IN THE CASE OF:	

		BOARD DATE:	  11 MARCH 2014

		DOCKET NUMBER:  AR20130015001 


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, in effect:

   a.  removal of a General Officer Memorandum of Reprimand (GOMOR) from his Army Military Human Resource Record (AMHRR) or transfer to the restricted folder;

   b.  correction of the negative comments on his DA Form 67-9 (Officer Evaluation Report (OER)) for the period 21 July 2011 through 14 June 2012 (hereafter referred to as the contested OER);
   
   c.  that he be allowed to continue to serve on active duty or in the U.S. Army Reserve (USAR); and
   
   d.  that he be allowed to appear before the Board to answer any questions the Board deems appropriate. 

2.  The applicant defers to his counsel's written argument and supporting exhibits which were submitted along with this application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests expeditious consideration of the applicant's request and that all future correspondence relating to this matter be forwarded to their office.


2.  Counsel states:

   a.  On 25 June 2011, while the applicant was stationed in Hawaii, his father died suddenly of a heart attack at the family home in Mississippi.  While on emergency leave, his mother was scheduled to have significant back surgery on 11 July 2011.  It was during this time the applicant was informed the brigade executive officer was going to reassign him to another unit.  The news disturbed him and he had to address the issue immediately from afar while simultaneously managing critical family issues.

   b.  On 18 July 2011, the applicant returned to Hawaii.  In August 2011, his fiancé` broke off their engagement, cancelled their wedding plans, and ended their long-term relationship.  Compounded with the foregoing, the stress got the better of him and on 3 September 2011, he got behind the wheel of his car after consuming alcohol.  He was pulled over by police, voluntarily submitted to a breathalyzer test and ultimately was arrested for driving under the influence (DUI) with a blood alcohol content of 0.12 percent.

   c.  He immediately took responsibility by enrolling in the Army Substance Abuse Program (ASAP) and volunteered his spare time with local community service projects helping redeployed Soldiers transition back to life in garrison.  

   d.  He had several court hearings in Hawaii District Court that were continued or rescheduled for several months because the arresting officer did not appear in court.  The incident was never adjudicated in district court, so after over 200 days on the docket and 11 separate appearances to obtain a decision from the court, the sole charge against the applicant was dismissed.  Subsequently, he applied to have the charges expunged and the State of Hawaii granted the request.

   e.  The applicant received the contested OER as a result of the arrest while adjudication of the matter was still pending in district court.  The contested OER was appealed to the U.S. Army Human Resources Command (HRC) based on the new evidence that the charges were dismissed, but unfortunately the certificate of expungement did not reach the applicant until March 2013 for HRC's consideration.  However, he did submit letters of support from his chain of command and his rater who stated that evidence of the expungement would have resulted in an improved OER had he known about it at the time.  His OER appeal was denied by HRC on 29 May 2013.

   f.  The Fiscal Year (FY) 2012 and FY 2013 Promotion Selection Boards did not select the applicant as a further consequence of his actions and the contested OER.  Subsequently, he was given a separation date of no later than 
1 September 2013.  The applicant submitted a waiver to transition to the USAR; however, HRC denied the request.  In spite of this setback, the applicant continued to work diligently and received an OER that demonstrates his true work ethic and value to the Army.  His duty performance was rated as "excellent" and he was recommended for promotion to major (MAJ) ahead of his peers.  However, his brigade's recommendations cannot come to fruition unless the bars to continued service are lifted by the Board.

3.  Counsel provides:

* Department of the Army Suitability Evaluation Board (DASEB) Docket Number AR20130000855
* Denial of OER Appeal
* Contested OER
* HRC Notification of Separation Due to Non-Selection for Promotion
* Denial of Request for USAR Service
* GOMOR, Rebuttal Memorandum, and Filing Determination
* Suspension of Security Clearance
* ASAP Completion
* Timeline of Events
* Death Certificate
* Hospital Record
* Request for Compassionate Reassignment
* Record of Expunged Arrest
* 24 Character References
* Record of Community Service
* Two OERs
* Security Clearance Eligibility
* Officer Record Brief

CONSIDERATION OF EVIDENCE:

1.  On 19 January 2012, the applicant, a captain in the Regular Army, received an administrative GOMOR for his conduct on 3 September 2011.  He was stopped by the Honolulu Police Department for swerving into the left and shoulder lanes.  According to the initial report, he failed a standardized field sobriety test and his breath alcohol content was measured well above the legal limit.  As a result, he was arrested for DUI and was pending prosecution in the District Court for the First Circuit State of Hawaii.

2.  On 31 January 2012, the applicant acknowledged receipt of the GOMOR and elected to submit a statement on his own behalf.  
3.  On 31 January 2012, the applicant submitted his rebuttal to the GOMOR.  In his rebuttal the applicant requested the GOMOR be filed in his local file.  He acknowledged that he made a grave mistake by driving under the influence of alcohol and he accepted full responsibility for his actions.  He stated he was under intense emotional strain following his father's passing, his mother's spinal cord surgery, and the stress of having to deal with his chain of command attempting to remove him from his unit while he was away on emergency leave attending to family issues.  He professed a deep love for the Army and he took steps to move forward by successfully completing ASAP.

4.  On 7 February 2012, after reviewing the matters submitted by the applicant and the recommendations from his chain of command, the Commanding General (CG) directed the GOMOR be filed in the performance folder of the applicant's AMHRR. 

5.  The GOMOR is filed in the performance folder of the applicant's AMHRR.

6.  The contested OER was a Permanent Change of Station report that covered 11 months of rated time while the applicant was serving in the rank of captain in the position of Brigade S6.  The contested OER was a referred report.

7.  The rater, a lieutenant colonel in the position of brigade executive officer, signed his portion of the contested OER on 8 June 2012.  The senior rater, a colonel serving in the position of brigade commander, signed his portion of the contested OER on 8 June 2012.

8.  The applicant signed Part IIe (Signature of Rated Officer) of the contested OER on 2 August 2012, that attested the administrative portion of the contested OER was correct and also confirmed the rating officials were those established as the rating chain.

9.  The contested OER contains the following pertinent information:

   a.  In Part IVa.1 (Performance Evaluation-Professionalism-Character-Army Values) the rater placed an "X" in the "No" block for "Honor";

   b.  In Part V (Performance and Potential Evaluation) the rater placed an "X" in the "Unsatisfactory Performance, Do Not Promote" block and entered the following remark in Part Vb:  "Unfortunately, [the applicant] exhibited unprofessional behavior in an off-duty incident.  This resulted in an overall negative impact on his ability to serve as Brigade S6."
   
   c.  In Part VII (Senior Rater), the senior rater placed an "X" in the "Do Not Promote" block, indicated that he senior rated 4 officers in this grade, placed another "X" in the "Yes" block indicating that a completed DA Form 67-9-1 (Officer Evaluation Report Support Form) was received with this report and considered in his evaluation and review, and entered the following remark in Part VIIc (Comment on Performance/Potential):  "[The applicant's] performance was overshadowed by an error in judgment not in compliance with Army Values."
   
10.  The contested OER was subsequently processed by HRC, Fort Knox, KY.

11.  There is no indication the applicant requested a commander's inquiry (CI) be completed on the report.

12.  On 6 March 2013, the applicant received notification from HRC of his pending separation due to being twice non-selected for promotion to MAJ. 

13.  On 8 May 2013, the applicant received notification from a representative of the HRC, Officer Accessions Branch that his request for a waiver to serve in the USAR was denied.

14.  The applicant appealed the contested OER to the Officer Special Review Board (OSRB) and on 9 May 2013, the OSRB, by unanimous vote, determined the evidence submitted did not establish clearly and convincingly that the presumption of regularity should not be applied to the contested OER or that action was warranted to correct a material error, inaccuracy, or injustice.  Therefore, it was determined the overall merits of his case did not warrant the requested relief.

15.  Counsel argues:

   a.  The applicant's GOMOR has served its intended purpose and should be removed from his AMHRR in the best interests of the Army and in the interests of justice due to his record of performance and capacity for future service.

   b.  The records regarding the applicant's DUI arrest that led to the GOMOR and contested OER have been expunged by Hawaii courts.  However, the stigma of the DUI arrest has followed the applicant in his Army career.  It should not in fairness follow him in perpetuity given the courts with jurisdiction have erased any and all record of the matter.  The applicant has been passed over twice for promotion and has been notified of involuntary separation.  It would be a grave injustice to allow the applicant to be punished forever with a GOMOR in his record based on the expunged arrest.  Doing so will effectively end the applicant's career.
   c.  The applicant deserves a second chance to serve because on balance his 10 years of valuable service vastly outweighs the now-dismissed DUI charge.  At the time of his appeal to the DASEB, the charge was not officially dismissed and expunged.  It is unjust for the applicant to receive a GOMOR in his records because the DUI had not been adjudicated.  Now, however, the arrest has been expunged and while the DASEB and Army Board for Correction of Military Records (ABCMR) are not bound by the court's dismissal or expungement order, it should be viewed as persuasive that the Hawaii justice system has codified a mechanism to prevent this matter from damaging forever an individual with an unblemished record of service to his community and nation.
   
   d.  The Department of Defense Central Clearance Facility determined the applicant deserved to have his security clearance reinstated after a period of suspension.  That determination is another persuasive example of the nature of the process regarding derogatory information, i.e., that initial administrative and disciplinary actions may serve their purpose in the near term, but that forever hindering each and every officer is not within the intent or spirit of the regulation.  It is also illustrative of the fact that a one-time incident, in light of the circumstances and an otherwise unblemished record, does not fairly represent the character or capability of the individual.  Therefore, the GOMOR should not remain a permanent service bar to service where all other entities involved, to include the court system, central adjudication facility, and the individual's command, all feel the issue has been resolved and does not impact his performance.
   
   e.  The Board should in fairness also consider the extenuating circumstances surrounding the arrest.  As outlined previously, the applicant experienced incredible family strife around the time of the arrest.  The applicant understands the Army routinely asks its members to endure the stressful circumstances of rigorous training and combat engagements, and that trying situations do not necessarily excuse bad behavior; however, they do cast a different light on his behavior - his one-time choice to drink and drive was a symptom of his suffering, not a callous disregard for laws or the expectations of his profession.
   
   f.  The adverse action has thus far placed him well behind his peers who have already been promoted and given choice command assignments.  While this is not punishments, per se, for the applicant it may as well be a punitive measure if it ultimately precludes his opportunity for career progression.  The applicant submits that his current performance evaluation indicates the GOMOR should be removed so that he may seek a meaningful review of his potential for promotion and continued service.
   
   g.  The applicant's contested OER should be corrected to accurately reflect the final disposition of the incident and actual performance during the rating period.  The Board should consider that Army Regulation 623-3 (Evaluation Reporting System), provides grounds for appeal when a referred OER is based on "unverified" derogatory information.  According to paragraph 3-19, this is a basis for appeal in that "this restriction is intended to …prevent unjustly prejudicial information from being permanently included in a Soldier's Official Military Personnel Record, such as - (1)  Charges that are later dropped; (2)  Charges or incidents of which the rated Soldier may later be absolved."  Although the arrest records existed at the time of the OER, they have since been expunged and annulled pursuant to applicable state laws.  The applicant has thus been absolved of the DUI charge and it no longer exists.  This situation therefore falls squarely within the regulatory provisions regarding appeals and corrections of OERs.
   
   h.  The applicant's rater opined in a letter of support that if the charges had been dismissed before the contested OER was complete, he would not have made the negative comments in the report or recommended "do not promote" this officer.  Furthermore, two dozen individuals who served with the applicant have written letters to the Board describing how this alleged incident is not an accurate reflection of the officer's character of performance.  Strikingly, these individuals consistently assess his potential for future service and urge in compelling fashion that he is exactly the type of officer the Army needs.
   
	i.  Lastly, the applicant's most recent OER provides a much more accurate assessment of his duty performance.  It shows he is an upstanding citizen and resilient officer who merits consideration for promotion to MAJ.  Unfortunately, unless the Board corrects the contested report his official record stands to mischaracterize a period of his service.  The rater and senior rater comments incorrectly convey that his off-duty arrest impacted his duty performance.  In fact, he has consistently been an excellent duty performer even when emergent family issues arose.  Because there is no record now of the alleged incident, his contested OER should be corrected to reflect the sentiment expressed by his rater that he did not deserve the negative comments.

16.  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.
17.  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.

18.  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 ABCMR). 

19.  Army Regulation 623-3 (Evaluation Reporting System (ERS)) prescribes the policies and procedures for completing evaluation reports that support the ERS.  It also provides guidance regarding redress programs including CIs and appeals.

20.  Paragraph 3-39 of Army Regulation 623-3 provides the basic rule applicable to modifications of previously-submitted reports.  It states, in pertinent part, that an evaluation report accepted by Headquarters, Department of the Army and included in the official record of a rated Soldier is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  It also states that requests that a report that has been accepted for filing in an officer's record be altered, withdrawn, or replaced with another report will not be honored.

21.  Chapter 6 of Army Regulation 623-3 contains the policies and procedures pertaining to managing the evaluation report redress program.  Section III contains guidance on evaluation appeals.

22.  Paragraph 6-11 of Army Regulation 623-3 outlines the burden of proof that must be met to support a successful evaluation report appeal.  It states the burden of proof rests with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that clearly and convincingly establishes that the presumption of regularity referred to in paragraphs 3-39 and 6-7 will not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

23.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.  Additionally, applicants may be represented by counsel at their own expense.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant and his counsel is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.  

2.  The applicant's request and counsel's contention to remove or transfer the GOMOR to the restricted section of the applicant's AMHRR; correct the negative comments on his contested OER; and that he be allowed to continue to serve on active duty or in the USAR, have been carefully examined.

3.  The evidence of record shows the applicant received a GOMOR which is resident in his AMHRR for his conduct on 3 September 2011, when he was stopped by the Honolulu Police Department for swerving into the left and shoulder lanes.  According to the initial report, he failed a standardized field sobriety test and his breath alcohol content was measured well above the legal limit.  As a result, he was arrested for DUI, and was pending prosecution in the District Court for the First Circuit State of Hawaii.  

4.  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 acknowledged that he made a grave mistake by drinking and driving.  The applicant's response was received and considered.  The CG ordered the GOMOR be placed permanently in the applicant's AMHRR.  The GOMOR was properly administered in accordance with applicable regulations and is properly filed in the performance section of his AMHRR.  There is no evidence of an error or an injustice.

5.  Counsel states the records regarding the applicant's DUI arrest which led to the GOMOR and contested OER have been expunged by Hawaii courts.  In addition, despite his record of service, he has been passed over for promotion to MAJ twice, in effect, due to documents relating to the case in which he was never convicted.  Although he was not convicted of the DUI charge in a civilian court, this does not negate the fact that he failed a field sobriety test and that he subsequently took full responsibility for driving after drinking alcohol in his rebuttal statement to the GOMOR.

6.  With regard to the applicant's contested OER, counsel argues since the applicant has been absolved of the DUI charge the applicant's situation falls squarely within the regulatory provisions regarding appeals and corrections of OERs.  However, the comments resident on the contested OER is a natural consequence associated with the underlying misconduct as identified properly in the GOMOR.  While careful consideration was given to counsel's arguments and the statement of his rater, there is insufficient evidence to show the contested OER contains errors or false statements.  In the absence of material error, or injustice, the record should not be changed.

7.  Therefore, it appears that the HRC, Officer Accessions Branch decision to deny his request for a waiver to serve in the USAR was proper.

8.  In view of the foregoing, the applicant is not entitled to the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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.



      _______ _   _______   ___
               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.







 
SAMR-RB									    13 March 2014


MEMORANDUM FOR U.S. ARMY REVIEW BOARDS AGENCY, CASE MANAGEMENT DIVISION, 251 18TH STREET, ARLINGTON, VA  22202-3539

SUBJECT:  Army Board for Correction of Military Records Record of Proceedings for               AR20130015001


1.  Reference the attached Army Board for Correction of Military Records (ABCMR) Record of Proceedings, dated 11 March 2014, in which the Board, by a two to one vote, recommended to deny relief of the applicant's request to remove or transfer to the restricted folder of his Army Military Human Resource Record (AMHRR) a General Officer Memorandum of Reprimand (GOMOR), to correct negative comments on his Officer Evaluation Report (OER), and to allow him to continue to serve on active duty or in the U.S. Army Reserve.  

2.  All Board members voted to deny outright the removal of the GOMOR from his AMHRR or to make any changes to his OER because each were completed in accordance with applicable regulations and was an accurate reflection of the facts.

3.  However, one Board member voted to grant partial relief by recommending transfer of the GOMOR to the restricted folder of the applicant's AMHRR based on the mitigating circumstances at the time of his arrest for driving under the influence, his duty performance both prior to and after his arrest, and the belief that the GOMOR had served its intended purpose.    

4.  I have reviewed the findings, conclusions, and the reasons for the minority recommendation to grant partial relief.  Considering that only two years have passed since the imposition of the GOMOR, it is my decision to adopt the Board's majority recommendation to deny any relief.  Therefore, under the authority of Title 10, United States Code, section 1552, I direct there be no change to the applicant's records.  

BY ORDER OF THE SECRETARY OF THE ARMY:

							 SIGNED

Encl						     FRANCINE C. BLACKMON
						     Deputy Assistant Secretary
						       (Army Review Boards)

CF: 
(X) AMHRR