IN THE CASE OF:	  

		BOARD DATE:	  17 December 2014

		DOCKET NUMBER:  AR20140015877 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests removal of a general officer memorandum of reprimand (GOMOR) and any associated documents from her Official Military Personnel File (OMPF).

2.  The applicant states:

* she received a GOMOR and a referred officer evaluation report (OER) (hereafter referred to as the contested OER) for the period 11 May 2013 through 10 May 2014 due to an unsubstantiated informal equal opportunity (EO) complaint filed against her
* she was not selected for promotion to chief warrant officer three by the April 2014 promotion board
* she attended a show-cause for retention board of inquiry (BOI) where the board members concluded the EO complaint was unfounded
* she has derogatory information in her records and she does not qualify for consideration by a services selection board unless the injustice is removed

3.  The applicant provides:

* extracts of her OMPF
* email
* DA Form 4856 (Developmental Counseling Form), dated 6 September 2013


* three EO policy memoranda
* sworn statements

CONSIDERATION OF EVIDENCE:

1.  After having prior honorable enlisted service, the applicant accepted a Reserve appointment as a warrant officer on 19 August 2008 and entered active duty.

2.  On 3 September 2013, a Soldier under the applicant's command filed an EO complaint against her.

3.  On 16 September 2013, the applicant was advised of her rights and responsibilities for acts of reprisal that could result “from her participation in the” Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation.

4.  On 20 November 2013, the applicant received a GOMOR for exercising poor judgment and a lack of forethought.  The GOMOR is filed in the performance folder of her OMPF in the interactive Personnel Electronic Records Management System and states:

* she was found in violation of a substantiated EO complaint in which her conduct was unprofessional and unbecoming of an officer
* she trained and mentored Soldiers of Hispanic origin more than Soldiers of other national origins
* she engaged in conversation about work in Spanish with other Hispanic Soldiers in front of Soldiers who did not speak or understand Spanish

5.  On 4 December 2013, she provided a rebuttal wherein she indicated her actions were an honest but misguided oversight in leadership, not a violation of the Army EO Program as alleged.  She apologized for any harm her actions may have brought upon her unit and her fellow Soldiers.  She respectfully disagreed with the conclusion that she violated Army policy and she explained her actions.  She also expressed her desire to work past her mistake and continue to serve, and to have the GOMOR filed in her local personnel file.

6.  On 9 January 2014, the applicant's commanding general initiated elimination actions against her due to misconduct, moral or professional dereliction, conduct unbecoming an officer, and for having derogatory information filed in her OMPF.

7.  On 5 February 2014, the applicant submitted matters requesting to be retained on active duty.
8.  On 20 February 2014, the staff judge advocate recommended disapproval of the applicant's request for retention and referral of her misconduct to a field BOI.

9.  On 20 February 2014, a BOI was appointed to determine whether the applicant should be eliminated from the Army due to misconduct, moral or professional dereliction, conduct unbecoming an officer, and for having derogatory information filed in her OMPF.

10.  On 10 April 2014, a BOI convened and determined that sufficient evidence did not exist to support the findings that the officer engaged in misconduct or engaged in conduct unbecoming an officer.  The board found the officer received adverse information that was filed in her OMPF; however, the board recommended the officer's retention on active duty.

11.  On 15 April 2014, the applicant was notified of the findings and her retention on active duty.

12.  On 23 April 2014, the staff judge advocate reviewed the elimination proceedings pertaining to the applicant and recommended closing the case.

13.  On 23 April 2014, the Commanding General, Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, provided a memorandum to the Commander, U.S. Army Human Resources Command (HRC), wherein he stated, in part, the case was closed and the applicant was retained on active duty.

14.  The contested OER shows in:

* Part IId (Authentication – This is a referred report, do you wish to make comments?) – "Referred" and "No"
* Part III (Duty Description – Significant Duties and Responsibilities) – "Serves as the Accountable Officer…"
* Part IVb (Performance Evaluation – Professionalism, Competencies, and Attributes – This Officer's overall Performance is Rated as:) – "Proficient"
* Part IVc1 (Performance Evaluation – Professionalism, Competencies, and Attributes – Character) – "There was a substantiated Equal Opportunity complaint during the rating period."
* Part VIa (Senior Rater – Potential Compared with Officers Senior Rated in Same Grade) – "Highly Qualified"

15.  On 30 May 2014, the applicant's contested OER was referred to her for acknowledgement.  She was advised that if she elected to submit comments, they would not constitute a request for a commander's inquiry (CI) or an evaluation appeal.

16.  On 9 June 2014, the applicant acknowledged receipt of the contested OER and indicated she would submit comments by 19 June 2014.

17.  On 11 June 2014, the applicant submitted comments to the contested OER.  She stated, in effect, the contested OER improperly included negative comments which caused it to be improper, unfair, and unjust.

18.  On 27 June 2014, the applicant submitted a request for a CI into her contested OER.  She stated the contested OER could not be objectively supported and did not accurately reflect her potential as an officer.  She alleged the following errors, injustices, illegalities, and recommendations:

	a.  Part IId does not accurately show she submitted comments with the contested OER.

	b.  Part IIId is missing any reference to her service as a platoon leader.

	c.  Parts IVc1 and VIc (Senior Rater – Comments on Potential) improperly uses evidence of unsubstantiated misconduct to form the basis of the comments.  The assessment of her performance and potential relied on the unsubstantiated findings.

	d.  Part IVc1 does not describe the nature of the allegations made against her and is missing any positive remarks, including references to the successes indicated on her DA Form 67-10-1A (OER Support Form).

	e.  Part IVc4 (Performance Evaluation – Professionalism, Competencies, and Attributes – Leads) does not address the high air assault passage rate that her section achieved during the rating period since it was the division's top priority.

	f.  She did not receive her rater's and senior rater's support form during the OER process and she was not regularly counseled by either her rater or senior rater as required by regulation.

	g.  At a minimum, she requested removal of any reference to a substantiated EO complaint from the contested OER, reassessment of her performance, and redrafting comments to address her potential without relying on the substantiated complaint, including reference to her position as a platoon leader, amending Part IId, and her section's air assault passage rate would remedy the foregoing errors.

19.  On 9 July 2014, a legal review of the CI into the applicant's EO complaint was conducted.  The applicant's assertion that the BOI unsubstantiated her EO complaint was determined to be incorrect.  Further, the BOI is not an EO appeals process and has no authority to unsubstantiate an EO complaint.

20.  On 13 August 2014, the applicant's commander determined the CI evaluation was properly supported by the evidence and complied with the requirements of Army Regulation 623-3 (Evaluation Reporting System), paragraph 3-25, and the allegation made was not a basis for appeal.

21.  On 21 August 2014, the Department of the Army Suitability Evaluation Board (DASEB) denied the applicant's request for removal of her GOMOR and all allied documents from her OMPF.

22.  The applicant provided extracts of her OMPF, sworn statements attesting to her character and performance, email, and EO policy memoranda.

23.  There is no indication the applicant appealed the contested OER under the provisions of Army Regulation 623-3.

24.  Army Regulation 600-37 (Unfavorable Information) provides that an administrative memorandum 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.  The memorandum must be referred to the recipient and the referral must include and list applicable portions of investigations, reports, or other documents that serve as a basis for the reprimand.  Statements or other evidence furnished by the recipient must be reviewed and considered before a filing determination is made.

25.  A memorandum of reprimand may be filed in a Soldier's OMPF only upon the order of a general officer-level authority and is to be filed in the performance folder.  The direction for filing is to be contained in an endorsement or addendum to the memorandum.  If the reprimand is to be filed in the OMPF, the recipient's submissions are to be attached.  Once filed in the OMPF, the reprimand and associated documents are permanent unless removed in accordance with Army Regulation 600-37, chapter 7.

26.  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.

27.  Only memoranda of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder.  Normally, such appeals will be considered only from Soldiers in grades E-6 and above, officers, and warrant officers.  The above 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.

28.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the OMPF.  Table B-1 states a memorandum of reprimand is filed in the performance folder of the OMPF unless directed otherwise by an appropriate authority (DASEB or this Board).

29.  Army Regulation 623-3 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  It also provides guidance regarding redress programs, including CI's and appeals.

	a.  Paragraph 3-36 provides that the rated Soldier may appeal the report if information that was unknown or unverified when the report was prepared is brought to light or verified and is so significant that it would have resulted in a different evaluation of the rated Soldier.

	b.  Paragraph 3-39a provides that an evaluation report accepted by Headquarters, Department of the Army, and included in the official record of a rated Soldier is presumed to:

* be administratively correct
* have been prepared by the properly designated rating officials
* represent the considered opinions and objective judgment of the rating officials at the time of preparation

	c.  An appeal will be supported by substantiated evidence.  An appeal that alleges a report is incorrect or inaccurate or unjust without usable supporting evidence will not be considered.

30.  Army Regulation 600-20 (Army Command Policy) prescribes the policies and responsibilities of command, which include the well-being of the force, military discipline, and conduct.  Paragraph 6-2 states the U.S. Army will provide EO and fair treatment of military personnel and family members without regard to race, color, gender, religion, national origin, and provide an environment free of unlawful discrimination and offensive behavior.  This policy states racism is any attitude or action of a person or institutional structure that subordinates a person or group because of skin color or race.

31.  Army Regulation 15-6 establishes procedures for investigations and boards of officers not specifically authorized by any other directive.  This regulation or any part of it may be made applicable to investigations or boards that are authorized by another directive, but only by specific provision in that directive or in the memorandum of appointment.  In case of a conflict between the provisions of this regulation, when made applicable, and the provisions of the specific directive authorizing the investigation or board, the latter will govern.  Even when not specifically made applicable, this regulation may be used as a general guide for investigations or boards authorized by another directive, but in that case its provisions are not mandatory.  The primary function of any investigation or board of officers is to ascertain facts and to report them to the appointing authority.  It is the duty of the investigating officer or board to ascertain and consider the evidence on all sides of each issue thoroughly and impartially and to make findings and recommendations that are warranted by the facts and that comply with the instructions of the appointing authority.

32.  Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 
4-6, contains guidance on BOI's and states the purpose of a BOI is to give the officer a fair and impartial hearing to determine if the officer will be retained in the Army.  Through a formal administrative investigation conducted under Army Regulation 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for removal of the GOMOR and any associated documents was carefully considered.

2.  Although a BOI will make a separate finding on each factual allegation, the BOI's purpose and recommendations are limited to either retention or elimination.  The BOI is not an EO appeals process and has no authority to unsubstantiate an EO complaint.

3.  She received a GOMOR as a result of a substantiated EO complaint.  She was afforded the opportunity to review the reprimand and to submit matters in her own behalf prior to a final filing decision and she did so.  After careful consideration of the applicant's case and her rebuttal, the imposing general officer directed filing the GOMOR in the applicant's OMPF.  The GOMOR is currently filed in the performance folder of her OMPF.

4.  The OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods and any corrections to other parts of the OMPF.  Once placed in the OMPF, the document becomes a permanent part of that file and will not be removed from or moved to another part of the OMPF unless directed by an appropriate authority.

5.  The applicant has continued to serve honorably and without incident.  Nevertheless, the Army has an interest in maintaining the integrity of its records.  The information in those records must reflect the conditions and circumstances that existed at the time the records were created.  The fact that these documents have affected her career opportunities is a natural outcome of her behavior/
performance.  There is a reluctance to remove adverse information from an OMPF when it was not erroneously filed.

6.  The GOMOR is properly filed and the applicant has not proven this GOMOR to be either untrue or unjust.  There is insufficient evidence to support removal of this GOMOR and associated documents from her OMPF.

7.  In view of the foregoing evidence, the applicant is not entitled to 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 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)                                         AR20140015877



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ABCMR Record of Proceedings (cont)                                         AR20140015877



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