IN THE CASE OF:	

		BOARD DATE:	6 October 2009    

		DOCKET NUMBER:  AR20080018175 


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 that a General Officer Memorandum of Reprimand (GOMOR), dated 6 August 2007, be removed from his Official Military Personnel File (OMPF).  In the alternative, he requests that this GOMOR be transferred from the performance portion to the restricted portion of his OMPF.

2.  The applicant essentially states that his GOMOR fails to take into consideration the context of his actions and imposes an inordinate adverse and/or negative impact on his career.

3.  The applicant provides evidence in support of this application through counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests also requests that the applicant's GOMOR be removed from his OMPF, or in the alternative that it be transferred from the performance portion to the restricted portion of his OMPF.  Counsel also requests, if possible, that the applicant be allowed to appear before the Army Board for Correction of Military Records (ABCMR) if the Board will be traveling to or near Texas.

2.  Counsel essentially states the applicant is a resident of Texas and that he has a Texas driver's license.  He also states that the applicant was pulled over at 0256 hours on 22 July 2007 by an officer of the Leavenworth County, Kansas Sheriff’s Department and that he was subsequently released with a warning for speeding.  He also states that the applicant was again pulled over for speeding approximately 30 minutes later by an officer of the Lansing, Kansas Police Department, who detected an odor of an alcoholic beverage after he made contact with the applicant.  After being ordered out of his vehicle to perform field sobriety tests, the applicant completed the first test; however, he refused to complete the preliminary breath test (PBT) and he was arrested.  Later, the applicant refused additional testing, including a breathalyzer test, at the Leavenworth County Jail.  The applicant was subsequently cited for speeding, refusing to give a PBT, and driving under the influence (DUI).  He states the applicant pled guilty to speeding and refusing the PBT.  The applicant paid his fines, but the DUI charge was dismissed by the prosecutor.  The applicant was later issued a GOMOR for refusing to take a breathalyzer test.

3.  Counsel argues that the applicant denies he committed the offense of DUI; that is, he denies he was intoxicated and DUI.  He also argues, in part, that if one fails to take a breathalyzer test after being arrested in Texas it is a non-criminal matter.  Counsel argues that the applicant did not commit a criminal offense by refusing to take the breathalyzer test after having been arrested in Kansas.  Counsel also argues that the applicant's GOMOR is unjust because it fails to take into consideration the context of the applicant’s actions and imposes an inordinate adverse impact on his career.

4.  Counsel provides evidence as indexed on page five of his 22 October 2008 letter in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show that he was ordered to active duty for training as a major in the United States Army Reserve, on 16 July 2007, and he was attached to the U.S. Army Command and General Staff College, Fort Leavenworth, Kansas.

2.  On 22 July 2007 at 0328 hours, the applicant was stopped by the Lansing, Kansas Police Department for a traffic infraction.  An investigation by a police officer revealed the applicant was impaired, and he was taken into custody, where he subsequently refused to submit to a PBT.  He was cited for speeding, PBT refusal, and DUI.  

3.  On 6 August 2007, the applicant was issued a GOMOR for failing to submit to a breathalyzer test.  In this GOMOR, the applicant was informed that the Army consistently emphasizes the tragic consequence of driving after drinking, yet it appears that he ignored this warning and then refused to submit to a breathalyzer test.  He was also reprimanded for showing a lack of respect for the law, and was informed that his conduct would not be tolerated.  Additionally, he was informed that obedience to the law and leading by example are values expected of all Soldiers.  The applicant was informed that he had compromised these values and the special trust placed in him as a commissioned officer.  The applicant was also advised the GOMOR was administrative in nature and he was allowed to submit statements in his own behalf prior to the filing decision.  However, the proper authority determined that this GOMOR would be permanently filed in the performance portion of the applicant's OMPF.

4.  On 16 November 2007, the applicant pled no contest to the charges of speeding and refusing a PBT, and the charge of DUI was dismissed by the city prosecutor.

5.  On 20 June 2008, the Department of the Army Suitability Evaluation Board denied the applicant's request to remove the GOMOR or expunge the GOMOR from his OMPF.

6.  Paragraph 2-7 of Army Regulation 190-5 (Motor Vehicle Traffic Supervision) provides, in pertinent part, that a written administrative reprimand by a general officer will be issued to active duty Soldiers who refuse to take or fail to complete a lawfully-requested test to measure alcohol or drug content of the blood, breath, or urine, either on or off the installation, when there is reasonable belief of DUI of alcohol or drugs.  This same regulation provides, in pertinent part, that paragraph 2-7 applies to U.S. Army Reserve personnel on active duty, active duty for training, and in an inactive duty training status.

7.  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.

8.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records), Table 2-1 (Composition of the OMPF) provides, in pertinent part, that administrative letters of reprimand, admonitions, and censures of a non-punitive nature, referral correspondence, and member's reply will be filed in the Performance (Commendatory and Discipline) section of the OMPF, if the provisions of Army Regulation 600-37 have been complied with.



9.  Chapter 7 of Army Regulation 600-37 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. 

10.  Paragraph 7-2b of Army Regulation 600-37 also 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 section to the restricted section of the OMPF.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and his counsel contend that the applicant's GOMOR should be removed from his OMPF or, in the alternative, transferred from the performance portion to the restricted portion of his OMPF.  

2.  The applicant's counsel's requests that the applicant be allowed to appear before the ABCMR if it travels to or near Texas was carefully considered.  However, the ABCMR does not conduct traveling boards.  In the applicant’s case the facts are clear, and the applicant and counsel clearly stated the applicant’s contentions.  Therefore, it was determined that holding a hearing would serve no further purpose.  

3.  While the applicant's counsel raised many issues and arguments in this case, the crux of this case is that the applicant refused to submit to a lawfully requested breathalyzer test as he was required to do by regulation.  As a result of this refusal, the applicant's chain of command acted appropriately and in accordance with regulations in effect at the time by issuing him a GOMOR for failing to submit to a breathalyzer test.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the GOMOR process.  As a field grade commissioned officer, the applicant should have known the Army's policy that refusal to take and complete a lawfully requested test to measure alcohol or drug content of the blood, breath, or urine would result in a GOMOR.  

4.  It could be argued that the applicant's GOMOR has served its purpose.  However, the general officer who issued this GOMOR directed that it be permanently filed in the performance portion of the applicant's OMPF.  There is little to no doubt that the general officer who directed this action was fully aware of the impact his decision would have on the applicant's career and promotion potential.  Further, the applicant has failed to adequately demonstrate that the GOMOR's intended purpose has been served and the transfer would be in the best interest of the Army.

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)                                         AR20080018175



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080018175



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1