IN THE CASE OF:	  

		BOARD DATE:	  20 January 2015

		DOCKET NUMBER:  AR20140009523 


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 the General Officer Memorandum of Reprimand (GOMOR) dated 4 June 2011 from her official military personnel file (OMPF).

2.  The applicant states based on significant and new information and evidence, the GOMOR should be removed.  It is untrue in whole or in part.  It was given based on erroneous and significant difference in information.  In addition, a board of officers was held relating to the GOMOR on record and recommended her retention.  This should be taken into consideration.  In addition, the new supporting information will show the GOMOR has served its intended purpose. 

3.  The applicant provides:

* Letter of recommendation for removal from the issuing authority
* Defense Finance and Accounting Service (DFAS) amount dispute and proof of 4 years of mitigation
* Letter from the Promotion Review Board (PRB), dated 30 May 2012
* Missing Officer Evaluation Reports (OER)
* Freedom of Information Act (FOIA) request from the U.S. Army Criminal Investigation Command (CID)
* U.S. Army Human Resources Command (HRC) Interactive Web Services (IWS) board search printout
* Official Defense Travel System voucher printout
* Letters of removal request from command leaders 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the removal of the GOMOR, dated 4 June 2011, from the applicant's records.  In the alternate, counsel requests the transfer of the contested GOMOR from the performance to the restricted folder of her OMPF.

2.  Counsel states the applicant previously petitioned the Department of the Army Suitability Evaluation Board (DASEB) for removal of the contested GOMOR.  However, on 9 May 2013 the DASEB denied her petition, erroneously referring to her as "Captain."  The DASEB decision was factually inaccurate as to other important matters.  The DASEB denied the petition essentially because it concluded the evidence was insufficient to show "the intent of the GOMOR has been served at this time."  That conclusion, of course, begs the question of what was the intent of the GOMOR?  The answer to that question was supplied in part by the Commanding General (CG) who imposed the GOMOR and later endorsed and continues to endorse its removal or transfer.

	a.  The GOMOR is factually inaccurate, unjust, and untrue.

	(1)  Paragraph (1) of the GOMOR details the alleged conduct for which the applicant was reprimanded.  According to the imposing general officer, "investigation in to your conduct has revealed the following.  As set forth in a CID Report, you conspired with Mr. CW to defraud the United States by entering into a "lease for a property in Alexandria, VA, where you never resided.  The fictitious rent claimed was $4,462.50 per month.  In fact you were only paying $1,600.00 per month at a different location.  DFAS calculated a loss to the government as $64,339.42 during the periods of time you served on active duty at the Pentagon (July 2004-May 2005 and June 2006-March 2007)." 

	(2)  The CID Report on which the imposing general officer acted cites $115,966.61 as the amount purportedly "defrauded by the applicant.  The show cause board that considered her case and unanimously voted to retain her was presented with an alleged fraud amount of $35,700.00.  The final amount assessed by DFAS accountants was $31,466.10.  The applicant, while making payments on the alleged debt, continues to dispute it.  As a matter of fact, then, paragraph (1) is inaccurate, unjust, and untrue.  As the imposing general officer has noted to this Board, he issued the reprimand based in part on a purported fraud of $64,339.42.  In preparation for the show cause board, the Army reviewed the records and recalculated the amount as $35,700.00.  The Board may respond that the imposing general officer would have issued the reprimand had the amount been specified as $35,700.00.  Yet, the imposing CG strongly supports her petition, and he further notes that the purported debt amount is "still in question."  As matters of law and principle, no officer should be reprimanded for an allegation of fraud for which no accurate accounting existed.  In this case, the Board will note, the CG also served as the General Court-Martial Convening Authority over the applicant and declined to prosecute the matter through court-martial, undoubtedly due to insufficiency of the evidence.  As the applicant has demonstrated in her own petition for reconsideration, she, through the assistance of another attorney, has identified approximately $29,803.64 in personal expenses that she did not submit to the Army during the relevant periods of active duty service.  Should DFAS accept those claims, the purported "fraud" amount would be $1,662.46.

	(3)  Further compelling evidence of the government's own lack of faith in the allegation of fraud is the action of the Army Central Clearance Facility to permit her not only to retain a security clearance, but to increase it to Top Secret/Special Compartmental Information (TS/SCI) clearance, without a personal appearance hearing.  In view of the allegation, that is an exceptional event, given the Army's profound scrutiny of security clearances.  The foregoing demonstrates that the GOMOR is inaccurate, unjust, and untrue.  The issuing general officer has stated so much, and the Board should give great weight to his opinions and recommendations and direct the removal of the subject GOMOR.

	b.  Any usefulness the GOMOR ever had has long since passed.

	(1)  Assuming for argument's sake that the GOMOR had any justification and usefulness, the evidence submitted by the applicant overwhelmingly demonstrates that it has passed.  She received two OERs (with outstanding ratings) since the GOMOR, and is awaiting a third.  She expects a top-block rating for the pending OER as well.  Thus, despite the adversity she has and continues to experience, she consistently displays adherence to the core Army values and performs her duties in an outstanding manner.  The GOMOR was intended as a corrective obviously has served its purpose.  To the extent the GOMOR was intended as a corrective measure, it obviously has served its purpose.  The collateral damage suffered by her has been tremendous.  The Army thrice selected her for promotion to lieutenant colonel (LTC), the third coming on 7 September 2011, after the filing of the GOMOR.  The promotion was not effected because she remained flagged.  Her selection for promotion even with the presence in her record of a GOMOR accusing her of fraud is clear and convincing evidence of her value to the Army.  It also is clear and convincing evidence that the GOMOR's shelf-life has long passed.

	(2)  The Board again should look to the imposing CG for guidance on this argument.  According to his 14 August 2013 endorsement, already provided to the Board by the applicant: "Prior to the GOMOR, she had a promising, spotless career.  Since then, she has worked extremely hard and maintains her dedication to the Army.  This should be placed into consideration because it is evidence that she has learned from experience and has rededicated herself to the core values required for Army service.  It is in the best interest of the Army that this Soldier should be allowed to move forward because she has served based on the Army Values.  She has always been a loyal and highly respected Public Affairs Officer within the Department of the Army.  As my Public Affairs officer she worked selflessly and tirelessly for the command and the leadership and never made an excuse for any mission.  She has honored the military profession through her commitment to duty.  Remove this GOMOR immediately and allow her to move forward."  The imposing CG has invited the DASEB to contact him regarding his statement and request, and the applicant encourages the Board to do so.  His statement also is accompanied by various others attesting to the applicant's remarkable service to the Army and endorsing her petition to this Board to remove the GOMOR altogether or transfer it to her restricted folder.

	c.  In conclusion, the Board should carefully examine the applicant's record, which is truly impressive both before and since the GOMOR was filed.  If the Board momentarily sets aside the GOMOR, the applicant's record appears truly flawless.  The point here is that the GOMOR is an aberrant document and simply does not reflect the officer that she was and remains.  A single aberrant document of questionable validity, which her GOMOR demonstrably is, should not be allowed to dictate the outcome of an officer's career.  The applicant has more than paid the exacted price, and stands ready to move forward.  The Board should afford her and the Army that opportunity by removing the GOMOR from her record.

CONSIDERATION OF EVIDENCE:

1.  After having prior enlisted service, the applicant was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 13 August 1994.  She completed the Ordnance Maintenance Management Officer Basic Course. 

2.  She served in a variety of assignments and she was promoted to major (MAJ) on 6 December 2005.  She entered active duty on 26 June 2006 and served in area of concentration (AOC) 46A (Public Affairs, General).  She was honorably released from active duty on 13 March 2007. 

3.  She again entered active duty on 16 July 2007 and she was honorably release from active duty on 13 June 2008.

4.  In February 2008, an investigation by CID was initiated upon notification from the Office of Internal Review, Arlington, VA, that the applicant may have submitted travel vouchers which were fraudulent.  An investigation determined the applicant committed the offenses of false official statement, larceny, fraud, and wire fraud, when she submitted a fictitious lease agreement for a property in which she did not reside.  Investigation also revealed she conspired with Mr. CW to defraud the U.S. Government by entering into a fraudulent lease agreement for a property that Mr. CW owned and in which the applicant never resided.  The investigation, dated 27 October 2008, concluded that the applicant submitted fictitious receipts exaggerating the true cost she incurred for lodging. The total loss to the Government was $115,966.61. 

5.  She was selected for promotion to LTC by the Fiscal Year 2010 Army Reserve Position Vacancy Board which recessed on 24 March 2010.  At the time of her reprimand, she was assigned to Headquarters, 80th Training Command, Richmond, VA, as the Command Public Affairs Officer.

6.  On 4 June 2011, the CG, 80th Training Command reprimanded the applicant for misconduct.   The reprimand stated:

	a.  An investigation, as set forth by the CID Report, revealed that she conspired with another individual (CW) to defraud the government by entering into a lease for property in Alexandria, VA where she never resided.  The fictitious rent claimed was $4,462.50 per month.  She was only paying $1,600.00 per month at a different location.  DFAS has calculated the loss to the government as $64,339.62 during periods of time she served on active duty at the Pentagon from July 2004 to May 2005 and June 2006 to March 2007. 

	b.  Her actions demonstrated a total disregard of Army values and her claim of ignorance was disturbing and unsupportable.  Judgment, integrity, experience, and common sense should have brought to her attention that submitting travel vouchers for a residence that she did not occupy was unethical and impermissible.  Her actions demonstrated a blatant disregard to the standards of Army values and discredited herself and the Army.

7.  On 4 June 2011, the applicant acknowledged receipt of the GOMOR.  She indicated she had read and understood the unfavorable information against her.  She submitted a rebuttal wherein she stated: 

* she regretted this incident and the miscommunications/misunderstandings that occurred 
* she did in fact live at the property belonging to Mr. CW during her first Pentagon tour (July 2004 to March 2005) and she also moved back to that property during her second tour (June 2006 to March 2007)
* she later moved out of the residence because it was under renovation and it was her intent to live in this property but moved out due to poor conditions; this caused her to find another nearby property
* it was her poor judgment and naive decision making on her part to submit lease information from CW’s property instead of the nearby property
* she should have also submitted the lease and all related bills pertaining to the nearby property 
* DFAS has calculated an inaccurate total debt and she has requested an audit from DFAS on multiple occasions to no avail
* DFAS has garnished a portion of her pay and she has also taken extra duty in order to expedite repayment of the debt
* she asks that her flag be removed, her selection for promotion in July 2010 be honored, and the GOMOR be file din the local file
* prior to this incident, she has had a stellar and unblemished career for 22 years with no administrative actions or negative reports
* she accepts full responsibility for her actions and she offers an apology that this incident occurred

8.  On 15 August 2011, subsequent to a legal review for legal sufficiency and after careful consideration of the applicant's case and the chain of command's recommendations, the imposing general officer ordered the filing of the GOMOR in the applicant's OMPF.  The GOMOR is currently filed in the performance section of her OMPF.

9.  On 23 August 2011, by letter, HRC notified the applicant that her records indicated she had received a GOMOR on 4 June 2011, after the convene date of the promotion selection board.  Her records would be referred to a Promotion Review Board which will recommend to the Secretary of the Army one or more of the following options:  retention on the promotion list, removal from the promotion list, or show cause board for retention on active duty.  She acknowledged receipt. 

10.  During January 2012, she received an Annual OER covering the rating period February 2011 through 31 January 2012 for her duties as Public Affairs Officer.  Her Rater rated her performance as "Outstanding Performance – Must Promote" and her Senior Rater rated her performance and potential as "Best Qualified/Center of Mass." 

11.  On 21 March 2012, a board of officers convened at the Department of the Army Secretariat for Selection Boards, Fort Knox, KY, to consider the case of an officer being referred.  The board, acting under oath, carefully reviewed her records (and the record of every officer submitted to it) and unanimously determined the applicant was not fully or best qualified to perform the duties or assume the responsibilities normally expected of the next higher grade.  As such, the board recommended her removal from the promotion list. 

12.  On 29 May 2012, the Secretary of the Army directed the applicant’s removal from the March 2010 Position Vacancy Board for Troop Program Unit (TPU) Positions, Promotion Selection List, under the provisions of Title 10, U.S. Code, section 14310; Executive Order 13358, Secretary of Defense delegation to the Secretary of the Army, dated 20 March 2006; and Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers), paragraph 3-18. 

13.  On 30 May 2012, HRC notified the applicant of her removal from the promotion list by order the Secretary of the Army.  Additionally, she was advised that in accordance with Title 10, U.S. Code, section 629, an officer who is removed from the promotion list under this section continues to be eligible for promotion consideration.  However, if such an officer is not recommended for promotion by the next regular promotion selection board, he or she shall be considered to have twice failed selection for promotion.

14.  On 1 June 2012, HRC removed/closed the flag in her records effective 29 May 2012 by reason of other final action was taken. 

15.  On 19 September 2012, by memorandum, Headquarters, 99th Regional Support Command notified the applicant that she was considered by a Fiscal Year 2012 Department of the Army Reserve Component mandatory selection board for promotion to LTC but she was not selected.  

16.  On 24 September 2012, Headquarters, 99th Regional Support Command published orders transferring her to another troop program unit of the USAR, USAR Element, Joint Forces Command, Norfolk, VA, effective 1 October 2012. 

17.  On 25 October 2012, HRC issued her a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 

18.  During October 2012, she received a Change of Rater OER covering the rating period 1 June 2012 through 30 September 2012 for her duties as Command Public Affairs Officer.  Her Rater rated her performance as “Outstanding Performance – Must Promote” and her Senior Rater rated her performance and potential as “Best Qualified/Above Center of Mass.” 

19.  On 3 January 2013, she petitioned the DASEB for removal of the GOMOR form her records.  However, on 9 May 2013, the DASEB notified her that after careful review and consideration of the facts and evidence in her case, the DASEB determined that there was insufficient evidence to justify the removal of the unfavorable information from her records. 

20.  During October 2013, she received an Annual OER covering the rating period 1 October 2012 through 30 September 2013 for her duties as Joint Public Affairs Officer.  Her Rater rated her performance as “Outstanding Performance – Must Promote” and her Senior Rater rated her performance and potential as “Best Qualified/Center of Mass.” 

21.  She was considered by the Fiscal Year 2013 Department of the Army Promotion Selection Board for promotion to LTC but she was neither selected for promotion nor selected for continuation in the Selected Reserve.

22.  On 19 March 2014, Headquarters, 99th Regional Support Command, published orders reassigning her from the USAR by reason of promotion non-selection and transferring her to the Retired Reserve effective 1 April 2014. 

23.  She provides a letter, dated 1 August 2013, from the imposing CG to the DASEB wherein he states that he supports the removal of the GOMOR from her OMPF because he believes it has served its purpose.  The GOMOR has prevented her advancement, command, and advanced education.  She has admitted to the mistakes she made in her travel vouchers and has made several attempts to resolve the issue with DFAS.  Additionally, there are inconsistencies in the debt amount between CID, DFAS, and what the applicant actually owes.  If the DASEB does not substantiate the removal, he requests the GOMOR be transferred to the restricted folder.

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 section.  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.  Paragraph 7-2 provides 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 the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.

26.  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 section of the OMPF unless directed otherwise by an appropriate authority (DASEB or this Board). 

DISCUSSION AND CONCLUSIONS:

1.  A CID investigation determined the applicant committed the offenses of false official statement, larceny, fraud, and wire fraud, when she submitted fictitious lease agreement for a property in which she did not reside.  The investigation also revealed she conspired with Mr. CW to defraud the U.S. Government by entering into a fraudulent lease agreement for a property that Mr. CW owned and in which the applicant never resided.  The applicant submitted fictitious receipts exaggerating the true cost she incurred for lodging. 

2.  On 4 June 2011, she was reprimanded for misconduct.  She was afforded the opportunity to review all of the evidence against her and to submit matters on her own behalf prior to a final filing decision and she did so.  While there may be some contentions as to the debt total, in her rebuttal to the GOMOR she still acknowledged that she made a decision to submit lease information from a property where she no longer lived.  After careful consideration of her case, the imposing general officer ordered filing of the GOMOR in the applicant's OMPF.  The GOMOR is currently filed in the performance section of her OMPF.

3.  The quality of service of a Soldier in the Army is affected by conduct that is of a nature to bring discredit in the Army or prejudicial to good order and discipline.  The applicant was a field grade commissioned officer and a Soldier, performing in a position of trust and authority, at a time of war.  Here, the applicant violated that trust.

4.  At the time she received the GOMOR, she was in a promotable status.  However, her promotion was suspended because of this unfavorable information. Again, she was notified her records would be reviewed by a PRB and she was afforded the opportunity to submit matters to the PRB.  In March 2012, a board of officers convened and unanimously determined she was not fully or best qualified to perform the duties or assume the responsibilities normally expected of the next higher grade.  As such, the board recommended her removal from the promotion list.  The Secretary of the Army removed her from the promotion list.  

5.  She was twice not selected for promotion and as required by law, she was released from the USAR and transferred to the Retiree Reserve.

6.  Among the purposes of filing unfavorable information is protection, not just for the Soldier's interests but for the Army's as well.  There is a reluctance to remove or transfer adverse information to the restricted section of an OMPF when it places the applicant on par with others with no blemishes for promotions, assignments, and other favorable actions.   

7.  Here, not only is the GOMOR properly filed, and not only has the applicant not proven this GOMOR to be either untrue or unjust or that it has served its purpose, her continued focus on the amount rather than the action, and her denial of personal responsibility clearly shows this GOMOR has not served its intended purpose.  She 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 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)                                         AR20140009523





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ABCMR Record of Proceedings (cont)                                         AR20140009523



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