BOARD DATE:	  4 September 2012

		DOCKET NUMBER:  AR20120000936 


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 defers his request and statement to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests:

* removal of the applicant's general officer memorandum of reprimand (GOMOR) from his official military personnel file (OMPF)
* that the action removing the applicant from the chief warrant officer four (CW4) promotion list be set aside
* that the applicant be retroactively promoted to CW4
* the applicant be reinstated to active duty, effective 31 July 2008
* that the applicant be paid all back pay and allowances as a result of the above corrections

2.  Counsel states:

	a.  Army regulations require a GOMOR when a Soldier is either convicted of driving while intoxicated (DWI), refuses a breath test, or driving when blood alcohol content violates State law.  The applicant's GOMOR was imposed prematurely pending unresolved civil proceedings for alleged DWI and breath test refusal.  Army regulations prohibit reference to an incomplete or unresolved investigation in official records.  This is to prevent unverified/unproven derogatory information such as charges that are later dropped or of which the Soldier may later be absolved.  
	b.  On 22 February 2006, the applicant surrendered his driver's license to the arresting officer but did so temporarily because he requested a civil hearing to dispute the facts that he was DWI.  The hearing was a non-criminal, administrative adjudication under the lower standard of preponderance of evidence and he was later cleared by civil authorities.  

   c.  The Department of the Army Suitability Evaluation Board (DASEB) acknowledged the applicant was cleared by civil authorities but mistakenly decided to keep the GOMOR solely on the unsubstantiated arresting officer's reports.  The DWI charge was dropped but the dismissal occurred after the GOMOR was imposed and filed.  The arresting officer failed to appear at the hearing to attest to or corroborate the unsigned police reports as true and reliable.  The judge recalled the original arrest action, meaning the State failed to prove that the applicant was ever DWI and his State driver's license and driving privileges were restored.

	d.  The U.S. Supreme Court and other appellate court opinions have condemned uncorroborated police reports of an alleged DWI to be unreliable when the arresting officer and superiors refuse a hearing subpoena (i.e., do not appear to attest to its accuracy).

	e.  When the GOMOR was proposed the reprimand authority obtained chain-of-command recommendations of whether it should be filed in the OMPF and the applicant was never provided these recommendations.  One of the commanders mistakenly concluded that the applicant had past similar DWI incidents and this error was repeated in an email written by the imposing authority.  This new adverse matter was false but was never referred to the applicant for comment.  This false information played a significant role in the decision to propose the GOMOR and file it in the applicant's OMPF.

3.  Counsel provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Officer Record Brief, dated 10 July 2007
* Ten pages of Rosepine Police Department, Rosepine, LA, arrest records, dated 22 February 2006
* DA Form 3975 (Military Police Report), dated 22 March 2006
* Letter, dated 23 March 2006
* GOMOR, dated 31 March 2006
* Six memoranda
* DASEB Record of Proceedings, dated 25 September 2008 with attachments
* Thirteen pages titled Mackey versus Montrym, U.S. Supreme Court, 25 June 1979
* Three pages of email, dated 23 March 2006
* Eighteen DA Forms 67-8 (Officer Evaluation Report)
* DA Form 1059 (Service School Academic Evaluation Report)
* Army Regulation 600-37 (Unfavorable Information), dated 18 May 1977
* DynCorp International memorandum, dated 1 October 2009
* Automobile insurance statement, dated 31 January 2007
* Weather conditions statement, dated 23 February 2007
* Department of State Letter of Authorization, dated 27 October 2008

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.  Having had prior enlisted service, the applicant's records show he was appointed as a U.S. Army Reserve Aviation warrant officer one (WO1) and executed an Oath of Office with concurrent call to active duty on 1 October 1992.  

3.  He was promoted to the rank of CW2 in military occupational specialty 153D (UH-1 Pilot) on 1 October 1994.  He was promoted to the rank of CW3 in the Regular Army on 1 January 2001.  He was assigned to the U.S. Army Air Ambulance Detachment, Fort Polk, LA.

4.  On 22 February 2006, the applicant was apprehended at his home by a civilian police officer from the Rosepine Police Department, Rosepine, LA.  His abandoned vehicle had been found on the highway with front end damage and the license plate was traced to the applicant.  The arrest report stated that when the applicant answered the door, the police officer detected an odor of alcohol, noted the applicant was unsteady on his feet, and had cuts on his head.  When asked how much he had to drink, the applicant replied a lot and stated he had not had anything additional to drink since he arrived at home.  He was arrested for hit and run and DWI and transported to the police department.  He performed poorly on a field sobriety test, refused to take the chemical test, and was booked into jail.

5.  An Intoxilyzer 5000 Operational Check List, dated 22 February 2006, shows the applicant was given a breath test in which he was "instructed to blow into the mouthpiece until the tone stops."  This check list further shows that the "subject either refused to blow or failed to provide a proper sample."  The air blank results were ".000g" percent.

6.  A Louisiana Department of Public Safety and Corrections Affidavit of Arrest, dated 23 February 2006, shows the applicant was arrested in Vernon Parish, Rosepine, LA, on 22 February 2006.  This form also shows a checkmark in the "Refused Chemical Test" block and an X in the "License Surrendered - Yes" block to indicate the applicant refused the chemical test and surrendered his driver's license on 22 February 2006.  The applicant authenticated this form by placing his signature in the appropriate block.

7.  He was considered and recommended for promotion to CW4 by the Headquarters, Department of the Army (HQDA) Fiscal Year (FY) 2006 Promotion Selection Board which recessed on 24 February 2006.

8.  On 21 March 2006, the Fort Polk Provost Marshal received a fax from the Rosepine Police Department showing the applicant had been charged with hit and run, DWI, refusal (to take a breath test), and careless operation of a motor vehicle.  

9.  On 31 March 2006, a Brigadier General (BG), Commander, Joint Readiness Training Center, Fort Polk, LA presented the applicant a GOMOR, which stated he was being reprimanded for involvement in a hit and run accident off post on 22 February 2006.  A civilian police officer detected a strong odor of an alcoholic beverage emitting from his breath.  Thereafter, he performed poorly on a field sobriety test and refused a chemical test for intoxication.

10.  The reprimand further stated the applicant's decision to drive after he had been drinking demonstrated a lack of maturity and judgment.  He risked not only his own life, but also the lives of innocent travelers.  His misconduct cast doubt on his ability to perform his duties or to be placed in any position of responsibility.  The GOMOR was an administrative measure and not as punishment under Article 15 of the Uniform Code of Military Justice (UCMJ).

11.  On 8 April 2006, his immediate commander recommended that the GOMOR be filed in the applicant's OMPF, based on past similar incidents.

12.  On 12 April 2006, the applicant acknowledged receipt of the GOMOR and stated he wished to submit matters on his own behalf.

13.  The applicant provided a letter, dated 12 April 2006, issued by the Office of the District Attorney, Leesville, LA, wherein it stated the DWI charges against the applicant were dismissed.

14.  On 19 April 2006, the applicant's senior commander recommended that the GOMOR be filed in the applicant's OMPF.

15.  On 19 April 2006, the applicant stated after further consideration, he did not wish to submit a rebuttal.

16.  On 26 April 2006, the BG reviewed the applicant's response indicating he did not desire to submit matters on his own behalf.  The BG also reviewed the recommendations of his chain of command and directed the GOMOR be permanently filed in his OMPF.

17.  On 11 May 2006, a hearing was held in civilian court to determine if the applicant's driving privileges should be suspended.  Three of the arresting officers failed to appear for the hearing and as a result the judge ordered the original arrest action recalled.  His State driver's license and driving privileges were restored.  

18.  On 17 June 2006, he was notified that a promotion review board (PRB) was being convened to determine if he should be removed from the CW4 Promotion Selection List.

19.  He subsequently acknowledged receipt of the notification and stated that upon the advice of his counsel he did not submit a rebuttal to the GOMOR, at the time, because the charges against him had not been dismissed and his test refusal hearing was still pending.  He stated he did not refuse to submit to a breath sample, rather he did not submit a valid breath sample.  He stated he only had a minor traffic accident and the responding officers overreacted; he was not impaired, only tired.  He further stated the test refusal charges were dismissed as were all the charges on his citation.

20.  On 28 September 2006, a PRB convened and after reviewing his overall record, his rebuttal, and the GOMOR, the recommendation was that he be removed from the CW4 Promotion Selection List.  The PRB further determined the GOMOR he received for DWI was not seen by the FY06 Promotion Selection Board, but it violated Army regulations and warranted his removal from the promotion list.  On 18 December 2006, the Secretary of the Army subsequently approved the board's recommendation and the applicant was removed from the CW4 Promotion Selection List. 

21.  On 31 July 2008, he was honorably retired in the rank of CW3 and placed on the Retired List on 1 August 2008.  He completed 15 years and 10 months of creditable active service during this period of service and he had 4 years, 2 months, and 17 days of prior enlisted service.

22.  On 25 September 2008, the DASEB denied the applicant's request to remove the GOMOR from his OMPF and void his removal from the CW4 Promotion List.  The DASEB determined there was no clear and convincing evidence that the GOMOR was untrue or unjust and the overall merits of the case did not warrant the relief requested.  

23.  Counsel provides:

	a.  An email, dated 23 March 2006, from the Fort Polk, LA, Provost Marshal to the BG, wherein the Provost Marshal stated a records check revealed the applicant had the following on:

* 31 January 2002, DWI from Vernon Parish Sherriff's Office, LA
* 31 January 2002, license suspended (the applicant participated in the first offenders program to have the charges reduced)
* 23 February 2002, driving with a suspended license, Fort Rucker, AL

   b.  In the email, the applicant's senior commander stated, by policy, the applicant needed to be grounded (from flying) and that the prior history elevated this from a single misuse event and pointed toward a potential pattern of abuse that needed to be evaluated.

	c.  A U.S. Supreme Court case, Mackey v Montrym, argued on 29 November 1979, decided on 25 June 1979, wherein Montrym, arrested for DWI in Massachusetts after being involved in an accident while driving refused a breath-analysis examination.  

	d.  A Government Employees Insurance Company (GEICO) statement, dated 31 January 2007, wherein a GEICO office manager stated that according to their records the applicant's current motor vehicle report showed he did not have any DWI, drunk driving, impaired driving, or any type of alcohol or drug related charges.


24.  Army Regulation 600-37 (Unfavorable Information), dated 19 December 1986, 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 filing determination is made.

25.  A GOMOR 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 GOMOR is to be filed in the OMPF, the recipient's submissions are to be attached.  Once filed in the OMPF, the GOMOR and associated documents are permanent unless removed in accordance with Army Regulation 600-37, chapter 7.

26.  Army Regulation 190-5 (Military Police - Motor Vehicle Traffic Supervision) states, in pertinent part, a written reprimand, administrative in nature, will be issued to active duty Soldiers for refusal to take or failure to complete a lawfully requested test to measure alcohol or drug content of the blood, breath, or urine, either on or off the installation, when there is reasonable belief of driving under the influence of alcohol or drugs.

27.  Army Regulation 600-8-29 (Officer Promotions), chapter 8, provides for PRBs and states that an officer may be referred to a PRB when there is cause to believe the officer is mentally, physically, morally, or professionally unqualified to perform the duties of the grade for which he or she is selected.  The regulation further states, in pertinent part, an officer may be referred to a PRB upon receipt of a GOMOR placed in the OMPF.  

28.  Before the PRB convenes, the officer under review will be informed, by memorandum, of the reason for the action and provided a copy of any information that will be considered by the board.  The officer will be afforded a reasonable opportunity to submit comments on that information to the PRB.  A PRB will consider an officer’s official military personnel record, consisting of the OMPF (including relevant portions of the restricted fiche), officer record brief, and official photo, in addition to any submission to the board by an officer under consideration.  An officer may include the opinion and statements of third persons in his or her submission.



DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant received a GOMOR for being involved in a hit and run accident off post, and after being cited by civilian police for hit and run, DWI, and careless operation of a motor vehicle.  In the absence of evidence to the contrary, it is presumed he was afforded the opportunity to review the chain-of-command filing recommendations, the Provost Marshal reports, and to submit matters on his own behalf.  He declined to submit matters on his own behalf or refute the events cited in the GOMOR.  Subsequently, the GOMOR was referred for filing in his OMPF.  

2.  At a later date, the applicant stated he did not submit a rebuttal to the GOMOR at that time because the charges against him had not been dismissed and his chemical test refusal hearing was still pending.  The fact that the DWI and related charges were later dismissed because the arresting officers did not appear for the hearing has no bearing on the GOMOR.  The GOMOR was given to the applicant as an administrative measure and not as punishment under Article 15 of the UCMJ.

3.  The applicant also contends he did not refuse to submit to a breath sample, rather he did not submit a valid breath sample.  The governing regulation states a written reprimand will be issued to active duty Soldiers for "refusal to take or failure to complete a lawfully requested test to measure blood alcohol content."  The evidence of record shows when the breath test was conducted the applicant "either refused to blow or failed to provide a proper sample" which the applicant confirms.  In addition, the affidavit of arrest shows the applicant refused the chemical test and that he authenticated this form by placing his signature in the appropriate block.

4.  Counsel contends information that the applicant had a previous DWI charge was false and led to the GOMOR being filed in his OMPF.  However, there is no evidence to support this contention.  Counsel provides a GEICO statement that indicates a records check shows the applicant did not have any previous DWI charges.  However, the information the Provost Marshal received showed he had been charged with DWI on 31 January 2002 and that he participated in the first offenders program to have the charges reduced.  In addition, he was charged with DWI on 22 February 2006 although the charge was later dismissed.

5.  Neither the applicant nor his counsel has provided any conclusive evidence that shows the record of his prior driving offenses was in error or that it was the deciding factor for the BG's filing decision.  The evidence of record shows the GOMOR was properly administered in accordance with applicable regulations and was properly filed in his OMPF.  There is no evidence of an error or an injustice.

6.  In accordance with regulatory guidance, after the applicant received the GOMOR a PRB convened to determine if the applicant's name should be removed from the CW4 Promotion Standing List.  The PRB reviewed the GOMOR, the applicant's complete military records, and his rebuttal, to include the information he provided on the disposition for the charges against him, and recommended his removal from the Promotion Standing List.  This recommendation was approved and he was subsequently removed from the CW4 Promotion Standing List.  There is no evidence of an error or injustice.

7.  In view of the foregoing, he is not entitled to the 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 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)                                         AR20120000936



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ABCMR Record of Proceedings (cont)                                         AR20120000936



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