IN THE CASE OF:	  

		BOARD DATE:	  22 February 2012

		DOCKET NUMBER:  AR20110018357 


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 previous request to remove the General Officer Letter of Reprimand (GOMOR), dated 5 December 1994, from his Official Military Personnel File (OMPF).

2.  The applicant states:

* He and his wife were at the noncommissioned officer (NCO) club with a sergeant first class (SFC) who happened to be the post commanding general's (CG's) aide
* The SFC stole from the NCO club, at which point he told his designated driver it was time to leave the club
* He was drinking at the club that night but his wife was his designated driver
* He never drove the vehicle, he released the parking brake to adjust the heater for his designated driver and the car rolled backwards approximately 80 centimeters
* The club guard asked him and his designated driver not to leave the club until the Military Police (MP) arrived to clear up the situation involving the SFC's theft at the club
* When the MPs arrived, the SFC and everyone in his group was asked to go to the MP station
* Though his wife was his designated driver, no one was driving the car when the MPs arrived
* After the incident, the post CG punished the SFC
* Even though he had committed no crime he was punished for guilt by association
* The CG was humiliated by his aide's actions and punished everyone who was with the SFC
* The CG issued him a GOMOR as a retaliatory action
* There was no mention of a driving under the influence (DUI) in the MP's report
* He was never stopped by the authorities or the MP's for DUI of alcohol
* There is no concrete evidence that he was driving under the influence and no MP record of stopping him for DUI
* Other than the GOMOR there is no other adverse action in his military record associated with this action
* He was given an honorable discharge, Army Good Conduct Medal (AGCM), and an Army Commendation Medal (ARCOM)
* The GOMOR has been in his record for 16 years and it has served its purpose

3.  The applicant provides a self-authored statement and a letter from his wife.

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 AR20100007974, on 24 August 2010.

2.  The applicant provides a statement outlining his case that was not previously considered by the Board; therefore, it is considered new argument and/or evidence that warrant consideration by the Board.

3.  The applicant's enlisted in the Regular Army on 18 March 1992 and held military occupational specialty 73D (Accounting Specialist).  The highest rank/grade he attained while serving on active duty was specialist (SPC)/E-4.

4.  Records show his last duty assignment was with the 208th Finance Battalion, Vicenza, Italy.

5.  On 5 December 1994, he received a GOMOR from his CG for operating a motor vehicle while under the influence of alcohol.  He acknowledged receipt of the GOMOR and indicated he intended to submit a statement on his own behalf.

6.  In his rebuttal, dated 21 December 1994, he stated:

* The blood alcohol test referenced in the GOMOR never took place
* He was given a breathalyzer test which was not administered in accordance with Army Regulation 190-5 (Motor Vehicle Traffic Supervisor), chapter 2
* The results of the test should not be taken into consideration since he was not given a consent form at the time the test was administered
* It was the SFC's fault that he was accused of DUI
* He never drove the vehicle; he only released the emergency brake and allowed the vehicle to roll backwards about 80 centimeters
* He was command-referred to enroll in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) prior to his receipt of the GOMOR
* He regretted the chain of circumstances that led to his GOMOR
* He requested the document be filed in his local Military Personnel Records Jacket (MPRJ) instead of his Official Military Personnel File (OMPF)

7.  On 29 January 1995, the CG directed the GOMOR be permanently filed in his OMPF.

8.  On 4 May 1996, the applicant was honorably released from active duty and he was transferred to the 314th Support Center, Reserve Officers' Training Corps (ROTC).  He completed 4 years, 1 month, and 17 days of net active service and 3 years, 7 months, and 12 days of foreign service.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) his DD Form 214 shows he was awarded the:

* Army Commendation Medal
* Army Good Conduct Medal
* National Defense Service Medal
* Army Service Ribbon
* Expert Marksmanship Qualification Badge with Rifle Bar (M-16)
* Sharpshooter Marksmanship Qualification Badge with Grenade Bar
* Driver and Mechanic Badge
* 
9.  His record contains a DA Form 3540/1-E (Certificate and Acknowledgement of Service for Individuals Enlisting, Reenlisting, or Transferring into Troop Program Units (TPU) of the U.S. Army Reserve) that shows he was transferred or reassigned to a TPU on 1 May 1996.  His unit of assignment was the
314th Support Center (ROTC).

10.  On 4 May 1996, the applicant was honorably released from active duty at the completion of his required active service.  He was transferred to his TPU of assignment.

11.  Orders 03-149-00034, issued by Headquarters, 99th Regional Support Command, dated 29 May 2003, show he was honorably discharged from the USAR effective 17 May 2003

12.  Orders 06-080-00084, issued by the same headquarters, dated 21 March 2006, show he was honorably discharged from the USAR effective 9 February 2006.

13.  He provided a letter from his wife as evidence.  His wife stated he never drove the vehicle and that she was his designated driver.  She further stated the GOMOR her husband received was unfair and unjust.  She went on to state the CG was abusing his power and everyone, including herself, was afraid to challenge the CG.

14.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) establishes the responsibilities, policies, and procedures for maintaining and controlling the OMPF.  It 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.

15.  Army Regulation 600-37 (Unfavorable Information):

	a.  Paragraph 3-4(1)(a) states a letter will be included in a Soldier’s OMPF that is referred to the recipient concerned for comment.  The referral will include reference to the intended filing of the letter.  This referral will also include and list applicable portions of investigations, reports, and other documents that serve, in 
part or in whole, as the basis for the letter, providing the recipient was not previously provided an opportunity to respond to information reflected in that documentation.  Additionally, documents, the release of which requires approval of officials or agencies other than the official issuing the letter, will not be released to the recipient until such approval is obtained.

	b.  Paragraph 7-2a provides 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.  Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered.

DISCUSSION AND CONCLUSIONS:

1.  The applicant argues he was not charged with DUI and there was no mention of a DUI in the MP report.  He further argues he was never stopped by the MPs for DUI and that there is no concrete evidence that he was driving under the influence.  However, he did not receive a GOMOR for DUI for driving a motor vehicle while under the influence of alcohol.  The applicant admitted he was drinking and released the parking brake of his car which caused it to roll backwards approximately 80 centimeters, which technically constitutes operation of a motor vehicle.

2.  His argument that he had committed no crime but was punished for guilt by association and the CG issued him a GOMOR as a retaliatory action is noted.  However, the mere allegation of an injustice without supporting evidence/
documentation is insufficient in itself.

3.  He argues the GOMOR has been on his record for the past 16 years and has served its purpose; therefore, it should be removed from his OMPF.  However, the burden of proof rests with the applicant and he has failed to provide evidence of a clear and convincing nature that shows the GOMOR is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from his OMPF.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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 to amend the decision of the ABCMR set forth in Docket Number AR20100007974, dated 24 August 2010.



      ___________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)                                         AR20110018357



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ABCMR Record of Proceedings (cont)                                         AR20110018357



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