IN THE CASE OF:	  

		BOARD DATE:	  29 August 2013

		DOCKET NUMBER:  AR20130013563 


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 Army Military Human Resource Record (AMHRR).

2.  The applicant states his AMHRR contains a GOMOR, dated 5 January 2009, and signed by his commanding general.  The GOMOR resulted from his erroneous arrest on 8 November 2008 for allegedly driving under the influence (DUI) in Clarksville, TN.  He was deployed to Iraq before he had the opportunity to appear in court to have the charge adjudicated.  His court appearance was postponed until 8 April 2010.  He received the GOMOR based upon the erroneous charge which was still pending adjudication in civilian court.  When the applicant was finally able to schedule a court date, he was found not guilty of the charge.  The court found that the applicant did not drive drunk in Tennessee on the night of the erroneous arrest. The court further approved expunging the erroneous charge from his civilian record.  The GOMOR was issued without consideration of the civilian justice system and should be removed from his AMHRR.  It is an error and injustice to leave the GOMOR in his AMHRR for a civilian charge of which he was found not guilty.

3.  The applicant provides a copy of an Order to Expunge the Criminal Offender Record, Circuit Court of Montgomery County, TN, dated 24 May 2010.




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.  At the time of his application, the applicant was a member of the Army National Guard, serving on active duty in the rank of staff sergeant/pay 
grade E-6.

3.  Records show that, on 5 January 2009, the Commanding General, 
5th Special Forces Group, Fort Campbell, KY issued the applicant a GOMOR, wherein he reprimanded him for driving while drunk in Tennessee on 
8 November 2008.  The GOMOR was given as an administrative action and not as punishment.  The applicant was afforded the opportunity to submit any matters for consideration before the commander made his filing determination.

4.  On 31 January 2009, the applicant responded to the GOMOR, indicating that he would submit a statement in his own behalf.  In that response, he stated that his arrest reflected negatively on him as well as the entire unit.  He appealed the reprimand on the grounds that it was a one-time mistake that should not overshadow the years of dedicated service he had given to the battalion.  He further stated he would not allow himself to be found in such a situation again.  He also stated that as a result of this event, he had received a relief for cause noncommissioned officer evaluation report which would scar his records for the rest of his life.

5.  On 21 April 2009, the commanding general directed that the GOMOR be filed in the applicant's AMHRR.

6.  The Circuit Court Order, Montgomery County, TN, as provided by the applicant indicates the applicant had been arrested on 8 November 2008 for DUI. On 8 April 2010, the charge was dismissed.

7.  Army Regulation 600-8-104 (AMHRR Management) provides that all personnel information recorded under the authority of this regulation is the property of the United States Government.

	a.  Once recorded, it will not be removed except as provided by law or this regulation.

	b.  Once placed in the AMHRR, the document becomes a permanent part of that file.  The document will not be removed from, or moved to another part of the AMHRR unless directed by one or more of the following:

* The ABCMR
* The Department of the Army Suitability Evaluation Board
* Chief, Appeals and Corrections Branch, Human Resources Command
 (HRC)
* The AMHRR custodian when documents have been improperly filed
* Commander, HRC, ATTN: HRC-PDO-PO, as an approved policy
 change to this regulation
* Chief, Appeals Branch, National Guard Personnel Center

	c.  Documents designated for transfer from the performance or service section of the AMHRR will be moved to the restricted section, if authorized.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the GOMOR in his AMHRR should be removed because the civilian court found him not guilty of the DUI charge which was the bases for the issuance of the GOMOR.

2.  The available evidence clearly shows the applicant was arrested for being DUI and that his commanding general issued him a GOMOR.  The applicant's response to the GOMOR clearly states that he made this "one-time mistake" and that he would not be found in this situation again.  He did not deny that he was DUI.

3.  Furthermore, the evidence shows the civilian court had simply dismissed the charge.  There is no evidence showing he was erroneously arrested or charged.  There is no evidence showing he was found "not guilty."

4.  There is no evidence of an error or injustice in this case.

5.  In view of the above, the applicant's request should be denied.

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)                                         AR20130013563



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ABCMR Record of Proceedings (cont)                                         AR20130013563



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