IN THE CASE OF:	  

		BOARD DATE:	  7 June 2012

		DOCKET NUMBER:  AR20110019581 


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, in effect, removal of a General Officer Memorandum of Reprimand (GOMOR), dated 11 March 2010, from his Official Military Personnel File (OMPF) or in the alternative, transfer of the GOMOR to the restricted section of his OMPF.

2.  He states he:

* was charged with driving under the influence (DUI), but it was reduced to careless and reckless driving
* paid a $210.00 fine

3.  He submitted:

* GOMOR with allied documents
* His rebuttal to the GOMOR
* DA Form 3975 (Military Police (MP) Report)
* Certificate of Driver’s Record
* Rights of a Person Requested to Submit to a Chemical Analysis to Determine Alcohol Concentration or Presence of an Impairing Substance

CONSIDERATION OF EVIDENCE:

1.  At the time the applicant submitted his application, he was serving in an Active Guard Reserve status in the rank/grade of sergeant (SGT)/E-5.

2.  On 11 March 2010, he received a GOMOR for DUI of alcohol.  The GOMOR was imposed as an administrative measure and not as punishment under
Article 15 of the Uniform Code of Military Justice (UCMJ).

3.  On 18 March 2010, he acknowledged receipt of the GOMOR and he elected to submit matters on his own behalf.

4.  On 28 March 2010, he submitted a rebuttal to the GOMOR and stated that:

* on 19 February 2010, at approximately 0100 hours, while in a bar, a woman spilled her drink on him resulting in him having a friend drop him off at home
* at approximately 0230 hours, he got hungry and decided to go get something to eat and refuel his car
* on his way home he noticed a car speeding up behind him with its lights off
* he got nervous and he was afraid for his safety because the car was tailgating his car
* the driver turned his lights on and all he heard was a siren, so he pulled over to the right lane and waited for further instructions
* he gave the police officer his license, insurance card, and registration and he stayed in his car and waited until three MPs arrived
* he overheard the police saying they could not check his license because it was from Puerto Rico and he had to provide additional identification in the form of his military identification card
* he received no answer when asked why he was pulled over
* he was informed he was going to have a breathalyzer which he did, but it did not work
* he took a second breathalyzer which yielded the same results
* he was administered a field sobriety test by being told to walk on top of the white emergency lane line
* he heard a comment he considered to be racist, but instead of getting upset he laughed
* he was arrested, cuffed, and placed in a police vehicle without the reading of his rights or being told why he was being arrested
* at the military police station he took two additional breathalyzer tests which yielded no results
* afterwards, he was given copies of his paperwork and he was told to call his supervisor so they could pick him up
* after being picked up about 0500 hours, he went to retrieve his car which sustained damage and was told it looked like it was searched for drugs
* he was upset because the car was only 5 months old
* SGT H------y's Police Report contained incorrect details

* his claims to be the officer who made the initial stop was incorrect because MPs do not wear mountie hats; however, he was stopped by a provost marshal officer
* he claims he detected the odor of alcohol emitting from his vehicle; however, he never got close to him or the vehicle
* the report states he refused to take an intoximeter test which was untrue since he took two at the MP station, none of which he refused
* his license number was wrong on the paperwork which proves
SGT H------y was not involved at the traffic stop

* he hopes this information proves his integrity was not an issue
* he was expecting paperwork to prove his case prior to the issuance of the GOMOR
* this had been a stressful experience and he had done his best to cooperate
* he feels that his reputation and effectiveness as a Soldier had been irreparably damaged by his entire incident

5.  On 9 April 2010, his commander recommended the GOMOR be filed in his OMPF and stated that:

	a.  Soldier may have potential, but is currently exhibiting the need for extensive retraining/mentoring by strong noncommissioned officers (NCO).  He was not NCO material at this time;

	b.  Soldier is needed by G-6; and

	c.  the evidence provided shows he consumed alcoholic beverages over an extended period of time and he refused to submit to intoxilyzer testing.  Soldier displayed a lack of military bearing given his current rank of SGT in my presence.

6.  On 20 April 2010, the imposing authority directed the GOMOR be filed in the applicant's OMPF in accordance with Army Regulation 600-37 (Unfavorable Information), paragraph 3-4b.  The GOMOR and allied documents are filed in the performance section of his OMPF.

7.  He submitted:

	a.  a Commonwealth of Puerto Rico, Department of Transportation and Public Works, Driver’s Service Directorate, Certificate Driver’s Record that shows his license was issued on 19 August 1996 and expired on 25 July 2011;
	b.  a memorandum for record, dated 19 February 2010, that shows he was issued two citations, a suspension of on-post driving privileges, advised of his court appearance, and released to his unit due to being stopped at a traffic stop and alcohol being detected;

	c.  a North Carolina Department of Health and Human Services, Rights of Person Requested to Submit to a Chemical Analysis to Determine Alcohol Concentration or Presence of an Impairing Substance Under N.C.G.S.
20-16.2(a), dated 19 February 2010, that shows he refused a breath test on the same date at 0305 hours;

	d.  a DA Form 3975, dated 19 February 2010, that shows the applicant was charged with impaired driving on post;

	e.  an Intox ER/IR –TT: Subject Test, issued by Cumberland County, Fort Bragg, dated 19 February 201, that shows he refused a breath test;

	f.  a certificate for Driver Improvement Training, completed on 27 February 2010; and

	g.  a Judgment in a Criminal Case, dated 11 May 2011, that shows he pled guilty to a lesser included charge of careless and reckless and count two was dismissed on the motion of the United States.

8.  Army Regulation 600-37 provides that an administrative memorandum of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the Soldier.  The memorandum must be referred to the recipient and the referral must include and list applicable portions of investigations, reports, or other documents that serve as a basis for the reprimand.  Statements or other evidence furnished by the recipient must be reviewed and considered before a filing determination is made.

9.  A memorandum of reprimand may be filed in a Soldier's OMPF only upon the order of a general officer-level authority and is to be filed in the performance section.  The direction for filing is to be contained in an endorsement or addendum to the memorandum.  If the reprimand is to be filed in the OMPF, the recipient's submissions are to be attached.  Once filed in the OMPF, the reprimand and associated documents are permanent unless removed in accordance with Army Regulation 600-37, chapter 7.  Paragraph 7-2 (Policies and standards) 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 the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.

10.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) governs the composition of the OMPF and states that the performance section is used for filing performance, commendatory, and disciplinary data.  Once placed in the OMPF, the document becomes a permanent part of that file.  The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, including this Board.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was arrested on 19 February 2010 for DUI of alcohol.

2.  Accordingly, he received a GOMOR.  He was afforded the opportunity to review all of the evidence against him and to submit matters in his own behalf prior to a final filing decision.  His commander provided his recommendations and after carefully considering the circumstances surrounding the incident, and all matters submitted by the applicant, along with the recommendations of subordinate commanders, the appropriate authority ordered the GOMOR be permanently filed in the applicant's OMPF.

3.  The quality of service of a Soldier in the Army is affected by conduct that is of a nature to bring discredit in the Army or is prejudicial to good order and discipline. The applicant was an NCO with several years of service.  The GOMOR was correctly filed.  The applicant has not proven this GOMOR to be either untrue or unjust.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's request in whole or in part.

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)                                         AR20110019581



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ABCMR Record of Proceedings (cont)                                         AR20110019581



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