MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 26 March 2002
         DOCKET NUMBER: AR2001065356

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

Mr. Carl W. S. Chun		Director
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. George D. Paxson		Chairperson
Ms. Deborah S. Jacobs		Member
Mr. Ronald E. Blakely		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

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

---

APPLICANT REQUESTS: In effect, reinstatement to the E-7 Promotion Standing List, removal of a locally imposed bar to reenlistment, removal of all derogatory documents from his Official Military Personnel File (OMPF), to include a General Officer Memorandum of Reprimand (GOMOR) and a change of his Reentry (RE) Code from “3” to “1”.

APPLICANT STATES: In effect, that he was unjustly given a GOMOR, removed from the E-7 Promotion List, and barred from reenlistment for an offense that was never proven. He goes on to state that he was arrested by civilian authorities for driving under the influence (DUI) of alcohol and the unsafe changing of lanes. He received a GOMOR, was removed from the E-7 Promotion List, received negative comments of his Noncommissioned Officer Evaluation Report (NCOER), was barred from reenlistment and his career was ended for a charge that was subsequently dismissed without prejudice. He also states that at the time he received these punishments, his commander recommended that it the charges were disproven, the actions should be removed; however, they never were. As a result, his career was ended and his records contain numerous documents of a derogatory nature. He contends that he had an excellent career and that one incident should not have served as the basis for an action that ended an otherwise promising career; however, his case was treated differently than others who had committed the same offense, which constitutes unfair treatment and inconsistency in punishment.

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

He enlisted on 8 January 1985 and remained on active duty through a series of continuous reenlistments. He was promoted to the pay grade of E-6 on 1 September 1992 and was selected for promotion to the pay grade of E-7 by the Fiscal Year 1996 Sergeant First Class Promotion Selection Board. His date of promotion to the pay grade of E-7 was scheduled to be 1 April 1997 and his promotion was conditional on his completing the Advanced Noncommissioned Officer Course (ANCOC).

However, on 14 March 1997, while stationed in Hawaii, the applicant was arrested by civil authorities for DUI and unsafe changing of lanes. He submitted to and failed a field sobriety test and was arrested and transported to the Pearl City Receiving Desk, where he was advised of the implied consent law. He submitted to a Breathalizer test, which resulted in a blood alcohol content of .144%. He was released on bail and directed to appear in court on 8 April 1997.

On 4 April 1997, he was given a GOMOR for DUI by the Assistant Division Commander (a brigadier general). The imposing officer explained that the GOMOR was imposed as an administrative measure and that the applicant could submit matters in his own behalf before a decision as to where the filing of the GOMOR was made.
The applicant elected to submit a statement in his own behalf as well as letters of support from third parties. He requested that the imposing officer either file the GOMOR in the local files or delay a filing decision until the civil case had been resolved. He contended that there was a probability that he would be acquitted of the charges and the Breathalizer results invalidated. He requested that his 12 years of service be taken into consideration and indicated that while he understood the seriousness of DUI, he did not feel he was intoxicated at the time.

The company commander recommended filing the GOMOR in the OMPF. The battalion commander opined that the applicant was an excellent soldier who made an error in judgment and recommended that the decision be held in abeyance pending the outcome of the final decision by the civil court. If convicted, file in the OMPF, if not convicted, file locally. The brigade commander recommended filing in the OMPF, but commented that if the facts were disproven, the GOMOR should be removed. Until such time, due process and fairness should prevail.

On 9 May 1997, after reviewing all of the evidence in the case, the imposing officer directed that the GOMOR be filed permanently in the OMPF.

Meanwhile, on 10 April 1997, the applicant’s commander initiated action to remove him from the E-7 Promotion Standing List based on his arrest for DUI. On 24 April 1997, the applicant submitted a rebuttal to the removal action whereas he asserted that he should not be removed for one incident because of his 12 years of loyal service and his excellent record of performance and conduct. He also contended that there were discrepancies in the arrest that occurred and that to remove him from the promotion list based on inaccurate information and a completed adjudication of guilt was unjust and unfair. As an alternative, he requested that the action be held in abeyance until the case was finalized.

The applicant’s commander also initiated action to bar the applicant from reenlistment on 9 September 1997. The applicant elected not to submit a statement in his own behalf and the bar was approved by the battalion commander. He subsequently elected not to appeal the bar to reenlistment.

On 13 January 1998, 9 months after the initial arrest, the applicant’s court case was dismissed without prejudice, with a provision that the State had 60 days in which to re-file the charges or to dismiss the charges without prejudice.

On 24 February 1998, a Department of the Army Enlisted Standby Advisory Board recommended that the applicant be removed from the E-7 Promotion List. The recommendation was approved by the Deputy Chief of Staff for Personnel on 23 March 1998. Accordingly, he was removed from the promotion list.

A review of the applicant’s OMPF shows that aside from the GOMOR, the only other disciplinary action taken against the applicant was that nonjudicial punishment (NJP) was imposed against him on 9 April 1987 for the wrongful use of marijuana. The punishment consisted of a reduction to the pay grade of E-3, a forfeiture of pay, extra duty and restriction. The imposing commander directed that the record of NJP (DA Form 2627) be filed on the restricted fiche of the OMPF.

A review of his evaluation reports shows that he received an annual NCOER covering the period from May 1996 to April 1997. In part IVa, under Values/NCO Responsibilities, the applicant received a “No” rating under “Maintains a high standard of personal conduct on and off duty.” The supporting comments indicate that he was apprehended for DUI. In Part IVf, under “Responsibility and Accountability”, he received a “Needs Improvement” rating. The supporting comment indicates that he used poor judgment and was apprehended for DUI. In Part V, under Overall Performance and Potential, the rater deemed his potential for promotion and service in positions of greater responsibility as marginal. The senior rater (SR) deemed the applicant’s performance as “Successful” and his potential for promotion as “Fair.” The comments by the SR indicate that the applicant should not be promoted and that his potential was truncated by a serious error in judgment, as he was apprehended for DUI.

On 17 March 1998, the applicant was honorably discharged under the provisions of Army Regulation 635-200, chapter 4, due to completion of required service. He had served 13 years, 2 months and 10 days of total active service and was authorized one-half separation pay. He was also issued a RE Code of “3”.

There is no indication in the available records to show that he ever applied to the Department of the Army Suitability Evaluation Board (DASEB) to have the GOMOR transferred to the Restricted Fiche of his OMPF, nor is there any evidence to show that he appealed the NCOER to the Enlisted Special Review Board.

Army Regulation 600-37 serves as the authority for filing unfavorable information in the OMPF. It states, in pertinent part, that a memorandum of reprimand may only be filed in the OMPF if it has been directed for such filing by the officer exercising general court-martial jurisdiction.

Army Regulation 623-205 sets forth the policies and procedures for the Enlisted Evaluation Reporting System. Paragraph 4-2 states, in pertinent part, that an evaluation report accepted for inclusion in the official record of an NCO is presumed to represent the considered opinion and objective judgment of rating officials at the time of preparation.

Paragraph 4-7 of that regulation states, in pertinent part, that when submitting an appeal, the burden of proof rests with the applicant and that he or she must produce evidence that establishes clearly and convincingly that action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

Army Regulation 600-8-19 provides the procedures for processing removal of enlisted personnel from a Department of the Army Centralized Promotion List. It provides, in pertinent part, that removal from a recommended list should be considered only when circumstances involved warrant such significant action. When considering removal, commanders should evaluate circumstances to ensure that all appropriate actions have been taken or the basis for considering removal is serious enough to call for denying the individual’s promotion. Headquarters, Department of the Army will make the final decision on the removal based on results and recommendations of a STAB.

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 GOMOR was properly imposed as an administrative measure and was filed in the applicant’s OMPF in accordance with the filing instructions of the imposing officer and applicable regulations.

2. Likewise, the contested NCOER appears to represent a fair, objective and valid appraisal of his demonstrated performance and potential during the period in question. Therefore, there is no basis for removing it from his records.

3. Additionally, given the circumstances in this case, the Board finds that the actions taken to remove the applicant from the promotion list was in accordance with the applicable regulation with no indication of any violations of the applicant’s rights.

4. The applicant was barred from reenlistment in accordance with the applicable regulations and there is no indication that the applicant appealed the bar to reenlistment which denied his reenlistment and in effect, caused him to be discharged on the expiration of his term of service (ETS).

5. The Board has noted the applicant’s contention that the actions taken against him were unfair and unjust and were based on charges that were never proven and finds it to be without merit. By virtue of the applicant having failed the field sobriety test alone was sufficient grounds to issue the applicant a reprimand, as well as remove him from the promotion list and bar him from reenlistment.

6. The applicant’s contention that the actions were supposed to be removed once they were disproven is also without merit. The charges were never disproven or proven to be false. They were simply dismissed without prejudice. While the reasons the charges were dismissed is not apparent, they were dismissed with the provision that they could be re-filed within 60 days if the State so desired. The dismissal of the charges also did not negate the results of the sobriety tests nor has the applicant provided any evidence to show that they were flawed.

7. In order to justify correction of a military record the applicant must show to he 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 this requirement.

8. 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

___dj ___ __gp____ __reb____ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

---

INDEX

CASE ID	AR2001065356
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/03/26
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 312	131.0200/reinstate to e7 list
2. 329	134.0100/rem lor
3. 221	111.0005/void oer
4.
5.
6.