MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 3 July 2003
         DOCKET NUMBER: AR2003084460

         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
Ms. Deyon D. Battle		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Ms. Kathleen A. Newman		Member
Mr. Patrick H. McGann		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: Transfer of a General Officer Memorandum of Reprimand (GOMOR) from the performance portion to the restricted portion of his Official Military Personnel File (OMPF).

APPLICANT STATES: That he believes that he has paid his dues for the driving under the influence (DUI) incident. He states that he has earned the respect of his chain of command and that he is now in a leadership position (platoon sergeant). He states that he believes that he would be a great asset to the Army and if the GOMOR is removed it might assist him in moving up through the ranks.

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

On 11 September 1992, he enlisted in the Army for 3 years in the pay grade of
E-1. He successfully completed his training as a food service specialist. He is currently on active duty as a result of continuous reenlistments.

The applicant, while serving in the rank of sergeant (E-5), was issued a GOMOR on 14 April 1999. The GOMOR indicates that on 20 March 1999, he was operating a privately owned vehicle while under the influence of alcohol. The GOMOR further indicates that he was observed by military police (MP) driving in an erratic manner, which resulted in a traffic stop and that he was transported to the MP station where a breathalyzer test was administered. The test showed that the alcohol concentration in his breath was 0.121 grams of alcohol per 210 liters of breath as shown by chemical analysis. The commanding general (CG) stated that by his actions, the applicant abrogated his responsibilities as a noncommissioned officer and that he had a duty to act responsibly, to exercise mature judgment, and to set a proper example for subordinates. The CG further stated that the applicant must not act in a manner that brings discredit to the military and that by driving while intoxicated he failed in his responsibility. The commander imposed the reprimand as an administrative measure and not as punishment under Article 15, Uniformed Code of Military Justice (UCMJ). The CG informed the applicant that he was considering recommending that the GOMOR be filed in his Official Military Personnel File (OMPF); however, he would not make a final determination regarding the filing until after he had received and considered any response that the applicant might make.

On 28 April 1999, the applicant submitted a rebuttal to the GOMOR. In the rebuttal, he stated that has been in the military since 10 September 1992 and that he would like to stay in the military a great deal longer. He stated that he realized that he was being punished for an inexcusable mistake that he made and that he failed to uphold roles and responsibilities as a noncommissioned officer. He stated that he was reduced to the rank of specialist (E-4); that his pay was garnished; and that he received extra duty. He stated that the mistake he made was very stupid and he had no excuse for conducting himself in the
manner in which he did and that he was prepared to accept his punishment and stay in the military for several more years and earn his sergeant stripes back. He stated that he had a desire to remain in the military for several more years and eventually be promoted to sergeant first class or even master sergeant. He concluded his rebuttal letter by stating having a GOMOR in his OMPF could be detrimental to his career and he requested that the GOMOR be placed in his local file.

The applicant also enlisted the services of an attorney who submitted a letter to his CG dated 29 April 1999, requesting that the GOMOR be filed locally. In the letter the attorney stated that when the applicant was pulled over, the MPs were clearly out of their jurisdiction. He stated that according to United States Army Europe Regulation 190-52, Police and Investigative Service and Selection and Employment of Military Police, Unit Police and Courtesy Patrols, Appendix B, paragraph 2, states that MP will not pursue on an autobahn or similar high-speed roadway or in metropolitan areas except when the privately owned vehicle is an immediate danger to life or severe traffic hazard. The attorney went on to state that the evidence obtained from such an extra-jurisdictional search might have been excluded at a court-martial if the applicant had refused to accept NJP. He stated that the applicant accepted NJP because he knew he was wrong and he had no desire to stand on a legal technicality. He stated that the applicant took the maximum punishment he was given like a man and that before receiving NJP and the GOMOR, he was also given 42 hours of after-duty corrective training. The attorney went on to describe how, after regular duty hours, for 21 days, consecutively, the applicant’s chain of command had him stand at the gate and check drivers for possible driving while intoxicated (DWI). The attorney stated that the applicant’s driving privileges had been suspended and that he had already been punished for his DWI in several different ways. He stated that the Army justice system should be swift and sure; however, it should also be fair and he questioned whether or not it was really fair for the Army to punish a soldier in so many different ways. The attorney concluded by stating that he believed that the purpose of the punishment would be adequately served without OMPF filing as the applicant never lied about the DWI and has taken the great deal of punishment his command has given him like a man. The attorney requested that the applicant be allowed to get beyond this incident to show what an outstanding soldier he could become.

On 24 May 1999, the CG directed that the GOMOR be filed in the applicant’s OMPF. Accordingly, the GOMOR was filed on the performance fiche in his OMPF.

The applicant’s records show that he received a Change of Rater NCO Evaluation Report (NCOER) for the period covering December 1998 through April 1999, which shows that he was fully capable and received a DUI for this period. However, his annual NCOER for the period covering May 2000 through
April 2001 and a change of rater NCOER for the period covering May 2001 through February 2002 show that he was among the best and he received top block markings on both.

In an undated memorandum the applicant appealed to the President, Department of the Army Suitability Evaluation Board (DASEB) requesting that the GOMOR be transferred from the performance portion to the restricted portion of his OMPF. In his appeal, he stated that he fully acknowledges and takes responsibility for his actions on 20 March 1999. He stated that he believes that he has risen above the incident and demonstrated his ethical and moral fortitude at this point in his career. He stated that he realizes that his actions were wrong and that he deserved the punishment that he received; however, the Article 15 was placed on his restricted fiche while the GOMOR was placed on his performance fiche. He stated that it would be in the best interest of the Army to retain and advance NCOs like himself and that the suggested course of action in the GOMOR was for him to re-examine his actions and to take the steps necessary to avoid future breaches of professional conduct, which he had done. He stated that he has always been rated as among the best and that he attended the basic noncommissioned officers course and received a 94 percent average. He stated that after being reduced from pay grade of E-5 to E-4, the same chain of command had enough confidence in him to have him re-boarded which resulted in his being re-advanced to the pay grade of E-5 in less than 1 year. He stated that 1 year after being promoted to pay grade E-5 he was promoted to staff sergeant (E-6), a position in which he takes great pride and he asked that he be allowed to continue serving our nation and the Army to his full potential. Along with the appeal to the DASEB he submitted 10 letters from individuals in his chain of command recommending that the GOMOR be transferred from his performance fiche to his restricted fiche.

A review of the applicant’s OMPF fails to reveal the Article 15 that the applicant received as a result of the DUI.

On 3 October 2002, the DASEB voted to deny the transfer of the GOMOR to the restricted portion of the applicant’s OMPF. The DASEB based its decision on the allied documents for issuance of the GOMOR. The DASEB opined that the conduct that caused the GOMOR was serious and that the evidence provided was not sufficient to support that the intended purpose of the GOMOR as been served. The DASEB further opined that the limited elapsed time since the incident is insufficient to prove this to be an isolated incidence of poor judgment involving DUI. The DASEB noted that there was nothing from the imposing authority to support the applicant’s request to transfer the GOMOR.

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 (Policies and Standards) states, in pertinent part, that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal of the OMPF.

Army Regulation 15-185 prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). It provides for the correction of military records in cases where there is clear evidence that the record is in error or unjust.

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 notes the applicant’s contention that the GOMOR in question has served its purpose. However, the CG directed that the GOMOR be filed on the performance fiche in his OMPF and the applicant has failed to submit any supporting documentation from the imposing authority to support his contention. Therefore, he has failed to convince this Board that the GOMOR has served its intended purpose.

2. By regulation, once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its removal from or transfer within the OMPF.

3. The evidence of record confirms that the GOMOR in question was issued and filed in accordance with the applicable regulation. The Board is satisfied that all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the process.

4. In the opinion of the Board, there is currently no error or injustice related to the filing of the GOMOR in question on the performance fiche of the applicant’s OMPF. Further, there is no evidence that the applicant has suffered an injustice as a result of the filing location. Thus, the Board finds no basis to support transfer of the GOMOR at this time.




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 this 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

__kan___ __rvo ___ ___pm___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003084460
SUFFIX
RECON
DATE BOARDED	2003/07/03
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 280	126.0300
2.
3.
4.
5.
6.