RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        3 August 2006
      DOCKET NUMBER:  AR20060009639


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Michael J. Flynn              |     |Member               |
|     |Mr. Gerald J. Purcell             |     |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 his Officer Evaluation Report (OER) for the
period 19 July 2001 through 27 August 2001 be expunged from his records.
In the alternative, he requests that a copy of the “Not Guilty” verdict be
attached to the OER and placed in his official records and that the final
comment in Part Ve be deleted.

2.  The applicant states that the OER was submitted before all evidence in
the case was gathered and investigated.  It contains unproven derogatory
information, the substance of which was reviewed by the District Court of
Cumberland County, North Carolina.  The District Judge determined that he
was not guilty of any offense after a trial on the factual merits of the
case, including the examination of all relevant witnesses.  He also states
that the final comment on the OER was added after he signed the OER.  It is
written so that it clearly stands out from the rest of the paragraph, which
[is] expressly forbidden according to Army Regulation 623-3, paragraph 3-
22.d.

3.  The applicant provides two letters to the Board dated 30 June 2006; his
OER appeal (consisting of the contested OER, the Supplementary Review of
the OER, a memorandum for record giving a chronology of events, and
findings of the Court); the Officer Special Review Board (OSRB) Case
Summary with a letter dated 2 March 2006 notifying him of the results of
his appeal; and a memorandum dated 2 January 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant has served in Operation Iraqi Freedom.

2.  The applicant was appointed a second lieutenant in the U. S. Army
Reserve on 15 December 1995.  He entered active duty on or about 10 January
1996.  He was promoted to captain on 1 February 2000.

3.  The applicant was assigned duties as the company commander of Company,
A, 261st Area Support Medical Battalion, Fort Bragg, NC on or about 12
August 2001.  He received a senior rater option OER from this assignment on
18 July 2001 for which he received an above center of mass rating from his
departing senior rater.

4.  The contested OER is a 1-rated month relief-for-cause OER, for the
period   19 July 2001 through 27 August 2002, for which the applicant was
rated as the company commander of Company A, 261st Area Support Medical
Battalion.  In Part IVa7 (DUTY:  Fulfills professional, legal, and moral
obligations), the rater checked the “NO” block.  In Part IVb3.2 (DECISION-
MAKING:  Employs sound judgment, logical reasoning, and uses resources
wisely), the rater checked the “NO” block.

5.  In Part V of the contested OER, the rater rated the applicant’s
performance as “Unsatisfactory Performance, Do Not Promote.”  The rater
commented, in part, “…that potential was stymied on 5 August 2001 when (the
applicant) exercised poor judgment by operating a motor vehicle while under
the influence of alcohol.  (The applicant) was stopped by the North
Carolina Highway Patrol, given a field sobriety test, and transported to
local law enforcement where he was administered a breathilizer (sic) test
which yielded a result of .09.  The legal limit for operation of a motor
vehicle in the state of North Carolina is .08.”

6.  In Part VII of the contested OER, the senior rater rated the
applicant’s potential as “below center of mass retain.”  The senior rater
commented, in part, “(The applicant), having just assumed company command,
had demonstrated excellent potential up until his personal decision to
consume excessive alcohol and then drive a motor vehicle under the
influence with alcohol levels high enough to impair his judgement (sic) and
ability to operate the vehicle.”  The senior rater also commented, in the
last sentence, “I relieved this officer.”  This sentence is in a different
type-face than the rest of the comments.

7.  The contested OER was given a supplementary review by the Deputy
Commanding General, XVIII Airborne Corps.

8.  The contested OER was referred to the applicant for comments.  He
stated, in a 30 June 2006 letter to the Board, that he indicated on the OER
that he did not submit comments because his case had not gone to court yet
and he wished to submit comments at a later date.

9.  The applicant appealed the contested OER in January 2005.  He contended
the OER was submitted before all evidence was gathered and investigated and
that it contains unproven derogatory information, the substance of which
was reviewed by the District Court of Cumberland County, NC.  The District
Judge reviewed all the facts in the case and ruled that the applicant was
not guilty of any wrongdoing.  That ruling negated the allegation that he
was driving under the influence of alcohol.

10.  The applicant provided a chronology of what occurred on the day of the
incident.  He stated that he attended a concert on the Fort Bragg
fairgrounds with two other officers and one civilian friend.  The others
consumed too much alcohol during the concert and were unable to drive.
Although he had a few small plastic cups of beer during the four-hour
concert, he consumed less alcohol than the others, and he was not
intoxicated.  He believed he was capable of driving the car lawfully and
had full use of his mental and physical faculties.  They walked about 300
meters to the car.  They turned towards Fayetteville, NC on a public road
that runs through the military installation.  A police car followed their
car from the fairgrounds parking lot exit gate until they left Fort Bragg.
Once off the military installation, the police officer turned on his blue
lights and signaled them to pull over.

11.  The applicant went on to state that the police officer told him the
reason he pulled the applicant over was because he was averaging more than
50 miles per hour (MPH) in a 45 MPH zone.  The police officer asked if he
had been drinking, to which the applicant answered, “Yes.”  The applicant
passed a series of field sobriety tests.  The police officer then
administered an uncalibrated, portable Breathalyzer exam.  The result of
the portable breath test is unknown.  The applicant was transported to the
central police station where he was given another Breathalyzer exam and
cited for driving while intoxicated (DWI).

12.  The applicant further stated that he pled not guilty to the charge and
requested a trial.  The trial was held on 14 January 2003, after he
returned from a 14-month deployment to Honduras.  The [arresting] police
officer was called as a witness during the trial.  The officer’s testimony
was contradictory regarding the reason he pulled the car over.  The judge
asked him if the car ever touched or crossed any traffic lines, and the
officer replied, “No.”  After considering this and other testimony, the
judge found him not guilty of DWI.

13.  With his OER appeal, the applicant provided a record of proceedings of
the DWI charge which showed he was found not guilty of driving while
impaired.

14.  The OSRB denied the applicant’s appeal.  The OSRB’s attempts to
contact the rater of the contested OER were unsuccessful.  The senior rater
was contacted.  He recalled the applicant as having recently taken company
command and in that short time was charged with DWI.  The applicant had
made a commitment to lead a company by example and in a very short time had
lost credibility to do so.  The applicant had admitted to drinking alcohol
and driving and being stopped by the local civilian authorities.  The basis
for the decision to generate a relief-for-cause OER was the applicant’s
failure to fulfill his professional duty and his decision-making (lack of
judgment).

15.  The OSRB found that the basis for the contested OER was not solely the
applicant’s charge of DWI by civilian authorities.  Whether the civilian
authorities later dismissed the charge for DWI did not dismiss the actions
of the applicant.  The OSRB found that the rating officials did not base
their evaluation on the investigation of the applicant but on the
seriousness of the charge and the admission of the applicant’s actions.
The applicant stated that he had been drinking and he did drive.

16.  Army Regulation 623-105, in effect at the time (Army Regulation 623-3
was not effective until 15 June 2006), established the policies and
procedures for preparing, processing and using the OER.  The regulation
provided that an OER accepted for inclusion in the official record of an
officer was presumed to be administratively correct, to have been prepared
by the proper rating officials, and to have represented the considered
opinion and objective judgment of the rating officials at the time of
preparation.  The burden of proof in appealing an OER rested with the
applicant.  Accordingly, to justify deletion or amendment of a report, the
applicant must produce evidence that clearly and convincingly nullified the
presumption of regularity.  Clear and convincing evidence must have been of
a strong and compelling nature, not merely proof of the possibility of
administrative error or factual inaccuracy.

17.  Army Regulation 623-105 stated, in pertinent part, that narrative
gimmicks were prohibited.  It stated, in pertinent part, that no reference
would be made to an incomplete investigation concerning an officer.
Reports should not be delayed to await the outcome of a trial or
investigation.  Reports must be done with due care and contain what
information is verified at the time of preparation.  Should previously
reported information later prove to be incorrect or erroneous, the officer
will be notified and advised of his or her right to appeal the report.

18.  Army Regulation 623-105 stated, in pertinent part, that a report is
required when an officer is relieved for cause regardless of the rating
period involved.  The report will clearly identify the rating official who
directed the relief.

19.  Army Regulation 623-105 stated, in pertinent part, that no enclosures
other than those specified in the regulation would be attached to the OER
when forwarded to Headquarters, Department of the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contended that the contested OER was submitted before all
evidence in the case was gathered and investigated and that it contains
unproven derogatory information.

2.  The applicant admitted to drinking alcohol and then driving.  His rater
had commented that, after the applicant was stopped and given a field
sobriety test, he was transported to local law enforcement [offices] where
he was administered a breathalyzer test which yielded a result of .09.  The
rater also commented that the legal limit for operation of a motor vehicle
in the State of North Carolina is .08.

3.  The applicant stated in his OER appeal that the police officer who
arrested him administered an uncalibrated, portable Breathalyzer exam;
however, he provides no evidence to show the machine was uncalibrated.  The
applicant stated he was given another Breathalyzer exam at the central
police station, where it appears the test yielded a .09 result.  He does
not contend that the second Breathalyzer machine was uncalibrated or in any
other way defective.

4.  It appears the comments made by the applicant’s rater on the contested
OER were based on facts, not on an incomplete investigation.

5.  The District Judge may have determined that the applicant was not
guilty of the offense of DWI; however, the standard used in determining
guilt or innocence in a judicial proceeding is “beyond a reasonable doubt.”
 The standard in an administrative action is “preponderance of the
evidence.”  The applicant has failed to provide sufficient evidence to
refute the preponderance of the evidence that showed his blood alcohol
content was higher than the legal limit.  Therefore, it appears his relief
for cause was based upon the considered judgment of his senior rater that,
as a company commander, the applicant should not have placed himself in the
position of driving after drinking.

6.  The applicant contended that the final comment on the OER (i.e., “I
relieved this officer”) was added after he signed the OER.  That appears to
be true.  However, the regulation forbids narrative gimmicks.  The senior
rater’s final comment was not a narrative gimmick.  It was a comment
required by the regulation.  It appears the contested OER was originally
printed out by computer without the required comment.  It appears the OER
was returned to the senior rater for correction, at which time the required
comment was entered by typewriter.

7.  With certain exceptions specified in the governing regulation, no
enclosures would be attached to the OER when forwarded to Headquarters,
Department of the Army.








BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__mkp___  __mjf___  __gjp___  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.




                                  _Margaret K. Patterson_
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060009639                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060803                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |111.01                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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