IN THE CASE OF:	  BROWN, JERAD A.

		BOARD DATE:	  30 May 2013

		DOCKET NUMBER:  AR20130008119 


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 removal of a general officer memorandum of reprimand (GOMOR) from his U.S. Army Military Human Resource Record (AMHRR) (formerly known as official military personnel file (OMPF)) or, in effect, in the alternative he requests transfer of the GOMOR to the restricted section of his AMHRR.

2.  He states:

	a.  The Department of the Army Suitability Evaluation Board (DASEB) denied removal of the GOMOR from the performance portion of his file.  He understands what Army Regulation 600-37 (Unfavorable Information) and Army Regulation 190-5 (Motor Vehicle Traffic Supervision) state.  However, he still contends that the charges are erroneous.  On the night of the incident, he was driving home from a friend’s house at approximately 2300 hours.  He was in fact speeding in his new car.  He had recently returned from a deployment and he had purchased a new 5.0 Ford Mustang.  He was abusing the power that the vehicle contained and completely admits to driving at an excessive speed well in the category of reckless.  The Military Police (MP) caught him and pulled him over.  When asked by the MPs on what he was doing, he replied that he was coming from a friend’s house.  They asked him what he was doing at the friend’s house.  He told them they grilled steaks and had a few drinks 6 hours earlier.  After they ate, they just hung out and played video games.  He was drinking Coca-Cola the entire time. 

	b.  The MPs told him they were going to impound the vehicle for the careless and reckless driving and were taking him back to the station.  While at the station they decided to give him a breathalyzer.  He provided a breathalyzer sample to the MPs, but the individual administering the test required that he provide three samples.  He was only able to produce one out of three samples in which he blew a .01%.  Because he failed to provide all three, they charged him with driving under the influence (DUI) stating that he "refused" to provide the required amount.  This was brought up at court, and the fact that there was no police report or testimony was why the charges were dropped by the judge. Not because it is a "common practice" as the DASEB evaluation states.

	c.  He has no way of providing clear evidence to show the GOMOR is untrue or unjust besides the results of the court case.  He understands that he can receive a GOMOR without any evidence provided to the imposing authority.  This is unjust despite what the regulations say.  The fact that police report was provided to the imposing authority should be enough to have not received a GOMOR.  Instead, the GOMOR was issued based on a synopsis of the incident from a third party.  The command climate provided no opportunity for him to rebut the charges based on zero tolerance practices and he was swayed to sign the GOMOR because he had no immediate evidence to submit.  He was guilty in their eyes based on accusation alone.

3.  The applicant provides:

* Enlisted Record Brief
* Noncommissioned Officer Evaluation Reports (NCOER) from April 2005 through November 2012
* Multiple Service School Academic Evaluation Reports
* Multiple award certificates
* Multiple certificates of achievements, training, commendation, and/or appreciation

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 24 May 2001 and he holds military occupational specialty 92Y (Supply Sergeant).  

2.  He has served through multiple reenlistments or extensions, in a variety of stateside or overseas assignments - including two deployments to Iraq and two deployments to Afghanistan - and he attained the rank/grade of staff sergeant (SSG)/E-6 on 1 September 2007. 

3.  He was assigned as the Squadron Supply Sergeant, Headquarters and Headquarters Troop, 4th Squadron, 73rd Cavalry, 82nd Airborne Division, Fort Bragg, NC.  
4.  On 30 October 2010, he was apprehended by the MPs.  The MP report shows he had been at a friend's house and he had consumed 3 liquor drinks before eating dinner.  Around 2350 hours on 29 October 2010, he was pulled over for speeding (85 miles per hours in 55 miles per hour zone).  He was given a sobriety test and a breathalyzer and he was then detained for failure to provide a proper breathalyzer sample.  When taken back to the MP station for additional testing, he was cited for speeding, reckless driving, and impaired driving.  

5.  On 20 January 2011, the Commanding General (CG), 82nd Airborne Division, reprimanded the applicant for driving while impaired.  The reprimand stated that the Army and this command have consistently emphasized the tragic consequences of driving after drinking.  As an NCO, he was charged with the responsibility of setting the example for Troopers to emulate.  There was no excuse for his irresponsible and improper behavior.  His actions fell well below the standards expected of an NCO in the 82nd Airborne Division and the U.S. Army. 

6.  On 26 January 2011, the applicant acknowledged receipt of the GOMOR.  He indicated he had read and understood the unfavorable information against him, he understood that he had the right to seek legal counsel, and he had the right to submit any documentation on his behalf.  He elected not to submit matters.  

7.  His company, battalion, and brigade commanders recommended the GOMOR be permanently placed in his AMHRR.  The brigade commander stated that the applicant exhibited reckless behavior with no legitimate extenuating circumstances.  

8.  On 3 February 2011, after careful consideration of the applicant's case and the chain of command's recommendations, the imposing general officer ordered the filing of the GOMOR in the applicant's AMHRR.  The GOMOR is currently filed in the performance section of his AMHRR.

9.  On 6 September 2011, the applicant petitioned the DASEB for removal of the contested GOMOR.  However, the DASEB concluded that he did not provide clear and convincing evidence to show the GOMOR is untrue or unjust.  As such, the DASEB denied his request. 

10.  He provides his NCOERs, awards, certificates, and academic reports from April 2005 to April 2012.  


11.  Since receiving the GOMOR, he has received annual NCOERs that show "Among the Best" and "Successful/Superior" ratings and he completed the Battle Staff NCO Course in March 2013.

12.  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.

13.  A memorandum of reprimand may be filed in a Soldier's AMHRR 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 AMHRR, the recipient's submissions are to be attached.  Once filed in the AMHRR, the reprimand and associated documents are permanent unless removed in accordance with Army Regulation 600-37, chapter 7.  Paragraph 7-2 provides that 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 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 AMHRR.

14.  Army Regulation 600-8-104 (AMHRR Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR.  Table B-1 states a memorandum of reprimand is filed in the performance section of the AMHRR unless directed otherwise by an appropriate authority (DASEB or this Board). 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant was detained by police for speeding, reckless driving, and impaired driving.  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.  He elected not to do so.  


2.  It appears the applicant also did not provide rebuttal comments to the GOMOR, even to contesting the MP report showing he had consumed 3 liquor drinks before eating dinner whereas now he contends he was drinking Coca-Cola the entire time.

3.  After careful consideration of the applicant's case and the chain of command's recommendations, the imposing general officer ordered filing of the GOMOR in the applicant's AMHRR.  The GOMOR is currently filed in the performance section of his AMHRR.

4.  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 an NCO in the rank/grade SSG/E-6, performing duties as Squadron Supply Sergeant - a position of trust and authority.  Among the purposes of filing unfavorable information is protection, not just for the Soldier's interests but for the Army's as well.  Here, the applicant violated that trust.  

5.  There is a reluctance to remove from the AMHRR or transfer adverse information to the restricted section of an AMHRR when it places the applicant on par with others with no blemishes for promotions, assignments, and other favorable actions.  When it does move unfavorable information, it only does so if it has truly served its intended purpose.  

6.  Here, not only is the GOMOR properly filed, and not only has the applicant not proven this GOMOR to be either untrue or unjust or that it has served its purpose, his continued denial of personal responsibility clearly shows this GOMOR has not served its intended purpose.  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)                                         AR20130008119





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ABCMR Record of Proceedings (cont)                                         AR20130008119



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