IN THE CASE OF:	  

		BOARD DATE:	       21 October 2008

		DOCKET NUMBER:  AR20080014499 


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, removal of a General Officer Memorandum of Reprimand (GOMOR) from his Official Military Personnel File (OMPF) and reinstatement on the sergeant first class (SFC)/E-7 Promotion List. 

2.  The applicant states, in effect, he was cited by civilian police for driving under the influence of alcohol (DUI) in Aberdeen, MD on 18 November 2006.  In court, he was found “in the negative and not guilty," but he received a GOMOR which was filed in his OMPF on 21 February 2007.  He was also removed from the SFC/E-7 promotion list.  He adds that he received the GOMOR prior to his court date.  He also adds that he was not told that his records had to be considered by a Standby Advisory Board (STAB) due to the GOMOR, until after the March 2007 SFC/E-7 promotion list was released.  He continues by pointing out that other noncommissioned officers (NCOs) within his command at Aberdeen Proving Ground, MD were charged with DUIs, yet their records did not have to go before a STAB and they were promoted to SFC/E-7.  There are even some others who received GOMORs after or during the promotion board.

3.  The applicant provided the following additional documentary evidence in support of her application:

	a.  DA Form 2166-8 (NCO Evaluation Report) for the period 1 July 2006 to 27 November 2007.


	b.  DA Forms 268 (Report to Suspend Favorable Personnel Actions), dated 12 December 2006, 21 March 2007, and 20 September 2007. 

	c.  Administrative Memorandum of Reprimand, dated 11 January 2007.

	d.  Acknowledgement Memorandum, dated 16 January 2007, and Rebuttal Statement, dated 18 January 2007.

	e.  Memorandum, dated 21 February 2007, Filing of the Administrative Memorandum of Reprimand.

	f.  Internet Printout, dated 20 September 2007, List of Soldiers selected for promotion to SFC/E-7.

	g.  Memorandum, dated 26 March 2007, Removal of Suspension of Favorable Action.

	h.  Defendant Trial Summary and Defendant Probation Summary, dated 24 April 2007, District Court of Maryland for Hartford County, Bel Air, Maryland.

	i.  Letter, dated 31 March 2008, clarifying the status of the applicant’s certain traffic offenses.

	j.  Internet Printouts, dated 20 September 2007, Senior Enlisted By-Name Promotions for October 2007 and Senior Enlisted Promotion Sequence Numbers for October 2007.

	k.  Email exchange, dated 20 September 2007, between a staff officer of the Senior Enlisted Promotion Branch, Human Resources Command, Alexandria, Virginia, and the applicant’s Senior Enlisted Advisor.

	l.  Memorandum, dated 19 September 2007, Referral to the Headquarters, Department of the Army (HQDA) STAB.

	m.  Enlisted Record Brief, dated 20 September 2007.

	n.  Memorandum, dated 26 September 207, Applicant’s Request for a 30-day STAB Removal Waiver.

	o.  Memorandum, dated 25 September 2007, Applicant’s letter to the HQDA STAB Advisory Board.

	p.  Four character reference letters, dated on miscellaneous dates.
CONSIDERATION OF EVIDENCE:

1.  The applicant is a Regular Army staff sergeant (SSG)/E-6 who initially enlisted in the U.S. Army Reserve on 5 June 1989.  He entered active duty on 29 July 1989, completed basic combat and advanced individual training, and was awarded military occupational specialty (MOS) 63B (Light Wheel Vehicle Mechanic).  He remained in the USAR until 14 November 1996 when he enlisted in the Regular Army.  He subsequently executed several extensions and/or reenlistments in the Regular Army.  He was promoted to sergeant (SGT)/E-5 on 16 November 1999 and to SSG/E-6 on 1 June 2003.  His records show he served in Iraq from 17 January 2003 to 18 July 2003 and from 19 January 2005 to 12 January 2006.

2.  The applicant’s records show he was awarded the Army Commendation Medal (2nd Award), the Army Achievement Medal (4th Award), the Presidential Unit Citation, the Good Conduct Medal (3rd Award), the National Defense Service Medal, the Korea Defense Service Medal, the Armed Forces Expeditionary Medal, the Iraq Campaign Medal, the Global War on Terrorism Service Medal, the Global War on Terrorism Expeditionary Medals, the Noncommissioned Officer Development Ribbon (3rd Award), the Army Service Ribbon, the Overseas Service Ribbon (2nd Award), the Combat Action Badge, and the Driver and Mechanic Badge with Driver-W and Mechanic Bars.  

3.  On 12 December 2006, a report to suspend the applicant's favorable personnel actions was initiated as a result of being arrested by the Aberdeen Police Department, Aberdeen, MD, and issued a citation for driving under the influence of alcohol and driving while impaired – he failed a field sobriety test and his blood-alcohol content (BAC) level was .13 on a breathalyzer test.

4.  On 11 January 2007, the applicant received a written reprimand from the Commanding General (CG) of the U.S. Army Ordnance Center and Schools, Aberdeen Proving Ground, Maryland, for driving while under the influence of alcohol.  He acknowledged receipt of the GOMOR on 16 January 2007 and submitted a rebuttal to the GOMOR on 18 January 2008.  However, after reviewing the GOMOR, supporting evidence, and the rebuttal, the CG directed the GOMOR be permanently filed in the applicant's OMPF.

5.  On 30 January 2007, the Fiscal Year (FY) 2007 SFC/E-7 Selection Board convened to consider Soldiers for promotion to SFC.  

6.  On 20 March 2007, the FY2007 SFC Selection List was officially released.  The applicant was selected for promotion to SFC/E-7 and assigned sequence number 59.
7.  On 21 March 2007, the suspension of favorable personnel action initiated against the applicant on 12 December 2006 was removed.

8.  On 19 September 2007, by memorandum, HRC-Alexandria, notified the applicant that he was being referred to HQDA for removal from the SFC promotion standing list.  The memorandum further informed the applicant that his records would be referred to a HQDA STAB for a recommendation as to whether he should be retained on or removed from the SFC promotion selection list.  Furthermore, a report to suspend the applicant's favorable personnel action, effective 11 January 2007 was also initiated by HQDA, placing the applicant in a non-promotable status.  The memorandum established a 30-day suspense for the applicant to submit matters to the STAB.

9.  On 26 September 2007, the applicant acknowledged receipt of the HRC notification memorandum and requested a waiver of the 30-day response time, and subsequently submitted a self-authored letter, as well as four character witness letters, for consideration by the HQDA STAB.

10.  On 2 October 2007, the applicant's records were considered for promotion to SFC by the STAB portion of the FY2008 Master Sergeant Promotion Board; however, the applicant was not selected.

11.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.  Chapter 4 of this regulation states, in pertinent part, that HRC–Alexandria will continuously review promotion lists against all information available to ensure that no Soldier is promoted where there is cause to believe that a Soldier is mentally, physically, morally, or professionally unqualified to perform duties of the higher grade.  In addition to other reasons, a Soldier may be referred to a STAB for the following reasons (list is not all inclusive): 

	a.  Article 15 directed for filing in the OMPF.

	b.  A memorandum of reprimand placed in the OMPF.

	c.  Adverse documentation filed in the OMPF and/or Relief-for-cause NCOER.

	d.  Soldiers who are flagged in accordance with AR 600–8–2 and have not met the requirements in the time prescribed by that regulation.

	e.  Other derogatory information received by HQDA, but not filed in the OMPF, if it is substantiated, relevant, and might reasonably and materially affect a promotion recommendation.
12.  A Soldier referred to a STAB normally will be considered by the STAB within 120 calendar days after the case is referred for review.  Before the STAB convenes, the Soldier will be informed, by memorandum, of the reason for the action and provided a copy of the information that will be considered by the Board.  The Soldier will be given reasonable opportunity, not less than 30 duty days from the date of receipt of the information, to submit comments to the STAB and the official(s) reviewing the recommendation.  If the Soldier cannot be given access to the information for reasons of national security, the Soldier will, to the maximum extent possible, be provided with an appropriate summary of the information.  A STAB will consider the Soldier’s OMPF, in addition to the documents contained in the removal action, and any submission to the Board by the Soldier under consideration.  The Soldier may include the opinion and statements of third-party persons in his or her submission.  A Soldier who is removed from a promotion list may appeal that action only in limited circumstances.  HRC–Alexandria will take final action on any active duty Soldier appeal.  Soldiers may appeal a removal action when the underlying basis of the removal is subsequently determined to be erroneous.  The subsequent determination must be based on facts that were not available or reasonably discoverable at the time of the original action or at the time that the Soldier was notified of the removal action.  An appeal may also be submitted for other compelling reason(s).  Appeals must be referred through command channels.

13.  Army Regulation 600-8-104 (Military Personnel Information Management/Records) governs the composition of the OMPF, and states in pertinent part that the performance section is used for filing performance, commendatory and disciplinary data.  Once placed in the OMPF, the document becomes a permanent part of that file.  The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board.  Table 2-1 of Army Regulation 600-8-104 states, in pertinent part, that administrative letters of reprimand, admonitions, and censures of a non-punitive nature are filed in the performance section of the OMPF. 

14.  Army Regulation 190-5 (Motor Vehicle Traffic Supervision) establishes policy, responsibilities, and procedures for motor vehicle traffic supervision on military installations in the continental United States (CONUS) and overseas areas.  It states, in pertinent part, a written reprimand, administrative in nature, will be issued to active duty Soldiers by a general officer when the Soldier is driving or being in physical control of a motor vehicle on post when the BAC is 0.08 percent or higher, irrespective of other charges, or on/off post when the BAC is in violation of the law of the State involved.  Conviction is not a requirement for issuing a GOMOR.


DISCUSSION AND CONCLUSIONS:

1.  With respect to the applicant's promotion, the evidence of record shows that the applicant was considered and selected by the FY2007 SFC Promotion Board. However, prior to his promotion and as a result of his GOMOR, and as required by regulatory guidance, his records were referred to a STAB that considered his OMPF and the opinion and statements of third-party persons in his submission; however, he was not selected.  All requirements of law and regulation were followed and the rights of the applicant were fully protected throughout the process.  There does not seem to be an error or an injustice.

2.  With respect to filing of the GOMOR, the evidence of record shows that the applicant was arrested for a DUI violation and his BAC level was determined to be .13 which was beyond the State limit.  He was subsequently given a GOMOR. The administering officer directed the GOMOR be filed on the applicant's OMPF. Regulatory guidance requires that a GOMOR be filed in the performance section of the OMPF if filing in the OMPF is directed.  There does not seem to be an error or an injustice.

3.  The applicant was not found "not guilty" of DUI; the court suspended prosecution of his case, placing him on "probation before judgment" and fining him $1000.00 and court costs ($750.00 suspended).  

4.  The applicant was afforded the opportunity to submit a rebuttal to the GOMOR where he admits that he was directly under the influence.  This underscores the fact that, notwithstanding his plea deal, the fact remains that he did something wrong - a DUI - that warranted the GOMOR.

5.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement.  Therefore, the applicant is not entitled to relief. 









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.


															XXX
      ______________________
               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)                                         AR20080014499



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ABCMR Record of Proceedings (cont)                                         AR20080014499



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