RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            1 DECEMBER 2005
      DOCKET NUMBER:   AR20050006031


      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. John T. Meixell.              |     |Chairperson          |
|     |Ms. Maribeth Love                 |     |Member               |
|     |Mr. Richard G. Sayre              |     |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:

The applicant’s requests, arguments and supporting documents are provided
by counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant be promoted to
lieutenant colonel (LTC) effective the date he would have had he been
selected in 2003 or 2004; that he be awarded back pay and allowances for a
period of time from the date he would have been promoted through the
present; and that the 25 July 2003 General Officer Memorandum of Reprimand
(GOMOR) and associated documents, as well as documents pertaining to the
Promotion Review Board (PRB) be removed from his Official Military
Personnel File (OMPF).

2.  Counsel states, in effect, that the GOMOR imposed on the applicant on
25 July 2003 contained two allegations against the applicant that are
false.  First the GOMOR alleged the applicant became intoxicated and his
resultant disorderly behavior caused the intervention of local police and
ultimately the Fayetteville Police Department, which is factually
incorrect.  Second the GOMOR alleged that on 12 July 2003, an officer of
the Fayetteville Police Department (one of the same officers involved in
the earlier incident) purportedly while conducting a roadside stop of the
applicant’s vehicle detected an odor of alcohol and a subsequent
breathalyzer test reflected a blood alcohol concentration of .12.  This
assertion in the GOMOR is also incorrect.

3.  Counsel further states that the applicant retained civilian counsel
(not him) to prepare a response to the 25 July 2003 GOMOR, in which local
filing was requested.  However, the GOMOR was directed to be filed in the
applicant’s OMPF.  The filing decision contained a recommendation that
separation proceedings not be initiated on the basis of the GOMOR action;
however, it also contained a recommendation that the promotion status of
the applicant on the 2003 LTC promotion list be reconsidered.
Consequently, the applicant was notified in a 7 January 2004 memorandum
that he was being referred to a PRB based on the 25 July 2003 GOMOR.

4.  Counsel states that in a 25 February 2004 memorandum prepared with his
assistance, the applicant submitted a comprehensive response for
consideration by the PRB.  On 15 November 2004, the applicant was informed
by memorandum that he had been removed from the promotion list.  The
applicant’s record is scheduled to be reviewed by the 2005 promotion
selection board that is scheduled to begin on 28 February 2005.

5.  Counsel provides the following documents in support of the application:
 Petition Brief; Officer Records Brief (ORB); Awards/Decorations; GOMOR;
Civilian Counsel GOMOR Response; GOMOR Filing Determination; PRB
Notification; Reply to PRB Notification; PRB Removal Letter; Human
Resources Command (HRC) Electronic Mail (e-mail); Officer Evaluation Report
(OER); and Major General (MG) Character Reference.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows he was commissioned a second lieutenant in
1987 after having completed 39 months of enlisted service.  He was promoted
to major on 1 August 1998 and is currently serving as a Liaison Officer
with Special Operations Command Central (SOCCENT), MacDill Air Force Base,
Florida.

2.  On 25 July 2003, the applicant received a GOMOR from the Deputy
Commanding General (DCG) of the United States Army Special Operations
Command (USASOC), Fort Bragg, North Carolina.  The DCG reprimanded the
applicant for being drunk and disorderly, conduct unbecoming an officer,
and driving while impaired (DWI).

3.  The GOMOR indicated that on 20 December 2002, the applicant was
intoxicated and was asked to leave a café in Fayetteville, North Carolina.
It further stated that the applicant refused to leave the establishment
after being asked to do so by an establishment employee and a local police
officer, and he was subsequently apprehended, handcuffed and transported to
Fort Bragg.

4.  The GOMOR further indicated that on 12 July 2003, the Fayetteville
Police conducted a roadside stop of the applicant’s vehicle and detected an
odor of an alcoholic beverage emitting from the applicant’s vehicle.  The
applicant was administered a field sobriety test, and after being
apprehended, a breathalyzer exam, which indicated a blood alcohol content
of .12 grams of alcohol
per 100 milliliters of blood.

5.  The DCG indicated that the applicant’s flagrant disregard for the law,
the safety of others, and public intoxication demonstrated a lack of
responsibility and judgment.  He also indicated that the applicant’s
misconduct constituted a serious departure from the high standards expected
of a commissioned officer in the command.  He also stated that the
reprimand was imposed as an administrative measure and not as punishment
under the Uniform Code of Military Justice (UCMJ).

6.  On 28 July 2003, the applicant acknowledged receipt of the GOMOR and
indicated that he read and understood the unfavorable information presented
against him.  He also elected to submit statements in his own behalf.

7.  On 8 August 2003, a civilian attorney submitted a response to the GOMOR
on behalf of the applicant, and urged the DCG to file the GOMOR locally and
thereby preserve the applicant’s career.  Counsel contended that the
applicant’s record was so exceptional that it was in the interest of the
Army to keep his OMPF untainted by derogatory information.  Counsel further
stated that there were sufficient procedures available to ensure that the
underlying conduct that precipitated the reprimand would not be repeated.
Counsel further stated that nether of the incidents upon which the GOMOR
was based resulted in a finding of guilty.  He stated that the applicant
was acquitted and a judicial finding of not guilty should not be taken
lightly.  Counsel also stated it was not his position that the applicant’s
conduct during the incidents in question was above reproach, and the
incidents resulted in the applicant reevaluating his drinking habits.
Counsel also admitted that while the applicant was not guilty of criminal
conduct, on each occasion he was consuming alcohol and it appears his
judgment was affected by his drinking.

8.  On 11 September 2003, the DCG concluded the GOMOR should be filed in
the applicant’s OMPF, but that elimination proceedings should not be
initiated on the basis of the GOMOR filing action; however, the applicant’s
promotion status on the 2003 LTC promotion list should be reconsidered.

9.  On 7 January 2004, the Deputy Chief, Promotions Branch, HRC, informed
the applicant and his command that based on the GOMOR he received, his
records would be referred to a PRB, which would recommend to the Acting
Secretary of the Army, one or more of the following:  that he be retained
on the promotion list; that his name be removed from the promotion list; or
that he show cause for retention on active duty.

10.  On 29 January 2004, the applicant acknowledged receipt of the PRB
notification.  On 25 February 2004, the applicant’s civilian attorney
submitted a response to the PRB action, which included a personal response
from the applicant.  Counsel indicated that it was important to point out
that the GOMOR is factually incorrect and most importantly failed to
recognize valid decisions by Judges of the General Court of Justice for the
State of North Carolina.  The misconduct cited in the GOMOR was considered
by the North Carolina District Courts.  In one matter, a “Prayer of
Judgment” was entered, which indicated no entry of judgment.  This meant
the applicant was never found guilty of the misdemeanor offense of
trespassing.  Secondly, the DCG when imposing the GOMOR did not recognize
or respect the judgment of a presiding North Carolina Judge, which was that
the applicant was not guilty of driving under the influence (DUI).

11.  The applicant’s personal rebuttal to the PRB action indicated that the
allegation that he was drunk and disorderly in a public establishment that
resulted in the intervention of local police was factually incorrect.  He
further stated that the same GOMOR alleged that Fayetteville Police, while
conducting a road side stop of his vehicle detected an odor of alcohol and
that a subsequent breathalyzer test reflected a blood alcohol content of
.12, which was also factually exaggerated and incorrect.  He claimed that
the incident in the café was the result of a professional disagreement
between himself and a Fayetteville Police Officer, who was working off duty
as a bouncer.  He claims that the Police Officer’s unprofessional actions
and lack of courtesy to him resulted in his refusing to leave the
establishment.  As a result, he was cited for misdemeanor trespassing.
When he appeared in court on this charge, a “Prayer of Judgment” was
submitted, which essentially meant no judgment was entered on this matter.

12.  Regarding the second incident, the applicant stated that it was
important to understand that the same Fayetteville Police Officer who he
was involved in the café incident, was the one who stopped him in the
vicinity of his residence.  The applicant stated that he was still unaware
of the basis of his originally being stopped; however, he suspects it was
intentional based on the first incident.  He claims he was charged with DUI
despite the fact he successfully completed the field sobriety test at the
scene.  The citation also shows that he was found not guilty of DUI by a
North Carolina Judge.  He claims that letters prepared by his civilian
counsel show the Police Officer testified that he stopped him because the
vehicle seemed suspicious.  He further states that his attorney’s
correspondence also shows the Police Officer confirmed he passed the field
sobriety tests and that he was ultimately found not guilty.

13.  On 13 May 2004, a PRB convened to consider the applicant’s case.  It
concluded that the incidents that resulted in the applicant being referred
to the board when taken in conjunction with his overall performance as
demonstrated in his file did not warrant his removal from the LTC promotion
list.  This recommendation was found legally sufficient by the Office of
The Judge Advocate General (OTJAG).  The Deputy Chief of Staff, G-1,
Assistant Secretary of the Army (Manpower and Reserve Affairs), and Vice
Chief of Staff of the Army recommended approval of the PRB recommendation.


14.  The Chief of Staff of the Army (CSA) commented that the applicant was
involved in two separate incidents of intoxication six months apart and
recommended that the applicant be removed from the LTC promotion list.  The
Acting Secretary of the Army commented that after the first incident, the
applicant should have ensured his conduct thereafter was above reproach.
Poor judgment on the applicant’s part resulted in the second DUI incident
and he agreed with the applicant’s commander and the CSA.  As a result, he
disapproved the PRB recommendation and directed the applicant be removed
from the LTC promotion list.

15.  On 15 November 2004, the Deputy Chief, Promotions Branch, HRC,
notified the applicant and his command that his record was reviewed by a
PRB, and that The Secretary of the Army decided to remove his name from the
promotion list.

16.  The commanding general (CG) of SOCCENT provided a character reference
on the applicant.  He indicated that the OER he gave the applicant fully
conveyed his opinion of the applicant’s performance while under his
command.  He also indicated that he placed the applicant in a position of
great trust and responsibility, with wide latitude to exercise his own
judgment and represent the United States and SOCCENT to an important
regional ally.  The applicant performed excellently and he rated him
accordingly.  He stated that he accepted the applicant for assignment to
SOCCENT for further service and expected continued outstanding results.  He
indicated it was his hope that the applicant continue to serve with
distinction and that he be afforded every opportunity to reach his
potential as an officer, including timely promotion and career advancement.


17.  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; to ensure that unfavorable
information that is unsubstantiated, irrelevant, untimely, or incomplete is
not filed in individual official personnel files; to ensure the best
interests of both the Army and the Soldiers are served by authorizing
unfavorable information to be placed in and, when appropriate, removed from
official personnel files.

18.  Paragraph 3-4 of the unfavorable information regulation contains
guidance concerning administrative letters/memorandums of reprimand,
admonition, or censure.  It states, in pertinent part, that the authority
to issue reprimands to commissioned officers and warrant officers is
restricted to the recipient's immediate commander or a higher level
commander in the chain of command (if such commander is senior in grade or
date of rank to the recipient); the designated rater, intermediate rater,
or senior rater under the officer evaluation reporting system; any general
officer (to include one frocked to the rank of brigadier general) who is
senior to the recipient or an officer who exercises general court-martial
jurisdiction over the recipient.  A reprimand, regardless of the issuing
authority, may be filed in the OMPF only upon the order of a general
officer (to include one frocked to the rank of brigadier general) senior to
the recipient or by direction of an officer having general court-martial
jurisdiction over the individual.

19.  Army Regulation 600-8-29 (Officer Promotions) provides the Army’s
officer promotion policy.  Chapter 8 contains guidance on Promotion Review
Boards.  It states, in pertinent part, that the President, or his designee,
may remove the name of an officer, in a grade above second lieutenant, from
a list of officers recommended for promotion by a selection board.  This
authority has been delegated to the Secretary of the Army.

20.  Paragraph 8-8 of the officer promotion regulation contains guidance on
PRB recommendations.  It states that the PRB's recommendation is only
advisory to The Secretary of the Army.  In cases involving promotion to the
grade of colonel or below, the board's report will be forwarded to the
Secretary of the Army, who on behalf of the President, may remove from the
promotion list the name of the officer, in a grade above second lieutenant,
retain the officer on the promotion list, return the report to the DCS, G-
1, or direct other appropriate action.

DISCUSSION AND CONCLUSIONS:

1.  The contention of the applicant and his counsel that the allegations
upon which the GOMOR and his removal from the promotion list were based,
and the supporting documentary evidence submitted were carefully
considered.  However, there is insufficient evidence to support granting
the requested relief.

2.  The evidence of record confirms the GOMOR processing and filing was
accomplished in accordance with the applicable regulation.  This was an
administrative reprimand that was based on two alcohol related incidents
that took place within a six-month period.

3.  Although there were ultimately no findings of guilty on the two
incidents, the applicant and his counsel fail to provide evidence that
fully exonerates the applicant of poor behavior resulting from the
inappropriate use of alcohol, which in the opinion of the issuing general
officer constituted conduct unbecoming an officer.  By the applicant and
his counsel’s own admission, his use of alcohol created problems that were
serious enough for him to seek help in order to alter his alcohol
consumption habits.

4.  The evidence of record further shows that the applicant’s referral to a
PRB and his removal from the LTC promotion list were accomplished in
accordance with the governing law and regulation.  All requirements of law
and regulation were met, and the rights of the applicant were fully
protected throughout the removal process.

5.  The evidence submitted for review by the PRB is essentially the same
evidence submitted to this Board by the applicant and his counsel.  The
legal findings and the arguments regarding the Police Officer involved were
considered by The Acting Secretary of the Army during the PRB process.
After careful review of all the evidence submitted, and based on the
recommendation of the CSA, The Acting Secretary of the Army exercised his
delegated authority to remove the applicant from the LTC promotion list.
The evidence now presented by the applicant and his counsel is not so
compelling that it would support reversal of an Acting Secretary of the
Army decision that was essentially made using the same evidence.

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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JTM _  ___ML __  ___RGS_  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.




            _____John T. Meixell_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050006031                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/12/01                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |134.0400                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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