AR20160004965

IN THE CASE OF:

BOARD DATE: 26 April 2016

DOCKET NUMBER: AR20160004965

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: 26 April 2016

DOCKET NUMBER: AR20160004965

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: 26 April 2016

DOCKET NUMBER: AR20160004965

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 reconsideration of her earlier requests for reinstatement of her commission as a secondlieutenant (2LT), promotion to firstlieutenant (1LT) with all back pay and allowances, and an upgrade of her general discharge to honorable.

2. As new issues, she requests:

a. removal of all negative/derogatory information from the Personnel Network (PERNET) and her Official Military Personnel File (OMPF) and

b. addition of all awards shown on her National Guard Bureau (NGB) Form22 (Report of Separation and Record of Service) to her OMPF.

3. The applicant states:

a. Her general discharge should be honorable according to the Federal order from NGB.

b. She never resigned her commission and she was never disciplined.

c. She filed a whistleblower complaint and an Equal Employment Opportunity (EEO) complaint in which reprisal occurred. A civilian employee and alieutenantcolonel changed information in PERNET under her name to derogatory information.
4. The applicant provides:

* self-authored statement to the Army Review Boards Agency, dated 20February 2016
* 16pages of PERNET documents
* Commander’s Reprisal Prevention Plan
* NGBForm22
* NGBForm22A (Correction to NGBForm22)
* discharge and Federal recognition orders
* discrimination complaint, dated 4February 2004
* memorandum, dated 16December 2003
* Personnel Qualification Record

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 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. The applicant’s request for reconsideration of her earlier requests for reinstatement of her commission as a 2LT, promotion to 1LT with all back pay and allowances, and an upgrade of her general discharge to honorable were previously considered by the ABCMR on 1November 2012 in Docket NumberAR20110017809 and denied.

a. Army Regulation15-185 (Army Board for Correction of Military Records) sets forth procedures for processing requests for correction of military records. Paragraph2-15b governs requests for reconsideration. This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request contains new evidence and is received within 1year of the ABCMR’s original decision and has not previously been reconsidered.

b. The ABCMR staff reviewed the applicant’s requests and determined the portion pertaining to reinstating her commission as a 2LT, promoting her to 1LT with all back pay and allowances, and upgrading her general discharge to honorable were not received within 1year of the ABCMR’s original decision and did not contain any new evidence. Therefore, this portion of the applicant’s requests will not be discussed further in this Record of Proceedings.

3. Having prior enlisted service in the Regular Army and Army National Guard, the applicant was appointed as a 2LT in the NewJersey Army National Guard (NJARNG) on 26August 2001.

4. Her records contain:

* an unsatisfactory rating for a civilian performance appraisal for the period 1August 2001 to 31July 2002
* letter of reprimand for failure to perform her duties in a satisfactory manner, dated 20September 2002
* Supervisor’s Record of Technical Employment showing she was cited for numerous infractions concerning her duties as a GS-09 and as an NJARNG Soldier
* letter of indebtedness, dated 25August 2003

5. On 17October 2003, she filed an Inspector General (IG) complaint because her unit refused to submit her promotion packet for 1LT to NGB.

6. She was flagged for adverse actions on 22November 2003.

7. On 6December 2003, she received a general officer memorandum of reprimand (GOMOR) for appearing for inactive duty training on 22November 2003 with a personal recording device.

8. On 8December 2003, she filed an IG complaint against the general officer for giving her a GOMOR as he was not in her chain of command.

9. She filed another IG complaint on 10December 2003 pertaining to her request for promotion and branch transfer.

10. On 15January 2004, she was removed from her position as a GS-09 with the Federal government.

11. Her NGBForm22 shows she was discharged under honorable conditions (general) in the rank of 2LT on 24January 2006 for disciplinary reasons. This form shows she was awarded or authorized the:

* Army Service Ribbon
* National Defense Service Medal
* unspecified Marksmanship Qualification Badge with Rifle Bar
* Unit Strength Award Ribbon
* NewJersey Merit Award (4thAward)

12. She provided copies of NGB Orders033-4, dated 2February 2006, and NGB Special Orders Number34AR, dated 2February 2006, showing she was honorably discharged from the NJARNG effective 24January 2006.

13. An EEO Commission report, dated 10February 2006, shows she filed seven claims against her previous supervisory chain.

14. Her records contain NJARNG Orders243-003, dated 31August 2006, and NGB Special Orders Number257AR, dated 4October 2006, amending the previously-issued orders which directed her separation with an Honorable Discharge Certificate and showing she was issued a General Discharge Certificate at both the State and Federal levels.

15. She provided an NGBForm22A, dated 28October 2006, showing her rank was corrected to show 1LT and her character of service as honorable.

16. She provided a memorandum from The Adjutant General, NJARNG, dated 10November 2006, showing:

* he recommended reinstatement of the applicant’s Federal recognition effective 24January 2006
* he recommended her promotion to 1LT effective 26August 2002
* Army Regulation600-37 (Unfavorable Information) standards weren’t applied to her when she was given the memorandum of record (meaning GOMOR)
* an investigation wasn’t conducted in accordance with Army Regulation
15-6 (Procedures for Investigating Officers and Boards of Officers) and there was no proof of an investigation and no evidence to support the memorandum of record (meaning GOMOR)
* he recommended immediate removal of the memorandum of record (meaning GOMOR) and all adverse-related documents from her OMPF
* he recommended her immediate reinstatement in the NJARNG

17. She provided the first page of NJARNG Orders243-004, dated 10November 2006, showing:

* she was reinstated in the ARNG effective 24January 2006
* she was appointed in the ARNG in the rank of 1LT effective 26August 2002
* she was appointed in the ARNG in the rank of captain on an unknown date (it appears the effective date of her appointment would be shown on the second page of the orders)

18. On 6May 2011, the Army Discharge Review Board denied her request for a discharge upgrade.

19. There is no evidence showing the information/codes in PERNET are incorrect.

20. A review of the applicant’s OMPF in iPERMS revealed a copy of her NGBForm22 for the period ending 24January 2006 and GOMOR.

21. She provided a self-authored statement, dated 20February 2016, wherein she states:

a. Her records were changed in PERNET and iPERMS without following the rules and regulations of the Army.

b. She filed an EEO complaint and whistleblower complaint and the parties involved signed a Commander’s Reprisal Prevention Plan that was disregarded. Her unit retaliated by discharging her.

c. A civilian employee changed her discharge code from honorable to resignation for miscellaneous general reasons. She never resigned her commission.

d. The civilian employee also changed her resignation code to involuntary discharge and misconduct minor disciplinary infractions. She was never disciplined in any form or fashion.

e. Her Federal orders show she was honorably discharge. Her old unit submitted orders after she was discharged.

f. Since she was discharged honorably, she was supposed to be placed in the U.S.Army Reserve Individual Ready Reserve. Officers who do not formally resign their commissions remain in the Individual Ready Reserve until age60.

g. The documents, dated 7December 2015, show she was reinstated in the military and the civilian employee removed her from the military on 16December 2015 and changed codes that would hinder her from rejoining the military.

h. Her awards listed on her NGBForm22 were removed from PERNET and iPERMS.

REFERENCES:

1. Army Regulation600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the OMPF. It states the purpose of the OMPF is to preserve permanent documents pertaining to enlistment, appointment, duty stations, assignments, training, qualifications, performance, awards, medals, disciplinary actions, insurance, emergency data, separation, retirement, casualty, administrative remarks, and any other personnel actions.

2. AppendixB (Documents Authorized for Filing in the Army Military Human Resource Record and/or iPERMS) of Army Regulation600-8-104 and the U.S.Army Human Resources Command website provide a listing of documents authorized for filing in iPERMS. The instructions state to file letters of reprimand, censure, or admonition in the performance folder unless directed otherwise by the Department of the Army Suitability Evaluation Board.

DISCUSSION:

1. The evidence of record does not support the applicant’s contention she was never disciplined. Her records show she was cited for numerous infractions, including an unsatisfactory performance rating, a letter of indebtedness, removal from her Federal government position as a GS-09, and a GOMOR.

2. Her request for removal of all negative/derogatory information from PERNET and her OMPF was carefully considered. However, there is no evidence and she provided no evidence showing the information/codes in PERNET are incorrect.

3. She received a GOMOR in 2003 while serving in the rank of 2LT for appearing for inactive duty training with a personal recording device.

4. The governing regulation states administrative letters of reprimand will be filed in the performance folder of the OMPF. The GOMOR is properly filed in the applicant’s military records in accordance with the governing regulation. There is no evidence the GOMOR was improperly imposed.
5. Since her NGBForm22 is filed in iPERMS and she did not provide copies of award orders or certificates, there is no basis for adding the awards shown on her NGBForm22 to 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) @#!CASENUMBER

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20160004965

7

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2