AR20150009482

IN THE CASE OF:

BOARD DATE: 19 April 2016

DOCKET NUMBER: AR20150009482

BOARD VOTE:

_________ _______ ________ GRANT FULL RELIEF

________ ________ ________ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

_____X___ ____X____ ___X_____ DENY APPLICATION

2Enclosures
1. Board Determination/Recommendation
2. Evidence and Consideration

IN THE CASE OF:

BOARD DATE: 19 April 2016

DOCKET NUMBER: AR20150009482

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.

IN THE CASE OF:

BOARD DATE: 19 April 2016

DOCKET NUMBER: AR20150009482

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 removal of a general officer memorandum of reprimand (GOMOR), dated 11December 2012, from the applicant’s Official Military Personnel File (OMPF) or, alternatively, transfer of the GOMOR to the restricted folder of her OMPF.

2. Counsel states:

* on 10February 2015, he applied to the Department of the Army Suitability Evaluation Board (DASEB) on the applicant’s behalf requesting removal of a GOMOR from her OMPF or, alternatively, filing the GOMOR in the restricted folder of her OMPF
* on 22April 2015, the DASEB notified him of the need to apply to the Army Board for Correction of Military Records (ABCMR) due to the applicant’s discharge from the Regular Army and no active status
* on 28May 2015, an application with accompanying petition was submitted to the ABCMR for consideration
* the applicant received a GOMOR on 11December 2012 for driving under the influence of alcohol and she elected not to file a rebuttal to the reprimand
* on 19December 2012, MajorGeneralP____ directed filing the GOMOR in her OMPF
* the applicant received a referred officer evaluation report (OER) on 18June 2013
* the applicant’s name was on the promotion list for lieutenantcolonel in May 2013, her name was removed from the promotion list because of the GOMOR and referred OER
* the GOMOR served its intended purpose
* the applicant was harshly reprimanded for her actions and has suffered significant consequences
* once noted for being a “top performer” in her OERs, her career has been effectively ended
* the interest of justice is not served by continuing to punish her
* removal of the GOMOR from her OMPF or, at minimum, filing the GOMOR in the restricted folder of her OMPF is requested in accordance with Army Regulation600-37 (Unfavorable Information)
* she did not file a rebuttal to her reprimand when it was issued because she was shocked and overwhelmed by what happened and resolved to take responsibility for her actions
* as to her misconduct, her only objective on the day in question was to take care of her ailing father as she had taken him with her on a trip sponsored by the United Service Organizations and was concerned with getting him home from the event
* her father had several health issues and she was concerned he had become hypothermic during the day
* she was never a drinker, in fact she often served as the designated driver for many social outings, and she did not realize how the alcohol affected her judgment on that day
* alcohol has never been a significant part of her life as evidenced by the Army Substance Abuse Program’s determination that she did not have a substance abuse issue
* her intent was to have a couple of drinks and call a taxi to take her home on the day in question
* her concern for her ailing father resulted in her making a poor choice to drive
* she had not had a lot to drink, but her own medical condition, diabetes, and the medication she was taking affected her body’s ability to metabolize the alcohol
* it was a terrible mistake, the consequences of which have been devastating for her career
* this incident was totally out of character for her and was not a true reflection of her character or abilities as an officer
* she is a self-described “proud NewYorker”
* her patriotism and appreciation for the sacrifices she witnessed after 9/11 led her to join the Army Reserve
* after completing her fellowship in dentistry, she spent 3to4days per week as a civilian dentist and devoted the remainder of her time to her Reserve unit
* in addition to utilizing her professional skills, she learned about Army operations, coordinated ranges and other training, and ensured evaluations were handled in a timely fashion
* she was so inspired by her experience in the U.S.Army Reserve that she joined the Active Component
* on active duty, she undertook many challenging roles and excelled
* she served as the officer in charge of the FortMyer Dental Clinic, a project officer for a $22,000,000 dental clinic renovation, the chair of the WalterReed Dental Activity Social Committee, and an operations and training officer at FortHamilton, NY
* in addition to her Army duties, she has served patients as a comprehensive dentist throughout her career, caring about the Soldiers with whom she served and embracing the Army Values
* after receiving the GOMOR, she continued to serve her patients and she has tried to rehabilitate herself
* she coordinated an American Red Cross dental assistant apprenticeship program and completed Command and General Staff College
* she continues to take pride in her job and respectfully contends that the GOMOR has served its purpose
* she has since resigned to take care of her ailing father
* she lost her promotion and the respect of her leadership and peers
* she should not continue to be punished and respectfully requests removal of the GOMOR from her records

3. Counsel provides:

* Army Review Boards Agency letter, dated 22April 2015
* letter to the Army Review Boards Agency, dated 28May 2015
* letter to the DASEB, dated 10February 2015
* applicant’s letter to the DASEB, dated 22January 2015
* GOMOR
* GOMOR filing determination
* Command Recommendations Reprimand Filing, dated 12December 2012
* memorandum, dated 12December 2012, subject: Acknowledgement of Receipt of Reprimand
* Military Police Desk Blotter, dated 7December 2012
* DAForm67-9 (Officer Evaluation Report) covering the period 16May 2012 through 15May 2013
* DAForm67-9 covering the period 16May 2011 through 15May 2012
* memorandum of input, dated 6March 2012, subject: Rated Time for (Applicant)
* DAForm67-9 covering the period 16May 2010 through 15May 2011
* DAForm67-9 covering the period 25August 2009 through 15May 2010
* DAForm67-9 covering the period 19December 2008 through 24August 2009

CONSIDERATION OF EVIDENCE:

1. Title10, U.S.Code, section1552(b), provides that applications for correction of military records must be filed within 3years after discovery of the alleged error or injustice. This provision of law also allows the 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 8December 2003, the applicant was appointed a Reserve commissioned officer of the Army. On 15December 2008, she was appointed as a Dental Corps commissioned officer in the Regular Army.

3. Her OERs covering the periods 19December 2008 through 24August 2009, 25August 2009 through 15May 2010, 16May 2010 through 15May 2011, and 16May 2011 through 15May 2012 show she consistently received:

* “Yes” ratings in Character, to include Army Values, Attributes, Skills, and Actions
* “Outstanding Performance, Must Promote” ratings by her immediate rater
* “Best Qualified” and “Center of Mass” ratings by her senior rater

4. The Military Police Desk Blotter extract, dated 7December 2012, shows the U.S.Army Garrison Stuttgart military police were notified by an unknown person on 2December 2012 that the applicant was witnessed consuming alcohol and subsequently operating her privately-owned vehicle. When a military police patrol attempted to conduct a traffic stop of her vehicle, she proceeded to exit the Panzer Kaserne main gate, driving off-post in an attempt to willfully disobey the patrol’s attempts to conduct the stop, thus resisting apprehension. She finally brought her vehicle to a stop after traveling .25miles. German Police were notified and responded, conducting a breathalyzer on the scene. Due to her level of intoxication, she was instructed to report to the military police station on 3December 2012, which she did. At the station she was advised of her rights and she invoked them, not wanting to be questioned.

5. On 11December 2012, the Commanding General, 21stTheater Sustainment Command, issued a GOMOR to the applicant for driving under the influence of alcohol on 2December 2012. The GOMOR imposing authority stated that despite extensive information about the tragic consequences of driving while intoxicated and the determined efforts of her chain of command to educate her on the requirements for driving responsibly, she made the irresponsible and dangerous decision to drive while under the influence of alcohol, placing herself and others at tremendous risk of death or serious injury.

a. The GOMOR was imposed as an administrative measure and not as nonjudicial punishment under the provisions of Article15 of the Uniform Code of Military Justice.

b. She was advised her response or rebuttal to the GOMOR must arrive within 7calendar days of the date the memorandum was provided to her. She did not provide a rebuttal.

c. On 12December 2012, the U.S.Army Dental Clinic-Stuttgart Commander recommended filing the GOMOR in her OMPF. On 13December 2012, the U.S.Army Garrison-Stuttgart Commander recommended filing the GOMOR in her OMPF.

d. On 18December 2012 after reviewing the case file and the filing recommendations of the applicant’s chain of command, the GOMOR imposing authority directed filing the GOMOR in the applicant’s OMPF.

6. She received a referred OER covering the period 16May 2012 through 15May 2013 for failing in her professional obligation to uphold the Army Values by driving under the influence of alcohol and resisting apprehension. This lack of integrity, honor, and selfless service undermined her abilities not only to serve as a future leader in the U.S.Army, but also damaged her credibility as an officer and a dentist. She was rated “Unsatisfactory Performance, Do Not Promote” by her rater. She received “Do Not Promote” and “Below Center of Mass Do Not Retain” ratings by her senior rater.

7. On 22January 2015, the applicant composed a letter to the DASEB wherein she stated:

* her father lives in India and is her only living parent, as her mother passed away in February 2002
* he has had many ongoing medical issues since 1978, having spent 3weeks hospitalized in an intensive care unit in May 2012
* as an incentive for improvement in his health, she told her father she would take him to all the Christmas markets in Germany
* although obtaining the required visas was difficult, she arranged his trip from India to Germany to visit her
* on his visit, she took him on a United Service Organizations trip to a Christmas market on 2December 2012 and in retrospect it was a bad decision as it was a cold and snowy day
* she had two glasses of mulled wine at the market and as an infrequent drinker of alcohol, she was unaware that amount of alcohol would affect her as much as it did
* she intended to call a taxi to take them home when the bus returned from the market, but when they returned it was very cold and she worried for her father’s well-being, thus made the rash decision to drive him home herself in lieu of waiting outside at the gate for a taxi to arrive
* this was an unpremeditated error complicated by her concern for her father and lack of experience with how her alcohol consumption would be effected by her intake of prescription medication which she believes led to her inability to metabolize the wine
* her intake of alcohol is negligible, she does not have substance abuse issues, and is the greatest proponent against driving under the influence
* she simply had a lapse in judgment and requests viewing the whole situation as a one-time aberration
* she found a great sense of fulfillment as an active duty officer and took great pride in her uniform and all that she did as a Soldier and a leader
* she’s always set high standards for herself and served with distinction in a number of positions as reflected in her evaluations and awards
* she did her best to overcome this incident by completing Command and General Staff College with very good grades and continued to uphold the Army Values, but suffered the consequences of this untoward incident and feels the reprimand served its purpose

8. On 15April 2015, she was honorably released from active duty due to completion of required active service. She completed 6years, 3months, and 11days of net active service during this period.

9. On 16April 2015, she was again appointed as a Reserve commissioned officer of the Army and she was honorably discharged from the U.S.Army Reserve on 2March 2016.

REFERENCES:

1. Army Regulation600-37 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.

2. 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 Regulation600-37, chapter7. Paragraph7-2 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 that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.

3. Army Regulation600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the OMPF. TableB-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).

DISCUSSION:

1. Counsel’s request for removal of a GOMOR from the applicant’s OMPF or transfer to the restricted folder of her OMPF was carefully considered.

2. Records indicate she was apprehended for driving while intoxicated and attempting to resist apprehension by the military police. She does not dispute these facts.

3. She was subsequently issued a GOMOR by the Commanding General, 21stTheater Sustainment Command, to which she did not provide a rebuttal. Based on the facts of the case, her chain of command recommended filing the GOMOR in her OMPF and the GOMOR issuing authority used the discretion afforded his position and authority to heed those recommendations, directing its placement in her OMPF.

4. The applicant claims the incident was a one-time lapse of judgment not reflective of her true character. The events were complicated by her concern for her father’s health and her lack of knowledge about the effect her prescription medication would have on her when combined with the alcohol as she was not a frequent drinker of alcohol. The evidence and argument presented by the applicant and her counsel do not show any error or injustice with regard to placement of the GOMOR in her OMPF.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings AR20150000953

Enclosure 1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

ABCMR Record of Proceedings (cont) AR20150009482

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20150009482

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2