MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 20 March 2003
         DOCKET NUMBER: AR2002080058

         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. Luther L. Santiful		Chairperson
Mr. Christopher J. Prosser		Member
Mr. Kenneth W. Lapin		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 20 January 2001 be removed from his Official Military Personnel File (OMPF) and that he receive promotion reconsideration for promotion to the pay grade of E-7.

APPLICANT STATES: That he was reprimanded for drunk driving; however, he was found not guilty of the charge by a court of law. Inasmuch as he was not driving drunk on the night in question, he believes that justice dictates that the letter of reprimand, which is based on an erroneous charge, be removed from his OMPF and that he receive promotion reconsideration to the pay grade of E-7. In support of his application he submits a copy of the court documents indicating that he was found not guilty of driving under the influence (DUI).

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

He enlisted on 12 July 1989, for a period of 2 years, training as an engineer track vehicle crewman and the Army College Fund. He successfully completed his training and has remained on active duty through a series of continuous reenlistments. He was promoted to the pay grade of E-6 on 1 December 1998.

On 22 October 1999, while serving as a recruiter in California, the applicant was stopped by local law enforcement officials for reckless driving. The applicant failed several field sobriety tests and was arrested. The applicant's blood alcohol test (BAT) registered .09, above the .08 California legal limit.

A review of the court documents show that the applicant was tried by a jury and on 28 April 2000, the jury found him not guilty of charge one. The court documents are not very specific on the two charges; however, both were alcohol related and the jury could not agree unanimously on charge two. The court declared a mistrial on charge two. In a pre-trial agreement, the applicant withdrew his plea of not guilty and entered a plea of "Nolo" to a reduced charge of "WET Reckless" (reckless driving that is related to alcohol). He was placed on probation until 10 May 2003, was not to drive a vehicle with any measurable amount of alcohol in his blood, was to obey all laws, was not to drive unless validly licensed and insured, could not refuse a blood, breath or urine test from any peace officer and was required to pay $500.00 in attorney fees.

On 2 June 2000, nonjudicial punishment (NJP) was imposed against the applicant for submitting two falsified statements to a civilian court. His punishment consisted of a reduction to the pay grade of E-5 (suspended until 5 December 2000), a forfeiture of pay and an oral reprimand. He did not appeal his punishment and the imposing commander directed that the Record of Proceedings of NJP (DA Form 2627) be filed on the restricted fiche of his OMPF.

On 29 September 2000, the deputy commanding general (DCG) issued the applicant a GOMOR. He indicated that the applicant had been stopped for reckless driving and had failed the field sobriety and BAT. He reprimanded the applicant for drunk driving, his misconduct of risking lives, disregard for public safety and the image of an Army recruiter, and his serious breach of his duties and responsibilities as a noncommissioned officer (NCO). He informed the applicant that he planned on filing the GOMOR in the applicant's OMPF, but would not make a final decision until he reviewed any matters the applicant wanted to submit in his own behalf.

The applicant responded to the GOMOR with a statement in his own behalf in which he admitted that he had done wrong and understood that he would be punished. He requested that he not receive a reduction in grade or forfeiture of pay because he had custody of his two children and was engaged to be married. He went on to state that it was his desire to serve a career in the Army and he asked the DCG to give him a chance. He also stated that he went to trial because he was innocent and that the letters that he had falsified were not used in the trial. The District Attorney reduced the charges because of the challenges in proving necessary elements.

The applicant's battalion commander recommended that the GOMOR be filed in the unit's local file and the brigade commander recommended that it be filed in the applicant's OMPF because he had submitted falsified documents to a civilian court in an attempt to reduce the severity of his punishment. The DCG directed that the GOMOR be filed in the applicant's OMPF.

There is no evidence in the available records to show that the applicant applied to the Department of the Army Suitability Evaluation Board (DASEB) to have the GOMOR transferred to the restricted fiche of his OMPF based on intent served. The actions by this Board will not preclude him from doing so at a later date.

California Vehicle Code, section 23152 (a) provides, in pertinent part, that it is unlawful for any person under the influence of any alcoholic beverage or drug (or combination thereof) to drive a vehicle. In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within 3 hours after the driving. Section 23105.5 governs the statute known as "Wet Reckless", reckless driving that is related to alcohol. Persons receiving a reduced sentence under this statute are still viewed as having suffered a misdemeanor conviction for 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. The GOMOR was properly imposed as an administrative measure and filed in the OMPF in accordance with the filing instructions of the imposing officer and applicable regulations.

2. It appears that the applicant’s appeal of the GOMOR was properly considered and that it was not inappropriate to file the GOMOR in the applicant’s OMPF.

3. The Board has noted the applicant's contention that he was not convicted of drunk driving and that the GOMOR was unjustly issued and finds it to be without merit. While it is true that he was not convicted of drunk driving, it is also true that he was not tried specifically for drunk driving. However, it is common knowledge that the term "drunk driving" relates to DUI and while the applicant may assert that he was not specifically guilty of drunk driving, he was convicted of a DUI offense.

4. The Board also notes that the GOMOR was not issued until after he had been tried and sentenced. Therefore, the imposing officer had the benefit of knowing what transpired. This includes his attempts to deceive court officials by providing falsified statements. While the Board will not attempt to ascertain what effect those statements had on his sentence, the fact that he falsified those statements goes to the applicant's character and amounts to misconduct.

5. The GOMOR addresses much more than drunk driving and serves to reprimand the applicant appropriately for his misconduct.

6. The Board also believes that the applicant’s logic in this matter is indicative that he has not learned his lesson and that the GOMOR has not served the purpose for which it was intended. Inasmuch as the applicant has failed to show that error or injustice exists in his case, the GOMOR should remain in his OMPF as presently filed.

7. 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

__kwl ___ __cjp ___ ___ls____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002080058
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/03/20
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 329	134.0100/REM LOR
2.
3.
4.
5.
6.