IN THE CASE OF:	  

		BOARD DATE:	  8 March 2011

		DOCKET NUMBER:  AR20100020202 


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 reconsideration of his request for removal of a general officer memorandum of reprimand (GOMOR) and removal/expungement of all records forming the basis of the GOMOR from his official military personnel file (OMPF) based on a court order.

2.  He also requests reinstatement in the U.S. Army in his former rank and grade and reenrollment in the Sergeants Major Course (SMC) at the U.S. Army Sergeants Major Academy (USASMA).

3.  He states the GOMOR is based on records, documents, and information now ordered expunged by a court of competent jurisdiction, the 210th District Court of El Paso County, TX.  By order of the court, all records pertaining to the incident forming the basis of the GOMOR are to be returned to the El Paso County District Clerk for proper disposal.

4.  He provides:

* administrative memorandum of reprimand
* memorandum from his counsel
* court order expunging records

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that a GOMOR be removed from the applicant's OMPF, that he be reinstated in the U.S. Army, and that his disenrollment from the SMC be voided.

2.  Counsel states that on or about 24 July 2004 the applicant was involved in a motor vehicle accident while in attendance at the SMC.  Records show the applicant was taken from the scene of the accident to an Army medical center.  While still unconscious, the El Paso Police allegedly obtained a blood sample without the applicant's consent or knowledge, left the hospital, and tested the sample of blood for blood alcohol content.  The applicant was eventually charged with driving while intoxicated (DWI).  The applicant was offered and accepted the option of the Pre-Trial Diversion (PTD) Program under the provisions of the Texas Code of Criminal Procedure.  Under the PTD Program, an individual facing a criminal complaint (charged with a misdemeanor offense) may elect to participate in the program that if completed successfully, results in a dismissal of the criminal complaint.  The PTD Program requires neither admission of guilt nor a finding of any criminal liability.  It simply provides an option short of the lengthy and expensive litigation process.

3.  Counsel also states the applicant successfully completed the PTD Program and his case was dismissed.  Thereafter, as is his right, the applicant applied to have his criminal record expunged.  The court approved and ordered the expunction on 3 February 2010.  That order requires the return of all records concerning this incident to the District Clerk of El Paso County for destruction.  This order extends to all Federal agencies or record depositories.

4.  Counsel further states that on or about 13 October 2004 the applicant was issued a GOMOR as a result of this alleged offense.  The reprimand was based on records that are now ordered returned and all reference to this offense to be expunged.  This order should include the expunction of the GOMOR under the full faith and credit clause of the U.S. Constitution.  If the Board follows the law and expunges the applicant's record, then this action would necessarily require that he be reinstated.  The applicant would not have elected to retire had this GOMOR not been issued.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070011015 on 8 January 2008.

2.  The applicant submits a court order expunging all records and files concerning his DWI charge.  The court order is new evidence that will be considered by the Board.

3.  His military record show he enlisted in the Regular Army in pay grade E-1 on 16 July 1980.  He was promoted to master sergeant on 1 March 1999.

4.  He was issued orders promoting him to sergeant major/pay grade E-9 with an effective date of 1 July 2004.  His promotion was conditional upon his completion of the SMC.

5.  On 13 October 2004, he was issued a GOMOR for DWI.  The GOMOR stated he had been apprehended on 25 July 2004 by the El Paso police for DWI after he was involved in a motorcycle accident.  A blood test revealed his blood alcohol content was .20 in violation of the Uniform Code of Military Justice and the Texas Penal Code.

6.  On 21 October 2004, the Commandant, USASMA, recommended the GOMOR be filed in the applicant's local military personnel file.

7.  On 24 October 2004, the applicant's company commander recommended the GOMOR be placed in the applicant's local military personnel file.  The company commander stated her recommendation was based on the failure of the applicant's previous command to take care of the applicant and his family following the death of his son.  She stated the 28 July 2004 incident coincided with the anniversary of the death of the applicant's son.  The incident could have been prevented had the applicant and his family been treated with compassion, concern, and respect regarding their loss.  The applicant should be given the opportunity to overcome his mistake, given the fact that proper treatment and family assistance were never put into place, and the unit will accept responsibility for their mistake.  The applicant's duty performance had been impeccable while assigned to the USASMA as an instructor and rehabilitation potential was positive since the applicant had expressed remorse and had insight for what led to his offense.

8.  On 27 October 2004, the applicant requested consideration of filing the GOMOR in his local military personnel file.  He stated in July 2002, during the first day of his permanent change of station (PCS) travel, he was notified that his son, a 19-year old firefighter, was killed in the line of duty in the state of California.  He immediately contacted his gaining unit (USASMA) informing them of what had occurred and his desire to attend his son's funeral.  Two days after his son's funeral, he resumed his PCS travel to Fort Bliss, TX, in-processed, and immediately began working in his newly assigned position.  He also stated he voluntarily attended Mental Health Services and successfully completed the Alcohol and Substance Abuse Prevention Program.

9.  On 3 November 2004, the installation command sergeant major recommended the GOMOR be filed in the applicant's OMPF.  He stated his recommendation was based on the applicant's rank and time in service.

10.  On 5 November 2004, the Commanding General, U.S. Army Air Defense Artillery Center and Fort Bliss, directed the GOMOR be filed in the applicant's OMPF.

11.  On 14 December 2004, he was reduced from pay grade E-9 to E-8.

12.  He was honorably released from active duty on 31 October 2005 for the purpose of retirement.  He was credited with completion of 25 years, 3 months, and 15 days of net active service.

13.  On 1 November 2005, the Department of the Army Suitability Evaluation Board (DASEB) denied his request for removal of the GOMOR from his OMPF.

14.  On 4 May 2005, an Administrative Law Judge of the State Office of Administrative Hearings denied the Texas Department of Public Safety authorization to suspend or deny the applicant's driver's license.

15.  On 16 February 2006, the DASEB denied his request for transferring the GOMOR to the restricted portion of his OMPF.

16.  On 3 February 2010, the District Court of El Paso County, 210th Judicial District, in consideration of the petitioner's (applicant) motion to expunge records, ordered the expunction of the applicant's DWI offense.  The court ordered the following agencies to return all records and files concerning that charge to that court, or if removal is impractical, obliterate all references to the petitioner (applicant) and notify the court of its actions:  Texas Department of Public Safety Crime Records Division-Legal Expunction; El Paso Police Department; El Paso Country Sheriff's Office; El Paso County Jail, Records; El Paso County Attorney's Office; El Paso County District Attorney's Office; El Paso County Clerk's Office; Records Management and Archives; Jail Magistrate, El Paso County Detention Facility; Clerk, Municipal Court; Director of County Court Administration; District Clerk's Office; Federal Bureau of Investigation (FBI), El Paso; Texas Attorney General; Criminal Justice Information System; FBI, U.S. Department of Justice Identification Division; and Director of West TX Community Supervision and Corrections Department.

17.  The court also requested each central Federal depository to which information concerning that charge against the petitioner was supplied to return all such records and files to the court or, if removal was impractical, to obliterate all references to the petitioner and notify the court of its actions.

18.  The court further requested the return to the petitioner of all records, files, and notifications of the disposition of the records and files returned to the court pursuant to its expunction order within a reasonable time of the receipt of the same.  Further, it was ordered that the petitioner's name and records of those cases be removed from all City, County, and State computer systems.

19.  Army Regulation 600-37 (Unfavorable Information) prescribes the policy for authorized placement of unfavorable information about Army members in individual official personnel files.  It provides that unfavorable information will not be filed in an official personnel file unless the individual has been given the chance to review the documentation that serves as the basis for the proposed filing and make a written statement, if desired, that rebuts the unfavorable information.  The referral to the recipient will include reference to the intended filing of the letter and include documents that serve as the basis for the letter.

20.  Army Regulation 600-37 also specifies a letter of reprimand or GOMOR, regardless of issuing authority, may be filed in the OMPF only upon the order of a general officer.  Statements and other evidence will be reviewed and considered by the officer authorized to direct filing.  Letters (memorandums) of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted section.  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 DASEB has been established as the appeal and petition authority for unfavorable information entered in the OMPF under this regulation.

21.  Army Regulation 600-37, paragraph 7-2, further specifies 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.

22.  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 the Army personnel qualification record.  It also prescribes the composition of the OMPF.  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 proper authorities listed in the regulation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests reconsideration of the removal of a GOMOR and removal/expungement of all records forming the basis of the GOMOR according to law from his OMPF based on a court order.

2.  The evidence shows he was given a GOMOR on 13 October 2004 for DWI.  In the recommendation for filing the GOMOR in his local military personnel file, his company commander stated her recommendation was based on the previous command's failure to take care of the applicant and his family following the death of his son.  She stated the applicant should be given the opportunity to overcome his mistake.  The installation command sergeant major recommended the GOMOR be filed in the applicant's OMPF due to the applicant's rank and time in service.

3.  It appears his command took into consideration the death of his son and its affects in the incident.  His rank and time in grade were also taken into consideration.  In November 2004, the commanding general directed the GOMOR be filed in the applicant's OMPF.  The applicant retired on 31 October 2005.

4.  The applicant successfully completed a PTD program and his civil case was dismissed.  On 3 February 2010, the District Court of El Paso County, 210th Judicial District, expunged the DWI offense from the applicant's civil records.  The court so ordered several agencies, to include to the El Paso Police Department and Sheriff's Office and Jail; County Attorney's and Clerk's Office, and FBI, to return all records and files concerning that charge to the court pursuant to the expunction order.

5.  No evidence shows the U.S. Army or ABCMR was directed to expunge its records pertaining to the GOMOR.  After a careful review of the evidence, specifically the outcome of the offense within the El Paso County court system, there is insufficient evidentiary basis to support removing the GOMOR and all records forming a basis of the GOMOR from his military records.  There is insufficient evidence to show the GOMOR was improperly imposed.  Therefore, removal/expungement from his OMPF is not appropriate.

6.  Further, a Texas State court has no jurisdiction to order the Army to remove an administrative reprimand issued by the applicant's chain of command and all records forming the basis of the GOMOR from the applicant's records.
7.  In view of the foregoing, there is no basis for granting the applicant's and counsel's request.

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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20070011015, dated 8 January 2008.



      _____________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)                                         AR20100020202



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ABCMR Record of Proceedings (cont)                                         AR20100020202



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