PROCEEDINGS


	IN THE CASE OF:     .
				   

	BOARD DATE:           21 October 1998
	DOCKET NUMBER:   AC97-08876A

	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. Loren G. Harrell

Director

Mr. Paul A. Petty

Analyst


  The following members, a quorum, were present:


Mr. James E. Vick

Chairperson

Ms. Irene N. Wheelwright

Member

Mr. Raymond V. O’Connor, Jr.

Member

Ms. Margaret K. Patterson

Member

Mr. Goerge D. Paxson

Member

	The applicant did appear before the Board and was not represented by counsel.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)
	Exhibit C - Case Summary
	Exhibit D - Transcript of Hearing
	Exhibit E - Applicant’s Hearing Exhibits A  through D

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 that his General Officer Memorandum of Reprimand (GOMOR) for operating a motor vehicle while under the influence of alcohol be removed from the performance section of his Official Military Personnel File (OMPF) microfiche and placed in the restricted section of his OMPF microfiche or removed entirely from his OMPF; that, in effect, any Department of the Army flag related to the GOMOR or removal from the promotion list be removed from his records; that, in effect, any reference to his removal from the promotion list be removed from his record; that he be reinstated on the promotion list to Colonel O-6; and that he be promoted to O-6 as originally scheduled.

3.  The applicant states that while stationed in Panama in 1995, at approximately 0515 hours on 25 June 1995, he bumped his car into the curb at the base of a statue.  The only damage was a small chip of concrete knocked out of the curb and the plastic splash shield under his car was knocked loose.  There were no injuries, no skid marks, and no excessive speed as he had just accelerated from the guest lodge where he had dropped off a guest.  The incident occurred after returning late from escorting a foreign military visitor into the civilian sector.  He states that he was not legally intoxicated and that his error in driving was caused by overall fatigue after a late night and having just finished a week of 18 hour workdays.  Even though we was not drunk, he received a GOMOR for driving while under the influence of alcohol, which he should not have received under the circumstances.  Subsequently, his OMPF was flagged and he was removed from a promotion list to Colonel O-6 by the Promotion Review Board (PRB).

4.  The applicant’s military record shows that he is a Regular Army Lieutenant Colonel in the Dental Corps currently on active duty with 19 years service.  He was selected for promotion to Colonel 0-6 on by a Department of the Army (DA) promotion board in 1995.  After selection by the board, the applicant was involved in a one car vehicle accident on post on 25 June 1995 as described by the Military Police, “(the applicant) missed the curve…went over the curb and collided with the rock base of the miniature Statue of Liberty…quickly backed up and attempted to flee the scene.”  The arresting officer stated that the applicant had failed the field sobriety test and that his subsequent blood alcohol test showed .098% level of blood alcohol.  The applicant was cited for inattentive
driving and driving while impaired.  Driving while impaired was later changed to drunken driving.  The applicant was given a GOMOR on 11 August 1995 which was filed in the performance section of his OMPF microfiche.  As a consequence of the GOMOR, the applicant was removed from the 06 promotion list by a DA Promotion Review Board.

5.  The applicant appealed his removal from the O-6 promotion list with supporting endorsements from the Major General that had issued the GOMOR, a Brigadier General, and numerous other military officers.  The appeal was denied.

6.  The applicant appealed to the DA Suitability Board to move the GOMOR to his restricted OMPF microfiche.  His appeal was endorsed by the Major General that had issued the GOMOR and a Brigadier General but his appeal was denied.

7.  He then appealed to the Army Board for Correction of Military Records (ABCMR) to move his GOMOR to the restricted microfiche and to be promoted to 06.  His appeal was again endorsed by the Major General that had issued the GOMOR, a second Major General, a Brigadier General, and three Colonels.  The Board reviewed the request on 22 October 1997 and denied the request.  The applicant subsequently submitted additional evidence to support his request in rebuttal to the Board’s decision.  The Board reconsidered his request in June 1998 and decided to grant the applicant a personal appearance before a Formal Board before making a final decision.

8.  The applicant submitted 30 letters of support and recommendation to move the GOMOR to the applicant’s restricted microfiche and to promote him to O-6.  Some of the significant letters are as follows:

a.  In a 16 July 1997 letter and again in a 24 July 1998 letter to the ABCMR, the Major General who issued the GOMOR requests that the applicant’s GOMOR be moved to the restricted section of his OMPF microfiche and that the applicant be promoted to Colonel.  (It is noted that the Major General has written similar letter of support for the applicant’s previous appeals to other agencies.)  The General stated that he issued the GOMOR, “based on his (the applicant’s) years of service (i.e., he should have known better), the circumstances of the accident (he fell asleep at the wheel and alcohol was involved), and precedence I had set with disposition of similar cases for soldiers of lesser rank (I don’t want a 
‘double standard’).  He further stated that, “The intent of the OMPF filing of the GOMOR was not to totally derail LTC [applicant] and prevent promotion to colonel.  I strongly believe he has the potential to serve at the grade of Colonel.”  He praised the applicant for keeping a good attitude and continuing excellent work after the incident.





b.  In a 2 September 1998 letter to the ABCMR, the Major General Deputy Surgeon General of the Army praised the responsible manner in which the applicant responded to the incident and his subsequent continued exceptional performance.  He strongly recommended that the GOMOR be expunged from the record.

c.  In a 4 September 1998 letter to the ABCMR, the Brigadier General Commander of U.S. Army Center for Health Promotion and Prevention Medicine, requests that the applicant’s GOMOR be moved to the restricted section of his OMPF microfiche and that the applicant be promoted to Colonel. 

d.  In a 1 October 1998 letter to the ABCMR, the Colonel Commander of the U.S. Army Dental Activity, Fort Sam Houston, requests that the applicant’s GOMOR be moved to the restricted section of his OMPF microfiche and that the applicant be promoted to Colonel.

e.  The Colonel Commander of the Dental Command, and the Colonel Pediatric Dental Consultant for the Amy Dental Command, and the applicant’s Colonel Post Commander at the time of the incident, all praised the applicant’s professionalism, his continued outstanding performance, and his maintenance of a good attitude despite the disruption of his career caused by the incident.

9.  Army Regulation 190-5, Vehicle Safety, provides that officers and NCO's will be issued an administrative reprimand 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;

- when there is 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.

10.  Army Regulation 600-37, Unfavorable Information, provides that personnel decisions which may result in selecting persons for positions of public trust and responsibility (such as promotion or retention), or vesting such persons with
authority over others, should be based on a thorough review of their records. The review will include an appraisal of both favorable and credible unfavorable information.  General officers may direct the filing in a person’s OMPF, unfavorable information which should be made known when making these personnel decisions.

11.  In the Formal ABCMR hearing on 21 October 1998, the applicant vocally presented the forgoing evidence to the Board, provided two witness, and submitted 4 additional exhibits.  The first witness was the Garrison Commander at the time of the incident.  The key points of his testimony were that there was no damage to the statue base or that any repair was required as a result of the incident; that he counseled with the Major General senior commander on the issue of the GOMOR which they had intended to be filed in the applicant’s restricted microfiche; that no other disciplinary action was considered such as non-judicial punishment or court-martial; and that the applicant should be promoted to 06.  He confirmed the applicant’s continued professionalism, outstanding performance, and significant contribution to the military and civilian community in spite of the incident.  The second witness provided testimony as to the excellent character of the applicant.  The additional evidence presented as exhibits to the Board were: Exhibit A - two letters of support and recommendation for transfer of the GOMOR and promotion to Colonel from a Representative to the Texas State House of Representatives and from the Associate Dean of the College of Dentistry, Howard University, who is also the retired Colonel Commander of the United Stated Dental Command; Exhibit B - seven additional duty appoint letters for the applicant showing additional service to his military community; Exhibit C - correspondence from a Texas Representative to the Congress of the United States House of Representatives requesting information and status of applicant’s case before the Board; and Exhibit D - professional dental articles written by the applicant and published in various medical publications.

CONCLUSIONS:

1.  The Board notes the strong support from the Major General Officer who rendered the GOMOR and from many other ranking officers that the GOMOR be transferred to the applicant’s restricted OMPF microfiche and that he be promoted to the grade of 06.

2.  While the Board cannot overlook the seriousness of the applicant’s actions, consideration must be given to the applicant’s continued outstanding duty performance, contributions to his profession, and his highly commendable service to his military and civilian communities since the incident occurred.

3.  Therefore, it appears that the GOMOR has now served its purpose and should be transferred to the applicant’s restricted microfiche in his OMPF and not be considered in any future personnel actions, selection boards, or promotion confirmations.

4.  The Board is of the opinion that since the GOMOR has now served its purpose, it would be unjust, in view of his outstanding record, not to restore his name to the promotion list and promote him to 06 effective the date this Board convened, 21 October 1998.

5.  In view of the forgoing, the interest of justice would best be served by correcting the applicant’s record as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by:

a.  promoting the applicant to 06 effective the date of the formal ABCMR board, 21 October 1998; 

b.  transfer of the GOMOR from the performance section of OMPF microfiche to the restricted microfiche in the applicant’s OMPF with direction from the ABCMR that the GOMOR and any related material may not be considered by any selection board, in confirmation decisions, or in making assignments; and


c.  removal from the OMPF and from any other record any materials related to the GOMOR or the incident such as flagging actions, removal of flagging actions, the 06 DA Promotion Review Board, correspondence to and from other boards or government agencies to include the Department of the Army; (this ABCMR decision will be filed in the restricted fiche).

2.  That so much of the application as is in excess of the foregoing be denied.

DISSENT:  Two members of the board dissented from the majority opinion on one point each; one differed on the promotion and one on removal of the GOMOR.  Mr. Paxson agreed with the majority to move the GOMOR to the restricted microfiche but recommended that the applicant be referred to the next Colonel promotion selection board for reconsideration for promotion instead of immediate promotion.  Mrs. Wheelwright agreed with the majority to promote the applicant to Colonel effective the date of the board, 21 October 1998, but recommended that the GOMOR and all related material be removed “entirely” from the applicant’s military record.




					James E. Vick_____  
						       Chairperson



























1.  The applicant was selected for promotion to Colonel 06 based on his high level of performance and outstanding career prior to the single incident  for which he received the GOMOR.  The single isolated event is far outweighed by his exceptional performance that resulted in his selection for promotion to 06 and his continued exceptional performance following the single isolated event.  This event resulted in no injury or in property damage of any consequence.

2.  The Major General that gave the applicant the GOMOR has stated in three successive letters of support that the purpose of the GOMOR was not to derail the applicant’s  career or prevent his promotion.  He further stated that the GOMOR should be filed in the applicant’s restricted OMPF microfiche and that he should be promoted to 06.

3.  Based on his outstanding performance before and after the incident and his significant contributions to the Army, his community, and his profession, the transfer of the GOMOR to his restricted OMPF microfiche and his promotion to Colonel was requested and endorsed in letters from 21 superior officers (3 Major Generals, one Brigadier General, 15 Colonels, and 3 Promotable Lieutenant Colonels) from both his chain of command and his Army professional career branch to include the Major General Deputy Surgeon General of the Army.  The board noted 9 other such letters of support from civic and military community leaders for transfer of the GOMOR to the restricted fiche and promotion of the applicant to 06.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.