IN THE CASE OF:	

		BOARD DATE:	  10 June 2010

		DOCKET NUMBER:  AR20100011282 


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 a General Officer Memorandum of Reprimand (GOMOR) from the restricted portion of his Official Military Personnel File (OMPF).

2.  The applicant states:

* It has been over 10 years since the incident occurred
* He believes he has overcome and improved himself
* The punishment for the incident has concluded
* For one misjudgment, his advancement in the military should not be hindered
* He has received numerous awards and outstanding Noncommissioned Officer Evaluation Reports (NCOERs) since the incident
* He does not believe the GOMOR is erroneous or unjust

3.  The applicant provides no additional documentation.

CONSIDERATION OF EVIDENCE:

1.  On 25 August 1987, the applicant enlisted in the Regular Army (RA), for 3 years, in the pay grade of E-1.  He has been promoted through the ranks to the pay grade of E-7 and, due to continuous reenlistments and extensions, he is currently serving on active duty in the RA.


2.  On 21 January 2000, while he was serving in the pay grade of E-5, the applicant was issued a GOMOR for refusal to take a lawfully requested test to measure the alcohol content of his breath when there was reasonable belief that he was driving under the influence (DUI) of alcohol.  The applicant was told that the GOMOR could be filed permanently in his OMPF; however, matters submitted in rebuttal would be considered.  He was instructed to acknowledge receipt of the GOMOR and to return his rebuttal, if any, to the Office of the Staff Judge Advocate within 7 calendar days from the date he received the reprimand.

3.  The applicant acknowledged receipt of the GOMOR on 26 January 2000 and he elected to submit a statement in his own behalf.  

4.  In his undated statement he submitted in response to the GOMOR, the applicant contended:

* He was writing the letter not to prove or disprove his innocence
* He was writing the letter to ask for forgiveness
* As an NCO, he feels terrible having to look his Soldiers in the face and tell them not to drink and drive, knowing that he has done so
* He takes pride in everything he does, on and off duty
* He is the father of two boys and someday he is going to give them the same talk he gives his Soldiers on a day-to-day basis
* Since the incident, he beat himself up every day for getting a DUI
* He will live with the stain for the rest of his life
* As a result of the DUI incident, he will be haunted for the rest of his life, especially when he has to tell his children not to make the same stupid mistake

5.  On 4 April 2000, the Assistant Division Commander directed the GOMOR be filed in the applicant's OMPF and that a copy be placed in his Information File.

6.  On 28 October 2003, the applicant petitioned the President, Department of the Army Suitability Evaluation Board (DASEB), for transfer of the GOMOR from the performance portion of his OMPF to the restricted portion.  In his petition, he stated the following:

* After going to court the charge of DUI was reduced to careless driving
* He did not receive an Article 15
* He attended an Alcohol Counseling/Evaluation Class
* Upon completion of the class, his counselor determined he did not have an alcohol problem and that the incident was isolated
* In 15 years of service, this is the only blemish on his military career
* His NCOER during that period shows he was an outstanding Soldier
* Since the incident his service has been exemplary
* He believed transferring the GOMOR to the restricted portion of his OMPF would be in the best interest of the Army as it could be held as a discriminator in the DA selection board process
* Its presence in the performance portion of his OMPF could be restricting his potential to serve the Army in a higher capacity

7.  In a memorandum dated 8 September 2004, the applicant was notified that the DASEB that after careful consideration, petition to transfer the GOMOR from the performance portion of his OMPF to the restricted portion had been approved.  He was told that the transfer was based upon "intent served."

8.  A review of the interactive Personnel Electronic Records Management System and the Human Resources Command – Integrated Web Services Soldier Management System shows the GOMOR and the DASEB notification memorandum were transferred to the restricted portion of his OMPF as directed by the DASEB.

9.  Army Regulation 600-37 (Unfavorable Information) sets forth policy and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, and ensure that the best interest of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.  In pertinent part, it 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were considered.

2.  However, he has not shown error or injustice in the filing of the GOMOR in his OMPF.  

3.  The DASEB decision to transfer the GOMOR to the restricted portion of his OMPF was based on intent served; it was not as a result of being erroneously filed or imposed.  He has not provided evidence to show the GOMOR was administratively incorrect.  Therefore, no basis has been established for removal of the GOMOR from the restricted portion of his OMPF.

4.  While the Board has the authority to remove a GOMOR from the restricted portion of an individual's OMPF based on equity and as a matter of fairness, he has not shown that filing the GOMOR on the restricted portion of his OMPF is inequitable or unfair as he admits that he was guilty of the offense.

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)                                         AR20100011282



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ABCMR Record of Proceedings (cont)                                         AR20100011282



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