RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        7 November 2006
      DOCKET NUMBER:  AR20060003005


      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. Maria C. Sanchez              |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Patrick H. McGann, Jr.        |     |Chairperson          |
|     |Mr. Richard G. Sayre              |     |Member               |
|     |Mr. David K. Haasenritter         |     |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 removal of a General Officer Memorandum for
Record (GOMOR) from his official military personnel file (OMPF) and
promotion to the rank of major.

2.  The applicant states, in effect, that the GOMOR was justly filed in his
OMPF; however, now after reviewing his duty performance, his chain of
command supports removal of the GOMOR in its entirety.

3.  The applicant further states that his commanding officers and the
issuing authority for the GOMOR recommended removal of the GOMOR to the DA
Suitability and Evaluation Branch (DASEB).  The applicant argues that the
DASEB only had letters from his Battalion and Regimental Commander and not
the letter from the issuing commander recommending removal of the GOMOR.
The applicant contends that the DASEB denied his request for removal of the
GOMOR and as a result he was passed over for promotion to the rank of
major.

4.  The applicant contends that if the endorsements from his higher chain
of command were forwarded through the appropriate channels, the GOMOR would
have been removed and he would have been promoted with his peers.  He
concludes that he has been in the military for almost 20 years and the
GOMOR is the only negative document in his records.

5.  The applicant provides a copy of his memorandum to the DASEB, dated
31 May 2005; two memorandums of support; a memorandum from the DASEB, dated
25 August 2005; and a copy of the DASEB Decision Summary in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  On 15 August 2002, the major general in command of Headquarters, 3rd
Infantry Division and Fort Stewart, Fort Stewart, Georgia, issued the
applicant a GOMOR for driving under the influence of alcohol and for
speeding on 3 August 2002 while in Savannah, Georgia.

2.  The major general stated in his memorandum of reprimand that the
applicant was stopped by a police officer and administered a breathalyzer
test which indicated the applicant's blood alcohol level was at .124 grams
of alcohol per
210 liters of breath.  The major general further stated that the applicant
was cited by the police officer for driving under the influence and
speeding.

3.  The major general reprimanded the applicant for misconduct and informed
the applicant that it was his intent to file the reprimand in his OMPF.

4.  An undated memorandum shows the applicant read and understood the
unfavorable information presented against him and submitted a statement on
his behalf.

5.  A memorandum, dated 22 August 2002, shows the applicant requested that
the GOMOR be placed in his local file.  The applicant stated that he
recognized the seriousness of his lapse of judgment and that he took full
responsibility for his actions.  He also acknowledged he understood the
adverse impact of failing to maintain the standards, good order and
discipline of the unit.

6.  The applicant stated that he knew he could overcome the error in
judgment and continue to give the Army many unmarred years of professional
service if given the opportunity.  He stated that his decision to drive
under the influence was wrong, that it was an isolated error which would
never happen again, and that he took full responsibility for his actions.

7.  On 4 December 2002, the major general in command of Headquarters, 3d
Infantry Division and Fort Stewart, Fort Stewart, Georgia, informed the
applicant that he directed the GOMOR to be filed in his OMPF.

8.  The applicant applied to the DASEB for removal of the GOMOR on 31 May
2005.  The applicant provided a copy of the DASEB Decision Summary which
identified his request as a first appeal for removal of a GOMOR issued for
driving while under the influence on 3 August 2002.  A test showed his
blood alcohol content (BAC) was .12 percent.

9.  The DASEB Decision Summary shows that the applicant provided a self-
authored statement with two letters of support, a copy of the GOMOR, an
Officer Record Brief, and Officer Evaluation Reports in support of his
request for removal of the GOMOR.

10.  The DASEB Decision Summary stated that paragraph 7-2b of Army
Regulation 600-37 (Unfavorable Information) allows for derogatory documents
to be transferred to the restricted fiche on the basis of proof that the
filing in the performance fiche has served its intended purpose and it
would be in the interest of the Army to transfer the document to the
restricted fiche.  The DASEB further stated that the offense occurred three
years ago and that the applicant was a captain with almost 15 years of
experience in the Army when the offense occurred.
11.  The DASEB found that the applicant provided insufficient justification
to grant the transfer even though he indicated remorse.  The DASEB opined
that the transfer of the GOMOR from the applicant's performance fiche to
the restricted fiche was not warranted.

12.  The applicant submitted a self-authored statement, dated 31 May 2005.
He contended that, on 3 August 2002, he made an enormous error in judgment
and chose to drive a motor vehicle while under the influence of alcohol. He
stated that he justly received the GOMOR and he was aware of the
seriousness of the mistake and still takes full responsibility for this
error.

13.  The applicant also contends that since the incident he has continued
to serve honorably and he received a Bronze Star Medal for his actions
while serving as the Assistant Division Aviation Officer for the 3rd
Infantry Division during combat operations in Iraq.  He successfully
commanded two companies simultaneously.  He also deployed to Afghanistan
and served in a command position.

14.  The applicant indicated that after his command, he was "invited" back
to the 3/160th Special Operations Aviation Regiment (Airborne) to be the
Direct Action Penetrator (DAP) Platoon Leader for Alpha Company and during
his tenure in the 3/160th Special Operations Aviation Regiment he was
deployed in support of Operation Iraqi Freedom.

15.  The applicant concluded that he does not rebut the decision of the
GOMOR and still accepts the consequences of his inappropriate actions;
however, after three years, he contends that the GOMOR has served its
purpose.

16.  The applicant provided a copy of a statement, dated 31 May 2005, from
a lieutenant colonel in command of the 3d Battalion, 160th Special
Operations Aviation Regiment which was submitted to the DASEB.  The
commander requested removal of the GOMOR, dated 22 August 2002, from the
applicant's OMPF.  The commander stated that the applicant had performed at
the field grade level in the Continental United States (CONUS) and in
combat as an Assault and DAP Flight Detachment Commander.

17.  The commander stated that the applicant had indisputably maintained
his focus and commitment of being a first rate officer and that he had
continued to set the example as a consummate professional both on and off
duty.  The commander also stated that the applicant deployed to Iraq and
that he conducted numerous "Direct Action missions" in support of
joint/combined Special Forces operations to include the "first US/Iraq Air
Assault against enemy forces in US history."

18.  The commander stated that the applicant's work ethic and character is
without question and of the highest regard towards duty, honor, and
country. Further, the commander stated that the applicant's experience as
an enlisted Soldier and warrant officer provides him depth that few officer
of his grade have.  He has earned the respect and admiration of his
Soldiers and warrant officers alike.  The applicant, since joining his
team, has been nothing less than outstanding.  He has unlimited potential
and he was working at the field grade level at that time.

19.  The commander believes that the GOMOR the applicant received three
years ago has served its purpose and he supports the removal of the GOMOR
from the applicant’s OMPF as soon as possible.

20.  The applicant provided a copy of a statement, dated 31 May 2005, from
a colonel in command of Headquarters, 160th Special Operations Aviation
Regiment (SOAR), United States Army Special Operations Command, Fort
Campbell, Kentucky.  The commander strongly recommended that the GOMOR be
removed from the applicant's OMPF.  The commander also stated that the
applicant is one of the most experienced captains to have served in the
160th SOAR.  He has demonstrated competence, maturity, and the sound
judgment required of a leader and that his actions reflect those of a field
grade officer.

21.  The commander has no doubt that the GOMOR has served its purpose and
requests that the GOMOR be removed as soon as possible.

22.  The commander continued by stating that the applicant had not let his
past affect his outlook on his future and he maintains a dedicated and
unfettered warrior ethos today.  The commander has no doubt that the GOMOR
the applicant received has served its purpose and requested removal of the
GOMOR from the applicant's OMPF.  The commander concluded by stating that
the applicant's future in the Army and in the Special Operations community
was unlimited and that his performance even with his momentary lapse in
judgment was a testament to the mettle and character of this fine officer.

23.  Paragraph 7-2a of Army Regulation 600-37 provides 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.  Appeals that merely
allege an injustice or error without supporting evidence are not acceptable
and will not be considered.

24.  Paragraph 7-2b of Army Regulation 600-37 provides that only letters of
reprimand, admonition, or censure may be the subject of an appeal for
transfer to the restricted fiche.  In addition such documents may be
appealed on the basis of proof that their intended purpose has been served
and that their transfer would be in the best interest of the Army.  The
burden of proof rests with the recipient to provide substantial evidence
that these conditions have been met.  This regulation further provides that
in the cases where the appeal is denied, a copy of the letter of
notification regarding this outcome will be placed in the commendatory and
disciplinary portion of the performance record. The appeal will be placed
in the restricted portion of the OMPF.

25.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the GOMOR should be removed from his OMPF
because it has served its purpose and he was passed over for promotion to
the rank of major.

2.  Evidence shows that the applicant received a GOMOR for driving while
under the influence of alcohol on 3 August 2002 and that the GOMOR was
filed properly in accordance with applicable regulations.  Records further
show that the applicant was non-selected for promotion to the grade of
major.

3.  Evidence shows the applicant requested that the DASEB remove the GOMOR
based on the contention that it had served its purpose.  The DASEB denied
the applicant's request and opined that the transfer of the GOMOR from his
performance fiche to the restricted fiche was not warranted.

4.  Evidence of record shows that the applicant's chain of command and the
issuing commander support the request for removal of the GOMOR.
Additionally, the applicant's overall service since the issuance of the
GOMOR indicates that he has performed his duties in an outstanding manner.

5.  The governing regulation does authorize the transfer of a GOMOR from
the performance to the restricted portion of the OMPF when it can be
determined that the document has served its intended purpose.  The evidence
of record in this case shows the applicant has accepted responsibility for
his actions.  Further it is likely the GOMOR was responsible for the
applicant's non-selection for promotion to the rank of major and has
clearly placed him behind his peers.  In spite of this, the applicant has
responded positively to the reprimand, as evidenced by his continued
outstanding performance, which is attested to by his chain of command.

6.  Given the strong support by his chain of command, the applicant's non-
selection for promotion to the rank of major, and due to his continued
value to the Army, it is concluded that the GOMOR in question has served
its intended purpose.  Thus, it would be appropriate to transfer the GOMOR
to the restricted portion of the applicant's OMPF at this time.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

_DKH_ _  _RGS___  __PHM___  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 15 August 2002 General Officer
Memorandum of Reprimand and all related documents from the performance
portion to the restricted portion of his Official Military Personnel File
based on it having served its intended purpose.
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 Office Memorandum of Reprimand from the Official
Military Personnel File.




                                      Patrick H. McGann, Jr.  _
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060003005                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061107                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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