APPLICANT REQUESTS:  That a Letter of Reprimand (LOR) be transferred from the performance portion of his Official Military Personnel File (OMPF) to his restricted fiche.

APPLICANT STATES:  He was given a LOR in June 1995 for “intoxicated driving” prior to a decision by the civilian court on the charge.  The applicant states he “had [his] day in the civilian court, and the judge found [him] not guilty of the DUI charge because there was insufficient evidence.”  He states the judge “dropped the DUI charge for insufficient evidence” after he informed him that he had passed three field sobriety tests.  He notes the LOR should be moved to his restricted fiche and indicates “if the evidence was insufficient for a civilian conviction, then it should also be insufficient to issue a Letter of Reprimand.” In support of his request he submits several letters attesting to his outstanding performance as a soldier.

COUNSEL CONTENDS:  The civilian court dismissed the charge of DUI and accepted a “nolo contendere” plea to the charge of reckless driving.  He explains the meaning of “nolo contendere” and states the applicant “had apparently fallen asleep after pulling the automobile which he was driving to the furthest right hand lane, having been awake for an extensive period of time.”  He also indicates the applicant did take a breath test, in spite of “inaccurate, confusing and misleading implied consent warnings by the arresting officer.”  The attorney states the machine malfunctioned but the applicant “passed the only valid field sobriety test given and cooperated in every respect with the police.”

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant entered active duty in pay grade E-3 on 6 May 1987.  He was promoted to pay grade E-5 in 1990 and to E-6 in 1992.  His initial performance evaluation reports generally indicate he was a successful NCO.  Since August 1992 his raters have rated his overall potential was among 



the best while his senior raters have placed him in the top block for both overall performance and potential.  He met the requirements for graduation from the Primary Leadership Development Course and was honor graduate in 1991 from his Advanced NCO course.

On 29 April 1995, while attending drill sergeant training, he was apprehended by civilian police for DUI.  The citation, included with his application, indicates he refused a blood and breath test.

The applicant was issued a LOR on 13 June 1995 which indicated he refused to complete a lawfully requested breathalyzer test.  Although is unit commander recommended the LOR be filed in his local file, his battalion commander and the commandant of the Army’s chemical school recommended filing in his OMPF.  His battalion commander noted in her recommendation that “an open container of alcohol in his vehicle indicates that his judgment was significantly impaired on this occasion.”

In his rebuttal to the LOR the applicant asked that a filing decision be delayed until after the civilian court proceedings were completed and that he expected to be completely exonerated.  The applicant indicated he passed three field sobriety tests and that he tried to take a breathalyzer test but “after blowing into the machine several times, the police only got one reading, which is not, I have been told by my attorney, valid in Georgia.”  He concludes his rebuttal by stating he was not asking for the matter to be dropped but rather only delayed until he had an opportunity to “resolve the legal issues.”

The issuing general officer considered the applicant’s rebuttal and on 25 July 1995 directed that the LOR be filed in the applicant’s OMPF.





The traffic citation notes on 17 August 1995 the applicant pled “nolo cont’d” to the charge of DUI and that the charge was changed to reckless driving with a notation “insufficient sample.”  The applicant was fined $498.00 plus $127.00 for court costs.
In March 1996 the applicant’s appeal to the Army Suitability Evaluation Board for transfer of the LOR to his restricted fiche was denied.

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.

Army Regulation 600-8-104 provides, in pertinent part,  that a properly prepared administrative letter of reprimand is to be filed on the performance fiche of the individual's OMPF along with any referral correspondence and the member's reply.  All other associated documents are to be filed on the restricted fiche.

Army Regulation 190-5 (vehicle traffic safety) provides that officers and NCO's will be issued an administrative LOR for 



alcohol related driving incidents in 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 actions; or driving or in physical control of a vehicle when a lawfully requested test reflected the presence of other drugs.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The LOR was issued for his refusal to take a blood or breath test.  Under such circumstances the traffic safety regulation required that a reprimand be issued.

2.  The issue is not whether the applicant was found guilty of the DUI but rather his refusal of the tests.  While the applicant maintains he did not refuse such tests he provides no substantiating evidence to support that contention.

3.  While the Board notes that the applicant has had a successful career the LOR was issued in accordance with applicable records with no evidence of error or injustice.  

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.




DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

                       GRANT          

                       GRANT FORMAL HEARING

                       DENY APPLICATION


						Karl F. Schneider
						Acting Director