RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 November 2006
      DOCKET NUMBER:  AR20060003433


      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. Thomas A. Pagan               |     |Chairperson          |
|     |Mr. Peter B. Fisher               |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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 for removal of a General Officer
Memorandum of Reprimand (GOMOR) from his Official Military Personnel File
(OMPF).

2.  The applicant states that the GOMOR, dated 2 October 2001, has had its
prejudicial effect and should now be removed.

3.  The applicant provides new documentation through his attorney.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration for removal of the GOMOR from the
applicant's service records based on new argument and evidence.

2.  Counsel states, in effect, that the GOMOR has clearly served its
intended purpose and therefore relief is the nature of its removal or
transfer is warranted.

3.  Counsel provides a 15-page statement, dated 8 March 2006; a copy of
ABCMR Record of Proceedings, dated 9 March 2005; the applicant's Enlisted
Record Brief; the GOMOR, dated 2 October 2001; the appeal to Department of
the Army Suitability Evaluation Board (DASEB), dated 7 January 2004; four
supporting statements (previously submitted); and eight new supporting
statements, in support of the applicant's request for reconsideration.

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
AR20040001984, on 3 March 2005.

2.  On 2 October 2001, the applicant was issued a GOMOR by the Commanding
General of the U.S. Army John F. Kennedy Special Warfare Center and School,
Fort Bragg, North Carolina, for a designated lane violation and driving
while impaired on 11 August 2001.  The applicant's blood alcohol content
registered at .18 percent.  On 4 October 2001, the applicant acknowledged
receipt of the GOMOR and submitted a statement on his own behalf.


3.  The applicant's submitted a statement, dated 10 October 2001, wherein
he acknowledged that he was reprimanded for his "utter disregard of the law
and safety of others."  He continued that he created the situation by a
violation of trust and confidence of the command and the U.S. Army.  The
applicant requested that the reprimand be filed in his unit personnel file
until he is transferred to another general court-martial jurisdiction or
for a period not to exceed three years, whichever occurs first.

4.  On 28 November 2001, the Commanding General directed that the GOMOR be
filed in the applicant's Official Military Personnel File (OMPF).

5.  On 26 February 2004, the DASEB considered the applicant's request for
removal of the GOMOR from his OMPF based on the contention that the DUI
charge was withdrawn.  The DASEB found that the evidence revealed the
applicant's charge for driving while impaired was withdrawn.  The DASEB
noted that the statement of explanation for withdrawing the charge was
because the issuing officer was no longer with the police department and
would not return to the court for the process.  The DASEB also noted that
the applicant was fined and punished for a lesser additional offense
(revocation of driver's license).  The DASEB opined that the court action
was due to a higher standard of evidence and judicial process than that of
an administrative action such as issuing a GOMOR.  The DASEB concluded that
the applicant had failed to provide evidence to show that the GOMOR was
untrue or unjust; therefore, voted to deny his appeal.

6.  The applicant's counsel submitted a 15-page statement, dated 8 March
2006. Counsel argues reconsideration is warranted because the central
argument now is that the Board grants relief as a matter of equity.
Counsel continues that the applicant had not been convicted for a driving
under the influence (DUI) charge due to non-appearance of the arresting
officer was not intended to be an evasion of responsibility for his
actions, but rather a statement of fact.

7.  Counsel states that the applicant has and still accepts responsibility
for the incident and is now asking for the removal or transfer of the GOMOR
in light of his total military career and as a matter of equity.  Counsel
argues that the applicant has never attempted to evade reasonability for
the incident and was extremely forthright and candid about his capability.
Counsel states that more current statements of support, not previously
provided, were submitted and are evidence that the GOMOR has served its
intended purpose.



8.  Counsel stated that since the issuance of the GOMOR, the applicant has
received "four outstanding evaluations reports."  Counsel continued that
the comments in the evaluation reports would demonstrate, combined with the
new statements of support, clearly show that the GOMOR has served its
purpose and that it would be in the best interest of the Army to transfer
or remove the GOMOR.  Counsel stated that this action would allow the
applicant to advance his military career as a proven asset to the Army.

9.  In conclusion, counsel stated that the applicant contends he has shown,
through the evidence presented, that the GOMOR should be removed from his
OMPF as a matter of equity.  Counsel stated that individuals who had known
him professionally and others have come forward to unconditionally support
the request for reconsideration.  Counsel further stated that the GOMOR
alone has kept the applicant from being promoted to the grade of sergeant
major/E-8 and is affecting his military career.

10.  The applicant has submitted eight character letters from his chain of
command and peers.  In summary, the letters stated that the applicant is an
outstanding noncommissioned officer with high morale and consistently
upholds all the Army values.  The letters further stated that he displays
incredible integrity and trustworthiness and had always fulfilled his
objectives and placed the mission of the unit before his own personal
needs.

11.  Paragraph 7-2a of Army Regulation 600-37 (Unfavorable Information)
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.

12.  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.

13.  Army Regulation 15-185 (Army Board for Corrections of Military
Records) prescribes the policies and procedures for correction of military
records by the Secretary of the Army, acting through the 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 as a matter of equity.

2.  Evidence shows that the applicant received a GOMOR for driving while
under the influence on 11 August 2001 for which he accepted and took full
responsibility for his actions.  Evidence shows that the GOMOR was filed
properly in accordance with applicable regulations.

3.  Evidence shows the applicant appealed to the DASEB to remove the GOMOR
based on the contention that the DUI charge was withdrawn.  Evidence shows
the reason for the withdrawal of the DUI charge was that the issuing
officer was no longer with the police department and would not appear
before the court for the process.  After a thorough review of the
applicant's entire service record, the DASEB denied the request to remove
the GOMOR from his OMPF.

5.  Evidence shows the applicant has received excellent evaluation reports
since the issuance of the GOMOR and the new statements submitted show he is
an outstanding noncommissioned officer.  However, the evidence submitted
does not show that the GOMOR issued was in error or was unjust.

6.  Counsel contends that the GOMOR has deterred the applicant's promotion
to the grade of master sergeant/E-8.

7.  There is no evidence and the applicant did not provide any evidence
that shows he was considered and/or not selected for promotion to the grade
of master sergeant/E-8.

8.  The facts and new evidence presented has failed to show that the GOMOR
has had a negative impact on the applicant's military career; therefore,
there is no basis to grant the requested relief in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_PBF____  _TAP___  _LMD___  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 AR20040001984, dated 3 March 2005.




                                     _Thomas A. Pagan____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2006003433                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061121                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  1020 |134.0400.0000                           |
|2.  328                 |134.0000.0000                           |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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