IN THE CASE OF:	  

		BOARD DATE:	  25 August 2011

		DOCKET NUMBER:  AR20100028931 


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 the following:

* Removal of a General Officer Memorandum of Reprimand (GOMOR)
* Removal of a Bar to Reenlistment
* Change of his reentry (RE) code

2.  He states he was a motivated, high-performing infantryman in the Army with multiple combat tours and awards.  He adds he was also ranger and airborne qualified.  He explains that he received a call from one of his Soldiers' wives who was a victim of domestic violence.  He offers that he immediately responded, but had been drinking.  While enroute to the Soldier's quarters, he was stopped for driving under the influence.  He maintains this was a single isolated incident in an otherwise unblemished 14 plus years in the military that resulted in a GOMOR and a bar to reenlistment.  He also states in 2008, he checked with officials at the Federal Court and was informed that there was no record of any charges filed on him in August 1991.

3.  He provides the following:

* Self-authored statements
* Letter of Reprimand, dated 15 August 1991, with filing determination dated 10 October 1991
* Memorandum, Subject:  Department of the Army Imposed Bar to Reenlistment Under the Qualitative Management Program (QMP), dated 10 July 1992
* Statement of Option to QMP
* Applicant's appeal to the QMP with six supporting statements
* Four support memoranda for reconsideration of the applicant's appeal to the QMP 
* Memoranda, Subject:  Recommendation Letter for [Applicant] for Appeal for Wrongful Discharge from the U.S. Army, dated 15 March 2010 and 17 June 2010
* Numerous letters of commendation and certificates of appreciation, achievement, and/or training
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Letter, U.S. District Court, Eastern District of North Carolina, dated 
20 February 2009
* Certificates and/or orders awarding him:

* Bronze Star Medal (2nd Award)
* Combat Infantryman Badge
* Army Good Conduct Medal (3rd Award)
* Master Parachutist Badge
* Army Achievement Medal (2nd Award)
* Army Commendation Medal (2nd Award)
* Armed Forces Expeditionary Medal
* Expert Infantryman Badge

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 record shows on 15 August 1991, he received a GOMOR for driving an automobile while impaired.  The GOMOR stated that on 10 August 1991, he was arrested for suspicion of driving while impaired.  A breath analysis test administered at the time of his arrest, established that his blood and alcohol content was 0.17.  He was a sergeant first class (SFC)/E-7 at the time of the GOMOR.

3.  The GOMOR was referred to the applicant for his information, acknowledgement and/or rebuttal.  However, he did not provided a copy of his acknowledgement and/or his rebuttal and his response was not contained in his records.

4.  On 10 October 1991, the imposing authority stated that he had reviewed the letter of reprimand and endorsement pertaining to the applicant and directed the GOMOR to be filed in the applicant's official military personnel file (OMPF).

5.  On 10 July 1992, the applicant was notified by memorandum that the Calendar Year 1992 (CY92) Master Sergeant Selection Board, after a comprehensive review of his OMPF, determined that he was to be barred from reenlistment.  The memorandum identified his GOMOR as the basis for his bar to reenlistment.

6.  On 26 August 1992, he was counseled concerning the results of the QMP Board and his options.  He signed the form acknowledging receipt of the action and electing to submit an appeal.

7.  In his appeal memorandum, dated 24 September 1992, he stated the circumstances surrounding him receiving the GOMOR.  He explained that on 
10 August 1991, he had been relaxing in his quarters, watching television, and drinking several beers.  He added he received a phone call from the wife of one of his Soldiers that informed him she was being physically abused by the Soldier. He stated that without thinking, he got into his car and headed for their home.  He offered he was stopped by the military police for speeding and administered a breathalyzer based on the smell of alcohol.  He said it was determined that he was in excess of the standards.  He offers that he was fully aware of the consequences of alcohol related offenses, but at the time he did not properly consider the consequences.  He continued by citing his accomplishments within the last three years and opined that he believed it would be in the best interest of the Army to allow him to remain on active duty.

8.  He provided ten supporting statements one from his commanding general.  In the commanding general's statement dated 21 October 1992, he said the applicant was an outstanding Noncommissioned Officer who made a single isolated mistake.  He said it was incomprehensible to him that "we" would bar a Soldier of this quality.  He concluded that if we could not evaluate a bar based on the whole man performance, "we have taken a giant step backward to a zero defect environment."  The applicant also provided several supporting statements 



from lieutenant colonels, command sergeants major, his unit commander, and the spouse of the Soldier involved in the incident.  These individuals reiterated the circumstances surrounding the GOMOR and expounded on the applicant's integrity and dedication.  They highly recommended that he be allowed to remain in the Army.  

9.  Additionally, the numerous awards and decorations he provided verify his commitment and dedication to his Soldiers, to his unit, and to the Army.

10.  His DD Form 214 shows he was separated with an Honorable Discharge Certificate, on 30 June 1993, under the provisions of chapter 16-8, Army Regulation 635-200 (Personnel Separations).  The narrative reason for separation is listed as "Reduction in Authorized Strength."  Item 26 shows he was assigned a Separation Program Designator (SPD) code of "JCC" and item 27 shows his RE code as "4."  

11.  A letter from the U.S. District Court, Eastern District of North Carolina, dated 20 February 2009, stated that the deputy clerk ran the applicant's name for driving while intoxicated (DWI) charge and/or conviction in the district.  She stated that after running his name in two databases, she did not find a DWI charge in that district.

12.  Army Regulation 600-37 (Unfavorable Information) states 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 object 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.

13.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 16-8 of this regulation sets forth the requirements for early separation of enlisted personnel due to reduction in force, strength limitations, or budgetary constraints.  Soldiers separated under this paragraph will be characterized as honorable.

14.  Army Regulation 601-280 (Army Retention Program) paragraph 10-5 governs screening procedures and states, in pertinent part, that appropriate Department of the Army Selection Boards will review the performance portion of the OMPF, the DA Form 2A (Personnel Qualification Record Part-I) and DA Form 2-1 (Personnel Qualification Record Part-II), and other authorized documents.  From these documents, the board will evaluate past performance and estimate the potential of each service member to determine if continued service is warranted.
15.  Army Regulation 601-280, paragraph 10-8 provides that a Soldier may appeal the bar to reenlistment imposed under QMP based on improved performance and/or material error in the Soldier’s record when reviewed by the selection board.  The appeal must be submitted within 45 days of completion of the Statement of Option and will include substantive comments on the Soldier’s performance and potential by each member of the chain of command.  Paragraph 10-10 provides that the appeal is considered by the QMP Appeals Board normally conducted in conjunction with Centralized Enlisted Selection Boards.  The QMP Appeals Board will consider the Soldier’s potential for future service and promotion; review the Soldier’s complete record “de novo”; and notify the Soldier’s commander (lieutenant colonel or above) of the results of the appeal.

16.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities, reasons for separating Soldiers from active duty and the SPD codes to be entered on the DD Form 214.  This regulation states, in pertinent part, that SPD code "JCC" applies to HQDA messages or other directives announcing voluntarily or involuntarily early separation programs due to reduction in force.  

17.  Army Regulation 635-5-1 provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  The SPD code of JCC applies to a reduction in force.  

18.  The SPD/RE Code Cross Reference Table specifies that RE-4 will be assigned to anyone discharged under QMP.

19.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies and procedures for enlistment and processing into the RA and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.  RE-1 permits immediate reenlistment if all other criteria are met.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  An RE code of “4” indicates separation from the last period of service with a disqualification which cannot be waived and ineligibility for reenlistment.

DISCUSSION AND CONCLUSIONS:

1.  It is unfortunate that the applicant's outstanding military career was marred by what appears to be an isolated incident.  Nevertheless, the fact that there was no record of this DWI conviction in the Eastern District of North Carolina,17 years later, is not sufficient grounds to conclude that the GOMOR was inaccurate or unjust.  By his own admission, he was relaxing, watching television, and had been drinking several beers when he responded to a domestic problem from his Soldier's spouse.  Additionally, the GOMOR established his BAC level was .17 percent at the time of his arrest.  He has failed to provide any documentation to dispute the BAC level.

2.  Further, the record shows the GOMOR was forwarded to the applicant for his acknowledgement and/or comments prior to the commanding general’s filing decision.  The general considered the applicant’s response and the recommendations of his chain of command and elected to file the GOMOR in his OMPF.

3.  The Department of the Army Selection Board reviewed the performance portion of the applicant’s OMPF and other authorized documents to evaluate his past performance and to estimate his potential for continued service.  The CY92 Master Sergeant Selection Board identified his GOMOR as the basis for his bar to reenlistment.  He was properly notified of his DA bar to reenlistment and afforded the opportunity to appeal.  He solicited the aid of his chain of command and they also requested that he be retained in the Army.  The commanding general acknowledged that the DWI was an isolated mistake and it was incomprehensible to him that "we would bar a Soldier of this quality."  However, the applicant was denied retention.

4.  At the time of his discharge he had a DA imposed bar to reenlistment in effect. Therefore, he was assigned an RE code of 4 which is consistent with the reason for separation.  He has failed to show that his assigned RE code is in error or unjust.  Therefore, he has established no basis for changing his existing RE code.

5.  In view of the foregoing, the Board concludes there is no error or injustice and as such concludes there is no basis for granting the applicant'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 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)                                         AR20100028931





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ABCMR Record of Proceedings (cont)                                         AR20100028931



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