RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 December 2005
      DOCKET NUMBER:  AR20050009267


      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. W. W. Osborn, Jr.             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Bernard P. Ingold             |     |Chairperson          |
|     |Mr. Donald W. Steenfott           |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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 that a memorandum of reprimand imposed by a
general officer (GOMOR) and associated documents be expunged from the
restricted portion of his Official Military Personnel File (OMPF).

2.  The applicant states that he was not intoxicated.  He had consumed one
12 ounce can of beer and had waited one hour before he drove.  This GOMOR
is keeping him from attending the Drill Sergeant Academy.  He strives to
live by Army values and this GOMOR is keeping him from realizing his true
potential.

3.  The applicant provides copies of memoranda of support from a lieutenant
colonel, the Rear Detachment Commander, 3rd Brigade, 3rd Infantry Division;
a captain, the rear detachment executive officer; a master sergeant, the
rear detachment command sergeant major; and the brigade chaplain.  All
support his selection for drill sergeant training.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army in November 1988.  He
weighed 189 pounds.  He was a specialist (E-4) with approximately 4 years
of active duty service when he received a 22 January 1992 GOMOR for driving
while intoxicated in Germany, on 24 November 1991.

2.  The applicant acknowledged the GOMOR and provided a rebuttal in which
he maintained that he was not intoxicated under German law because his
blood alcohol content (BAC) was only .054 at 0036 hours and .060 at 0038
hours and that German law provided that a BAC of .080 was considered
evidence of driving under the influence.

3.  The officer imposing the MOR considered the case and directed filing in
the applicant's OMPF.

4.  The applicant was promoted to staff sergeant on 1 October 1998.  Since
then his Noncommissioned Officer Evaluation Reports show his senior raters
have consistently recommended him for assignment as a drill sergeant and
ranked him in the top blocks for overall performance and potential.  His
awards include the Bronze Star Medal for meritorious service in support of
Operation Iraqi Freedom, the Army Commendation Medal, the Army Achievement
Medal with Oak Leaf Cluster and the Good Conduct Medal (Fourth Award).

5.  The applicant wrote a 20 April 2001 Memorandum for Record to the effect
that the brigade commander had told him the GOMOR would be removed after 3
years and that, "It was proven beyond a reasonable doubt that the offense
that had supposedly been committed was not true in the least.”

6.  The applicant appealed to the Department of the Army Suitability
Evaluation Board (DASEB) on 13 July 2001 and contended that the brigade
commander had told him that the GOMOR was to be removed from his OMPF after
3 years.  The DASEB moved the GOMOR and associated documents to the
restricted portion of the applicant's OMPF as the GOMOR had served its
intended purpose.

7.  Army Regulation 600-37 (unfavorable information) provides in pertinent
part, that administrative letters of reprimand may be issued by an
individual's commander, by superiors in the chain of command, and by any
general officer or officer exercising general court-martial jurisdiction
over the Soldier.  The letter must be referred to the recipient and the
referral must include and list applicable portions of investigations,
reports or other documents that serve as a basis for the reprimand.
Statements or other evidence furnished by the recipient must be reviewed
and considered before filing determination is made.  Letters of reprimand
may be filed in a Soldier's OMPF only upon the order of a general officer
level authority and are to be filed on the performance fiche.  The
direction for filing is to be contained in an endorsement or addendum to
the letter.  If the reprimand is to be filed in the OMPF then the
recipient's submissions are to be attached. Once filed in the OMPF the
reprimand and associated documents are permanent unless removed in
accordance with chapter 7.  Letters of reprimand intended for filing in the
Military Personnel Records Jacket (MPRJ) may be retained for no more than 3
years and must state the length of time they are to be retained.  Chapter 7
of the regulation provides that once filed in an OMPF a document is
presumed to have been administratively correct.  Appeals to the DASEB to
relocate a reprimand, admonition or censure (normally for Soldiers in pay
grade E-6 and above) are based on proof that the intended purpose has been
served and that transfer to a restricted fiche would be in the best
interest of the Army.  The DASEB will return appeals unless 1 year has
elapsed and at least one nonacademic evaluation has been received since the
letter was imposed.  If the appeal is denied the DASEB letter of denial
will be filed on the performance fiche, the appeal itself and any
associated documents will be filed on the restricted fiche.  Otherwise this
Board may act in accordance with Army Regulation 15-185 and the Soldier has
rights under the Privacy Act in which the DASEB acts as the access and
amendment authority under Army regulation.

8.  Army Regulation 600-8-104 (Military Personnel Records) provides, in
pertinent part, that a properly prepared administrative letter of reprimand
is to be filed on the performance fiche of the individual's OMPF along with
any referral correspondence and the member's reply.  All other associated
documents are to be filed on the restricted fiche.

9.  Army Regulation 190-5 provides that officers and NCOs will be issued an
administrative LOR for alcohol related driving incidents in the following
circumstances: When there is a conviction for driving while intoxicated or
driving under the influence of alcohol or drugs; a refusal to take a
properly requested blood, urine or breath test; when the individual was
driving or in physical control of a vehicle on post with a BAC of .10 or
off post with a BAC in violation of State law, irrespective of other
charges; or driving or in physical control of a vehicle when a lawfully
requested test reflected the presence of other drugs.

10.  An online BAC calculator (http://www.intox.com/wheel/drinkwheel.asp)
operated by a major manufacturer of breath analyzers shows that a 180 pound
male who consumed one beer in an hour would have a BAC of .020.  Countless
other similar resources operated by both public and private entities
provide the same information.  A person who consumed a beer and waited an
hour would have a BAC of approximately .000 since most authorities agree
that a normal healthy liver will completely detoxify one drink an hour.

11.  The favorable memoranda submitted by the applicant all support his
assignment to the Drill Sergeant course.  None specifically address the
instant request to expunge the GOMOR.

DISCUSSION AND CONCLUSIONS:

1.  The issuance and filing of the GOMOR are, by regulation, presumed to be
administratively correct.

2.  There is no substantiating evidence to show that the GOMOR has or will
have any adverse effect upon the applicant's career.

3.  The applicant's present assertion, that he drank one 12 ounce can of
beer and waited an hour is not creditable, because such behavior would not
produce the .054 BAC which he admitted at the time.  This and the
applicant's 20 April 2001 Memorandum for Record tend to indicate that,
notwithstanding his otherwise successful career, that applicant has not
fully accepted responsibility for his behavior at the time of the GOMOR.
The requested relief is not appropriate.

4.  The Army has an obligation to maintain a complete and accurate record
of an individual's service.  Given the nature of the applicant's conduct
and the fact that neither this request nor the applicant's rebuttal of the
GOMOR is an unqualified acceptance of responsibility, and notwithstanding
the positive factors in his otherwise record of exemplary service;
including his evaluations, promotion and awards, the GOMOR has not fully
served its intended purpose.  The fact that the chain of command
recommendations support the applicant's selection for drill sergeant
training and do not address expunging the GOMOR is also noted.  It is too
expunge the GOMOR.  The filing of the GOMOR on his restricted fiche, as
directed by the DASEB, is the appropriate disposition.

5.  Whether retention, promotion, and assignment to career enhancing
training and positions of Soldiers who have demonstrated strength of
character by overcoming adversity caused by their own behavior is
preferable to selecting those who have no such blemish on their records is
an appropriate matter for command, staff and board consideration.  However,
this Board is reluctant to make such a decision, in part, because such
action is necessarily done only on a case by case basis and not by any
systematic process.

BOARD VOTE:

__BPI ___  __EEM__  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  __DWS__  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 the case are insufficient as a basis for correction of the
records of the individual concerned.




                                  __Bernard P. Ingold_____
                                            CHAIRPERSON

1.  Notwithstanding the above, a majority of the members of the panel find
it would be inequitable for the applicant's career advancement to be
limited by a minor infraction occurring over a decade ago.  Based on the
Soldiers entire record, including duty in combat it would be unfair to
allow the incident to continue limiting his career when the purpose of the
GOMOR has been served.

2.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for relief.  As a result, the Board recommends
that all Department of the Army records of the individual concerned be
corrected by expunging the GOMOR and all related documents from the OMPF
and by returning any residual documents, including this Record of
Proceedings to the Army Review Boards Agency for permanent filing.




                                  __     Bernard P. Ingold___________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051206                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |  . . . . .                             |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DASA Grant                              |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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