IN THE CASE OF:	  

		BOARD DATE:  10 January 2013

		DOCKET NUMBER:  AR20120019731 


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 a General Officer Memorandum of Reprimand (GOMOR) be removed from her Army Military Human Resource Record (AMHRR) (formerly called the official military personnel file (OMPF)).

2.  She states she received a GOMOR on 7 March 2010 for allegedly driving while impaired (DWI) prior to going to court for the findings.  She maintains the DWI was dropped completely because there was no evidence to prove that she was under the influence of any substance.  She adds she also had to go before the 18th Airborne Corps Commanding Officer who gave her a reversal memorandum stating to remove the GOMOR from her AMHRR.

3.  She provides the following:

* Statement from her DWI attorney
* Court case
* Court judgment, page 1 of 5 pages 
* Memorandum, Subject:  Request for Removal of a GOMOR, dated 
29 January 2011

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows she is currently a staff sergeant (SSG)/E-6 on active duty.

2.  On 8 April 2010, she received a GOMOR for DWI.  The GOMOR stated that on 7 March 2010, after being stopped for illegal passing and speeding, she refused to provide a lawfully requested intoximeter test.  

3.  On an unspecified date, she acknowledged receipt of the GOMOR and on 
12 May 2010, she provided a statement on her behalf.  She said she redeployed after serving two consecutive deployments and had a poor lapse in judgment for just one night.  She requested the GOMOR be placed in her local personnel file so she could continue with her career.

4.  On 19 July 2010, the imposing authority directed the GOMOR be filed in her AMHRR.

5.  On 26 September 2011, she applied to the Department of the Army Suitability Evaluation Board (DASEB) to have the GOMOR removed.  On 18 November 2011, the DASEB denied the applicant's request for removal and stated she failed to provide clear and convincing evidence that the GOMOR was untrue or unjust.

6.  Court documents from the U.S. District Court for the Eastern District of North Carolina, filed on 11 May 2010, show the applicant was charged with two counts on 7 March 2010:

* Count One - operating a motor vehicle while under the influence of an impairing substance 
* Count Two - recklessly operating a motor vehicle without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property

7.  The court judgment shows the applicant plead guilty to Count Two, "Careless and Reckless by Speed."  Her sentence was provided on pages 2 through 5, but she failed to provide those pages.  The judgment also shows Count One was dismissed on the motion of the United States.

8.  The applicant provided a letter from her DWI attorney, dated 9 December 2010, that stated the applicant was charged with DWI, but the charge was dismissed and she pleaded guilty to a charge of careless and reckless driving.

9.  In a memorandum, Subject:  Request for Removal of a GOMOR, dated 
29 January 2011, the "Acting Commander" initialed the statement "Removed from your military personnel record jacket."

10.  Army Regulation 600-37 (Unfavorable Information) states once an official document has been properly filed in the AMHRR, 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 AMHRR.

11.  Army Regulation 190-5 (Motor Vehicle Traffic Supervision) states that Army commanders (any general officer, and any officer frocked to the grade of brigadier general) will take appropriate action against intoxicated drivers.  These actions may include a written reprimand, administrative in nature, issued to active duty Soldiers who refuse 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's attorney stated the charge of DWI was dismissed and she pleaded guilty to a charge of careless and reckless driving.  This indicates she "plea bargained" with the court for a lesser offense.  Regardless of whether or not the charge was dismissed, the fact of the matter is she "refused" to consent to a breath analysis test.  As cited in Army Regulation 190-5, a written reprimand may be issued to active duty Soldiers who refuse to take a breath analysis test.

2.  Additionally, the memorandum she provided from the acting commander indicating that the GOMOR be removed from her "military personnel record jacket" is not the same as removing the GOMOR from her AMHRR.  Nevertheless, this memorandum is not sufficient evidence to conclude the GOMOR was inaccurate or unjust.

3.  There is no evidence and she has not provided any to show that the GOMOR was rendered in error.  Therefore, in the absence of more compelling evidence, there is no basis to grant the relief requested.

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)                                         AR20120019731





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ABCMR Record of Proceedings (cont)                                         AR20120019731



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