RECORD OF PROCEEDINGS


           IN THE CASE OF


      BOARD DATE:         13 November 2003
      DOCKET NUMBER  AR2003087980

      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. Arthur A. Omartian            |     |Chairperson          |
|     |Ms. Eloise C. Prendergast         |     |Member               |
|     |Mr. Ronald E. Blakely             |     |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).




THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that he be promoted to staff
sergeant/E-6
(SSG/E-6) with a date of rank of 1 June 2002 and that a General Officer
Memorandum of Reprimand (GOMOR) be removed from his Official Military
Personnel File (OMPF).

2.  The applicant states, in effect, that based on a driving under the
influence (DUI) charge he was improperly issued the GOMOR and was removed
from the promotion standing list even though he was found innocent by a
jury in a civilian court.  He claims that his unit commander requested that
he be removed from the promotion standing list and the memorandum he
received from the Fort Campbell, Kentucky, Military Personnel Office
(MILPO) Promotions Branch, that officially removed him from the list stated
that he was removed because he had received punishment under the provisions
of Article 15 of the Uniform Code of Military Justice (UCMJ) and
incorrectly cited the portion of the promotion regulation that pertains to
failure of the Army Physical Fitness Test (APFT).

3.  The applicant further states that based on the recommendation of
members of his chain of command, he received the GOMOR for driving a motor
vehicle in the State of Kentucky with a blood alcohol content of .08 or
higher.  He states that he was told the GOMOR would be filed in his OMPF
because he had indicated in his rebuttal that he was innocent of the charge
and this showed that he did not take responsibility for his actions.  He
states that he received this GOMOR after he had already been found innocent
of this charge in civilian court.  The applicant further states that he has
made repeated attempts to be promoted based on his being exonerated of the
offense, but these attempts have met with no success.  He claims that it is
his hope that by petitioning this Board, it will finally result in someone
properly applying the regulatory policy.

4.  The applicant provides the following documents in support of his
application:
22 April 2002 counseling statement from his detachment sergeant;  22 April
2002, Report to Suspend Favorable Personnel Actions (FLAG-DA Form 268), DA
Form ;
2 July 2002 memorandum from his unit commander requesting that he be
removed from the promotion standing list; 11 July 2002 promotions branch
memorandum that officially removed him from the promotion list; 9 October
2002 Christian County Court, Kentucky document containing his not guilty
verdict from a civilian jury; 17 September 2002 GOMOR; 10 October 2002
rebuttal to GOMOR; 22 November 2002 GOMOR filing decision; 20 November 2002
memorandum requesting reinstatement to the promotion list; 22 November 2002
counseling statement from his detachment sergeant; 19 April 2002 DUI
citation; and extracts from applicable regulations.  He also provides
printouts of the local July 2002 C-10 roster (promotion list) with his name
on it and the August
C-10 with his name removed.  Finally, he provides documents that he claims
support an increase to his promotion points.


CONSIDERATION OF EVIDENCE:

1.  As of the date of his application to this Board, the applicant was
still serving as a sergeant (SGT) on active duty in Europe.

2.  On 19 April 2002, the applicant was detained by civilian law
enforcement and charged with DUI of alcohol.  The uniform citation issued
for this offense indicated that the applicant’s blood alcohol content was
.116 percent.

3.  On 22 April 2002, a FLAG action was imposed on the applicant that was
effective
19 April 2002.  The reason cited in the DA Form 268 was adverse action.

4.  On 23 April 2002, the applicant’s detachment sergeant counseled him in
regard to the DUI charge.  Included in this counseling statement was the
notification to the applicant that at a minimum he would be FLAGGED,
command referred to the Army Drug and Alcohol Prevention Control Program
(ADAPCP), and would receive a GOMOR.  The applicant was also informed that
further punishment would be withheld pending the outcome of the civil court
action.  The applicant signed this document and indicated that he agreed
with outlined plan of action.

5.  On 3 July 2002, the applicant’s unit commander notified the servicing
MILPO that the applicant had been Flagged for an adverse action and as a
result he should be removed from the promotion standing list.  On 11 July
2002, the servicing MILPO formalized the applicant’s removal from the
promotion list, citing an incorrect cite and indicated that the action was
based on the applicant’s receipt of punishment under Article 15, UCMJ.

6.  On 17 September 2002, the commanding general (CG), 101st Airborne
Division,
Fort Campbell, Kentucky, issued a GOMOR to the applicant.  The CG stated
that the applicant was reprimanded for driving a motor vehicle with a blood
alcohol level of
.08 percent or higher.  The applicant acknowledged receipt of the GOMOR and
indicated that he intended to submit statements in his own behalf.

7.  On 9 October 2002, the applicant was found not guilty of the charge by
a jury in the Christian County, Kentucky court.  There is no reference to
the applicant’s blood alcohol content in this document or that clarifies
the basis for the verdict.

8.  On 10 October 2002, the applicant submitted a rebuttal to the GOMOR and
requested that the GOMOR be filed locally because he was found innocent of
the charge of operating a motor vehicle while under the influence of
alcohol.
9.  On 20 November 2002, the applicant requested that he be reinstated on
the promotion list.  He indicated that he was removed from the list for an
adverse action, but had been completely exonerated of all charges connected
to the adverse action in civilian court.

10.  On 22 November 2002, the applicant’s detachment sergeant counseled the
applicant in regard to his request for reinstatement on the promotion list.
 The detachment sergeant indicated that on the night of the DUI incident
the applicant had a blood alcohol content of .116 percent and although he
was found not guilty in civilian court, this did not totally exonerate him
of his actions.  The detachment sergeant further stated that at no time
during the trial did the court indicate that the applicant’s blood alcohol
content was incorrect, and while applicant’s defense counsel raised enough
evidence to raise a reasonable doubt in at least one juror’s mind, which
resulted in a not guilty verdict, this did not totally exonerate the
applicant.  The detachment sergeant further stated that the applicant
himself made statements to his unit commander and first sergeant admitting
that he was drinking prior to driving on the evening in question, which
clearly shows he was not completely free of any wrongdoing.  The detachment
sergeant stated that he would not support the applicant’s request for
reinstatement on the promotion list; however, if the applicant could
provide proof that he did not have a blood alcohol level of .08 percent or
higher, he would gladly work to have the applicant reinstated on the
promotion list.

11.  The final recommendations of the detachment sergeant’s counseling were
that the applicant instead of acting as if he had been victimized by the
events that led to his removal from the promotion list should instead
accept responsibility for his actions and the consequences of those
actions.  Further, that the applicant should from then on instead of
attempting to be reinstated on the promotion list, accept the consequences
of his actions and work toward earning promotion.  Finally, that the
applicant not continue to takes actions that amount to a waste of time for
him and the chain of command.  The applicant signed this counseling
statement and indicated that he agreed with its contents.

12.  On 22 November 2002, the CG, 101st Airborne Division, after having
reviewed the GOMOR and the matters submitted therewith, directed that the
GOMOR be filed in the applicant’s OMPF.

13.  On 10 July 2003, the FLAG action on the applicant was removed.  The DA
Form 268 indicated that the case had been closed favorably on 8 October
2002.
14.  In connection with the processing of this case, an advisory opinion
was obtained from the Deputy Chief, Promotion Branch, United States Total
Army Personnel Command (PERSCOM).  This promotion official stated that the
record confirmed that the applicant was FLAGGED for an adverse action
effective 19 April 2002.  Further, he was enrolled the ADAPCP from 19 April
through 5 August 2002.  As a result, by regulation, he was in a non-
promotable status during the period of ADAPCP enrollment. In addition, the
promotion regulation requires that soldiers who receive a GOMOR that is
filed in the OMPF be immediately removed from the promotion list.  Finally,
this PERSCOM official recommended that the applicant’s request to be
promoted to
SSG/E-6  with a date of rank and effective date of 1 June 2002 be denied.

15.  On 2 July 2003, the applicant responded to the PERSCOM advisory
opinion.  He stated that the promotion regulation states that soldiers who
otherwise would have been promoted while enrolled in the ADAPCP will be
promoted after successful completion of the program.  The applicant further
states that, in effect, because his FLAG action was lifted as a result of
his case being favorably resolved and because he was found not guilty of
the DUI charge by a civilian jury, he should be promoted with his peers.
The applicant further states that although the regulation requires soldiers
who receive a GOMOR filed in the OMPF to be removed from the promotion
list, he was removed prior to the GOMOR being issued, and he was ultimately
found innocent.  He again refers to the portion of the regulation that
states that soldiers completely exonerated for the reason that caused
removal will be reinstated if the action that caused removal was erroneous
or should not have been imposed so that the solider is free of any
wrongdoing or accusations.  He concludes by stating that he was completely
exonerated.

16.  Army Regulation 600-8-19 prescribes the Army’s enlisted promotions and
reductions policy.  Paragraph 1-10 lists reasons that soldiers are placed
in a
non-promotable status.  Included in this list are soldiers who are FLAGGED
and soldiers who are enrolled in the ADAPCP.  Paragraph 1-11 outlines the
policies for those soldiers whose promotions were delayed as a result of
being FLAGGED.  It states that if the soldier's final report is closed
"Favorable" (soldier was completely exonerated of any wrongdoing) and he or
she would have been promoted while the suspension of favorable personnel
actions was in effect, provided otherwise qualified, he or she will be
promoted.  It further states that the effective date and date of rank will
be that of his or her peers.

17.  Paragraph 3-31 of the promotions regulation contains the rules for
removing members from a promotion list.  It states, in pertinent part, that
a soldier will be immediately removed from the recommended list when a
memorandum or letter of reprimand, admonition, or censure is received and
filed in the soldier's OMPF in accordance with AR 600-37.
18.  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 a clear and convincing nature
that the document is untrue or unjust, in whole or in part, thereby
warranting its alteration or removal from the OMPF.  Chapter 7 also sets
forth the policies and procedures for seeking the removal of unfavorable
information from the OMPF or its transfer to the
R-Fiche.  It directs that all appeals and petitions for removal or transfer
of unfavorable information will be directed to Department of the Army
Suitability Evaluation Board (DASEB).

19.  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.  The regulation further stipulates that prior to consideration
of any case by the ABCMR, all administrative remedies must have been
exhausted.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that he should be promoted to SSG/E-6 with
a date of rank and effective date of 1 June 2002 and that the GOMOR he
received should be removed from his OMPF, and the evidence he submitted in
support of these claims were carefully considered.  However, it was
determined that there was an insufficient evidentiary basis to support the
applicant’s assertions.

2.  By regulation, an official document that has been properly filed in the
OMPF 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
a clear and convincing nature that the document is untrue or unjust, in
whole or in part, thereby warranting its alteration or removal from the
OMPF.  Appeals for removal of unfavorable information must be directed to
DASEB.  Therefore, until the applicant has exhausted his administrative
remedies by petitioning the DASEB for removal of the document, the
regulatory presumption of regularity is applicable in this case.

3.  Given it is presumed that the GOMOR was properly issued and filed in
accordance with the applicable regulations, the applicant’s removal from
the promotion list was required by regulation.  Further, notwithstanding
the not guilty finding of the civilian court in this case, the evidence
does not provide a basis to conclude that this decision completely
exonerated the applicant of the reason for the GOMOR.
4.  As indicated in the initial DUI citation and in subsequent counseling
statements, the applicant’s blood alcohol content at the time of the
incident was .116 percent.  This fact has never been contested by the
applicant and it was not addressed in the court documents that contained
the not guilty verdict, which appears to have been the result of procedural
errors made by the law enforcement officials involved.  Therefore, the
civilian court decision does not provide a basis to conclude that the GOMOR
should never have been issued.

5.  Further, although the applicant points out that the documents used to
remove him from the promotion list contained erroneous information and that
some procedural errors may have been made in the removal process, these
errors were not significant enough to void the removal action.  The
regulatory basis for removal was the filing of the GOMOR in the OMPF, and
unless it is determined that this document was issued in error and it is
removed from the record, the removal action remains valid.

6.  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.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

_ECP___  __REB__  _AO__    _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




            Arthur A. Omartian
                                                       CHAIRPERSON






                                    INDEX

|CASE ID                 |AR2003087980                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2003/11/DD                              |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |N/A                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  21   |102.0700                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |



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