IN THE CASE OF:	  

		BOARD DATE:	  4 June 2014

		DOCKET NUMBER:  AR20140004916 


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 from her records of a General Officer Memorandum of Reprimand (GOMOR) dated 29 September 2010.

2.  The applicant states:

	a.  The GOMOR filed in her records should be removed as it was filed unjustly.

	b.  The events of 3 August 2010 are factually accurate as represented in the GOMOR.  However, the information that was omitted from the reprimand itself and also not taken into account by the decision-making body, her chain of command, and the filing general officer present an unjust decision that has negatively affected her career in the military.

	c.  She was first diagnosed with clinical depression as a junior at the United States Military Academy.  

	d.  She began treatment with bupropion, an antidepressant.  She experienced mild improvement and was able to complete her final two years and successfully graduate, though she continued to struggle with different symptoms and suffered a massive drop in both grade point average and class rank.


	e.  After graduation, she received her commission and continued on to her Basic Officer Training Courses at Fort Benning and Fort Leonard Wood.

	f.  Due to the short amount of time she spent at each duty station, it was very difficult to maintain regular psychiatric care and as a result, her medication routine became more sporadic.

	g.  In January of 2010, she began to see both a psychiatrist and a counselor at her permanent duty station, Fort Riley.

	h.  Due to the frequent changes in medication schedules that had occurred, her psychiatrist advised that she attempt to cease taking medication on a trial basis in March of 2010.

	i.  By July of 2010, she began to suffer multiple depressive symptoms and she requested to begin taking medication again.  Her psychiatrist prescribed 10 milligrams of Zoloft.  Most antidepressants take three to four weeks to take effect. 

	j.  During this same time period, she had severe issues with her significant other and had a very difficult time coping with the situation.

	k.  She completed her duties as a platoon leader, including a week-long platoon-level field exercise; however, she had difficulty eating, sleeping and concentrating.

	l.  This culminated at the end of July with a suicide attempt and a 4-day stay with psychiatric inpatient services.  She was released on 29 July 2010 and she returned home.

	m.  The incident occurred on 3 August 2010 and she was taken into custody and immediately hospitalized again.  The second hospitalization was significantly longer and also resulted in a massive shift in her medication as well as a supplementary diagnosis of an anxiety disorder.

	n.  Once released, she was called in to her battalion commander’s office and reprimanded for the property damage.  At no point before the filing of the reprimand did anyone in her chain of command, from first line to the commanding general (CG), ask her for any details, rationale, or explanation.  She was presented with the GOMOR shortly thereafter.


	o.  At that point, her father was staying with her and she was still struggling with her mental illness and was not prepared to submit a rebuttal.  She explained it to the CG, who informed her that had she submitted a rebuttal he most likely would not have changed the filing.

	p.  She began work in her battalion as the adjutant for the incoming commander.  When she spoke to him about the incident, she made a careful point to explain the mental illness, the reason the situation played out as it did, and the steps she has taken to ensure it would not be an issue again. 

	q.  Upon hearing her explanation, her commander asked her why she did not apologize for her suicidal behavior.

3.  The applicant provides:

* Self-authored mental background leading to the incident
* Letter from the Soldier whose property she destroyed, dated 31 January 2014
* Letter from her former psychiatrist, dated 13 December 2013
* GOMOR, dated 29 September 2010
* GOMOR filing recommendations
* GOMOR filing determination, dated 29 October 2010
* Fort Riley (FR) Form 880-E (Request for Psychiatric Consultation), dated 16 August 2010
* Staff Judge Advocate's concurrence with the GOMOR filing recommendations

CONSIDERATION OF EVIDENCE:

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


2.  On 23 May 2009, the applicant accepted an appointment in the Regular Army, in the rank of second lieutenant (O1).

3.  On 29 September 2010, a GOMOR was prepared on the applicant for conduct that occurred on 3 August 2010.  The GOMOR states:

* She vandalized the privately owned vehicle (POV) of another second lieutenant while it was parked at his residence
* She deliberately rammed his POV with her POV approximately five times, causing an estimated $1,500.00 in damages
* She hit the POV so hard and so many times that the engine in her POV began to smoke and her license plate fell off
* She fled the scene before Riley County police officers could arrive
* She was eventually apprehended in Abilene, Kansas, returned to Riley County, and charged with criminal damage to property
* Her conduct on 3 August 2010 was inexcusable and reflected poorly upon the officer corps and the United States Army
* She failed to set the example for her subordinates by exhibiting behavior far below that expected of not only officers, but Soldiers in general
* Such behavior was unacceptable and would not be tolerated, and her actions reflected poor judgment, immaturity, and a total lack of decorum and professionalism
* Her outrageous behavior brought into question her potential for future service

4.  The GOMOR states that the CG intended to direct the filing of the GOMOR in the applicant's Official Military Personnel File (OMPF); however, he would consider any matters she presented before he made his final filing decision.  She was directed to submit any matters she wished to be considered to the office of the Staff Judge Advocate not later than 7 days from receipt of the GOMOR.

5.  The applicant acknowledged receipt of the GOMOR on 4 October 2010, electing to defer her decision to submit a statement and/or documents at that time.  She acknowledged she understood that if she did not submit matters within 7 days of the date of receipt of the GOMOR, it would be forwarded and treated as it she chose not to submit any matters in her own behalf.

6.  In a Memorandum for Record, dated 26 October 2010, the 1st Infantry Division and Fort Riley, Paralegal Specialist stated that the applicant failed to submit matters.

7.  On 29 October 2010, the CG directed that the GOMOR be filed in her OMPF.

8.  The applicant was promoted to first lieutenant (O2) on 30 March 2011.  On 14 April 2014, she was awarded the Army Commendation Medal for meritorious service in positions of great responsibility.

9.  The applicant provides a self-authored medical background explaining the dates and the circumstances that led to the 3 August 2010 incident.  She provides a letter from the owner of the vehicle that she damaged, describing the applicant, their relationship, his observations of her mental condition, and what he believes led to the incident.  She provides memoranda from members in her chain of command and the Staff Judge Advocate recommending the issuance and the filing of the GOMOR and an FR Form 880-E completed by her commanding officer, requesting that she be referred for psychiatric consultation.

10.  The applicant also provides a letter from a psychiatrist stating that she had been under his care for most of the year 2010.  He states she was undergoing treatment and was still having significant affective symptoms at the time.  He states that along with her symptoms, the applicant was prone to acting irrationally.  He states she had previously been admitted to a psychiatric facility and was readmitted in August for further treatment of mood symptoms after a destruction of property incident she admits was irrational.  He states she switched psychiatrists and is no longer under his care.

11.  Army Regulation 600-37 (Unfavorable Information) sets forth policy and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, and ensure that the best interest of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.  It states:

	a.  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; and

	b.  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.  Documents can be removed upon a showing of clear and convincing evidence that the document is untrue or unjust in whole or in part.




DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  Her supporting evidence has been considered.

2.  She contends that the information that was omitted from the reprimand itself and also not taken into account by the decision-making body, her chain of command, and the filing general officer, presents an unjust decision that has negatively affected her career in the military.  It is presumed that the applicant is referring to the fact that she was not taking her medications at the time the incident occurred.  The available evidence shows that prior to making his decision regarding the filing of the GOMOR in her OMPF, the CG considered all of the available evidence and the recommendations made by individuals in her chain of command.

3.  The burden of proof for successfully removing a GOMOR from the OMPF is established by Army Regulation 600-37 as "clear and convincing evidence" that the GOMOR is untrue and/or unjust.

4.  The applicant has failed to show, by clear and convincing evidence, error or injustice in the action taken by the CG to file the GOMOR in her OMPF.  She has stated the events of 3 August 2010 are factually accurate as represented in the GOMOR.

5.  The applicant was provided an opportunity to submit a rebuttal to the GOMOR which she failed to do.  After consideration of all of the available evidence the CG determined that the GOMOR should be filed in her OMPF.  Her contention that no consideration was given to the fact that she was not on medication or that her medication had been changed at the time of the incident is speculation at best.  Her contention that no one in her chain of command asked her for any details, rationale, or explanation before the filing of the reprimand is untrue.  She was given the opportunity to provide a rebuttal to the GOMOR.  For reasons of her own choosing she did not take advantage of that opportunity.  She has not provided sufficient evidence to support her request to remove the GOMOR from her OMPF.

6.  In accordance with the applicable regulation, 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.

7.  The applicant has failed to show error or injustice in the actions taken by the Army in his case.  In view of the foregoing, her request should be denied.


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)                                         AR20140004916



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ABCMR Record of Proceedings (cont)                                         AR20140004916



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