PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:           26 August 2003                  
	DOCKET NUMBER:   AR2002080743

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. Robert L. Duecaster		Member	
	Ms. Marla J. Troup		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                       records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect,  that an 11 February 2001 general officer memorandum of reprimand (GOMOR) be removed from his Official Military Personnel File (OMPF).

3.  The applicant states, in effect, the GOMOR is in error and unjust because he was not driving while impaired by alcohol and he did not refuse to take a test to determine his blood alcohol content (BAC).  When the police officer botched the first test the applicant asked that Captain (CPT) G____, who was known to already be in the building, be allowed to witness the test, but the police officer recorded the incident as a refusal.  The district attorney dismissed all charges due to lack of evidence. 

4.  In support of his application, the applicant submits a memorandum of support from his supervisor for the past 14 months.  This lieutenant colonel, the Army Chief of Mission at the U.S. Embassy in Colombia, notes that the applicant's assignment required Department of the Army level approval.  He reports that the applicant is the liaison officer to a Colombian Army division, a position of unusually high responsibility for a captain.  He states that, if the applicant had an alcohol problem, such fact could not have gone undetected.  He considers it in the best interest of the Army to remove the GOMOR.  The Defense Attaché to Columbia offers similar support.  He notes that he has known the applicant for 7 years and has been his direct superior officer for several of those years.  He, personally, has twice selected the applicant for high visibility assignments.  He has never seen any evidence of an alcohol problem, and considers that the applicant's removal from the Army would be a great loss.  The Military Group Commander, Colombia reports that the applicant's performance for the past 14 months has been superb and that he has never failed to represent the Nation in a professional manner.  He also recommends that the GOMOR be removed.  On the applicant's annual officer evaluation report (OER) for the period ending 14 January 2003 his rater assigned a "Yes" in all areas of Part IV (Professionalism) and rated him as "Outstanding" in Part V (Performance and Potential).  His senior rater marked him as "Best Qualified", ranked him "Above Center of Mass" and recommended immediate promotion.  In a 17 June 2003 letter the applicant's attorney at the time of the incident wrote that the district attorney had been aware of all the facts of the case and had not considered the applicant's actions to have been a refusal to take the BAC test.  

5.  The applicant’s military records show that he was a Regular Army captain with approximately 7 years and 2 months of service when, on 20 December 2001, following a one vehicle accident, he was arrested by the Fayetteville, North Carolina police for driving while impaired (DWI) and driving left of the center line. On 7 January 2002 the Commanding General, Special Forces Command issued a memorandum of administrative reprimand for driving while impaired and refusing to take a Breathalyzer test.  
6.  On 8 January 2002 the District Attorney voluntarily dismissed the DWI and withdrew the driving left of the center charge.  There is no evidence that the applicant was ever charged with refusing to take a breath test.  

7.  The 9 January 2002 report of the 15-6 investigation indicates that the battalion executive officer (XO) learned that the applicant had been arrested because the officer could smell alcohol on his breath.  A field sobriety test was not administered because of the applicant's physical injuries.  The XO confirmed that state law provides a 30 minute window in which to obtain a witness, the arresting officer said that CPT G____ was not there within that timeframe, the applicant and CPT G____ said that he was.  The magistrate confirmed that CPT G____ had been waiting in his office but that he was never summoned.  The XO noted that the charges had been dismissed due to lack of evidence and he concluded that there was insufficient evidence to show that the applicant had driven while impaired.

8.  CPT G____'s statement relates that, when he arrived at the courthouse, he was directed to the magistrate's office.  The magistrate made a call and then reported that the applicant was being charged with driving under the influence (DUI) and would be administered a breath test.  The magistrate invited him to have a seat and said he would be called if needed.  That never happened.  He was, in fact in the courthouse for more than 1½ hours before he got to see the applicant.

9.  On 14 January 2002 the applicant acknowledged receipt of the GOMOR.  In rebuttal the applicant first noted the dismissal of all charges.  He then explained that on the afternoon of 20 December 2001 he had attended a farewell luncheon for the first sergeant.  In approximately four hours he had eaten a steak and salad and had drunk about one beer per hour.  He went home, packed for a seven-day leave and about 1830 hours he went for a ride on his motorcycle.  About 1950 hours a car turned into the street headed right at him.  He swerved to the left to avoid a head on collision and hit the curb of a safety island protruding into the lane.  He crashed the motorcycle, emergency rescue technicians arrived and checked him out and applied some bandages, a wrecker was called and the police officer took him to the police station.  He was asked to take a breath test, but as the instrument neared his mouth and before he blew into it a reading was taken.  The officer looked at the result, appeared to be flustered and said he would have to repeat the test.  The applicant felt uneasy at this point and asked that CPT G____, who was known to already be in the building, witness the test.  (The other police officers present had already informed him he had a right to a witness.)  However, CPT G___ was not allowed into the room and the applicant 

was deemed to have refused to take the test.  He was then taken before the magistrate and released.  The applicant insisted that he had not refused but only wanted a witness present because the police officer was having difficulty with the machine.  

10.  In a 29 January 2002 memorandum to the commanding general, the battalion commander wrote that there was insufficient evidence to conclude that the applicant had either driven while impaired or refused to take a breath test.  He proposed that the GOMOR be withdrawn and stated that he address the issue with a reprimand for demonstrated poor judgment and so note in the applicant's upcoming OER. 

11.  On 11 February 2002 the commanding general directed that the GOMOR be filed in the applicant's OMPF.

12.  On 1 May 2002 the Department of the Army, Suitability Evaluation Board (DASEB) rejected the applicant's appeal because no new evidence had been presented.

13.  Army Regulation 600-37 (unfavorable information) provides in pertinent part, that administrative letters 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 letter 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 filing determination is made.  Letters of reprimand may be filed in a soldier's OMPF only upon the order of a general officer level authority and are to be filed on the performance fiche.  The direction for filing is to be contained in an endorsement or addendum to the letter.  If the reprimand is to be filed in the OMPF then 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 chapter 7.  Letters of reprimand intended for filing in the Military Personnel Records Jacket (MPRJ) may be retained for no more than 3 years and must state the length of time they are to be retained.  Chapter 7 of the regulation provides that once filed in an OMPF a document is presumed to have been administratively correct.  Appeals to the DASEB to relocate a reprimand, admonition or censure (normally for soldiers in pay grade E-6 and above) are based on proof that the intended purpose has been served and that transfer to a restricted fiche would be in the best interest of the Army.  The DASEB will return appeals unless 1 year has elapsed and at least one nonacademic evaluation has been received since the letter was imposed.  If 

the appeal is denied the DASEB letter of denial will be filed on the performance fiche, the appeal itself and any associated documents will be filed on the restricted fiche.  Otherwise this Board may act in accordance with Army Regulation 15-185 and the soldier has rights under the Privacy Act in which the DASEB acts as the access and amendment authority under Army regulation.

14.  Army Regulation 190-5 (Motor Vehicle Traffic Supervision) provides that officers and noncommissioned officers (NCOs) will be issued an administrative reprimand for alcohol related driving incidents under the following circumstances: When there is a conviction for driving while intoxicated or driving under the influence of alcohol or drugs; a refusal to take a properly requested blood, urine or breath test; when the individual was driving or in physical control of a vehicle on post with a BAC of .10 or off post with a BAC in violation of State law, irrespective of other charges; or driving or in physical control of a vehicle when a lawfully requested test reflected the presence of other drugs.

15.  In a telephone call to the Cumberland County District Attorney's Office a member of the Board's staff determined that North Carolina law provides for a 30-minute window in which to obtain a witness to a test to determine BAC tests.  Further, North Carolina has a civil procedure to revoke a driver's license for an unreasonable refusal, but such action would be noted on the court's docket sheet. 

CONCLUSIONS:

1.  In light of all the evidence in this case; but especially, that the applicant did not, in fact, refuse to take a BAC test, that all charges were dropped or withdrawn prior to the filing determination on the GOMOR and that the applicant's superiors report there has been no repetition of this kind of behavior and no indications of a drinking problem the Board determines that the existence of the GOMOR in the applicant's OMPF is unjust.

2.  The GOMOR and all associated documents should be expunged from the applicant's OMPF.

3.  Following accomplishment of the administrative action recommended below, this record of proceedings and all documentation related to the incident should be returned to this agency for permanent filing. 

4.  In view of the foregoing findings and conclusions, correcting the applicant's records as recommended below would rectify an injustice.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by expunging the 7 January 2002 GOMOR and all associated documents from the OMPF of the individual concerned.  

2.  Following accomplishment of the administrative action recommended below, this record of proceedings and all documentation related to the incident should be returned to the Army Review Boards Agency for permanent filing. 

BOARD VOTE:  

_RJW___  __RLD___  __MJT__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_   Raymond J. Wagner__
		        CHAIRPERSON

INDEX

CASE ID	AR2002080743	
SUFFIX		
RECON		
DATE BOARDED	20030826	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	134.01	
2.		
3.		
4.		
5.		
6.