 1/311th XO to work at Fort Bragg, as the 189th Infantry Brigade Medical Operations Officer and the 1/311th CSS Medical Team officer in charge.  She understood that her PCS orders would remain the same and she would have to travel back and forth from Richmond to Fort Bragg.  The 1/311 XO, with the knowledge and approval from the chain of command, allowed her to work at Fort Bragg on TDY as a staff officer for the battalion and perform duties as the Medical Officer for the 189th Infantry Brigade.  She was properly advised by the 189th Finance Officer, the brigade XO, and the battalion XO, that her PCS orders to Richmond would remain the same and that she would be authorized TDY per diem.  In addition, the S-1 clerk would process her per diem in DTS and the brigade approving official would review and authorize her per diem for the days she performed duty on Fort Bragg or other TDY locations.



	v.  The 1/311th CSS Battalion, Richmond was tasked to train the Provincial Reconstruction Team comprised of Navy, Air Force, Army Reserve, and National Guard.  This pre-deployment mission required her and her Observer Controller/ Trainer Mentor Medical Team to travel on TDY or Temporary Change of Station (TCS) orders to Camp Atterbury, IN; Afghanistan; Fort Meade, MD; Fort Bragg; Camp Bullis; and Fort Sam Houston, TX.

	w.  From March 2010 to June 2011, she was assigned to Richmond, with duty in Richmond, and she performed TDY at Fort Bragg, for a total of 52 days.  She volunteered and deployed approximately 60 days with the Provincial Reconstruction Team to Afghanistan and was TCS at Camp Atterbury for approximately 240 days, training two rotations.  She was also required to attend "IPR's" prior to each rotation, traveling from her duty assignment, Richmond, to the 1st Army East, Fort Meade, MD, for 6 days.  The remaining 85 days, she was at the office in Richmond or on leave.

	x.  In July 2011, the 189th Infantry Brigade deactivated and relocated from Fort Bragg to Fort Lewis, WA.  The 1/311th CSS Battalion was transferred under the Commander, 4th Cavalry Brigade, 1st Army East, and Fort Knox, KY.

	y.  On 22 August 2011, 1 month after the 1/311th CSS transfer, the Commander, 4th Cavalry Brigade, 1st Army East, appointed an IO to inquire about the circumstances surrounding her PCS move from Fort Bragg to Richmond, in March 2010 believing she did not physically make the PCS move and, thereby, submitted a fraudulent travel claim.

	z.  Due to the allegations of receiving unauthorized per diem while TDY for 
52 Days at Fort Bragg, the 4th Cavalry Brigade Commander petitioned recoupment of the TDY per diem entitlements.  In addition, the commander forced her to return to Fort Bragg, from the date of the 15-6 Investigation in August 2011 until the end of the BOI in March 2012; she was attached to the 2/311th CSS Battalion, Fort Bragg, on no official orders.  She did conduct TDY for 30 days in Camp Atterbury, January - February 2012.  After completion of the duty, she was ordered to return to Fort Bragg, still on no official orders.  In addition, the Commander, 4th Cavalry Brigade without the knowledge or consent of the applicant, had her BAH changed from Richmond to Fort Bragg.

	aa.  She was approved for, but never received, the Army Commendation Medal for assisting the 1/311th CSS, Richmond and the entire 189th Infantry Brigade improve their medical readiness by 40%, successfully passing the Organizational Inspection Program and meeting the 1st Army Division East 90% goal.

	bb.  Understandably, the applicant was and remains devastated by the allegations and the proceedings for over the past two and a half years.  She has an excellent military career.  As an officer in the Medical Service Corps, she has dedicated herself to the lives of the men and women who serve and their families.  She would never intentionally do anything to destroy that personal character and professional commitment.  Her performance of duty and character have always been characterized as outstanding by her superiors.  It is just not feasible that such an outstanding officer of the U.S. Army for over 24 years would jeopardize her career and future by defrauding the U.S. Army/Government.  

	cc.  The applicant requests a full, fair, and impartial review of her case and requests the Board also consider her service as an enlisted member.

	dd.  Given the totality of the circumstances of the case, the GOMOR, the referred OER, and the elimination proceedings taken against her, were unfair and not warranted.  

3.  Counsel provides the documents identified in a list of enclosures.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting removal of her OER for the period 1 August 2011 through 4 March 2012 from her OMPF.  However, there is no evidence indicating she submitted a request to the U.S. Army Human Resources Command for removal of the OER in question.  Paragraph 2-5, Section II, AR 15-185 (Boards, Commissions, and Committees-Army Board For Correction of Military Records), the regulation under which this Board operates, states the Board will not consider any application if it determines that all administrative remedies available to the Soldier have not been exhausted.  Based on the foregoing, the portion of her request that pertains to removal of her OER for the period 1 August 2011 through 4 March 2012 will not be discussed further in this Record of Proceedings.  

2.  After having had prior enlisted service, the applicant was appointed as a commissioned officer in the RA on 28 August 2007.  

3.  On 22 August 2011, the Commander, Headquarters, 4th Cavalry Brigade, 
1st Army East, appointed an IO in the rank of captain (CPT) to investigate the circumstances surrounding the applicant's PCS orders, dated 4 February 2010.  The IO was instructed to:

* obtain sworn statements from all witnesses
* advise individuals suspected of having committed an offense under the Uniform Code of Military Justice (UCMJ) of their rights under the UCMJ, Article 31
* based on the evidence, make findings whether the UCMJ had been violated and recommend whether to initiate a show cause hearing pursuant to AR 15-6
* submit the findings and recommendations within 10 days

4.  On 30 August 2011, the IO provided a memorandum detailing the findings regarding the allegations made against the applicant of inappropriate PCS procedures, the receipt of unauthorized PCS entitlements, and the possibility of government fraud.  The IO reported the following findings and observations:

	a.  PCS movement - The IO found several discrepancies between the applicant's statements and the supporting documentation.

	b.  Reporting to new PDS - She lied to the IO on several occasions.  She stated to the IO that on 12 March 2010 she reported to Fort Lee, VA, and then to Richmond.  Her story changed on several occasions.  She originally said she cleared Fort Bragg and moved to Richmond because she did not know the unit operated out of Fort Bragg.  On her email to MAJ G, she acknowledged knowing about the unit's operations at Fort Bragg, thus substantiating that she lied to the IO in order to deceive her.  She furnished the IO a copy of her "Military Pay Action History (MMPA)," dated 25 August 2011.  She intended to prove to the IO that she "arrived" at the Fort Lee Military Pay System on 12 March 2010.  However, the finance office uses the DA Form 31 (Request and Authority for Leave), block 16a, provided by the service member during in-processing to produce the "arrive" date listed on the MMPA, regardless of when the entry is made.  In this case, this entry was made on 24 March 2010, which further supports the suggestion that she was not in-processing at Fort Lee on 12 March 2010 as she claims.

	c.  In-processing - according to the applicant, she thought Fort Lee, VA was the 1/311th CSS servicing post.  However, she stated she was unable to in-process because the clerk could not find the unit in their database.  She maintains that she went to Richmond, on 12 March 2010, but she could not in-process because they sent her to in-process at Fort Bragg.  She could not remember the name of the person who received her in Richmond.  Mrs. C, the unit's administrator, does not recall seeing her until 18 March 2010, when she went to the unit to in-process.  The applicant stated how difficult it was for her to accomplish her in-processing and how having a sponsor would have alleviated lots of her issues.  The IO was able to obtain several documents provided by Sergeant First Class B, the brigade S-1, proving that she was not truthful about her location on 12 March 2010.  Some of the documents include a DA Form 647-1 (Personnel Register), where she signed into the brigade from PCS status, a 
Family Information Data Worksheet, and a Personnel Data Card, all signed and dated by her on 12 March 2010.  These documents confirm that she was in fact in Fort Bragg and not moving her family to Richmond, as she stated on her travel vouchers and statements.

	d.  Falsifying official documents - She was deceitful when completing her travel voucher, DD Form 1351-2, for her PCS move to Richmond.  On her official statement she claimed to have obtained a house in Richmond.  She said she did not move into it due to the unit's mission at Fort Bragg.  Her voucher shows she completed her PCS move to Richmond, on 12 March 2010, and she traveled with her dependent and two privately-owned vehicles.  However, official documents and statements made by several unit personnel reflect she was in Fort Bragg, until 15 March 2010.  She could not have been in two places at once, especially when they are about 3 hours apart.  She claimed and received Travel Lodging Expense (TLE), dependent and service member travel allowances, and DLA totaling $2,869.94.  She tried to deceive the IO by changing her story several times stating she had a friend who lived in the area and was willing to rent her an apartment.  She claimed she had about $100-$150 in cash but she could not provide any bank statements showing transactions that could back up her claim that she moved her family to Richmond as stated on her DD Form 1351-2.  Throughout the course of the investigation she did not provide to the IO any factual evidence that would validate her completion of a PCS move from Fort Bragg to Richmond.  The evidence supports the completion of an "intra-post" transfer for which she did not incur any expenses.  Her actions before, during, and after her PCS move indicate that once the unit granted her permission to remain at Fort Bragg, she abandoned her plans to relocate to Richmond.  She claimed the expenses and reimbursements as if she had completed the move.  The evidence to support this is the fact that she never requested permissive TDY for house-hunting, nor did she request her HHG to be picked up.  She did not do a "Do It Yourself Move," nor did she rent out or sell her house in Fayetteville, NC. She gave the IO false official statements (verbally and written) regarding her actions during her PCS move to Richmond.

	e.  The applicant received BAH for Richmond.  The applicant stated that she used a memorandum she received from the 189th Infantry Brigade S-1 stating that she worked under them to request to have her BAH changed to the Fort Bragg rate.  She stated she was told by finance personnel that she needed official orders to do so.  According to Mr. C from the Fort Bragg Finance Office they could not use that memorandum because it states "you are further assigned to the 189th Infantry Brigade, Fort Bragg, with duty at 1st Battalion, 311th Regiment, Richmond."  She was physically and operationally detached from her unit with a duty location at Fort Bragg.  She stated she asked for orders but was not issued any. 

	f.  Fraudulent Temporary Duty Expense Reimbursement - The IO found evidence to support the applicant falsely claimed and received financial compensation through the unit's DTS for several occasions when she was not entitled.  She claimed TLE for 17 March 2010, a date for which she was already in "travel status" through DTS from Richmond to Fort Bragg to complete in-processing.  She claimed travel expenses and entitlements for which she did not meet the requirements described in the JFTR, Chapter 5, Permanent Duty Travel.  She stated she made the claims because the unit was moving back to Richmond around the September 2010 timeframe.  In accordance with the JFTR, service members who elect to neither move their HHG nor to relocate their dependents are allowed to complete such movement at a later date.  She has not returned any of the unauthorized entitlements and/or fraudulent expense reimbursements received on March 2010.  Her intent is not to complete this movement as recently she contacted her branch manager, Lieutenant Colonel (LTC) L requesting to be reassigned to the 2/311th CS/CS BN in Fort Bragg, NC.  If this reassignment is completed, she would remain at Fort Bragg and never move to Richmond; a move for which she was already compensated for. She stated to LTC L that her reassignment would be a "NO COST" move.

5.  On 21 September 2011, Headquarters, First Army Division East, Office of Administrative Law, Fiscal and Ethics, provided a legal review of the AR 15-6 investigation pertaining to the applicant.  The reviewing legal representative found the investigation legally sufficient and stated:

	a.  A number of the findings are supported by the applicant's own admissions. Her admissions reflect appropriate evidence since they appear to have been given after she was provided her rights warning (DA Form 3881), on 24 August 2011.

	b.  The question posed in the appointment memorandum appears to be fully addressed.

	c.  There are a number of minor errors, but no substantial errors as defined by AR 15-6, paragraph 2-3c.  The minor errors are as follows:  It is not clear from CPT W [the IO's] memorandum what her specific findings are.  Her memorandum presents a number of "findings" and other allegations (i.e., that the applicant "lied to investigator," "was not truthful about her location," "was deceitful") that is not clearly evident from the evidence.  They may be proper conclusions - and may, in fact, be true - but are simply not supported by the evidence presented.  Most importantly, there is no clear evidence regarding the applicant's reporting to Fort Lee, VA and/or Richmond on or about 12 March 2010, as well as the claimed in-processing at that time.  Most importantly, though, is that the particular date is relatively unimportant.

	d.  There is sufficient evidence to support a number of specific findings that she:

		(1)  never moved to Richmond;

		(2)  falsified her DD Form 1351-2 for her claimed PCS move to Richmond;

		(3)  claimed TLE for which she was not entitled;

		(4)  received one travel day for her alleged PCS move for which she was not entitled;

		(5)  knowingly applied for and received improper BAH for Richmond; and

		(6)  she received temporary duty meals and incidentals for duty at Fort Bragg for which she was not entitled.

	d.  There is no question that she received the above allowances and reimbursements related to PCS and travel to which she was not entitled.  The IO very clearly identifies the improper amounts she received.  At the very least, these amounts should be recovered through administrative action.  The financial roll-up appears to accurately reflect the payments improperly received by her.

	e.  Less clear is whether her actions and statements regarding her PCS and duty travel were made with the intent to deceive and confuse the IO.  Similarly, while she clearly falsified documents, it is unclear whether she was following unit procedures or whether she was actually attempting to defraud the Government.

	f.  It appears the recommendations are appropriate based upon the findings.  AR 15-6, paragraph 3-11, specifies that IOs make their recommendations according to their understanding of the rules, regulations, policies, and customs of the service, guided by their concept of fairness both to the Government and to individuals.  The IO appears to have done so.  The approving official; however, is not bound in any way by the recommendations of the IO.

	g.  The legal representative recommended that the Commander, 4th Cavalry Brigade, approve the findings; take various actions as recommended by the IO to review and update the unit procedures; proceed with collection action for amounts improperly paid to the applicant; and forward the investigation to the Military Justice Division, Office of the Staff Judge Advocate, for potential punitive and/or administrative actions against the applicant.

6.  On 3 October 2011, while serving in the rank of CPT as a member of the 1st Battalion (CS/CSS), 311th Regiment, Richmond, she received a GOMOR for falsifying a DD Form 1351-2 by indicating she had PCS'd from Fort Bragg to Richmond.  The GOMOR states that on "19 October 2009," while still at Fort Bragg, she did not move her family to Richmond as she stated on her travel vouchers and statements.  She fraudulently claimed expenses and reimbursement as if she completed the move and she was wrongfully receiving BAH at the Richmond rate when she was not entitled to it.

7.  The GOMOR imposing commander stated the applicant, as an officer and leader, had the duty to act in a professional manner at all times and to set the example for other Soldiers to emulate.  Her conduct adversely affected the professional image of Army officers and distracted from the training of those troops preparing for combat.  Her lack of judgment caused him to question her potential for further productive service.  The commander further indicated that he was imposing the GOMOR as an administrative measure and not as punishment under Article 15 of the UCMJ, and that he intended to file the GOMOR in her OMPF; however, he would not make a final filing determination until after reviewing any matters submitted for consideration by the applicant.

8.  On 17 October 2011, the applicant provided a two-page rebuttal to the GOMOR requesting dismissal of the GOMOR or placement of the GOMOR in local files.  She stated the following:

	a.  She never had any intent to falsify any documents or fraudulently claim any pay or allowances to which she was not entitled.  She had been and remained prepared to work with finance to determine how much she may have been overpaid and to pay it all back expeditiously.  As described below, the logistics of her PCS to the 1st Army Division East were very confusing and she realized that she should have done more to determine her proper entitlements; however, she did maintain a residence in Richmond and she in fact ended up spending more time in Richmond than she did at Fort Bragg during the period in question.

	b.  She understood there was confusion regarding whether she moved to Richmond.  She and her spouse both travelled to Richmond and moved into the rental in March 2010 instead of September 2010 based on the fact that she knew she would be performing duties in Richmond.  She knew that the entire battalion would be eventually relocating to Richmond in September 2010 and her official assignment orders were for Richmond.  Even though the battalion executive officer (Major (MAJ) G) indicated she could perform duties at Fort Bragg, she actually spent more time in Richmond than at Fort Bragg.

	c.  In-processing with the 1/311th CSS, 189th Infantry Brigade, 1st Army East Division, was very confusing.  Her duty description was not fully clear and her place of duty was never constant.  Although MAJ G indicated that the unit would be operating out of Fort Bragg all active duty and Reserve Soldiers were required to operate out of Richmond.  The 1-311th CSS location on Fort Bragg was not a permanent duty location, rather a temporary annex.  It is true that she maintained her family residence in Fayetteville, NC, that she performed some duties in Fort Bragg, and that she tried to change her BAH back to Fort Bragg based on the memorandum provided by the brigade which stated she was further assigned to the 189th at Fort Bragg with duty in Richmond.  She later found out that all the 189th Brigade personnel were provided that memorandum only for the purpose of receiving services on post and not for the purpose of changing their assignment location or BAH.  Prior to the AR 15-6 Investigation, she was performing duties and she was fully operational in Richmond.

	d.  When she in-processed at Fort Lee, VA, she attended a briefing for all incoming personnel.  At that briefing, they were instructed on how to complete all the necessary paperwork associated with a PCS move.  She should have made an independent determination of her entitlements since her situation was different than most other incoming personnel.  She understands that, as an officer, she has a duty to understand fully everything that she signs and every piece of paper she submits.  She would also like to point out that she was not the only officer who was confused about the in-processing requirements at the 1-311 CS CSS.

	e.  As the attached letters of support, recent OER, and award justification show, she is a good officer with no history of misconduct.  During her time at 
1-311 CS CSS, she has performed at a very high level.  She deployed to Afghanistan and participated in training at Camp Atterbury.  During this assignment, she actually spent more time on TCS duty in Afghanistan and at Camp Atterbury than she spent in Richmond and at Fort Bragg combined.  In all honesty, she is frustrated that, despite her strong performance and demonstrated integrity, and despite the confusing nature of in-processing to 1st Army Division East, the AR 15-6 IO apparently did not give her the benefit of the doubt.

	f.  She realized that her rebuttal memorandum did not respond to each allegation in the 15-6 Report.  For brevity's sake, she limited the response to the issues raised in the GOMOR.  She would be eager to provide any additional information or explanations upon request.  Additionally, note that paragraph 1 of the GOMOR states the date in question is 19 October 2009.  However, she in-processed at Fort Lee in March 2010.

	g.  She is loyal and dedicated to her duties.  She loves the military and she is truly proud of 1st Army Division East's mission and the role she has played in that mission.  She loves taking care of Soldiers and their families.  Her greatest desire is to continue to grow as an officer and to continue to lead Soldiers.  If the GOMOR is filed in her OMPF, her ability to continue her career will be impeded. 

9.  On 15 November 2011, the GOMOR imposing commander directed the GOMOR be filed permanently in the applicant's OMPF.

10.  On 15 November 2011, by memorandum, the applicant's commanding general notified her she was required to show cause for retention on active duty under the provisions of AR 600-8-24, paragraph 4-2, because of misconduct, moral, and professional dereliction.  The commander stated his actions were based on the following specific reasons for elimination:

	a.  On 3 October 2011, she was issued a GOMOR for falsifying a DD Form 1351-2.  She indicated that she PCS's from Fort Bragg to Richmond, which in fact she did not.  She fraudulently claimed expenses, reimbursement, and BAH for the Richmond area to which she was not entitled.

	b.  In the course of the investigation, it was discovered that she wrongfully filed travel vouchers through the DTS claiming meals and incidental expenses for travel to Fort Bragg when she lived and worked at Fort Bragg.

	c.  Conduct unbecoming an officer as indicated by the GOMOR.  

11.  On 23 March 2012, a BOI considered evidence and heard arguments regarding the applicant's potential elimination from the service.  Based on the preponderance of the evidence, the BOI found the applicant:

* wrongfully claimed to have moved from Fort Bragg to Richmond when in fact, she did not
* wrongfully filed travel vouchers through DTS claiming meals and incidental expenses for travel to Fort Bragg when she lived and work at Fort Bragg
* conducted herself in a manner unbecoming an officer

12.  The BOI also found the applicant did not fraudulently claim expenses and reimbursements, including DLA, and BAH for the Richmond area, which she was not entitled to.

13.  The BOI recommended the applicant be retained in service.

14.  On 4 October 2012, the DASEB denied the applicant's request for removal of the GOMOR from her OMPF.  The DASEB, after a thorough review of her official record, the evidence submitted in support of her request, and consideration of multiple factors, noted the following:

	a.  The applicant was afforded her due process rights under AR 15-6 and 
AR 600-37.  The imposing authority concurred with the IO's final report and found her argument unpersuasive.  She had sufficient time to submit all of her supporting documents to the IO and the imposing authority.

	b.  The imposing authority reviewed all of the findings and recommendations submitted by the IO.  The findings were supported by the evidence, were believed to be factual in nature, and the recommendations had validity.  The imposing authority was not bound by the IO's findings and the applicant was given the chance to submit a rebuttal statement.  The imposing authority considered all of the available evidence and determined the issuance of the GOMOR was justifiable.

	c.  The imposing authority believed she falsified her DD Form 1351-2 by indicating she made a PCS move from Fort Bragg to Richmond.  On "19 October 2009," while still at Fort Bragg, she did not move her family to Richmond as she stated on her travel vouchers and statements.  She fraudulently claimed expenses and reimbursement as if she completed the move and she wrongfully received BAH at the Richmond rate when she was not entitled to it.  She did not provide any evidence to refute the evidence.

	d.  There is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  There was no evidence in the record, and she did not provide any evidence, to support the contention the GOMOR is unfair, untrue, and/or unjust.

	e.  Mr. S, DPMO Director, Fort Bragg, stated in effect, his review and audit of her PCS documents revealed she properly claimed all expenses and reimbursements associated with her PCS move from Fort Bragg to Richmond, on 12 March 2010.  Pursuant to the JFTR, she correctly received DLA, temporary lodging expenses and dependent travel pay as a part of her move.  Her BAH rate was also correctly changed to the Richmond rate.  She had PCS orders for Richmond, in accordance with the JFTR.  BAH for quarters is based on the Soldier PDS which was Richmond.

	f.  Mr. S only stated, in effect, that all of the paperwork and documents were filled out properly.  He did not state whether she had falsified the DD Form1351-2 or whether she and her family had moved to Richmond.

	g.  Mr. S never stated whether the applicant fraudulently claimed expenses and reimbursement as if she completed the move or if she wrongfully received BAH at the Richmond rate when she was not entitled to it.

	h.  Lastly, on 17 October 2011, she stated, in effect, that it was true she maintained her family residence in Fayetteville, NC; that she performed some duties at Fort Bragg, and that she tried to change her BAH back to Fort Bragg based on the memorandum provided by brigade which stated she was further assigned to the 189th at Fort Bragg with duty in Richmond.  She later found out all 189th Brigade personnel were provided that memorandum only for the purpose of receiving services on post and not for the purpose of changing their assignment location or BAH.  

	i.  The DASEB found no evidence of arbitrary or capricious actions by the command or the IO.  The DASEB was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected.

15.  A review of the applicant's OMPF failed to reveal evidence, such a DA Form 638 (Recommendation for Award) showing she was recommended for the ARCOM and that the recommendation was subsequently disapproved.  

16.  The applicant provides several documents, such as OERs, Service School Evaluation Reports, and third-party character-reference letters that attest to her excellent past and present duty performance.

17.  AR 15-6 establishes procedures for investigations and BOIs not specifically authorized by any other directive.  The appointing authority will also seek legal review of all cases involving serious or complex matters, such as where the incident being investigated has resulted in death or serious bodily injury, or where the findings and recommendations may result in adverse administrative action, or will be relied upon in actions by higher headquarters. 

	a.  Paragraph 3-10a states that an investigation finding is a clear and concise statement of a fact that can be readily deduced from evidence in the record.  It is directly established by evidence in the record or is a conclusion of fact by the IO or board.  Negative findings (for example, that the evidence does not establish a fact) are often appropriate.  The IO or board will normally not exceed the scope of findings indicated by the appointing authority.  The findings will be necessary and sufficient to support each recommendation.
	b.  Paragraph 3-14 states that a formal report will be used if a verbatim record of the proceedings was directed.  The transcript of those proceedings, with a completed DA Form 1574 (Report of Proceedings by IO/Board of Officers) as an enclosure, and other enclosures, and exhibits, will constitute the report. 

	c.  In an informal investigation or board, the report will be written unless the appointing authority has authorized an oral report.  Every report, oral or written, will include findings, and unless the instructions of the appointing authority indicate otherwise, recommendations.

18.  AR 600-37 provides that administrative letters of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer, or officer exercising general court-martial jurisdiction over the Soldier.  Letters of reprimand may be filed in a Soldier's OMPF upon the order of a general officer level authority and are to be filed in the performance section.  The direction for filing is to be contained in an endorsement or addendum to the letter.  If the reprimand is to be filed in the OMPF, then the recipient's submissions are to be attached.  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.  

19.  AR 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the OMPF.  Documents will be placed in the performance or restricted folders as they are received by the custodian.  Documents filed are those that must be permanently kept to record a Soldier’s military service, manage a Soldier’s career, and/or protect the interests of both the Soldier and the Army.  Administrative letters of reprimand, referral correspondence, rebuttal, and allied documents are filed in the performance folder. 

20.  AR 600-8-24 further states the BOI’s purpose is to give the officer a fair and impartial hearing determining if the officer will be retained in the Army.  

   a.  Through an administrative investigation conducted under AR 15-6 and this regulation, the BOI establishes and records the facts of the respondent’s alleged misconduct, substandard performance of duty, or conduct incompatible with military service.  Based upon the findings of fact established by its investigation and recorded in its report, the board then makes a recommendation for the officer’s disposition, consistent with this regulation.  The Government is responsible to establish, by a preponderance of the evidence, that the officer has failed to maintain the standards desired for their grade and branch or that the officer’s Secret-level security clearance has been permanently denied or revoked by appropriate authorities.  In the absence of such a showing by the Government, the board will retain the officer.  The respondent is entitled to produce evidence to show cause for his retention and to refute the allegations against him.  The respondent's complete OMPF will be entered in evidence by the Government and considered by the BOI.  

	b.  Paragraph 4-7 states boards will consist of at least three voting members and a recorder, legal advisor, and respondent’s counsel without vote.  The president of the BOI will be the grade of colonel or above and senior in grade to the respondent.  Other voting members will be RA officers on active duty (unless the respondent is a Reserve officer) in the grade of LTC or above and senior in grade and rank to the respondent.  

	c.  Paragraph 4-13 states that to the maximum extent possible the respondent has the right to be confronted with the witnesses against him or her.

		(1)  The personal appearance of witnesses should be obtained whenever practicable in preference to the use of depositions, affidavits, or written statements.  Accordingly, such requests will be honored by the board if the requested witness is considered reasonably available and testimony will add materially to the case.  Requests for witnesses will include a statement specifying the substance of expected testimony.

		(2)  The president of the BOI will request the commander or Government agency to order witnesses to appear as witnesses for the Government who are members of the Armed Forces or civilian employees of the Government.  The availability of the witness is determined by the appropriate commander.  If the commander determines that a requested witness is not reasonably available, the reasons will be furnished to the president of the board, who will have this determination appended to the record of proceedings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends through counsel that the GOMOR should be removed from her OMPF because the imposition of the GOMOR was unjust and not warranted.  

2.  Based on the findings of the AR 15-6 Investigation, the applicant's senior commander issued her a GOMOR.  The evidence considered by the IO and the GOMOR imposing authority sufficiently established by a preponderance of the evidence that the applicant submitted a DD Form 1351-2 and recorded information which was false.  

3.  The imposing general officer properly referred the GOMOR to the applicant and did not make his final OMPF filing determination until he reviewed the appeal/rebuttal and all supporting material submitted by the applicant.  As a result, there is no evidence the filing determination was arbitrary or capricious or anything other than the objective decision of the imposing general officer.  

4.  The available evidence confirms the GOMOR proceedings were accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the process.  

5.  Although several documents were provided that attest to her excellent past and present duty performance, they do not provide clear and convincing evidence that the GOMOR in question is untrue or unjust.  Therefore, she has failed to satisfy the regulatory burden of proof necessary to support a successful appeal for removal of the GOMOR from her OMPF.

6.  Counsel contends the show cause board members boarded the applicant as a Reserve officer under the provisions of AR 135-175 instead of as an RA officer under the provisions AR 600-8-24; however, the evidence shows that on 
15 November 2011, she was notified by her commanding general that she was required to show cause for retention on active duty under the provisions of 
AR 600-8-24.  Therefore, this contention is without merit.

7.  Counsel also contends that Mr. S, DMPO Director, testified before the BOI and indicated the applicant properly claimed all expenses and reimbursements associated with her PCS to Richmond; however, Mr. S essentially stated that the documents were filled out and submitted properly.  He never indicated whether the applicant applied for and received PCS entitlements she was lawfully authorized.  Therefore, based on the available evidence, this contention appears to be without merit.

8.  Absent evidence of error or injustice related to the filing process, or clear and convincing independent evidence showing the GOMOR was based on information that was untrue or unjust there is an insufficient evidentiary basis to support removal of the GOMOR from her OMPF, for restoration of pay, allowances, rights, and privileges affected by the imposition of the GOMOR, or to award her the ARCOM, which according to counsel, she was recommended for but not awarded.

9.  In view of the foregoing, there is insufficient evidence to grant the requested relief.

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)                                         AR20140001721



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ABCMR Record of Proceedings (cont)                                         AR20140001721



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