IN THE CASE OF: 

		BOARD DATE: 8 October 2015

		DOCKET NUMBER:  AR20150001190 


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:

   a.  records be submitted to a special selection board (SSB) for consideration for promotion to captain (CPT);
   
	b.  discharge orders be revoked; and 

	c.  reassignment to the U. S. Army Reserve (USAR) Control Group be reinstated.

2.  Counsel states that:

   a.   Given the applicant's otherwise strong military record, performance evaluations, and highly favorable third party recommendations, it is highly likely that an SSB would select her for promotion to CPT.

	b.  While the Department of the Army Suitability Evaluation Board's (DASEB) determination and directed action is not retroactive, language in the decision indicates the transfer of the administrative General Officer Memorandum of Reprimand (GOMOR), together with additional factors could serve as a basis to justify an exception to policy.
	c.  The DASEB's decision to transfer the GOMOR was not received by the applicant and counsel until 5 days after her discharge.  In order to give the DASEB decision true meaning, force, and effect, an exception to policy should be granted in the form of the requested relief.

	d.  It is in the best interests of the Army to grant the exception to allow her records to be submitted to an SSB and allow her to serve as a CPT so it may benefit more fully from her continued service.

	e.  It took more than 13 months for the applicant’s appeal to the DASEB to be finished.  Unfortunately, the decision to grant "full relief" came too late to provide her with an effective remedy because the decision was not received until 5 days after she was discharged.  

	f.  There is an issue of a possible technical error in her discharge processing, in that her discharge on 1 October 2014 might have been premature.  When she was appointed a non-Active Guard Reserve Army officer, with prior enlisted service through a direct commission on 2 July 2009, she arguably incurred an eight year service obligation, with a military service obligation (MSO) end date of 1 July 2017 (per Army Regulation 135-91 (Service Obligations, Methods of Fulfilment, Participation Requirements, and Enforcement Procedures), Table 2-1.  As such she would have had roughly 3 years and 4 months of obligation remaining in March 2014 when she was passed over for promotion a second time.  Her mandatory discharge as a two time non-select would not take place until she completed her MSO in July 2017.

	g.  The best interests of the Army will be served by granting her an exception to policy.  Her error in judgment as a newly-minted prior service lieutenant should not stand as the touchstone defining the remainder of her career.  The applicant's first appeal to have the GOMOR removed or moved was denied.  She sought assistance and her second appeal was granted.  The DASEB's granting approval to move the GOMOR to the restricted section of her Official Military Personnel File (OMPF) sends her the signal that the Army now trusts her to serve well and faithfully.  She should be given the opportunity to continue to serve on active duty as an officer.

	h.  The applicant served the nation and her fellow service members for more than 17 years.  With the exception of a brief period of time when she was transitioning into the officer ranks in 2011, she has been a standout performer in whatever job, position or assignment she has tackled.  In light of the unique circumstances and evidence presented, she should be granted the relief requested.


3.  Counsel provides copies of the applicant's:

* 1997 and 2007 DD Forms 4 (Enlistment/Reenlistment Document – Armed Forces of the United States)
* 2 July 2009 DA Form 71 (Oath of Office – Military Personnel)
* DA Form 669 (Army Continuing Education System Record)
* MSO Research document
* Discharge orders
* Reassignment orders to the Individual Ready Reserve
* Officer Record Brief
* Chronological Statement of Retirement Points
* GOMOR
* 1st time non-select information
* DASEB GOMOR denial, dated 17 October 2013 
* Promotion non-select options memorandum
* 21 April 2014 Request to Transfer GOMOR with enclosures
* 28 August 2014 DASEB approval to transfer GOMOR
* Senior System Civilian Evaluation Report

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the USAR on 21 June 1997.  She was discharged from the USAR and enlisted in the Regular Army on 3 June 1998.  A DD Form 4 shows she reenlisted on 2 May 2007.  Her DA Form 71 shows she was appointed as a second lieutenant in the USAR on 2 July 2009.  She was promoted to first lieutenant effective 1 January 2011.

2.  On 19 December 2011, she was reprimanded by the Commanding General (CG), 81st Regional Support Command, Fort Jackson, SC, for maintaining an inappropriate relationship with an enlisted Soldier in violation of Army Regulation (AR) 600-20 (Army Command Policy), paragraph 4-14 and providing a false statement.

3.  On 10 February 2012, the CG ordered the GOMOR be filed in the applicant's OMPF.

4.  She was not selected for promotion by the Fiscal Year 2013 CPT, Army Reserve Promotion Selection Board that convened on 29 October 2012. 

5.  On 26 March 2014, the applicant was notified that she had been twice not selected for promotion and as a result she would be separated.
6.  Orders show the applicant was reassigned to the USAR Control Group (Reinforcement) effective 30 September 2014 and discharged from the USAR effective 1 October 2014.

7.  On 17 October 2013, the DASEB denied her request for removal, or in the alternative transfer of the GOMOR to the restricted section of her OMPF.  In her request she stated the GOMOR is untrue.

8.  On 24 September 2014, the DASEB granted her request for reconsideration and directed the transfer of the GOMOR and all related documents to the restricted section of her OMPF.  The DASEB also notified her that:

* This action is not to be considered retroactive
* This action does not constitute a basis for promotion reconsideration

9.  The applicant provides email notes showing her efforts in January 2015 to correct her retirement points to show she has over 17 qualifying years for retirement.  A 29 September 2015 Chronological Statement of Retirement Points shows she has been credited with 17 years, 3 months, and 13 days.

10.  Army Regulation 135-91 prescribes policies and procedures governing the various types of service obligations and participation requirements.  Chapter 2 (Service Obligations), paragraph 2-1 (Statutory Obligation) states:

   a.  The statutory MSO is incurred on initial entry into the Armed Forces whether by induction, enlistment, or appointment.  On and after 1 June 1984, all Soldiers incurred an 8-year statutory MSO.

   b.  The statutory obligation can be terminated by the Army prior to its fulfillment.  Separation due to discharge, dismissal, or being dropped from the rolls of the Army terminates a Soldier’s statutory obligation.  The statutory obligation is not terminated however, when the soldier is separated for immediate reentry into the same or another military status.  This includes an officer training program in which the Soldier has military status.

11.  Army Regulation 600-8-29 (Officer Promotions) prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the Active Duty List (ADL).  Paragraph 7-2 states SSBs may be convened under Title 10, U.S. Code, section 628 to consider or reconsider commissioned or warrant officers for promotion when Headquarters, Department of the Army discovers one or more of the following:

* An officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error (SSB required)
* The board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary)
* The board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary)

12.  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.  Paragraph 7-2b(2) states the transfer of administrative letters of reprimand, admonition, or censure to the restricted portion of the OMPF will not normally serve as the sole basis for promotion reconsideration by a special board, unless approved by the Director of Military Personnel Management as a justified exception to policy.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant enlisted in the USAR on 21 June 1997.  The governing regulation states her statutory MSO was incurred on her initial entry into the USAR.  She incurred an 8-year MSO (until 20 June 2005). Subsequent reenlistments or her appointment as a USAR officer do not change her MSO or create a new MSO.  There was no error in her 1 October 2014 discharge.

2.  The applicant received a GOMOR on 19 December 2011 for maintaining an inappropriate relationship with an enlisted Solider and providing a false statement.  The imposing officer ordered the GOMOR filed in the performance section of her OMPF.  She was twice not selected for promotion to CPT and 
as a result discharged.

3.  On 24 September 2014, the DASEB granted her request for reconsideration and directed the transfer of the GOMOR and all related documents to the restricted section of her OMPF.  The DASEB also notified her that:

* This action is not to be considered retroactive
* This action does not constitute a basis for promotion reconsideration

4.  There is no available evidence showing there was a material error in the applicant's record at the time the selection boards convened.  As such, the SSB criterion has not been met.


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)                                         AR20130000329



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ABCMR Record of Proceedings (cont)                                         AR20150001190



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