MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 17 July 2003
         DOCKET NUMBER: AR2002078666

         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. Joann H. Langston		Chairperson
Ms. Regan K. Smith		Member
Mr. John T. Meixell		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 he be immediately promoted to the rank of sergeant first class (SFC/E-7) or referred to a Special Selection Board (re-look) for reconsideration of his previous non-selections by SFC/E-7 Selection Boards.

APPLICANT STATES: In effect, that, in March 1996, he received a General Officer Memorandum of Reprimand (GOMOR) for driving under the influence (DUI) and refusing to take a lawfully requested evidential test for alcohol or other drug content of his blood, breath, or urine. He was not convicted of DUI, but the GOMOR was filed in his Official Military Personnel File (OMPF) prior to the court action. He has since been denied promotion to SFC by promotion selection boards. He adds that the Calendar Year (CY) 2002 SFC Selection Board, in its after action review (AAR), commented that "[L]eaders should wait until the NCO is found guilty before taking adverse action [e.g., GOMOR]." He states that, after two attempts, the Department of Army Suitability Evaluation Board (DASEB) removed the GOMOR from OMPF and placed it on his restricted fiche (R-fiche), based upon intent served, without granting him a promotion re-look. He concludes by saying that he is seeking promotion to SFC with 4 years time-in-grade, but no back pay. He believes the documents submitted to the Board provide sufficient evidence for a re-look by the next selection board. He states that he has exhausted all of his administrative options short of a Congressional inquiry.

In support of his request, the applicant submitted: a case brief in his own behalf; a copy of his noncommissioned officer evaluation report (NCOER); a copy of the GOMOR; a copy of the United States District Court, Middle District of Georgia, Columbus Division, court decision; a copy of the DASEB's action on his second request for removal of the GOMOR; and pages 1 and 6 of the 7-page CY02 SFC Selection Board AAR.

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

On 20 December 1984 the applicant enlisted in the Regular Army and has continued to serve for more than 18 years through a series of continuous reenlistments. He is currently a staff sergeant (SSG/E-6) serving in military occupational specialty (MOS) 11B (Infantryman).

On 6 March 1996, the applicant was apprehended on post by military police for failing to obey a traffic control device. The odor of alcohol gave the military police probable cause to suspect that he was DUI. He was administered and failed a field sobriety test, was read his rights and apprehended, and was transported to the military police station. At the station, he refused to submit to a breathalyzer test designed to determine his blood alcohol content (BAC) level.

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On 8 March 1996, the applicant was administered a GOMOR for DUI and refusing a lawfully requested test by the Commanding General (CG), Headquarters, United States Army Infantry Center and Fort Benning, Fort Benning, Georgia. The GOMOR stated that DUI was a serious breach of acceptable conduct and that he had shown a callous disregard for potential injury to others and damage to property. Additionally, the GOMOR stated that he had demonstrated a lack of discipline and good judgment, both of which are qualities expected of noncommissioned officers in the United States Army. The CG stated that he was considering filing the GOMOR in his OMPF. The applicant had 5 days to submit a rebuttal. The applicant submitted a rebuttal in which he stated that he was not guilty, that he was a good soldier, and that the administering of the GOMOR should not take place until after a civil court conviction.

On 3 May 1996, the United States District Court, Middle District of Georgia, Columbus Division, found the applicant not guilty of DUI, but guilty of failing to obey a traffic control device.

On 26 May 1996, the DASEB denied the applicant’s request to transfer the GOMOR to his R-fiche.

On 20 May 1998, the DASEB approved the transfer of the GOMOR and all related documents to the applicant’s R-fiche. The DASEB noted that the transfer was based upon intent served and did not constitute grounds for reconsideration of a previous non-selection.

Army Regulation (AR) 600-8-104 (Military Personnel Information Management/ Records) prescribes the policies governing the OMPF, the Military Personnel Records Jacket, the Career Management Individual Files, and Army Personnel Qualification Records. Paragraph 2-4 of this regulation states that once a document is placed in the OMPF, it becomes a permanent part of that file. That paragraph provides for appeals for transfer/removal of the GOMOR by this Board or by certain other Departmental agencies, to include the DASEB.

AR 190-5, Motor Vehicle Traffic Supervision, sets 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 (paragraph 2-3), that persons accepting installation driving privileges shall be deemed to have given consent to evidential tests for alcohol or other drug content of their blood, breath, or urine. It further states (in paragraph 2-7a) that a GOMOR will be issued to all officers, warrant officers, and noncommissioned officers in the rank of corporal and above for conviction of intoxicated driving (or driving under the influence, or DUI, of alcohol or drugs); for refusing to take or

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failing to complete a test to measure alcohol or drug content of the blood, breath, or urine; for having a blood alcohol content level of 0.10 percent or higher; or for driving a motor vehicle under the influence of illegal drugs. Receipt of a GOMOR is not predicated upon a conviction for intoxicated driving or DUI.

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. AR 190-5 requires that a GOMOR be administered to any officer, warrant officer, or NCO who: (1) Is convicted of DUI on or off post; (2) Refuses to take a test to measure BAC on or off post; (3) Registers a BAC reading of 0.10 percent or higher on post, or whose BAC violates State laws off post, or (4) Is physically in control of a vehicle when tests show illegal drugs in his system. Clearly, the regulation specifies that a GOMOR be issued when a soldier refuses an evidential test.

2. The 8 March 1996 GOMOR was properly imposed as an administrative measure and was properly filed in accordance with applicable regulations. The GOMOR was required based on the applicant’s refusal to submit to legally requested evidential test. Although he was found not guilty in court for DUI, he still refused to take the requested test and was thereby still eligible to receive a GOMOR.

3. The Board noted the comments in the CY02 SFC Selection Board AAR regarding the administering of a GOMOR prior to completion of civilian court proceedings; however, regulations do not require the commander to withhold administrative measures until a court has determined guilt or innocence. Furthermore, had the applicant taken the BAC test and registered a reading of 0.10 percent or higher, he still would have been issued a GOMOR even if not convicted of DUI in a court of law.

4. The Board notes that the GOMOR has been moved to the applicant’s OMPF R-fiche by the DASEB on the basis that the GOMOR had served its purpose. The DASEB decision does not imply that the GOMOR was unjust, unfair, or inaccurate. The Board concurs in this action and the rationale supporting it. Inasmuch as the GOMOR was, and is, properly filed, the Board finds no basis on which to immediately promote the applicant or refer him to a Special Selection Board (re-look) for reconsideration of previous non-selections by the SFC/E-7 Selection Board.

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

__jhl___ __rks___ __jtm___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002078666
SUFFIX
RECON
DATE BOARDED	20030717
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	134.0400
2.
3.
4.
5.
6.