IN THE CASE OF:	  

		BOARD DATE:	  4 November 2008

		DOCKET NUMBER:  AR20080013213 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that a General Officer Memorandum of Reprimand (GOMOR) be removed from his Official Military Personnel File (OMPF), or that it be transferred from the Performance (P) to the Restricted (R) portion of the OMPF.  

2.  The applicant states, in effect, he was found not guilty in civil court and this incident was a one-time blemish on his otherwise exemplary career.  He is now requesting this action so he can continue his career without this impediment. 

3.  The applicant provides a self-authored statement in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.


2.  The applicant’s record shows that upon his graduation from the United States Military Academy (USMA), he was commissioned a second lieutenant (2LT) in the Regular Army (RA) and entered active duty on 1 June 1996.  

3.  On 4 August 1996, while serving at Fort Rucker, Alabama, the applicant was apprehended by Enterprise, Alabama police officers and after failing a field sobriety test and having a breathalyzer test reading of .13% blood alcohol content, he was arrested for driving under the influence (DUI).

4.  On 16 August 1996, the Commanding General (CG) of the United States Army Aviation Center and Fort Rucker, issued the applicant an official reprimand for DUI.  The CG stated that the applicant’s behavior was inconsistent with that expected of a United States Army Officer.  He further informed the applicant the GOMOR was administrative in nature and that he was considering forwarding the GOMOR for filing in the applicant’s OMPF.  He notified the applicant that he had 7 days to submit any rebuttal to the GOMOR’s contents.  He finally indicated that he would consider whatever matters the applicant submitted before deciding whether to forward the GOMOR or take lesser action.  

5.  On 28 August 1996, the applicant acknowledged receipt of the GOMOR and indicated that he would submit matters for the CG’s consideration.  The applicant submitted a request for reconsideration, in which he accepted full responsibility for the error in judgment he made, and offered his sincere apologies because he placed himself in such a career ending situation, as well as the embarrassment caused to his command, his unit, and the United States Army.  He stated that he could not explain the sorrow nor regret of his poor decision.  He indicated that obviously in hind sight he knew he would act differently.  He indicated that this was a one-time incident and that it would never happen again.  He concluded by stating that anything that could be done on his part to remedy the situation would be done with force and enthusiasm, and in fact, mercy, as he rejoined his brothers in arms.  

6.  On 1 October 1996, the CG, after considering all matters submitted by the applicant, forwarded the GOMOR for filing in the OMPF.  

7.  On 16 April 1998, the applicant was promoted to first lieutenant (1LT) and on 1 May 2000, he was promoted to captain (CPT).  

8.  There is no indication that the applicant petitioned the Department of the Army Suitability Evaluation Board (DASEB) for removal of the GOMOR from his OMPF or for its transfer to the R portion of the OMPF while he remained serving on active duty.  

9.  On 1 June 2001, the applicant was honorably discharged, in the rank of CPT, after completing 5 years and 1 day of active military service.  The separation document (DD Form 214) he was issued shows he earned the following awards during his active duty tenure:  Army Commendation Medal; Army Achievement Medal (3rd Award); National Defense Service Medal; Army Service Ribbon; Overseas Service Ribbon; North Atlantic Treaty Organization Medal; Air Assault Badge; and Kosovo Campaign Medal.

10.  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; to ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and to 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.  

11.  Chapter 7 of the same regulation contains guidance on removal of unfavorable information from official personnel files.  It states, in pertinent part, that appeals and petitions for removal of unfavorable information are to be directed to the Department of the Army Suitability Evaluation Board (DASEB).  It further 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.  

12.  Chapter 7 of the unfavorable information regulation also provides guidance on appeals for transfer of OMPF entries and states, in pertinent part, that these appeals may be based on proof that the documents in question have served their intended purpose 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the GOMOR in question should be removed from his OMPF or transferred to the R portion of the OMPF was carefully considered so he can continue his career without this impediment was carefully considered.  However, the evidence of record confirms the GOMOR in question was properly processed and filed in the applicant’s OMPF in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the GOMOR process.  

2.  By regulation, 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.  To support alteration or removal of the document from the OMPF, an individual has the burden to provide clear and convincing evidence that the document is untrue or unjust, in whole or in part, to support its removal from the OMPF.  The applicant has failed to meet this regulatory burden of proof. 

3.  Further, by law and regulation, in order for this Board to support removal of the GOMOR from the applicant’s OMPF or its transfer to the R portion of the OMPF, there must be evidence that an error or injustice exists, and the applicant must have exhausted all administrative remedies available prior to Board action.  

4.  In this case, there is no indication that the applicant, while he remained on active duty, ever petitioned the DASEB requesting that the GOMOR, either be removal or transferred to the R portion of his OMPF.  Further, his record confirms that subsequent to his receipt and the filing of the GOMOR, the applicant was promoted to both 1LT and CPT.  Therefore, there is no evidence suggesting any error occurred related to the OMPF filing of the GOMOR, or that the applicant has or will suffer any injustice as a result of the GOMOR being filed in his OMPF. 

5.  The applicant is advised that if he decides to reenter the Army and he still believes the GOMOR was unjust or has served its purpose, he should petition the DASEB for either removal or transfer of the GOMOR in question.

6.  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

___x____  ___x____  ____x___  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.



      ________x______________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080013213



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ABCMR Record of Proceedings (cont)                                         AR20080013213


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