RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         15 AUGUST 2006
      DOCKET NUMBER:  AR20060000035


      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             |
|     |Ms. Rene’ R. Parker               |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Shirley Powell                |     |Chairperson          |
|     |Ms. Rose Lys                      |     |Member               |
|     |Mr. John Heck                     |     |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, in effect, that a General Officer Memorandum of
Reprimand (GOMOR) for driving under the influence be removed from his
Official Military Personnel File (OMPF).

2.  The applicant states that there was command influence and or pressure
to punish him even though he was never convicted of driving under the
influence.  He maintains that the original charge was thrown out of court
due to a lack of evidence and a faulty police report.  The applicant said
he believes his performance, as reflected on his Noncommissioned Officer
Evaluation Reports (NCOER) and awards he received, indicates that he has
continued to perform his duties in an exemplary manner.

3.  The applicant provides a DA Form 2823 (Sworn Statement), supporting
letter, and NCOERs.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he is currently a Staff Sergeant with
a date of rank of 1 June 1994.  His basic active service date is listed as
9 March 1988.  His primary military occupational specialty is listed as 15U
(CH-47 Helicopter Repairer).  The applicant is on his 5th enlistment with
an indefinite status.

2.  The applicant’s record shows on 25 January 1999, he received a GOMOR
for driving an automobile under the influence.  The GOMOR stated that after
the applicant was observed traveling at a high rate of speed, he was
stopped by a police officer.  After failing a Field Sobriety Test, the
applicant was apprehended and transported to the police station where a
breathalyzer was administered which resulted in a blood alcohol content
reading of .18 percent.

3.  The GOMOR was referred to the applicant and on 2 February 1999, he
submitted his statement in response to the reprimand.  The applicant
provided a synopsis of his civilian and military career.  He explained that
at the time of the incident, he was on leave in the process of a permanent
change of station to Germany.  The applicant said he was celebrating his
pending reassignment at a local club with fellow co-workers.  He admitted
that his decision to drive home after having a few drinks at the club was
the worst decision he could have made and he truly regrets that decision.
The applicant stated that although there were discrepancies with the
officer’s report and what actually happened that night, he accepts full
responsibility for his actions.  The applicant requested the GOMOR be
placed in his local file.
4.  The company and the battalion commander attested to the applicant’s
outstanding performance and recommended that the GOMOR be filed in his
local file.  The company commander stated that the applicant “is an
extremely valued asset not only to the unit but, to the Army Aviation as a
whole.”  The battalion commander stated that the applicant “is a
technically expert NCO with initiative and superb attitude.”  However, the
brigade commander disagreed with their recommendation and said that the
applicant “is an NCO who is expected to set the example.”  He recommended
the GOMOR be filed in the applicant’s OMPF.
The commanding general filed the GOMOR in the applicant’s OMPF.

5.  The applicant provided a sworn statement from his former company
commander at the time of the incident.  The commander said the applicant
told him that he did not fail a sobriety test but, when the officer
requested he submit to a blood and alcohol test, he refused.  The commander
recalled that refusal of a blood and alcohol test automatically resulted in
a charge of DUI.  The commander said he recommended that no action be taken
against the applicant until after the civilian court determination.  His
recommendation was based upon contradictory information that was contained
on a speeding and DUI ticket which was given to him by the applicant.  The
commander stated that both the battalion and brigade commander agreed with
his recommendation and two to three weeks later, the court dropped the DUI
charge.  However, the company commander maintains that although the
battalion and brigade commander agreed that no action was required, the
command sergeant major felt that an example must be made.  The commander
stated that the command sergeant major said that alcohol related incidents
will not be tolerated.  Therefore, the command sergeant major convinced the
commanding general that a GOMOR be issued and placed in the applicant’s
official records.

6.  Supporting statement from the applicant’s current battalion commander,
dated 15 December 2005, recommends approval of his request for removal of
the GOMOR.  The battalion commander expounds on the applicant’s attributes.
 The commander states that he places his professional reputation on the
applicant’s success.  “He definitely possesses the required skills
necessary to lead and perform at the next level and he should be given the
opportunity.”  The commander said this opportunity can only be achieved by
removal of the GOMOR from his service record.

7.  The applicant provided 5 copies of his NCOERs that were rendered after
the incident.  The NCOERs cover a total of 41 months.  The NCOERs show that
the applicant was rated as platoon sergeant and technical inspector during
his rated months.  He received “Excellence” ratings by all of his raters in
competence and leadership in 4 out 5 reports and was assessed as “Among the
best” on all 5 reports.  The senior raters assessed his overall performance
and overall potential as “1 - Successful” and “1 – Superior” with laudatory
comments of “promote to sergeant first class now,” “has unlimited potential
for advancement, a future First Sergeant,” “challenge Soldier with higher
position of responsibility,” “highly motivated Soldier, an asset to any
unit,” “displays the strength and poise of an exceptional leader,” and
“unmatched ability to identify and implement solutions to complex
problems.”

8.  On 10 October 2001, the applicant appealed to the Department of the
Army Suitability Evaluation Board (DASEB) to have his GOMOR transferred to
his restricted fiche.  The DASEB acknowledged that the incident occurred
two years ago and the applicant was a three time non-select for promotion
to E-7.  The Board denied the applicant’s request citing that there was no
evidence of rehabilitation efforts or letters of support from his chain of
command.

9.  Army Regulation 600-37 (Unfavorable Information) states, in pertinent
part, that unfavorable information will not be filed in an official
personnel file unless the recipient has been given the chance to review the
documentation that serves as the basis for the proposed filing and make a
written statement, or to decline, in writing, to make such a statement.
This statement may include evidence that rebuts, explains, or mitigates the
unfavorable information. The issuing authority should fully affirm and
document unfavorable information to be considered for inclusion in official
personnel files.

10.  Additionally, the regulation states that the Department of the Army
Suitability Evaluation Board can revise, alter, or remove from the OMPF
unfavorable information that is determined upon appeal to be unjust or
untrue, in part or in whole.  The board can transfer from the performance
to the restricted portion of the OMPF those administrative letters of
reprimand, admonition, or censure that are determined upon appeal to have
served their intended purpose, when such transfer would be in the best
interest of the Army.

DISCUSSION AND CONCLUSIONS:

1.  The record shows that the GOMOR was forwarded to the applicant for his
acknowledgement and or comments prior to the commanding general’s filing
decision.  The general considered the applicant’s response and the
recommendations of his chain of command and elected to file the GOMOR in
the applicant’s OMPF.


2.  The record further shows that the applicant acknowledged a discrepancy
with the police officer’s report in his response to the GOMOR; however he
accepted full responsibility for his decision to have a few drinks at the
club and then drive home.  The applicant’s company commander and battalion
commander recommended that the GOMOR be filed in the applicant’s local file
but, the brigade commander disagreed with their recommendation.  The
commanding general agreed with the brigade commander’s recommendation to
file the GOMOR in the applicant’s performance fiche.  The applicant has not
provided and there is no evidence of a faulty police report or of “undue
command influence” by the command sergeant major.

3.  The DASEB denied the applicant’s appeal to transfer the GOMOR to his
restricted fiche based on the absence of letters of support from his chain
of command.  In the initial proposed filing of the GOMOR, the applicant’s
company and battalion commander requested that the GOMOR be filed in his
local file. Over 4 years has elapsed since the applicant’s request for
transfer, and he has not been selected for promotion to E-7.  His records
substantiate his outstanding duty performance and his current battalion
commander attests to his competency and leadership skills.  Although the
applicant has provided no evidence to justify removal of the GOMOR, in the
interest of justice and equity, it would be appropriate to transfer the
GOMOR to his restricted section on the basis of intent served.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___SP __  ___RL  __  ___JH __  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected by transferring the General Officer Memorandum of
Reprimand to the applicant’s restricted section of his OMPF.


2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
removal of the General Officer Memorandum of Reprimand.




                                  ______Shirley Powell________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000035                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060815                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |PARTIAL GRANT                           |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |134.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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