MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 6 November 2003
                  DOCKET NUMBER: AR2003084906

         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. Carolyn Wade		Analyst

The following members, a quorum, were present:

Mr. Stanley Kelley		Chairperson
Mr. Raymond J. Wagner		Member
Ms. Mae M. Bullock		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: Removal of the sentence on his officer evaluation report (OER), dated 13 February 1999, that states, “Unfortunately, his potential for promotion and future service is adversely impacted by his receipt of a General Officer Memorandum of Reprimand associated with an off duty incident.”

APPLICANT STATES: That he appealed a General Officer Memorandum of Reprimand (GOMOR) and was successful in having it removed from the performance fiche of his Official Military Personnel File (OMPF) and transferred to the restricted fiche. He states that the subject OER unfairly references the GOMOR and such reference should be removed. He concludes that, without its removal, the statement will prejudice future promotion considerations.

In support of his request, the applicant submits the following documents:
(1) Letter written by a retired Major General and author of the GOMOR; (2) 20 June 2002 memorandum from the DA Suitability Evaluation Board (DASEB); (3) OER appeal; (4) Resolution of appeal; (5) Subject OER; and (6) Transcripts from Joint Military Intelligence College (JMIC).

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

He is a captain/0-3 serving on active duty in the United States Army. He is currently assigned to Korea.

On 28 April 1999, the applicant was stopped by a Lawton (Oklahoma) police officer for running a red light. Suspecting that the applicant was intoxicated, the officer performed a field sobriety test on the applicant, which he failed. The applicant was then offered a breathalyzer test, which he refused. The applicant was charged with driving under the influence (DUI) and failing to obey a traffic light.

On 6 May 1999, a Major General issued the applicant a GOMOR for DUI and refusing to submit to a lawfully requested blood-alcohol test (breathalyzer test).

On 30 June 1999, the applicant received a 5-month change-of-rater OER for the period 13 February 1999 through 30 June 1999. At the time the applicant received the OER, he was serving as a Threat Analyst for HHB (Headquarters and Headquarters Battery), 1-30th Field Artillery, Fort Sill, Oklahoma. The OER was referred to the applicant; however, he declined to provide a rebuttal statement and did not request a commander’s inquiry.

On 15 March 2000, the applicant was removed from the fiscal year (FY) 1999 Major’s Promotion List.

On 4 March 2002, the Major General who imposed the GOMOR provided the applicant a letter of support stating why he imposed the GOMOR and why he thought it was now appropriate to remove the GOMOR from the applicant's OMPF.

On 11 April 2002, the applicant appealed to the DASEB requesting removal of the GOMOR from his OMPF. He stated that since the issue of the GOMOR, he had continued to perform at a high level. He stated that he has received a Meritorious Service Medal (MSM) and completed JMIC, earning a master’s degree.

On 20 June 2002, the DASEB, having reviewed the applicant’s appeal and supporting documents, granted partial relief by transferring the GOMOR to the applicant’s restricted fiche citing intent served as the reason for the transfer. The applicant then appealed to the US Army Total Army Personnel Command (PERSCOM) requesting that the subject sentence be removed from his OER.

On 26 November 2002, the staff of the Appeal and Corrections Branch, PERSCOM, informed the applicant that his OMPF and documents submitted by him were reviewed by the Officer Special Review Board (OSRB), which found that the evidence did not justify altering or withdrawing the OER.

Army Regulation 623-105 (Officer Evaluation Reporting System), in effect at the time, prescribed the officer evaluation function of the military personnel system and provided principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support the Officer Evaluation System (OES) and Officer Evaluation Reporting System (OERS). It also provided guidance regarding redress programs including commander inquiries and appeals.

Paragraph 6-6 contained the policies for submitting an appeal to an OER. It stated, in pertinent part, that an evaluation report accepted by HQDA and included in the official record of an officer is presumed to be administratively correct; have been prepared by the properly designated rating officials; and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.

Paragraph 6-10 contained guidance on the burden of proof and type of evidence necessary to support the submission of an OER appeal. It stated, in effect, that the burden of proof rests with the appellant. Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity referred to in paragraph 6-6 should not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

Army Regulation 600-37 (Unfavorable Information) prescribes policies and procedures regarding unfavorable information considered for inclusion in official personnel files. Paragraph 3.6 of this regulation requires that unfavorable information will be referred to the recipient for information and acknowledgment of his or her rebuttal opportunity.

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 contentions of the applicant and, after carefully examining all the evidence, finds that the applicant has not met the regulatory burden of proof necessary to show the contested OER was unjust or contained substantive error.

2. The contested OER was prepared and submitted in accordance with the applicable regulation, in effect at the time, and there is no evidence to suggest that it contained a material error, was inaccurate, or that it was an unjust evaluation of the applicant.

3. The Board also noted that the OER was referred to the applicant for rebuttal; however, he declined to provide a rebuttal statement and did not request a commander’s inquiry, nor was one conducted.

4. Although the DASEB transferred the GOMOR to the applicant’s restricted fiche on the basis that the GOMOR had served its purpose, the DASEB’s decision did not imply that the GOMOR was unjust, unfair, or inaccurate. Furthermore, transfer of the GOMOR does not dictate removal of the senior rater sentence referring to the GOMOR from the applicant’s OER.

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

__sk____ __rjw___ __mmb___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003084906
SUFFIX
RECON
DATE BOARDED	20031106
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	111.0100
2.
3.
4.
5.
6.