MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 27 June 2002
         DOCKET NUMBER: AR2002074333

         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
Mrs. Carolyn G. Wade		Analyst

The following members, a quorum, were present:

Ms. Irene N. Wheelwright		Chairperson
Ms. Kathleen A. Newman		Member
Mr. Richard T. Dunbar		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)

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APPLICANT REQUESTS: That a general officer memorandum of reprimand (GOMOR), dated 18 July 2000, be transferred to the restricted portion (R-Fiche) of his Official Military Personnel File (OMPF).

APPLICANT STATES: That the GOMOR is unjust, misleading, and paints a negative picture because it implies that he had broken the law and was punished under the Uniform Code of Military Justice (UCMJ). He states that the GOMOR cites an incident and results that are totally different from what he is being accused of and that this is a miscarriage of justice. He states that there was no law violated and that the GOMOR was placed in his file prior to the final outcome of the cited incident and therefore, serves no useful purpose. He respectfully asks the Army Board for Correction of Military Records (ABCMR) to grant his request and allow future promotion boards to view his military records from a positive viewpoint based on his improved performance as indicated by his last noncommissioned officer evaluation report (NCOER).

In support of his application, the applicant submitted a letter in his own behalf and allied documents pertaining to the GOMOR, bar to reenlistment under the Department of the Army Qualitative Management Program (DA QMP), and appeals to the Department of Army Suitability Evaluation Board (DASEB).

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

He is a sergeant first class (SFC/E-7) serving on active duty. At the time of the subject GOMOR, he was assigned to the U.S. Army Tank-Automotive and Armaments Command, Warren, Michigan.

On 9 May 2000, while in the State of California, the applicant was apprehended by the California Highway Patrol for driving under the influence of alcohol. After failing several field sobriety tests, the applicant was arrested. A subsequent blood alcohol concentration (BAC) test revealed his BAC level of 0.09 percent. The acceptable limit was 0.08 percent.

On 18 July 2000, the applicant received a GOMOR from the Commanding General, U.S. Army Tank-Automotive and Armaments Command, Warren, Michigan. The GOMOR noted that the applicant was being reprimanded for operating a motor vehicle under the influence of alcohol. The GOMOR stated that the applicant's misconduct endangered his life as well as the lives of others. It further stated that the reprimand was being imposed as an administrative measure under the provisions of Army Regulation 600-37 and not as punishment

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under Article 15, UCMJ. The applicant was advised of his rights, that he had 14 days to submit an appeal, and that the CG would withhold his decision on imposing and filing the reprimand until he heard from the applicant. The applicant acknowledged receipt of the GOMOR, and his intent to file a rebuttal. The applicant filed his rebuttal, it was reviewed, and the GOMOR was ordered placed on the performance fiche of his OMPF.

On 15 September 2000, the applicant entered into a plea bargain agreement with the Deputy District Attorney for the County of San Bernardino, Superior Court of
California. He pled nolo contendere. The terms of the agreement were that, in return for a determination that the applicant violated no law, he would pay $100.00 to the Victim Restitution Fund and $479.00 in court costs and fees, and attend a county approved alcohol program.

On 20 April 2001, the applicant was notified that he was being denied continued active duty under the DA QMP. The basis for the bar to reenlistment was the applicant's GOMOR and NCOERs for the periods December 1991 through November 1992 and October 1999 through September 2000. He immediately appealed the DA bar to reenlistment.

On 24 November 2001, the ABCMR denied the applicant's request to remove his NCOER for the period December 1991 through November 1992, from his OMPF and transfer it to his R-fiche, or delete the senior rater comments from that NCOER.

On 18 December 2001, the applicant's appeal of the denial of continued active duty service under the QMP was approved.

On 27 February 2002, the applicant initiated an appeal to the DASEB to have the GOMOR removed from the performance section of his OMPF and transferred to his R-Fiche. He stated that the GOMOR had served its intended purpose, and that he had, in effect, successfully soldiered through the incident.

On 16 April 2002, the DASEB denied the applicant’s petition to transfer the GOMOR to his R-Fiche. The DASEB stated that the applicant had failed to provide documentation that he had attended and passed the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP). The DASEB also stated that the applicant’s OMPF reflected that he was a solid performer; however, due to the seriousness of the offense, it was not convinced the GOMOR had served its purpose and that the OMPF alone was not sufficient evidence to show that the intent had been served. The applicant was advised he could reapply to the

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DASEB if he had substantive, new evidence. He was also advised that, under the Privacy Act, he was authorized to request a copy of the DASEB case summary. If after reviewing the case summary, he was unable to provide any new evidence to sway the DASEB, he could apply to the ABCMR.

On 2 May 2002, the ABCMR received the applicant's request for correction of his records, dated 23 March 2002.

Army Regulation 190-5 (Motor Vehicle Traffic Supervision) sets forth policy, responsibilities, and procedures for motor vehicle traffic supervision on military installations in the continental United States (CONUS) and overseas areas. It states, in pertinent part, that a written general officer reprimand, administrative in nature, will be issued to active duty Army officers, commissioned and warrant, and noncommissioned officers for driving or being in physical control of a motor vehicle on post when the blood alcohol content is 0.10 percent or higher, irrespective of other charges, or off post when the blood alcohol content is in violation of State laws, irrespective of other charges. The legal blood alcohol concentration established in California as the presumptive level of intoxication for driving is 0.08 percent.

Army Regulation 600-37 (Unfavorable Information) provides, in pertinent part, that only material that a soldier has been provided an opportunity to review and provide written comment upon may be filed in the OMPF. Once filed in the OMPF, such material becomes permanent unless removed in accordance with chapter 7. Chapter 7 of the regulation provides that, once filed in an OMPF, a document is presumed to be administratively correct. Appeals to the DASEB to relocate derogatory information are to be 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. If an 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.

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 Board noted the applicant’s contentions relative to the GOMOR. However, the GOMOR was administered in accordance with applicable regulations, was justified based upon the offense committed, and did not imply that the applicant was punished under the UCMJ. The GOMOR specifically stated that it was issued as an administrative action and not as a UCMJ action. Furthermore, there is no indication of any violation of the applicant’s rights.

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2. Army Regulation 190-5 requires that a GOMOR be issued to any noncommissioned officer who operates a motor vehicle on post with a BAC level of 0.10 percent or higher, or off post with a BAC level in violation of state law. The BAC limit for the State of California is 0.80 percent.

3. The Commanding General, after reviewing the applicant’s request to have the GOMOR filed in his R-fiche, deemed it appropriate to file the memorandum on the performance portion of the applicant’s OMPF. The applicant has not shown that the filing decision was in error, or unjust, or that, with any more information at hand, the CG would have made a different decision.

4. Given the applicant's rank and length of service at the time of the misconduct, his actions cast serious doubt on his maturity, judgment, and self-discipline. The Board, therefore, believes that the GOMOR should remain properly filed in the applicant's OMPF and not be moved to his restricted fiche.

5. 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 that requirement.

6. 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

__inw___ __kan___ __rtd___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002074333
SUFFIX
RECON
DATE BOARDED	20020627
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	134.0400
2.
3.
4.
5.
6.