BOARD DATE:	  14 December 2010

		DOCKET NUMBER:  AR20100013131 


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:

The applicant defers to counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests revocation of the applicant's general discharge, reinstatement on active duty, and payment of back pay and allowances for pay and promotion purposes back dated to the applicant's separation on 22 October 2009.  He also requests removal of a General Officer Memorandum of Reprimand (GOMOR), dated 5 November 2007, from the performance portion of the applicant's official military personnel file (OMPF) and transferred to the restricted portion of his OMPF; and removal of a GOMOR, dated 19 June 2009, from the applicant's OMPF in its entirety.

2.  Counsel states:

* The bases of the applicant's involuntary administrative separation action are not supported in fact or law and it was material error to separate him based on unsupported allegations
* The 5 November 2007 GOMOR has clearly served its intended purpose, it has been well over a year, and the applicant's command is in support of his continued service and removal of the GOMOR
* The 19 June 2009 GOMOR is unjust and not supported by any creditable evidence or conviction


3.  With regard to the reasons for the applicant's elimination, counsel states:

* the 24 July 2006 allegation of "reckless conduct" [for leaving a child unattended] resulted in a dead docket, the applicant was not responsible for the incident, and it was inappropriate to use this allegation as a basis for separation
* the 13 October 2006 allegation of criminal trespass occurred prior to the applicant's military service and that allegation cannot serve as a basis for his elimination
* the notification of elimination also alleges the applicant was arrested for reckless conduct in Georgia on 14 April 2007; however, the applicant was in Iraq on that date
* the applicant was never arrested for reckless conduct and that allegation is false
* from the very start, 60 percent (%) of the allegations were demonstrably false or inappropriate grounds to be considered for elimination
* only two allegations could have justifiably served as the basis for elimination; the 7 October 2007 and 29 May 2009 allegations

4.  Counsel states the applicant was not under the influence of alcohol on 
7 October 2007, but he was under the influence of a prescription drug (Ambien).  He did not understand that the alcohol test would have cleared him of an alcohol-related arrest.  In spite of the 5 November 2007 GOMOR, the applicant was rated as "Outstanding, must promote" and "Best Qualified" on his Officer Evaluation Report (OER) for that period.  The applicant pled guilty to driving under the influence because he was impaired by the Ambien.  As a result of this conviction, the applicant successfully completed a mandatory drug and alcohol class.

5.  Counsel also states the applicant was considered for promotion to captain in December 2008 but as a result of the 5 November 2007 GOMOR his promotion was delayed and referred to a Promotion Review Board (PRB).  The applicant submitted a letter to the PRB requesting his retention on the promotion list with two letters of recommendation.  The PRB reviewed the applicant's submissions and voted to retain him on the promotion list and rescind the revocation of his promotion order.  The applicant was subsequently promoted to captain on 1 July 2008.

6.  Counsel states the 5 November 2007 GOMOR has served its intended purpose and should be transferred to the restricted portion of the applicant's OMPF.  He points out it has been well over one year since the filing of the GOMOR, the applicant received two outstanding non-academic OERs since the 


report was made, and it is in the best interest of the Army to transfer this GOMOR to the restricted portion of the applicant's OMPF so that he may better serve as a leader in the future.  Also, it is inappropriate to use this GOMOR as a basis for elimination.  The PRB after thoroughly reviewing this GOMOR voted to retain the applicant and promote him.

7.  Counsel further states the final allegation alleges that on 29 May 2009 the applicant assaulted his wife by grabbing her by the hair, throwing her to the ground, and choking her.  The corresponding GOMOR, dated 19 June 2009, further alleges the applicant drove home intoxicated prior to the alleged fight with his wife.  Not only are both allegations false and unsupported by credible evidence but the issue of assault has since been resolved and charges were dropped.  Per the applicant's rebuttal to the GOMOR, counsel explains the circumstances of that night.  In summary, the applicant did not drive at any time while intoxicated and he did not physically assault his wife.

8.  Counsel states it is clear the driving under the influence allegation in the 
19 June 2009 GOMOR is based on two things:  (1) the claim of an angry spouse who assumed her husband had driven home drunk but did not even purport to have actually witnessed him driving under the influence of alcohol, and (2) an inference made by Major General B------ that because the applicant had been given a GOMOR once before for driving under the influence of alcohol, that the applicant must have been driving drunk on this occasion.  Both bases are wholly lacking in any credible support to arrive at the conclusion that the applicant was driving under the influence of alcohol on 31 May 2009.  As the applicant pointed out in his rebuttal, he was never pulled over, tested for alcohol, arrested for drunk driving, suspected of drunk driving by anyone other than his angry spouse, and he did not get into any accidents.

9.  Counsel states the allegation the applicant assaulted his wife has since been resolved in civilian court, all charges were dropped, and his wife's false allegation of assault cannot be appropriately asserted against the applicant without additional evidence.  He contends where an allegation is unsupported by any credible evidence or a factual basis, it is entirely unjust to issue a GOMOR based on that allegation.

10.  Counsel references Department of Defense Instruction (DODI) Number 1332.28 (Discharge Review Board (DRB) Procedures and Standards), paragraph E4.2.1.1 and states the applicant's discharge should be revoked.  He points out the applicant's elimination was based on five allegations, the applicant demonstrated that three of the five allegations are entirely false, and that the 


two allegations were inappropriately used to justify the applicant's elimination.  The applicant was prejudiced by these errors because but for the errors of fact and law, there would not have been any basis to separate the applicant.

11.  Counsel provides 21 enclosures outlined on page 8 of his brief.

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed a second lieutenant in the U.S. Army Reserve (USAR), Ordnance Branch, on 14 May 2005 and he entered active duty on
24 June 2005.

2.  On 5 November 2007, the applicant received a GOMOR for being arrested by civilian police for driving under the influence of alcohol and refusing to submit to an appropriate alcohol test on 7 October 2007.  The applicant acknowledged receipt of the GOMOR on 5 August 2008 and he submitted a rebuttal.  On
26 November 2008, after reviewing the GOMOR and the applicant's rebuttal, the commanding general directed the GOMOR be filed in the applicant’s OMPF.

3.  The applicant was promoted to captain on 1 July 2008.

4.  On 19 June 2009, elimination proceedings were initiated against the applicant for the following misconduct:

* Arrested for reckless conduct on 24 July 2006
* Arrested for criminal trespass, stalking, and reckless conduct on 13 October 2006
* Arrested for reckless conduct on 14 April 2007
* Committed misconduct on 7 October 2007 for which he received a GOMOR (arrested by civilian police for driving under the influence
* Domestic violence complaint (assaulted his wife) on 29 May 2009

5.  On 19 June 2009, the applicant received a GOMOR for driving under the influence of alcohol and domestic violence on 31 May 2009 (it appears the date should be 29 May 2009).  The applicant acknowledged receipt of the GOMOR on 23 June 2009 and submitted a rebuttal with recommendations from his chain of command.  On 17 July 2009, after considering the applicant's rebuttal and recommendations of the chain of command, the commanding general directed the GOMOR be filed in the applicant’s OMPF.


6.  Records from the Russell County Sheriff's Department, AL, indicate civil authorities were called to the applicant's residence on 29 May 2009 for a civil disturbance.  Upon arrival, the officer met with the applicant's wife and she reported a verbal altercation began after the applicant came home drunk.  The applicant grabbed her by the hair, threw her to the ground, and then pinned her by her shoulders with his knees and began to choke her.  The police officer noted the applicant's wife had red marks on her neck, a bruise on her left arm, and there was hair matter on the floor.  The applicant fled the scene before the police arrived and when contacted via cell phone the applicant refused to return home.  

7.  On 22 September 2009, the Deputy Assistant Secretary (Army Review Boards) approved the applicant's elimination and directed the issuance of a general discharge.

8.  On 22 October 2009, the applicant was discharged under the provisions of Army Regulation 600-8-24 (Officer Transfer and Discharges), paragraph 4-2b, for unacceptable conduct, with issuance of a general discharge.

9.  A review of the performance portion of the applicant's OMPF on the interactive Personnel Electronic Records Management System (iPERMS) revealed a copy of the two GOMORs in question.

10.  The applicant provided three OERs covering the period 11 November 2005 through 16 July 2008 that shows he was rated "Outstanding performance, must promote" by his raters and rated "Best Qualified" by his senior raters.

11.  Army Regulation 600-8-24, paragraph 4-2b, states elimination action may be or will be initiated for misconduct, moral or professional dereliction, or in the interests of national security.

12.  DODI 1332.28, paragraph E4.2.1.1, states a discharge shall be deemed proper unless, in the course of discharge review, it is determined that an error of fact, law, procedure, or discretion exists associated with the discharge at the time of issuance; and that the rights of the applicant were prejudiced thereby (such error shall constitute prejudicial error if there is substantial doubt that the discharge would have remained the same if the error had not been made).

13.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, Military Personnel Records Jacket, Career Management Individual File, and the Army Personnel Qualification Records.  Paragraph 2-4 of this regulation 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, Department of the Army Suitability Evaluation Board (DASEB), Army appeals board, Chief of Appeals and Corrections Branch of the Total Army Personnel Command, OMPF custodian when documents have been improperly filed, Total Army Personnel Command (TAPC) as an exception, Chief of the Appeals Branch of the Army Reserve Personnel Center, or the Chief of the Appeals Branch of the National Guard Personnel Center.

14.  Army Regulation 600-8-104, Table 2 (Composition of the OMPF), states, in pertinent part, that administrative letters of reprimand will be filed in the performance portion of the OMPF.

15.  Army Regulation 600-37 (Unfavorable Information) 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 Army Reserve Personnel Command (ARPERSCOM), 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.

DISCUSSION AND CONCLUSIONS:

1.  Counsel contends the bases of the applicant's involuntary administrative separation action are not supported in fact or law and it was material error to separate him based on unsupported allegations.

2.  Evidence of record shows the applicant (a captain) received two GOMORs, one for driving under the influence of alcohol on 7 October 2007 and refusing to submit to an appropriate alcohol test, and one for driving under the influence of alcohol and domestic violence on 29 May 2009.


3.  The governing regulation states elimination action may be or will be initiated for misconduct.  The applicant's elimination was approved by the Deputy Assistant Secretary.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.  Based on the foregoing, there is insufficient evidence on which to revoke the applicant's general discharge and reinstate him on active duty or that he receive back pay and allowances for pay and promotion purposes back dated to his separation on 22 October 2009.

4.  Although counsel contends the applicant was under the influence of a prescription drug on 7 October 2007, there is no evidence of record, and counsel did not provide any evidence, to support this contention.  The applicant's 
5 November 2007 GOMOR indicates he was driving under the influence of alcohol and he refused to submit to an alcohol test.

5.  Counsel's contention the applicant did not drive while intoxicated or physically assault his wife on 29 May 2009 was also noted.  However, police reports show officers were dispatched to the applicant's residence on 29 May 2009 for a civil disturbance.  The applicant's wife reported a verbal altercation began after the applicant came home drunk, he grabbed her by the hair, threw her to the ground, and then pinned her by her shoulders with his knees and began to choke her.  The police officer noted the applicant's wife had red marks on her neck, a bruise on her left arm, and there was hair matter on the floor.  The applicant fled the scene before the police arrived and refused to return home.

6.  Counsel's contention the GOMOR, dated 5 November 2007, has served its intended purpose was carefully considered.  However, the fact the applicant received his second GOMOR for the same offense approximately 19 months after receiving his first GOMOR makes his contention difficult to accept at best.  The evidence does not provide substantial evidence the GOMOR has served its intended purpose and that its transfer to the restricted portion of his OMPF would be in the best interest of the Army.

7.  Counsel contends the GOMOR, dated 19 June 2009, is unjust and not supported by any creditable evidence or conviction.  However, notwithstanding the fact the assault charges against his wife were dropped, the applicant was arrested for domestic violence on 29 May 2009.  

8.  The governing regulation states administrative letters of reprimand will be filed in the performance portion of the OMPF.   

9.  There is no evidence the GOMORs were improperly imposed.  The GOMORs were properly filed in the performance portion of the applicant's OMPF.  Based on the foregoing, there is no basis for transferring the 5 November 2007 GOMOR to the applicant's restricted portion of his OMPF or removing the 19 June 2009 GOMOR from his OMPF.

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)                                         AR20100013131



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ABCMR Record of Proceedings (cont)                                         AR20100013131



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