IN THE CASE OF:	

		BOARD DATE:	  26 January 2010


		DOCKET NUMBER:  AR20090014700 


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 the removal of an administrative General Officer Memorandum of Reprimand (GOMOR) from his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that the GOMOR was placed in his OMPF due to a charge of driving while impaired without awaiting final disposition from the civilian court system and is thereby unjust and untrue.  He acknowledges that he exercised poor judgment by consuming alcohol, but contends that he was not guilty of impaired driving.  The applicant states that he retained counsel immediately after being charged and that the impaired driving charges were formally dismissed by the federal prosecutor in his case in exchange for his plea to a lesser traffic offense involving careless driving well after the Commanding General directed that the GOMOR be filed in his OMPF.  The applicant opines that in view of the dismissal of charges, the GOMOR was issued erroneously and unjustly and, as such, should be removed from his OMPF.

3.  The applicant states that pursuant to the guarantees and privileges bestowed by the U.S. Constitution, it is well founded that a person is presumed innocent until proven guilty.  He further states that, unfortunately, that standard was not upheld in his case as he was declared guilty of misconduct, prior to being afforded an opportunity to have his day in court.  The applicant opines that it is reasonable to assume, that had the Commanding General (CG) known that the impaired driving allegation was false and thereby dismissed, she likely would not have issued the GOMOR.

4.  The applicant did not provide any documentary evidence in support of his request.

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 he was appointed as a second lieutenant in the U.S. Army Reserve on 2 June 2001.  He completed initial entry training in area of concentration 92 (Quartermaster).  The applicant served in various staff and leadership positions within continental U.S. and overseas and was promoted to first lieutenant on 2 December 2002 and to captain on 1 November 2004.  The applicant is currently on active duty and stationed at Fort Bragg, North Carolina.

3.  On 11 October 2005, the CG of the U.S. Army Combined Arms Support Command and Fort Lee, Fort Lee, Virginia, reprimanded the applicant for driving under the influence of alcohol.  The CG noted that on 25 September 2005 at Fort Lee, the applicant was observed swerving into oncoming traffic lanes.  After a police stop, the police officer detected an odor of alcohol emitting from the applicant.  He was subsequently apprehended and transported to the Military Police Station and administered a breathalyzer test, which indicated a blood alcohol content of .11 percent.  The CG informed the applicant that his conduct was inexcusable, demonstrated a complete disregard for Army values, and put other Soldiers and civilians at risk.  The CG told the applicant that he had failed to meet the standards of personal conduct that are expected of officers in the U.S. Army.  The CG informed him that this was an administrative action and not punishment under the Uniform Code of Military Justice.  The CG further informed him that she intended to file the GOMOR in his OMPF and that the applicant had the opportunity to submit any matters in rebuttal to the allegations.


4.  On 11 October 2005, the applicant acknowledged receipt of the GOMOR and elected to submit matters on his own behalf.  He requested the GOMOR remain in his local file.  He stated that, on the date of the incident, he had been drinking as a means of coping with some difficult family problems that had been brought to his attention the day prior.  Later that day, the applicant received a call from another officer who asked the applicant to pick him up from the club on post because he had been drinking that night also.  The applicant continued that using the wrong judgment, he thought he was capable of driving and went to pick up the other officer.  On his way back to his residence, the applicant crossed into the wrong lane of traffic while placing a call on his cellular phone, which led to him being stopped by the military police.  The applicant admitted that this was no excuse for his irresponsible behavior and stated that he took full responsibility for his actions.  He expressed both remorse and regret regarding the situation and admitted that it was definitely a lack of judgment on his part entirely.

5.  On 24 October 2005, after reviewing the applicant's rebuttal and considering all matters available, the CG directed the GOMOR be filed in the applicant's OMPF.  The GOMOR is currently filed in the restricted portion of the applicant's OMPF.

6.  Army Special Review Boards, Arlington, Virginia, letter, dated 1 June 2009, shows the President of the Department of the Army Suitability Evaluation Board (DASEB) informed the applicant that his request for removal of the GOMOR from his OMPF had been denied by the DASEB.

7.  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.

8.  A memorandum of reprimand may be filed in a Soldier's OMPF only upon the order of a general officer-level authority and is 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, 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 of Army Regulation 600-37.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant received a GOMOR for misconduct and that it was filed in his OMPF.  He was afforded the opportunity to review all of the evidence against him and to submit matters on his own behalf prior to a final filing decision.  The applicant's response was received and considered.  Subsequently, the GOMOR was referred for filing in his OMPF.  The GOMOR was properly administered in accordance with applicable regulations and is properly filed in the performance section of his OMPF.  There is no evidence of an error or an injustice.

2.  With respect to the applicant's contention that the CG should have waited for the outcome of his civil court proceedings, the applicant is reminded that his serious offense occurred on an Army installation and commanders must respond quickly to matters of indiscipline that are of a nature which bring discredit on the Army or are prejudicial to good order and discipline.  An offense of this nature clearly brought discredit upon the applicant, his peers, his unit, and the Army.  Additionally, the CG informed him that this was an administrative action and not punishment under the Uniform Code of Military Justice.  There is no requirement for commanders to delay administrative matters of discipline until civil court proceedings are finalized.

3.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

4.  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)                                         AR20090014700





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ABCMR Record of Proceedings (cont)                                         AR20090014700



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