RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 DECEMBER 2006
      DOCKET NUMBER:  AR20060004550


      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. Linda Simmons                 |     |Chairperson          |
|     |Mr. Patrick McGann                |     |Member               |
|     |Mr. Donald Steenfott              |     |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 2003 GOMOR (general officer
memorandum of reprimand), and all associated documents, be expunged from
his Official Military Personnel File (OMPF) or, in the alternative,
transferred to the restricted portion of his OMPF.

2.  The applicant states the United States Constitution provides for the
rights of all citizens and notes that the "incident" which occurred on 18
February 2003 was dismissed by a local United States court system supported
by the constitution.  He states the court found it "prudent" to dismiss the
alleged charges and notes that the dismissal paperwork was provided to the
DASEB (Department of the Army Suitability Evaluation Board) but was ignored
by that board.

3.  The applicant states the GOMOR is a violation of the Fifth Amendment
process because it was presented before he was convicted.  He quotes the
Fifth Amendment and notes his crime was not capital and was not presented
to a grand jury on a military installation.  He states the harsh
consequence of losing his post driving privileges as a result caused a
major hardship.  He contends the DASEB decision resulted from a lack of
understanding of the "Constitution Bill of Rights with regards to the Fifth
Amendment."

4.  He states the fact that he was promoted after the incident is a weak
answer to the denial of his appeal by the DASEB.  He also argues that the
"legal limit" in the State of New York in 2003 was .10 percent and he was
.08 percent.  He maintains he should not be chastised by the Army for being
within the legal limits of drinking in New York or based on charges by a
local law enforcement official.

5.  The applicant states the major issue is that the GOMOR should not have
been issued until after a court conviction was final and respectfully asks
that the GOMOR and all associated documentation be removed from his OMPF
and eliminated or placed into his restricted file.

6.  The applicant provides a statement confirming dismissal of the charge
of driving while intoxicated and driving without headlights, copies of
documents associated with his GOMOR, and a copy of the DASEB decision
summary.

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate the applicant had approximately
18 years of military service, including more than 12 years of active duty
service, at the time of his enlistment in the United States Army Reserve in
June 2002.
2.  According to documents provided by the applicant, after he was
mobilized he was stopped on 18 February 2003 in Watertown, New York at 0304
hours after a local law enforcement official noted the applicant weaving
between lanes and driving without his headlights.  The applicant informed
the official that he was driving home to Fort Drum after the Mardi Gras and
had had 4 or 5 beers at the barracks.

3.  The applicant, then a Sergeant First Class, failed several field
sobriety tests, including one leg stand, walk and turn, reciting the
alphabet, number count, and horizontal gaze nystagmus.

4.  The applicant was transported to an intake facility and at 0345 hours
was administered a BAC (blood alcohol concentration) test with a result of
.08 percent.  He was charged with driving while intoxicated under New York
Vehicle and Traffic Law section 1192.3 and driving without headlights.  He
was subsequently transported to the Military Police Station at Fort Drum
where he was read his Post driving privileges suspension letter and then
released to his unit.

5.  The driving privileges suspension letter noted that if the applicant
were acquitted of the charges against him the suspension would remain in
effect until such time as the applicant made application through the
Director of Emergency Services to the Garrison Commander for the
restoration of driving privileges.  The notification also stated the
applicant could request a hearing to request restoration of his on-post
driving privileges pending adjudication of the charges against him or could
request restricted driving privileges if he so desired.

6.  On 26 February 2003 the applicant was issued a GOMOR as an
administrative memorandum of reprimand imposed under the provisions of Army
Regulation 600-37 and not as punishment under Article 15 of the Uniform
Code of Military Justice.  The memorandum noted the applicant was
apprehended for driving a vehicle while under the influence of alcohol and
that upon apprehension failed a field sobriety test and had a breath
alcohol content of .08 percent.  The GOMOR and associated documents were
ultimately, in November 2003, directed to be filed in the performance
portion of the applicant's OMPF.

7.  According to the statement from the Watertown City Court, on 11
December 2003 the charges against the applicant were dismissed and he pled
guilty to a charge of reckless driving.

8.  In July 2004 the applicant was promoted to pay grade E-8.

9.  In April 2005 the applicant initiated an appeal to the DASEB to have
the GOMOR transferred to his restricted file.  In his appeal he noted that
he received the GOMOR based on charges and not a conviction from a court.
He noted the charges had been dismissed and that with the dismissal of all
charges the administrative reprimand was invalid.  He stated that one
should not be perceived guilty until proven guilty and the retention of the
GOMOR in his OMPF projected an image of guilt.

10.  His appeal was denied.  The DASEB noted the applicant's offense was
only 2 years old, that he was serving in pay grade E-7 at the time of the
offense, that the applicant’s command and the Chief of the United States
Army Reserve both recommended disapproval of the appeal, that he showed no
remorse, and that he blamed differences in states laws as the basis of his
apprehension.

11.  Army Regulation 27-10 (Military Justice) states that commanders have
authority to give admonitions or reprimands either as an administrative
measure or as nonjudicial punishment.  It notes that a written
administrative admonition or reprimand will contain a statement that it has
been imposed as an administrative measure and not as punishment under
Article 15.  The applicant’s reprimand did contain that required statement.

12.  Army Regulation 600-37 (Unfavorable Information) provides in pertinent
part, that the authority to issue letters of reprimand, admonition, and
censure is restricted to the recipient's immediate commander, or a higher
commander in his or her chain of command, school commandants, any general
officer, or an officer exercising general court-martial jurisdiction over
the recipients.  It notes that decisions for the issuing and filing of
unfavorable information in official files will be based on the knowledge
and best judgment of the commander.  Only information that the individual
has been provided an opportunity to review and offered a written response
to may be filed in a soldier's OMPF.  It states that only a general officer
senior to the recipient, or by direction of an officer having general court-
martial jurisdiction over the individual, regardless of the issuing
authority, may direct filing of a reprimand in the OMPF.  Once filed in the
OMPF such documents are permanent unless removed in accordance with chapter
7.  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 derogatory information are to be 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.  If an appeal is denied, the
DASEB letter of denial will be filed on the performance portion of the
OMPF, the appeal itself and any associated documents will be filed on the
restricted portion of the OMPF.  Otherwise this Board may act in accordance
with Army Regulation 15-185.
DISCUSSION AND CONCLUSIONS:

1.  A GOMOR is an administrative matter, not legal, and is not subject to
the rules of evidence applicable to trial by court-martial.  The fact that
the applicant was found not guilty of driving while intoxicated has no
bearing on the appropriateness of his GOMOR.  In a court the Government
must prove a person’s guilt under the applicable law.  There is no such
requirement for issuing a GOMOR.  The officer issuing the reprimand and the
officer approving the filing of the reprimand must only believe the
recipient of the memorandum is guilty of the infraction in question.

2.  In the applicant’s case, he admitted that he was driving home to Fort
Drum after the Mardi Gras after he had 4 or 5 beers at the barracks; he
failed several field sobriety tests, including one leg stand, walk and
turn, reciting the alphabet, number count, and horizontal gaze nystagmus;
and he had a BAC of .08 percent. Given these circumstances, a GOMOR would
appear to be warranted and appropriate.

3.  There is no requirement to suspend the issuance of an administrative
reprimand pending the outcome of civil charges.  The applicant was provided
an opportunity to comment on, and subsequently appeal the filing of the
GOMOR based on whatever issues he felt were relevant, including the
dismissal of the DUI charge.  The applicant availed himself to those
provisions and no error or injustice is created because his appeal was not
granted.

4.  Additionally, it is noted that the suspension of his driving privileges
also provided an opportunity for the applicant to request reinstatement or,
in the alternative, limited driving privileges.  As such, his argument that
such suspension was unduly harsh is also without foundation.

5.  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 that requirement.

6.  The GOMOR was administered in accordance with applicable regulations
and was not disproportionate to the offense.  There is no evidence of any
substantive violation of the applicant’s rights.

7.  In view of the foregoing, there is no basis for granting the
applicant's request.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___LD  __  __PM  __  __DS   __  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.




                                  _____Linda Simmons_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060004550                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061205                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |126.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


11.  At the time of the applicant's apprehension in February 2003 the New
York Vehicle and Traffic Law provided for charges under section 1192.2
(operating a motor vehicle with .10% or higher level of alcohol in the
blood), section 1192.3 (driving while intoxicated, and section 1192.4
(operating a motor vehicle while impaired by drugs).  Each of the charges
was considered misdemeanors.  On
1 July 2003 section 1192.2 was amended to provide for a charge of driving
while intoxicated violation for a person to operate a motor vehicle while
such person has .08 % or more by weight of alcohol in such person's blood.
Section 1192.3 (driving while intoxicated) then stated that no person shall
operate a motor vehicle while in an intoxicated state.  That section of the
law did not specify a BAC level and only the first violation of the DWI
provisions were considered misdemeanors.


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