IN THE CASE OF:	  

		BOARD DATE:	  9 November 2010

		DOCKET NUMBER:  AR20100011504 


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 that general officer memoranda of reprimand (GOMOR's), dated 9 October 2003 and 6 August 2004, be removed from the performance section of his official military personnel file (OMPF) and transferred to the restricted section of his OMPF.  He also requests reinstatement on active duty and promotion reconsideration for major upon transfer of the GOMOR's.

2.  The applicant cites paragraph 3-3d of Army Regulation 600-37 (Unfavorable Information) with regard to the 9 October 2003 GOMOR and states his arrest did not result in a conviction.  He cites paragraph 7-2a of Army Regulation 600-37 and states his blood alcohol content (BAC) test was not properly administered as stated in paragraph 1 of the GOMOR.

3.  The applicant cites paragraph 3-3d of Army Regulation 600-37 with regard to the 6 August 2004 GOMOR and states his arrest did not result in a conviction.  He cites paragraph 7-2b(1) of Army Regulation 600-37 and states the intended purpose has been served.

4.  The applicant states his non-selection for promotion to major was because of the GOMOR's in the performance section of his OMPF.  He also states he was honorably discharged effective 31 December 2009 and his separation was the result of his two-time non-selection for promotion to major.  Although his separation memorandum states the reason for his non-selection was an established strength ceiling, he knows that he was not promoted because of the two GOMOR's for arrests for driving under the influence (DUI).

5.  The applicant states that while attending the Combined Arms and Special Staff School in September 2003 he had several issues in his life that he was attempting to cope with and unknowingly was suffering from dysthymia.  He exercised poor judgment in selecting alcohol as the means to deal with his stress.  He compounded his poor decision by choosing to drive after abusing alcohol.  He was arrested by civilian authorities and, although he did not receive a conviction, he did receive a GOMOR that was filed in the performance section of his OMPF.  He attended alcohol counseling, but unfortunately he was not rehabilitated and made another grave error in January 2004 when he was arrested for DUI.  Again, he did not receive a conviction from civilian court, but he received a second GOMOR.

6.  The applicant further states that after rehabilitation he became a productive member of his unit and prepared to deploy in support of Operation Iraqi Freedom.  Prior to deployment, he received notification he was pending a show-cause board for continued active duty and would be nondeployable.  He appealed to his brigade commander for a recommendation to allow him to continue to serve and deploy and his brigade commander endorsed his request.  During his deployment he submitted an appeal to the Department of the Army Suitability Evaluation Board (DASEB) for removal of the GOMOR's from his OMPF, but the DASEB ruled unfavorably.  He deployed more times and was awarded the Bronze Star Medal, Meritorious Service Medal, Army Commendation Medal, and Combat Action Badge.

7.  Upon receipt of notification of his non-selection for promotion to major and his pending separation from active duty, he petitioned the DASEB and two lieutenant generals to have his GOMOR's moved from the performance section of his OMPF in order to be reconsidered for promotion.  Although he received an endorsement from one lieutenant general supporting moving his GOMOR to the restricted section of his OMPF, the DASEB did not rule favorably.  He believes the intent of the GOMOR's has been served, he assumes and accepts full responsibility for his transgressions, he realizes the gravity of his actions, and he regrets his actions and apologizes for his breach of conduct.

8.  The applicant also states he believes that to an extent the Army has not been loyal to him.  Despite his circumstances and knowing he discredited his character, he continued to faithfully discharge his duties and loyally serve the Army for the next 6 years.  He even believed he might continue serving without issue since the Army terminated the show-cause board and declared him eligible for the critical skills retention bonus.  His chain of command had the faith in his continued potential for service, providing him the opportunity to command.  He realized he would not be selected for promotion to major in the primary zone for consideration due to this late command, but he fully expected to be selected in the "secondary" zone.  It was quite a shock to him that he was not selected for promotion to major during the Fiscal Year 2009 (FY09) board.  To receive a notice of separation memorandum that stated he was not selected due to the established strength ceiling somewhat agitated him as this was a blatant lie.  The Army is desperately short of majors; it held the FY09 board several months early and included additional year groups in order to fulfill shortages in the table of organization.

9.  The applicant states he understands the gravity of his transgressions and if the Army did not want to maintain him in the ranks of service, then he believes he should have been released prior to his first deployment.  By allowing him to continue to serve, to include three combat deployments, and then separating him after 10 years service, the Army appears to demonstrate that the Army value of loyalty only applies to servicemen and not to the service.  With the continuing operational tempo of the Global War on Terror, he believes it is in the best interest of the Army to reconsider him for promotion to major or selective continuation as a captain.  This would allow him to continue to serve and share his deployment experience with junior officers and Soldiers.  He believes the Army will benefit from his continued active service and combat experience.

10.  The applicant provides:

* letter to President of Army Board for Correction of Military Records (ABCMR)
* correspondence from Chief, Congressional and Special Actions, Army Review Boards Agency
* correspondence from Chief, Promotions, U.S. Army Human Resources Command, Alexandria, Virginia
* undated endorsement from Commanding General, Headquarters, Third U.S.  Army, Fort McPherson, Georgia
* Notification of Separation
* DASEB appeal
* resolution of unfavorable information
* DASEB appeal
* document from Kansas Division of Vehicles, dated 12 September 2003
* documentation from the Bloomingdale Municipal Court, dated 7 December 2004, showing the DUI charge (16 January 2004) was reduced to driver to use due care
* initiation of elimination
* termination of elimination action
* copy of critical skills retention bonus


* officer evaluation reports (OER's) from June 2006 to September 2009
* awards earned for service during the period January 2005 to July 2009

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned as a second lieutenant in the Regular Army, Armor Branch, on 29 May 1999 and he entered active duty.  He was promoted to captain on 1 October 2002.

2.  On 9 October 2003, the applicant received a GOMOR for DUI (arrested by civilian police on 4 September 2003 for DUI).  He was administered a breathalyzer test which recorded his BAC as .166.  On 17 November 2003, the commanding general directed the GOMOR be filed permanently in the applicant's OMPF.

3.  On 6 August 2004, the applicant received a GOMOR for DUI (cited with DUI, operating an unsafe vehicle, and failure to maintain lane on 16 January 2004).  On 15 September 2004, the commanding general directed the GOMOR be filed in the applicant's OMPF.

4.  On 2 November 2004, the Department of the Army initiated an elimination from the service action against the applicant.  On 16 March 2005, the elimination action was terminated by the Commander of U.S. Army Human Resources Command.

5.  In November 2005, the applicant submitted a request to the DASEB to remove both GOMOR's from his OMPF.  On 5 December 2009, the DASEB voted to deny the applicant's request.

6.  The applicant served in Iraq during the periods 21 January 2005 to 19 January 2006, 9 August 2006 to 8 November 2007, and 4 February 2009 to 3 May 2009.

7.  A notification of separation memorandum, dated 19 June 2009, notified the applicant he was not selected for promotion to major by the Department of the Army FY09 Major Promotion Selection Board.  He was also informed he must be separated from the Regular Army no later than 1 January 2010.

8.  In June 2009, the applicant submitted a request to the DASEB to remove both GOMOR's in question.  The DASEB determined the evidence presented did not provide substantial evidence that the documents in question had served their intended purpose, that their transfer would be in the best interest of the Army, and that the overall merits of the case did not warrant transfer of the GOMOR's.  On 27 August 2009, the DASEB voted to deny the applicant's request.

9.  On 31 December 2009, the applicant was honorably discharged for non-selection for permanent promotion.

10.  A review of the performance section of the applicant's OMPF on the integrated Personnel Electronic Records Management System revealed copies of the GOMOR's in question.

11.  In support of his claim, the applicant provided documentation from the Kansas Division of Vehicles, dated 12 September 2003, which shows the suspension of his driving privileges for either refusing to take a chemical test or failing the test on 4 September 2003 was administratively dismissed based on the police officer's failure to initial statements on the appropriate forms and a lack of a proper date of service on the certifying device.  This document also states this dismissal does not affect any DUI court case that might be in process on this same occurrence.

12.  The applicant provided documentation from the Bloomingdale Municipal Court, dated 7 December 2004, which shows the DUI charge on 16 January 2004 was reduced to a charge of driver to use due care.

13.  The applicant provided an undated letter from the Commanding General, Headquarters, Third U.S. Army/U.S. Army Forces Central Command/Coalition Forces Land Component Command, Fort McPherson, Georgia.  He strongly endorses the applicant's request to transfer the 6 August 2004 GOMOR from the performance section to the restricted section of his OMPF.  He states the intended purpose of this GOMOR has been served, he believes this decision is in the best interest of the Army, the applicant has fully recovered from his transgressions, and his performance since this time has been commendable.

14.  The applicant also provided four OER's for the periods 3 June 2006 through 31 May 2009 which show he was rated "Outstanding Performance, Must Promote" in Part Va (Evaluate the rated officer's performance during rating period and his/her potential for promotion) by his raters.  He was rated "Best Qualified" in Part VIIa (Evaluate the rated officer's promotion potential to the next higher grade) by his senior raters.  He also provided an OER for the period          1 June 2009 through 28 September 2009 which shows he was rated "Satisfactory Performance, Promote" in Part VA by his rater.  He was rated "Fully Qualified" in Part VIIa by his senior rater.

15.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, the military personnel records jacket, the career management individual file, and Army personnel qualification records.  Paragraph 2-4 states that once a document is placed in the OMPF, it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the Army Board for Correction of Military Records and the DASEB, among several other agencies.

16.  Table 2 of Army Regulation 600-8-104 states that administrative letters of reprimand will be filed in the performance section of the OMPF.

17.  Army Regulation 600-37 prescribes policies and procedures regarding unfavorable information considered for inclusion in official personnel files.  Chapter 3 covers unfavorable information in official personnel files.  Paragraph 
3-4 applies to filing of nonpunitive administrative letters of reprimand or censure in official personnel files.  Paragraph 3-4(b) provides for filing in the OMPF.  It states that a letter, regardless of the issuing authority, may be filed in the OMPF maintained by the U.S. Army Human Resources Command, the U.S. Army Reserve Personnel Command, or the proper State Adjutant General (for Army National Guard Personnel) only upon the order of a general officer (to include one frocked to the rank of brigadier general) senior to the recipient by direction of an officer having general court-martial jurisdiction over the individual.  Letters filed in the OMPF will be filed on the performance portion.  The direction for filing in the OMPF will be contained in an endorsement or addendum to the letter.

18.  Paragraph 3-3d of Army Regulation 600-37 states records of civilian convictions (to include the record of arrest), or extracts thereof, authenticated by civilian authorities may be filed in the performance section of the OMPF without further referral to the recipient.  However, records consisting solely of minor traffic convictions are not to be filed in the OMPF.

19.  Paragraph 7-2a of Army Regulation 600-37 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.

20.  Paragraph 7-2b(1) of Army Regulation 600-37 states that only 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 would be in the best interest of the Army.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the 9 October 2003 GOMOR was based on an incident that did not result in a DUI conviction because the BAC test was not properly administered.  However, the documentation he provided from the Kansas Division of Vehicles indicates the suspension of his driving privileges for either refusing to take a chemical test or failing the test on 4 September 2003 was administratively dismissed based on the police officer's failure to initial statements on the appropriate forms, and a lack of a proper date of service on the certifying device.  This document also states this dismissal does not affect any DUI court case that might be in process on this same occurrence.

2.  The applicant contends that the 6 August 2004 GOMOR was based on a DUI conviction that has since been reduced to a charge of driver to use due care.  Although the DUI charge was reduced, the evidence of record shows that on 
16 January 2004 the applicant was administered a breathalyzer test which recorded his BAC as .166.

3.  The applicant's contention the GOMORs have served their intended purpose and the undated recommendation from the lieutenant general was carefully considered.  However, the fact the applicant (a captain) received his second GOMOR for the same offense within a year of receiving his first GOMOR makes his contention difficult to accept at best.  The evidence does not provide substantial evidence the GOMORs have served their intended purpose and that their transfer to the restricted section of his OMPF would be in the best interest of the Army.

4.  There is no evidence the GOMORs were improperly imposed.  The GOMORs were properly filed in the performance section of the applicant's OMPF.  Therefore, there is no basis for granting the applicant's requests for reinstatement on active duty and promotion reconsideration for major.

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)                                         AR20100011504



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ABCMR Record of Proceedings (cont)                                         AR20100011504



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