IN THE CASE OF:	  

		BOARD DATE:  30 August 2012

		DOCKET NUMBER:  AR20120003684 


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 removal of a general officer memorandum of reprimand (GOMOR) from his official military personnel file (OMPF).

2.  He states the GOMOR is not an accurate reflection of his past or present military service.  He takes full responsibility for his own actions; however, his own poor judgment has allowed the situation to escalate to the point where he jeopardized any future advancement in military service.  This action is unjust based on the facts leading up to his apprehension by the Fort Riley, KS, Military Police (MP).  He was a designated driver that evening and two of his team members validated that on statements as they were in a temporary duty status during the appeal process.

3.  He provides:

* Self-authored memorandum
* Associate in Science Diploma
* Request for Age and Active Federal Service waiver
* DA Forms 2166 (Noncommissioned Officer (NCO) Evaluation Report) from September 2008 through September 2011
* Character reference letter
* State of Texas driving record
* College transcripts
* Enlisted Record Brief
* Denial letter from the Department of the Army Suitability Evaluation Board (DASEB)

CONSIDERATION OF EVIDENCE:

1.  The applicant is a Regular Army NCO who initially enlisted on 14 August 1996 and he held military occupational specialty 91B (now 68W) (Healthcare Specialist).  He served through multiple reenlistments in a variety of stateside or overseas assignments and he attained the rank/grade of sergeant first class (SFC)/E-7. 

2.  He completed multiple deployments in support of contingency/combat operations including Bosnia and Iraq.  He was awarded or authorized multiple individual, service, and unit awards, most notably the Bronze Star Medal, Meritorious Service Medal, Air Medal, and the Combat Medical Badge.

3.  On 10 October 2008, at Fort Riley, MP personnel observed a vehicle that failed to use a turn signal.  A traffic stop was conducted and the operator was determined to be the applicant.  An odor of alcohol was detected emitting from him.  He was administered a series of field sobriety tests that indicated multiple signs of impairment.  He was apprehended and transported to the MP station where he refused to submit to an intoxilyzer test.

4.  On 29 October 2008, the Commanding General (CG), 1st Infantry Division, Fort Riley, reprimanded the applicant for driving under the influence of alcohol.  The GOMOR restated the events that took place on 10 October 2008.  It also stated that driving under the influence is a serious offense as he was not only putting his life in danger but also the lives of those who were on the road with him as well.

5.  After acknowledging receipt, he submitted a rebuttal wherein he stated:

* He was guilty of the offense of failing to signal (left turn)
* He was the designated driver for two of his team members; however, he only consumed one 16 oz. beer
* Despite the MP's findings of impairment, he was at no time incapable of completing what the intent of the test would show, that he was not impaired
* The MP requested the breathalyzer and he (the applicant) refused; an action that he has regretted as it displayed a flaw in his character and integrity 

6.  His brigade commander and deputy brigade commander recommended the GOMOR be filed locally.  The brigade commander opined that based on the evidence, there was reasonable doubt as to whether the applicant was driving under the influence.  Additionally, his refusal to take the breathalyzer test was an emotional response to his belief that he was being harassed and wrongfully suspected.

7.  On 26 November 2008, after carefully considering the reprimand, the circumstances surrounding the incident, and all matters submitted by the applicant in defense, extenuating or mitigating, along with the recommendations of subordinate commanders, the CG ordered the GOMOR be placed permanently in the applicant's OMPF.  

8.  On 22 April 2010, the DASEB denied his petition to transfer the GOMOR to the restricted section of his OMPF.  

9.  He submits:

* A self-authored memorandum wherein he essentially restates the events, takes full responsibility for his action, and describes the impact of this GOMOR on his career 
* A diploma, dated 31 July 2009, showing award of an Associate in Science degree in professional aeronautics
* A memorandum, dated 25 August 2011, requesting an age and active federal service waiver for him to enter Initial Entry Rotary Wing Training 
* NCOERs from September 2007 through September 2011, showing he was rated mostly excellent and among the best by his rater and successful and superior by his senior rater
* Character reference letter, dated 11 December 2011, from a major who describes the applicant as a professional and consummate leader who is an asset to the Army 
* Texas driving record that shows his prior traffic violations
* College transcripts

10.  Army Regulation 600-37 (Unfavorable Information) 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.

11.  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 chapter 7 of Army Regulation 600-37.  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. 

12.  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, to include this Board.  Table 2-1 states that administrative letters of reprimand, admonitions, and censures of a non-punitive nature are filed in the performance section of the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant, a senior NCO and a designated driver of two other Soldiers, was apprehended by military police for driving under the influence.  He agreed to a series of field sobriety exercises that resulted in indications of impairment.  He was transported to the police station where he refused to submit to a breath test.  

2.  Accordingly, he received a GOMOR.  He was afforded the opportunity to review all of the evidence against him and to submit matters on his own behalf prior to a final filing decision.  His chain of command provided their 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 CG directed the GOMOR be placed permanently in the applicant's OMPF.

3.  The imposing officer was not bound by the recommendations of the battalion and/or brigade commanders.  The GOMOR is an administrative tool used by the imposing officer to train and rehabilitate.  Once the GOMOR was filed on his OMPF, it became a permanent record and will not be removed from or moved to another part of the OMPF unless directed by certain agencies, such as this Board.

4.  When the CG reprimanded him, he had the option to file the GOMOR in the local file, the performance section of the OMPF, or the restricted section of the OMPF.  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 prejudicial to good order and discipline.  The applicant was a senior NCO with several years of service.  He failed to set an example and ignored what is widely known guidance and safety briefings about drinking and driving.  As such, the GOMOR was correctly filed in his OMPF.  He has not proven this GOMOR to be either untrue or unjust.  Therefore, there is no reason to remove it from his OMPF.

5.  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 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)                                         AR20120003684



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ABCMR Record of Proceedings (cont)                                         AR20120003684



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