IN THE CASE OF:	  

	BOARD DATE:	  13 January 2009

	DOCKET NUMBER:  AR20080016316 


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 the General Officer Memorandum of Reprimand (GOMOR), dated 17 December 1992, be removed from his Official Military Personnel File (OMPF). 

2.  The applicant states, in effect, that the GOMOR has served its intended purpose.  He admits there was no excuse for his misconduct in December 1992; however, he has never repeated that type of indiscretion.  On 17 August 1993, the charge of driving while intoxicated was dismissed and expunged from his civil record.  He has faithfully continued to serve in the United States Army National Guard for 21 years of continuous service.  The reprimand has served as a continual punishment for an indiscretion committed 16 years ago.  Since then, he has deployed to Iraq, been awarded the Bronze Star Medal, assessed into the Active Guard Reserve (AGR) program, obtained a Master's Degree from Georgetown University, graduated from the Marine Corps Command Staff College, served on extended active duty in support of Operation Enduring Freedom at Human Resources Command in the Mobilization Division, been a battery commander, a section chief, a branch chief, and was promoted to lieutenant colonel.  He married, had four wonderful children and completed countless other achievements.  He has proven himself to be a productive member of the United States armed forces and desires to continue in that service.  The Department of the Army Suitability Evaluation Board (DASEB) approved his request to move the GOMOR to the restricted portion of his OMPF. Now he humbly asks that the document be removed entirely from his OMPF.   

3.  The applicant provides copies of a memorandum from the DASEB, dated
4 January 2007; court order of expungement and dismissal, dated in August 1993; certificate for award of the Bronze Star Medal; certificate of commendation; statement of wartime service, dated 29 June 2006; and his DA Form 4037 (Officer Record Brief (ORB)) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was serving on active duty as an AGR lieutenant colonel (LTC)/pay grade O-5.

2.  On 25 November 1992, the applicant, then a second lieutenant, Field Artillery, acknowledged that he had read and understood the unfavorable information presented to him and elected to submit a statement in his own behalf.

3.  On 2 December 1992, the applicant wrote a three-page statement acknowledging that he had driven a motor vehicle while intoxicated.   He admitted that the reasons for his misconduct were terribly faulty.  Until this incident, he had a very promising career and had been in the United States Army for 5 years, including prior enlisted service.  Both of his grandfathers were retired Army LTCs and his father had served 6 years as an infantry officer.  He stated that he justly deserved the outcome of his case and would do his very best for his family, the United States Army, and the South Carolina Army National Guard.   He apologized for the problems this incident had created.  He requested that the reprimand be filed in his Military Personnel Records Jacket (MPRJ).

4.  On 17 December 1992, the applicant received a formal, written GOMOR for misconduct.  It stated, in effect, that on 22 November 1992 he had been arrested off-post for driving a motor vehicle with a blood alcohol content that violated state law.  He had failed to live up to the high standards required of a commissioned officer in the United States Army.  The applicant was further informed that this written reprimand was imposed as an administrative measure and not as punishment under the Uniform Code of Military Justice.  The commander directed that the reprimand be filed in the applicant’s OMPF.

5.  On or about 6 January 1993, the applicant, before a judge in the Municipal Court in and for the City of Lawton, Oklahoma, pled guilty to the charge of driving while intoxicated.  On 17 August 1993, the applicant's plea was expunged from the record and the case dismissed with prejudice.


6.  In a memorandum, dated 4 January 2007, the DASEB announced that after careful consideration, it had voted to approve the transfer of one record of a GOMOR, dated 17 December 1992, from the applicant’s performance portion of his OMPF to the restricted portion.  The basis for this decision was that the GOMOR had served its intended purpose.

7.  The applicant was subsequently promoted through the ranks, attaining the rank of LTC on 23 June 2008.

8.  Army Regulation 190-5 provides that officers and NCOs will be issued an administrative GOMOR for alcohol-related driving incidents in the following circumstances:  When there is a conviction for driving while intoxicated or driving under the influence of alcohol or drugs; a refusal to take a properly requested blood, urine, or breath test; when the individual was driving or in physical control of a vehicle on-post with a BAC of .10 or off-post with a BAC in violation of State law, irrespective of other charges; or driving or in physical control of a vehicle when a lawfully requested test reflected the presence of other drugs.

9.  Army Regulation 600-37 (Unfavorable Information) provides in pertinent part, that an administrative memorandum of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the soldier.  The memorandum must be referred to the recipient and the referral must include and list applicable portions of investigations, reports or other documents that serve as a basis for the reprimand.  Statements or other evidence furnished by the recipient must be reviewed and considered before filing determination is made.  A memorandum of reprimand may be filed in a Soldier's OMPF only upon the order of a general officer level authority and are to be filed in the performance section.  The direction for filing is to be contained in an endorsement or addendum to the memorandum.  If the reprimand is to be filed in the OMPF then the recipient's submissions are to be attached.  Once filed in the OMPF the reprimand and associated documents are permanent unless removed in accordance with chapter 7.  A memorandum of reprimand intended for filing in the Military Personnel Records Jacket (MPRJ) may be retained for no more than 
3 years and must state the length of time they are to be retained.  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 a reprimand, admonition or censure (normally for Soldiers in pay grade E-6 and above) are 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.  The 

DASEB will return appeals unless 1 year has elapsed and at least one nonacademic evaluation has been received since the letter was imposed.  If the appeal is denied the DASEB memorandum of denial will be filed in the performance section, the appeal itself and any associated documents will be filed in the restricted section.  Otherwise this Board may act in accordance with Army Regulation 15-185 and the Soldier has rights under the Privacy Act in which the DASEB acts as the access and amendment authority under Army regulation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s records clearly show that the applicant received a GOMOR for driving a motor vehicle while intoxicated.  It was neither unjust nor disproportionate to the offense involved.

2.  The evidence shows that the applicant was afforded the opportunity to review all of the evidence against him and to summit matters on his own behalf prior to a final filing decision.   Subsequently, the GOMOR was referred by a general officer for filing in the applicant’s OMPF.

3.  The applicant's reported accomplishments since the instant offense have been carefully considered.

4.  Removal of the GOMOR would, in effect, place him on a level playing field with Soldiers, with similar years of service, whose careers have not been marred by incidents of such inappropriate behavior.

5.  The Army has an obligation to maintain a complete and accurate record of an individual's service.  The placement of a GOMOR in the restricted section of the OMPF enables the Army to maintain that historical record without unduly jeopardizing the individual's career.

6.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20070016793



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ABCMR Record of Proceedings (cont)                                         AR20080016316



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