PROCEEDINGS



         IN THE CASE OF:
        

         BOARD DATE: 5 November 2002
         DOCKET NUMBER: AR2002079840



         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. Carl W. S. Chun		Director
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Melvin H. Meyer		Chairperson
Mr. Eric N. Andersen		Member
Mr. John T. Meixell		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

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

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.

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2. The applicant requests, in effect, that a General Officer Memorandum of Reprimand (GOMOR) be removed from his Official Military Personnel File (OMPF).

3. The applicant states, in effect, that the GOMOR was predicated on his excessive speeding and driving under the influence (DUI) of alcohol. He claims that he was never charged with speeding, and a court of law determined that he was not DUI of alcohol. He contends that the GOMOR has taken a discriminatory form since its issuance, and it will remain so if it stays on file in his OMPF. He respectfully requests that the GOMOR be removed from his OMPF or be transferred from the performance portion (P-Fiche) to the restricted portion
(R-Fiche) of his OMPF. In support of his application, he provides the enclosed statement outlining his issues and contentions; the results of his appeal to the Department of the Army Suitability Evaluation Board (DASEB); court documents pertaining to his plea and the final court decision in regard to the DUI charge; and letters of support from members of his chain of command.

4. The applicant’s military records show that he is currently serving on active duty at Fort Lewis, Washington, and he holds the rank and pay grade of staff sergeant/E-6 (SSG/E-6).

5. On 2 January 2000, the applicant was stopped in Sierra Vista, Arizona, for speeding. Subsequent to his processing and taking breathalyzer tests that showed that he had a blood alcohol content (BAC) of .166 percent at 0239 hours and .160 percent at 0246 hours, he was ultimately cited for the offense of DUI of alcohol.

6. On 10 March 2000, the commanding general (CG), Eight United States Army, Korea, issued the applicant a GOMOR for driving while intoxicated and displaying deplorable judgment. The CG cited the applicant being stopped for speeding and his subsequent failures of a field sobriety test and breathalyzer tests that showed his BAC exceeded the legal limit of .10 percent. The CG also informed the applicant of his intent to file the GOMOR in the P-Fiche of the applicant’s OMPF, unless he could be convinced otherwise. The applicant was further informed that he could submit matters through his chain of command and they would be considered prior to the final filing determination.

7. On 20 March 2000, the applicant submitted a rebuttal to the GOMOR. In this rebuttal, he stated that he truly regretted and took full responsibility for his actions that led to the DUI charge. He further stated that on the night in question, he believed that he had let enough time pass after drinking before driving. However, this was a poor judgment, and he realized that he took a risk by driving after drinking. He further commented that given another opportunity, he would never do this again. He further commented that he believed that the GOMOR was fair and just, and understood that some action had to be taken.
8. The applicant completed his GOMOR rebuttal by suggesting that filing the GOMOR in the P-Fiche of his OMPF would end his career, and would be a far more serious punishment than warranted by the offense because it would, in effect, end his career. On this basis, he requested that the GOMOR be filed in the R-Fiche of his OMPF.

9. The applicant’s unit, battalion, and brigade commanders, after reviewing the applicant’s rebuttal letter, all recommended that the GOMOR be filed in the
P-Fiche portion of the applicant’s OMPF. As a result, on 26 April 2000, the Acting CG, Eighth United States Army, Korea, directed that the 10 March 2000 GOMOR pertaining to the applicant be filed in the P-Fiche portion of his OMPF.

10. On 21 November 2000, the applicant’s motion to dismiss was granted without prejudice in the Justice Court of the State of Arizona, Cochise County, Arizona. This action was based on the granting of a motion to suppress the breathalyzer evidence against the applicant based on the police officer’s failure to notify the applicant of his right to independent testing in accordance with the Sierra Vista Police Department policy in effect at the time.

11. On 2 August 2001, the applicant was notified by Department of the Army (DA) officials that the Calendar Year 2001 (CY01) Sergeant First Class Promotion Selection Board had selected him for denial of continued active duty service under the provisions of the Qualitative Management Program (QMP). The notification action included a list of the documents that contributed to his QMP selection. This list included a Noncommissioned Officer Evaluation Report (NCOER), that covered the period 1 February through 28 February 1998, and the GOMOR in question, dated 10 March 2000.

12. On 20 September 2001, the applicant appealed to the DASEB, requesting that the GOMOR be removed from or transferred to the R-Fiche portion of his OMPF. On 5 December 2001, the applicant was notified that the DASEB had deliberated on his petition to remove the GOMOR, dated 10 March 2000, from the P-Fiche portion of his OMPF, and after careful consideration had denied his request. The DASEB case summary indicated, in effect, that the applicant’s argument that the GOMOR should be removed based on the Court’s dismissal of the DUI charge did not provide clear and convincing evidence that the GOMOR was in error or unjust. It also noted that the charge against the applicant was dismissed by the Court without prejudice, which meant that the case could be reheard if the Court desired. The DASEB opined that this showed that the Judge was not totally convinced that the applicant was not guilty.

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13. It was further noted in the DASEB case summary that in his rebuttal to the OMPF filing of the GOMOR, the applicant made statements that, in effect, were an admission that he, himself, believed that his actions on the night in question reflected poorly on his performance, judgment, or potential, and that made it absolutely clear that he was driving and drinking on the night in question, which formed the underlying basis for the reprimand. Finally, the DASEB noted that this was the second drinking and driving incident documented during the applicant’s career, and it was finally satisfied that the MOR was fair and just as filed in the applicant’s OMPF.

14. On 18 April 2002, the applicant was notified that his QMP appeal of his denial of continued active duty service was approved by a DA Stand-By Advisory Board (STAB). The applicant was further informed that this determination did not preclude a future imposition of a denial of continued active duty service should his record so warrant. However, it confirmed that he would not again be selected for QMP based solely on the same documentation that he had successfully appealed, which included the MOR in question.

15. The applicant has provided letters of support from members of his current chain of command, including his unit commander and first sergeant, his battalion commander and command sergeant major, the battalion S-2 Officer In Charge (OIC) and NCO In Charge (NCOIC), and the battalion chaplain. These letters all attest to the applicant’s outstanding performance of duty in his unit. his mentorship of soldiers based on the lessons he learned from his DUI incident, and his accomplishments and contributions to the community. All members indicate that the applicant has learned his lesson and moved on, and they recommend that his request to move the MOR in question to the R-Fiche be approved.

16. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files. Paragraph 7-2 contains guidance on appeals for removing a document from the OMPF. It states, in pertinent part, that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct. Thereafter, the burden of proof to –provide clear and convincing evidence to show the document is untrue or unjust rests with the individual concerned. Paragraph 7-2B contains guidance on appealing reprimands, and requesting the transfer of these documents to the
R-Fiche portion of the OMPF. It states, in pertinent part, that the basis for a successful appeal of these documents could be as outlined in paragraph 7-2, which is evidence showing the document is untrue or unjust. Further, a successful appeal may be based on clear and convincing evidence showing that the document served its intended purpose, and its transfer to the R-Fiche would be in the best interest of the Army. The burden of proof rests with the recipient to provide substantial evidence showing that these conditions have been met.

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CONCLUSIONS:

1. The evidence of record confirms that the applicant was issued a GOMOR in accordance with applicable regulations, based on his driving while intoxicated and displaying deplorable judgment. The issuance of the GOMOR was based on the applicant being stopped for speeding and his subsequent failures of a field sobriety test and breathalyzer tests that showed his BAC exceeded the legal limit.

2. The GOMOR in question was an administrative action and once it was accepted for filing in the OMPF, by regulation, only evidence of a clear and convincing nature proving that the document is untrue or unjust would warrant its alteration or removal from the OMPF. The Board concurs with the DASEB determination that the court ruling to dismiss did not exonerate the applicant and did not prove that the GOMOR was untrue or unjust, since the applicant had clearly admitted to in appropriate conduct and judgment, and to drinking and driving on the night in question.

3. The evidence of record also clearly shows that the GOMOR in question contributed to the applicant being selected for denial of continued active duty service under the provisions of the QMP. The applicant was forced to confront this GOMOR in his appeal of this action, and after carefully reviewing the applicant’s record, his appeal packet, and the strong support of his chain of command, a DA STAB approved the applicant’s QMP appeal. In the opinion of the Board, the STAB outcome provides sufficient evidence to show that the applicant’s performance of duty and accomplishments were considered significant enough by the STAB to overcome the negative implications of the GOMOR in question, and to support his selection for continued active duty service.

4. The Board concurs with the DASEB determination that the GOMOR is not untrue or unjust and should not be totally removed from the OMPF. However, as a result of the STAB action and the strong support for relief by members of the applicant’s chain of command, it does find that the evidence provided does constitute clear and convincing evidence to show that the intended purpose of the GOMOR has been served, and that it would be in the best interest of the Army to transfer the GOMOR to the R-Fiche portion of the OMPF at this time.

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

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RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by transferring the 10 March 2000 GOMOR pertaining to the individual concerned from the P-Fiche to the R-Fiche portion of his OMPF.

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

BOARD VOTE:

__MHM__ __ENA __ __JTM__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___Melvin H. Meyer__
                  CHAIRPERSON

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INDEX

CASE ID	AR2002079840
SUFFIX
RECON
DATE BOARDED	2002/11/05
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	GRANT PARTIAL
REVIEW AUTHORITY
ISSUES 1. 1035	134.0100
2.
3.
4.
5.
6.