BOARD DATE:	  24 August 2010

		DOCKET NUMBER:  AR20100007974 


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 removal of the General Officer Memorandum of Reprimand (GOMOR), dated 5 December 1994, from his Official Military Personnel File (OMPF).  

2.  The applicant states the GOMOR was issued for an action he did not commit.  He contends the reason the commanding general (CG) gave him the GOMOR was in retaliation for him (the applicant) turning in the CG's "Aide-de-Camp" for commission of an offense (larceny).

3.  The applicant states, in effect, the GOMOR was very severe in light of his military record being clear of any non-judicial punishments (NJP) or adverse police records.  He adds that the CG was extremely upset by the chain of events which transpired, and based purely on hearsay, issued him the GOMOR.  He states no Soldier wanted to go against the post commander; therefore, he ended up being accused of something he did not do.

4.  His military career was ended because of this injustice and he would like to see the GOMOR removed from his record.  He maintains he has always performed his military duties in an exemplary manner and was a very successful Soldier until this injustice occurred.  He has been contemplating the possibility of serving his country again in the commissioned officer corps and does not want any blemishes in his record.  He has an impeccable military and civilian record.  


5.  The applicant provides a copy of the GOMOR and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 records show he initially enlisted in the U.S. Army Reserve (USAR) for a period of 8 years in the delayed entry program (DEP).  He later enlisted in the Regular component of the Army for a period of 6 years and entered active duty on 5 May 1992.  After completing the training requirements he was awarded military occupational specialty 73D (Accounting Specialist).   

3.  On 5 December 1994, the applicant was issued a GOMOR by the CG, 
U.S. Army Southern European Task Force, for operating a motor vehicle while under the influence of alcohol on 18 September 1994, outside a club in Vicenza, Italy.  A subsequent blood alcohol test administered by the military police showed a reading of .123 percent.  The applicant acknowledged receipt of the GOMOR and added that he would submit a statement on his own behalf.

4.  The applicant's statement, dated 21 December 1994, shows he made a point of clarifying some important factors surrounding his case.  He stated, in effect, that the case was based on extremely weak evidence.  The GOMOR referenced a blood alcohol test which never took place.  He contends a breathalyzer test did occur but was performed erroneously and not in accordance with (IAW) Army Regulation 190-5 (Motor Vehicle Traffic Supervisor), chapter 2.  He contends he was never given a consent form at the time the test was administered and the results should not be taken into consideration.  He blames another Soldier for the situation and adds because of that Soldier's actions he subsequently became a suspect of driving under the influence.  

5.  The applicant maintained from a logical standpoint, the car was never operated by him even though he released the emergency brake and allowed the vehicle to roll back about 80 centimeters.  He stated he was command referred to enroll in the Alcohol and Drug Abuse Prevention and Control Program prior to his receipt of the GOMOR.  He ended by stating he regretted the chain of circumstances which led to his GOMOR and requested the document not be filed in his OMPF but rather in his local Military Personnel Records Jacket (MPRJ.

6.  His records show that in January 1995, the CG directed the permanent filing of the GOMOR in his OMPF IAW Army Regulation 600-37 (Unfavorable Information).  The applicant's OMPF is void of any type of NJP or adverse actions.

7.  On 4 May 1996, the applicant was honorably released from active duty (REFRAD) and transferred to the 314th Support Center, Reserve Officers' Training Corps (ROTC).  He had completed 4 years, 1 month, and 17 days of net active service and 3 years, 7 months, and 12 days of foreign service.  His records show he received an Army Commendation Medal for his service while stationed in Italy.  His records contain a copy of Orders 06-080-00084, Headquarters, 99th Regional Readiness Command, which show he was honorably discharged from the USAR on 9 February 2006.

8.  Paragraph 7-2a of Army Regulation 600-37 provides 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.  Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered. 

9.  Paragraph 7-2b of Army Regulation 600-37 provides that only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted fiche.  In addition such documents 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.  This regulation further provides that in the cases where the appeal is denied, a copy of the letter of notification regarding this outcome will be placed in the commendatory and disciplinary portion of the performance record.  The appeal will be placed in the restricted portion of the OMPF. 




DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the GOMOR, dated 5 December 1994, should be removed from his OMPF was carefully considered; however, his contention was not supported by the evidence.

2.  The available evidence shows the applicant was issued a GOMOR for operating a motor vehicle while under the influence of alcohol on 18 September 1994, outside a club in Vicenza, Italy.  At the time, he stated the evidence on which the GOMOR was based was weak.  The manner in which the breathalyzer test was administered was improper.  However, he provided no proof to support those claims other than his rebuttal statement to the GOMOR which the CG considered and found unpersuasive.  

3.  The evidence also shows the GOMOR was permanently filed in his OMPF in accordance with the CG's instructions and applicable regulations.  

4.  The applicant currently contends the GOMOR was given to him out of retaliation as a result of him turning in the "CG's Aide-de-Camp" for larceny.  The applicant provided no evidence to support this contention and there is nothing in the available record to substantiate this contention.

5.  The available evidence has also failed to show the GOMOR has negatively impacted the applicant's military career.  After receipt of the GOMOR, the applicant was honorably REFRAD to the ROTC and he was presented a service award.  His military record is clear of any type of NJP or adverse actions.  He remained in the USAR until he was honorably discharged in 2006.  

6.  Based on the available evidence and the applicant's contentions the ABCMR will not second guess the CG and upset a 16 year old determination.  Therefore, there is no basis to grant the requested relief in this case.

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)                                         AR20100007974



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)