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ARMY | BCMR | CY2008 | 20080000159C080407
Original file (20080000159C080407.doc) Auto-classification: Denied



                            RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        4 March 2008
      DOCKET NUMBER:  AR20080000159


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. William D. Powers             |     |Member               |
|     |Mr. Jerome L. Pionk               |     |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, removal of a General Officer
Memorandum of Reprimand (GOMOR) from her Official Military Personnel File
(OMPF); restoration of her Military Occupational Specialty (MOS) 79R
(Recruiter); and removal of Memorandum of Record (Denial of Army Good
Conduct Medal) from her OMPF.

2.  The applicant states, in effect, she was found not guilty in a court of
law of the charges cited as the basis for the issue of the GOMOR.  She
claims her chain of command prematurely issued the GOMOR, while uninformed
of the facts behind the incident.  At trial, an eyewitness directly
contradicted the facts cited in the GOMOR and led a jury of her peers to
find her not guilty.  She claims numerous inaccuracies existed within the
GOMOR, which were refuted by the evidence, which included her cooperation
with Police by taking breathalyzer tests, and the fact she had no symptoms
of intoxication at the scene of the incident.  She states that as a
consequence of the GOMOR, she was improperly relieved of her duties as a
Recruiter and reassigned to another MOS.

3.  The applicant provides the following documents in support of her
application:  Self-Authored Statement; Chain of Command Letters of Support;
Not Guilty Court Order; Enlisted Record Brief (ERB); Breathalyzer Tests;
Probable Cause Affidavit; Code of Federal Regulations Extract; Indiana
Administrative Code; and Noncommissioned Officer Evaluation Reports
(NCOERs).

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that she initially enlisted in the Regular
Army and entered active duty on 18 November 1994.  She initially was
awarded and served in MOS 14T (Patriot Missile Crewmember), and was later
reclassified into MOS 79R (Recruiter) in 2001.  As of the date of her
application to the Board, the applicant was still serving on active duty in
the rank of sergeant first class (SFC).

2.  On 5 September 2006, the Deputy Commanding General of the United States
Army Recruiting Command (USAREC) issued the applicant, who was then serving
as a recruiter at the Indianapolis Recruiting Battalion, Indianapolis,
Indiana, a GOMOR, in which he reprimanded her for drunk driving.

3.  On 7 September 2006, the applicant responded to the GOMOR.  In her
response, she indicated that she took full responsibility and
accountability for her actions.

4.  In her response to the GOMOR, the applicant further stated that she
understood that as a Noncommissioned Officer (NCO) it was her
responsibility to represent the highest standards, and in this situation,
she failed to represent the NCO Corps, and this failure was perhaps the
most disheartening failure of her life.  She also indicated that she aware
of the adversity that she brought upon herself, and that she had every
intention of meeting the adversity head on and to learn from it.  She
further stated that the information in the GOMOR did not reflect all the
facts and that she was utilizing the legal system for final resolution. She
also stated that although she was going through the justice system
regarding the charges, that in no way relinquished her from her
responsibility for having put herself in a situation that there would ever
be speculation or accusations such as the current charge made.

5.  On 13 September 2006, the applicant's battalion commander recommended
the GOMOR be filed in the applicant's local unit file, and her brigade
commander recommended the GOMOR be filed in the OMPF.  The brigade
commander commented that the applicant had admitted that she committed the
offense and regrets it, but this did not excuse the action of a senior NCO.


6.  On 12 October 2006, the Deputy Commanding General of USAREC, after
reviewing the reprimand imposed on the applicant, her rebuttal statement,
and the recommendations of the chain of command, concurred with the
recommendation of the brigade commander, and directed the GOMOR be filed in
the applicant's OMPF.

7.  On 25 January 2007, the applicant battalion commander prepared a
Memorandum for Record, in which he indicated the applicant did not qualify
for the AGCM.  He indicated that the applicant was being relieved of her
duties as a recruiter.

8.  On 1 February 2007, the applicant was notified of the initiation of her
involuntary reassignment, reattachment, and or reclassification.  The GOMOR
she received that was filed in her OMPF was cited as the basis for the
action.

9.  On 28 February 2007, the applicant submitted a request to the
Department of the Army Suitability Evaluation Board (DASEB) for the removal
of the GOMOR in question from her OMPF.  The applicant based her request on
the fact that she was innocent of the driving under the influence of
alcohol charge that was the basis of the GOMOR, and had been found not
guilty of the charge in a Jury trial.

10.  On 13 March 2007, the applicant's brigade commander directed the
applicant's relief from retention duty and her reassignment in accordance
with the needs of the Army.

11.  On 9 April 2007, the DASEB notified the applicant that after careful
consideration of her petition for removal, and of the entire record, it
voted to deny removal of the GOMOR from the OMPF.  In its case summary, the
DASEB acknowledged the court document submitted by the applicant found the
applicant not guilty, but determined the applicant had failed to provide
evidence of a clear and convincing nature that the GOMOR was untrue or
unjust in whole or in part, thereby warranting its removal from the OMPF.

12.  On 22 June 2007, the applicant submitted a second appeal for removal
of the GOMOR in question to the DASEB, citing untrue statements in the
GOMOR.

13.  On 10 July 2007, the DASEB, after careful consideration of the
applicant's petition for removal, and of the entire record, again denied
the removal of the GOMOR in question from the OMPF.  In its case summary,
the DASEB indicated that although the applicant did submit a probable cause
affidavit, copy of Indiana Administrative Code 260, and Code of Federal
Regulations, Title 32, Volume 4 to substantiate her appeal, the applicant
had admitted to consuming alcohol, then operating a motor vehicle.  Based
on her own admission, the DASEB found no new or compelling evidence that
would warrant or justify transferring the GOMOR to the Restricted (R)
portion of her OMPF.  The DASEB finally opined that the GOMOR in question
had not yet served its intended purpose.

14.  The applicant provides a court order issued by the Vigo Superior Court
of the State of Indiana on 22 January 2007.  This document confirms a jury
found the applicant not guilty of operating a vehicle while intoxicated.
She also provides supporting memorandums from the Indianapolis Recruiting
Battalion Operations Officer and Battalion Master Trainer, and from her
former supervisor.  These individuals all support the removal of the GOMOR
in question from her OMPF, and attest to the applicant's integrity and
character.

15.  Army Regulation 600-37 (Unfavorable Information) sets forth policies
and procedures to authorize placement of unfavorable information about Army
members in individual official personnel files, ensure that unfavorable
information that is unsubstantiated, irrelevant, untimely, or incomplete is
not filed in individual official personnel files and ensure that the best
interests of both the Army and the soldiers are served by authorizing
unfavorable information to be placed in and, when appropriate, removed from
official personnel files.

16.  Chapter 7 of the same regulation provides the policies and procedures
for appeals and petitions for removal of unfavorable information from the
OMPF.  Paragraph 7-2 states 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.

17.  Paragraph 7-2b of the unfavorable information regulation contains
guidance on transfers of OMPF entries.  It states, in pertinent part, that
letters of reprimand, admonition, or censure 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.  Appeals approved under this provision will
result in transfer of the document from the performance (P) portion to the
R portion of the OMPF

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record clearly shows the GOMOR was issued and filed in
the OMPF in accordance with the governing law and regulation.  By
regulation, in order to remove this document from the OMPF, there must be
clear and convincing evidence showing that the document is untrue or
unjust.  Although the applicant was ultimately found not guilty of
operating a motor vehicle while intoxicated by a jury trial, this does not
change the fact that she was in fact operating a motor vehicle after
consuming alcohol, as she admitted, and that there was sufficient cause for
her to be charged with the offense.  As a result, the clear and compelling
evidence and regulatory burden of proof necessary to support removal of a
properly filed document from the OMPF has not been satisfied in this case,
and there is insufficient evidence to support a conclusion that the GOMOR
has served its intended purpose.  Therefore, there is an insufficient
evidentiary basis to support removal of the GOMOR in question from the OMPF
or its transfer to the R portion of the OMPF.

2.  The evidence of record further shows that based on the GOMOR filing,
the applicant's commander properly disqualified her from receiving the AGCM
during this period, and she was properly processed for removal from
recruiting duty and reassignment out of USAREC.  Therefore, it would not be
appropriate to remove the AGCM disqualification memorandum from her OMPF,
or to reinstate her 79R MOS.
3.  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 this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JEA __  __WDP__  __JLP ___  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.




                                  _____James E. Anderholm__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20080000159                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2008/02/DD                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |126.0300                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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