IN THE CASE OF:	

		BOARD DATE:	4 August 2009  

		DOCKET NUMBER:  AR20090003422 


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 transfer of a general officer memorandum of reprimand (GOMOR) from the performance section of his official military personnel file (OMPF) to the restricted section of his OMPF.

2.  The applicant states that he believes that the transfer of the GOMOR would be in the best interest of the Army and that it has served its intended purpose as described in the applicable regulation.

3.  The applicant provides a self-authored memorandum addressed to the Army Review Boards Agency, dated 12 February 2009; a copy of an extract from his marriage registration; a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); a State of Oklahoma Order Withdrawing Plea and Expunging Records; copies of his Officer Evaluation Reports (OERs); a copy of an Application for Correction of Military Records, dated 16 August 2006; a letter from the Army Review Boards Agency, Chief, Case Management Division, dated 31 August 2006; a copy of his notification of two-time non-selection for promotion memorandum, dated 28 February 2007; and a copy of an undated United States Army Human Resources Command memorandum notifying the Commander, 1st Personnel Command, of his [the applicant’s] twice non-selection for promotion.



CONSIDERATION OF EVIDENCE:

1.  On 21 May 2003, the applicant accepted an appointment as a commissioned officer in the United States Army Reserve in the rank of second lieutenant.  He entered extended active duty on 26 May 2003.  He was promoted to the rank of first lieutenant on 30 November 2004.

2.  The applicant’s records show that on 21 February 2004, he was arrested and charged with driving under the influence (DUI).  At the time of his arrest the applicant took a breathalyzer test and he was determined to have a 0.14 percent blood alcohol content (BAC).

3.  On 24 February 2004, the applicant was counseled as a result of his DUI charges.  According to the Developmental Counseling Form, he was pulled over for speeding near the establishment Dragon's West and was identified as possibly intoxicated.  He consequently received a BAC test that resulted in a 0.14-percent level and was arrested.  BAC levels of 0.15 or higher are considered as aggravated assault in the area where he was arrested.  As a  result of his inability to be seen by a judge at the Comanche County Jail until 23 February 2004, his battery commander could not sign for his release from the military police station on Fort Sill until 23 February 2004.  During the counseling it was noted that the applicant was given a court date of 14 April 2004.

4.  During his counseling on 24 February 2004, the applicant admitted to frequently visiting an establishment by the name of Night Trips and he admitted to drinking a pitcher of beer at the establishment on the night of his arrest with an acquaintance who works at the establishment.  He was also counseled about bouncing a check for his bachelor officers’ quarters while spending a reported $200.00 a month at Night Trips.  During his counseling, the applicant was reminded that as stated several times during lieutenants' officer basic courses, DUI is an intolerable offense as it indicates a complete disregard for the safety of others, himself, or regulations/policies.

5.  On 12 March 2004, the applicant was furnished a GOMOR for operating a car while under the influence of alcohol.  According to the GOMOR, the applicant was stopped on Cache Road, one fourth mile west of Dragon’s West for speeding and a Comanche County Sheriff’s Deputy smelled the stench of alcohol emitting from his car.  The applicant was administered a field sobriety test which he failed.  He was arrested and transported to jail where he was administered a BAC test which revealed his BAC to be 0.14.  In the GOMOR, the applicant was told that his behavior was irresponsible and incompatible with the conduct expected of a professional Soldier, let alone a commissioned officer.  He was told that commissioned officers in the United States Army are to conduct themselves in a dignified and responsible manner befitting their status as leaders of the greatest Army in the world.  The applicant was informed that his misconduct involved over-indulgence in alcohol and the endangerment of others made it more egregious.  The Deputy Commanding General directed that he assess his conduct and motivation as a commissioned officer and a Soldier.  The applicant was told to think before he acts and that he was accountable for his actions.  He was told that he had 7 days to return his acknowledgement to the GOMOR along with any statements or rebuttal in his own behalf before the decision was made on imposing and filing the GOMOR.

6.  The applicant acknowledged receipt of the GOMOR on 12 March 2004 and he indicated that he understood his rights and that he wished to submit matters in his own behalf.

7.  On 19 March 2004, the applicant submitted a request for local filing of the GOMOR.  In his request he stated that on 21 February 2004 he made a grievous error in judgment in being arrested for operating a car while under the influence of alcohol.  He stated that he brought dishonor upon himself, his chain of command, and the Army as a whole.  He stated that he was grateful that no one but himself was harmed by his irresponsible actions and that he acknowledged that what he did was wrong.  He stated that was seeking help to determine whether his actions were indicative of alcoholism and that he realized that the Deputy Commanding General reserved the right to decide his punishment.  He requested that the GOMOR be filed in his local file.

8.  In his request for local filing of the GOMOR, he admitted that he had not been a model Soldier as he had received a letter of admonishment from his battalion commander for missing physical training on several occasions and had been recycled from an officer basic course after failing the safety examination; however until the DUI incident, he believed that he was improving.  He stated that he believed that he could significantly improve himself and he asked for a chance to redeem himself in the eyes of his chain of command and his family.  He stated that he was slated for a permanent change of station to Germany with the 1st Infantry Division and he requested that he be allowed to serve in combat with the full confidence of his future chain of command without a besmirching mark on his character.  He stated that he knew that the GOMOR would effectively end any career that he may have had and that he could not think of any circumstances that would be mitigating in an act as irresponsible as that of which he stood accused.  He stated that he did not wish to minimize or dodge responsibility for his actions and he requested that he be allowed the opportunity to continue in the Army beyond his obligation and to serve the country that he loves.

9.  On 7 April 2004, the Deputy Commanding General directed that the GOMOR with all attachments, enclosures, and rebuttal be filed in the applicant’s OMPF.

10.  On 16 August 2006, the applicant submitted an application to this Board requesting his GOMOR be transferred from the performance section of his OMPF to the restricted section of his OMPF.  On 31 August 2006, he was advised that he must exhaust his administrative remedies by submitting his request to the Department of the Army Suitability Evaluation Board (DASEB).

11.  There is no evidence in the available records that shows he ever applied to the DASEB to have the GOMOR transferred to the restricted section of his OMPF.

12.  In an undated memorandum, the applicant’s commander was notified of the twice non-selection for promotion by the Fiscal Year 2006 Captain Army Competitive Category (ACC) Promotion Selection Board of officers under his command.  The commander was told that officers were required by statute to separate from active duty upon a second non-selection for promotion.  The commander was requested to verify receipt of the memorandum and that all personnel named in the memorandum were assigned to his command.  He was also requested to task the highest level commander possible to deliver the memorandum to the officer; notify the appropriate subordinate commander, have the officer complete the form acknowledging receipt of the notification, and report any change in each officer’s status that may affect separation.

13.  In an undated memorandum, the applicant was furnished a notification of pending discharge.  He was informed that an ACC Promotion Selection Board convened pursuant to Title 10, U.S. Code, section 611(a), to consider officers for promotion to captain and that the established strength ceiling limited the number of eligible officers that may be selected.  The applicant was informed that he was not selected for promotion by the board and that the board considered such factors as performance reflected by OERs, assignments, military and civilian training, and education.  He was told that his non-selection reflects the unavoidable fact that not all highly professional officers can be promoted through each successive grade and that his separation was established by law which requires that he be discharged no later than the first day of the seventh month after the Secretary of Defense approves the promotion board report, that the board report was approved during the month of February 2007, and that he would be separated on 1 September 2007 with separation pay, if eligible.

14.  Accordingly, the applicant was discharged on 1 September 2007 under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 2-41, due to non-selection for permanent promotion.  He had completed 4 years, 3 months, and 6 days of net active service.

15.  On 7 March 2008, the District Court in and for Comanche County, State of Oklahoma, found that all the conditions of the applicant’s deferred judgment and sentence had been met and all fines, costs, and monetary assessments had been paid as ordered.  The court further found that the applicant would be discharged without a court judgment of guilty and the plea of guilty or nolo contendere would be expunged from his record and the charge dismissed with prejudice to any further action.  

16.  The three OERs that the applicant submitted in support of his application for the periods ending 31 December 2004, 16 August 2005, and 9 December 2006 show that he was rated as an outstanding performer and as best qualified.

17.  In the statement that he submitted in support of his application he restates the events that led to him being furnished the GOMOR and he cites excerpts from Army Regulation 600-37 (Unfavorable Information).

18.  Army Regulation 600-37 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.  This regulation provides, in pertinent part, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the GOMOR that he was furnished should be transferred from the performance section of his OMPF to the restricted section of his OMPF.

2.  His contentions have been noted.  However, the GOMOR was properly imposed in compliance with applicable regulations and is properly filed in the applicant’s OMPF.

3.  The Army has an interest in maintaining certain records and the applicant has failed to provide evidence to show why the GOMOR should not remain a matter of record.

4.  The applicant's contentions have been noted and the documentation that he submitted in support of his application has been considered.  However, the available evidence shows that the GOMOR was prepared based on the information that was made available to the chain of command at the time.  In his request for local filing of the GOMOR, he admitted that he was guilty of the information contained in the GOMOR and he stated that he was not trying to dodge his responsibility.  Based on the information contained in his request for local filing of the GOMOR, he had been reprimanded before for his failure to attend physical training.

5.  While the applicant may believe that the GOMOR has served its intended purpose, he has failed to show that the information contained therein is untrue, unjust, or that it was erroneously filed in his OMPF.  He was furnished a GOMOR for operating a car while under the influence of alcohol and the fact that he later had the incident expunged from his court records is not a basis for removing or transferring the information contained in his OMPF.  

6.  The available evidence indicates that the information contained in the GOMOR is accurate and that the proper procedures were followed for filing the GOMOR.

7.  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 has failed to submit evidence that would satisfy this requirement.

8.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090003422



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ABCMR Record of Proceedings (cont)                                         AR20090003422



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