RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 19 January 2005
DOCKET NUMBER: AR20040003243
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. Robert J. McGowan | |Analyst |
The following members, a quorum, were present:
| |Mr. Bernard P. Ingold | |Chairperson |
| |Mr. Larry C. Bergquist | |Member |
| |Ms. Delia R. Trimble | |Member |
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 reconsideration of his earlier request to the
Army Board for Correction of Military Records (ABCMR) to expunge a General
Officer Memorandum of Reprimand (GOMOR) from his Official Military
Personnel File (OMPF).
2. The applicant states that he was found not guilty of driving under the
influence (DUI) of alcohol. He also states that in a similar ABCMR case
where a Soldier was found not guilty at trial, the Board recommended
approval of the expunction.
3. The applicant provides:
a. A 2-page, self-authored memorandum, dated 7 April 2004.
b. A complete copy of the Board's original Record of Proceedings in
his case, including his application and all supporting documents.
4. The applicant provides, under separate cover:
a. Two memorandums of support, dated 3 August 2004.
b. A 2-page, self-authored memorandum, dated 1 April 2004
[essentially identical to the document at 3a above].
c. A copy of ABCMR Proceedings for Docket Number AR2000035774, dated
26 September 2000. In this case, the Board expunged the drunk driving
GOMOR issued to a Soldier after he was found not guilty in a court of law
because he successfully challenged the reliability of the results of his
blood-alcohol content (BAC) test and the court invalidated the results.
d. Another copy of his original Record of Proceedings with
enclosures.
e. A copy of a Christian County (Kentucky) Court Docket. This
document described the applicant's jury trial and resultant verdict of not
guilty.
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR2003087980, dated 13 November 2003.
2. The gravamen of the case cited by the applicant [AR2000035774] was that
the BAC test was unreliable [presumably because of equipment malfunction]
and the results were, therefore, invalid. In the cited case, the court
provided clear cut documentation of same.
3. The court document submitted by the applicant regarding his verdict of
not guilty makes no reference to the reliability of the BAC testing process
or the validity of the results.
4. Army Regulation 190-5 (Motor Vehicle Traffic Supervision) mandates that
a GOMOR will be issued a Soldier driving, or being in physical control of a
motor vehicle on-post when the blood alcohol content is 0.10 percent or
higher, irrespective of other charges, or off-post when the blood alcohol
content is in violation of State laws.
DISCUSSION AND CONCLUSIONS:
1. The ABCMR case cited as a reference does not resemble the circumstances
of the applicant's case. In that case, the evidence [BAC test] used to
convict the Soldier was invalidated, and proof of that invalidation was
provided. The applicant has provided no such proof in his case.
2. Pertinent Army regulations require that Soldiers in physical control of
a vehicle with a blood alcohol content above the legal limit will be issued
a General Officer Memorandum of Reprimand.
3. The applicant’s GOMOR proceedings were conducted in accordance with law
and regulations applicable at the time. The issuance of a GOMOR was
mandated regardless of the outcome.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__bpi___ __lcb___ __drt___ 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 to amend the decision of
the ABCMR set forth in Docket Number AR 2003087980, dated 13 November 2003.
Bernard P. Ingold
______________________
CHAIRPERSON
INDEX
|CASE ID |AR20040003243 |
|SUFFIX | |
|RECON | |
|DATE BOARDED |20050119 |
|TYPE OF DISCHARGE | |
|DATE OF DISCHARGE | |
|DISCHARGE AUTHORITY | |
|DISCHARGE REASON | |
|BOARD DECISION |DENY |
|REVIEW AUTHORITY | |
|ISSUES 1. |134.0400 |
|2. | |
|3. | |
|4. | |
|5. | |
|6. | |
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