IN THE CASE OF:	  

		BOARD DATE:	  14 January 2010

		DOCKET NUMBER:  AR20090015304


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 DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 3 February 1997; and a General Officer Memorandum of Reprimand (GOMOR), dated 24 January 1997, from his Official Military Personnel File (OMPF).

2.  The applicant states when he got into the trouble that resulted in his receipt of the GOMOR and the DA Form 2627 he was a reckless, unthinking young boy.  Since then he has matured into an upright man.  He states, in effect, the subject documents may harm his career progression.  He also states his chain of command told him that if he accepted the Article 15, the GOMOR would not be placed in his OMPF.

3.  The applicant provides a self-authored letter, dated 8 July 2009, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 30 January 1992.  He was discharged from the USAR DEP on 25 March 1992 and he enlisted Regular Army (RA) on 26 March 1992.  He completed the required training and he was awarded military occupational specialty (MOS) 92A (Automated Logistical Specialist).



2.  In 1996, the applicant attained the rank/grade of specialist (SPC)/E-4 while serving at Fort Bliss, TX.  On 29 December 1996, he was apprehended off-post by civilian law enforcement officials and charged with drunk driving.  He had a blood alcohol content (BAC) level of 0.178, which was in violation of Texas State Law and Army regulation.

3.  On 24 January 1997, the applicant received a GOMOR for drunk driving; his second alcohol-related offense.  On 3 February 1997, he received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ).  His punishment included reduction to PV1/E-1, forfeiture of $450.00 per month for
2 months ($400 of which was suspended to be automatically remitted if not vacated before 23 July 1997), restriction for 45 days (suspended, to be automatically remitted if not vacated before 23 July 1997), and extra duty for 45 days.

4.  Because the applicant was reduced as a result of having received NJP, he did not meet retention control point requirements for his grade and years of service.  He was, therefore, released from active duty on 6 February 1997, under the provisions of Army Regulation 635-200, paragraph 16-8, by reason of reduction in force and he was transferred to the USAR Control Group (Reinforcement) to complete his remaining Reserve obligation.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he had 4 years, 10 months, and 11 days of creditable active Federal service and that he was a PV1/E-1.

5.  The applicant continued to serve in the USAR and he achieved the rank/grade of sergeant (SGT)/E-5.  During the period 7 June 2004 through 28 August 2005, he served on active duty as a member of the USAR.  He was discharged from the USAR on 28 August 2005 and he enlisted in the Regular Army on 29 August 2005 for 5 years.

6.  The applicant was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 1 December 2007.  His record shows that during this period of service he received the Combat Action Badge and the Driver and Mechanic Badge with Driver-W Bar and the Army Commendation Medal.  He also received five successful Noncommissioned Officer Evaluation Reports (NCOERs) since receipt of the GOMOR.

7.  On 8 July 2009, the applicant appealed to the Department of the Army Suitability Evaluation Board (DASEB) requesting removal of the GOMOR from his OMPF.  On 20 August 2009, the DASEB denied his request.



8.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial.  In the version in effect at the time of the applicant's misconduct, the DA Form 2627 would be filed as follows:  "For Soldiers E-4 and below who have been in the Army less than three years as of the date punishment is imposed, the original will be filed locally in nonjudicial punishment files.  Such locally filed originals will be destroyed at the end of two years from the date of imposition of punishment or on the Soldier's transfer from the unit, whichever occurs first.  For all other Soldiers the original will be sent to the appropriate custodian for filing in the OMPF."

9.  Army Regulation 27-10 states enlisted Soldiers (E-5 and above) and officers may petition the Department of the Army Suitability Evaluation Board (DASEB) for transfer of records of nonjudicial punishment from the performance to the restricted portion of the OMPF.  To support the request, the person must submit substantive evidence that the intended purpose of the Article 15 has been served and that the transfer is in the best interest of the Army.

10.  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.  This regulation mandates that a written reprimand, administrative in nature, will be issued to active duty Soldiers apprehended for drunk driving.  Any general officer and any officer frocked to the grade of brigadier general may issue this reprimand.  Filing of the reprimand will be in accordance with the provisions of Army Regulation 600-37 (Unfavorable Information).

11.  Army Regulation 600-37 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. 

12.  Army Regulation 600-37 states letters of reprimand, admonition or censure may be the subject of an appeal for transfer to the restricted fiche.  Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer will 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.  



DISCUSSION AND CONCLUSIONS:

1.  The applicant committed the offense of drunk driving as a result of his abuse of alcohol.  This fact is indisputable.  He was cited by civilian law enforcement officials for driving with a BAC level of .178, well above the legal limit of .08.  He was issued a GOMOR as prescribed by Army Regulation 190-5 and it was filed as prescribed by Army Regulation 600-37.  The GOMOR was administrative in nature and it was not imposed as punishment under Article 15, UCMJ.

2.  The applicant was punished under the provisions of Article 15, UCMJ for his offense of drunk driving.  Although he was a SPC/E-4, he had served more than three years in the Army at the time of the incident; therefore, he had no regulatory entitlement to local filing of the DA Form 2627.  The imposing commander properly decided to file the Article 15 in the performance portion of his OMPF.

3.  The applicant's assertion he had a deal wherein he would not receive the GOMOR if he accepted the Article 15 is without merit.  Army Regulation 190-5 mandates receipt of an administrative GOMOR.

4.  The applicant has established a solid Regular Army career in the aftermath of his 1996-1997 misconduct.  He is commended for persevering and Soldiering on.  It appears that he has learned a valuable lesson concerning the abuse of alcohol as he has had no further alcohol-related incidents or incidents of any kind.  

5.  Therefore, in view of the foregoing findings and conclusions, and in the interest of justice and equity, it would be appropriate to correct the applicant’s records, but only as indicated below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

___X___  ___X____  ___X____  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by transferring the DA Form 2627, dated 3 February 1997, and the GOMOR, dated 24 January 1997, to the restricted portion of his OMPF.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removal of said documents from his OMPF.  




      _________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)                                         AR20090015304



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ABCMR Record of Proceedings (cont)                                         AR20090015304



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