IN THE CASE OF: 

		BOARD DATE:	    30 April 2014

		DOCKET NUMBER:  AR20140003463 


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), dated 1 October 2009, from the restricted section of his Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File).

2.  The applicant states:

	a.  he is in year group 2006 and will face an Officer Separation Board in March 2014.  If the GOMOR remains in his record, his service to the Army will end.

	b.  in September 2009, he was pulled over by a police officer while driving his car in Kentucky.  The officer charged him with driving under the influence (DUI).  Since he did not believe he should have been pulled over or charged, he immediately retained an attorney to fight what he considered was an injustice.  He was extremely embarrassed to be charged with DUI.  Additionally, he knew the potential impact on his Army career.  He vowed to fight the false allegation, continue to perform in an outstanding manner whatever his duties, and do whatever he could to regain the trust of those who counted on him.

	c.  in October 2009, he was given a GOMOR for driving a motor vehicle with a blood alcohol content of .133 or higher.  In November 2009, he apologized for his lapse of judgment in his rebuttal to the GOMOR.  At the time he did not have an explanation for what the officer was claiming he had done or why he claimed his blood alcohol level was .133 which is why he was fighting the allegation in court.  He was remorseful that his actions had put him in this position and placed the Army in such a negative light.  He enrolled in and attended substance abuse classes to prove he did not have a problem that might reoccur.

	d.  In July 2013, the Department of the Army Suitability Evaluation Board (DASEB) granted partial relief by transferring the GOMOR to his restricted file.  It is his understanding the Officer Selection Board will have access to the restricted file.

	e.  in April 2010, the case was resolved.  The DUI charge was amended to reckless driving.  The prosecutor determined:

* he had not exercised any erratic driving behavior and was operating his car within the law when stopped
* the police officer who had administered the breath alcohol test had previously resigned from the police force under adverse circumstances
* his performance of the field sobriety tests as seen on the videotape at the time of his arrest proved he was not impaired     

	f.  he accepted the reckless driving and $100.00 fine because the allegations of DUI would be resolved in his favor proving that he was not driving while impaired.  He could now begin the process of trying to correct his military records because he now had evidence to prove that he had not been DUI or driving while intoxicated and the blood alcohol level of .133 or higher did not match with all the other facts of his case.

	g.  a GOMOR should be fair and present an accurate picture of the facts.  The GOMOR is misleading, in error and unjust.  Anyone who reads the GOMOR would conclude that he was DUI of alcohol, impaired, and had a blood alcohol level of .133 or higher.  He was not DUI, he was not impaired, and the blood alcohol test does not properly reflect his blood alcohol content.  The stop ultimately was for reckless driving resulting in a $100.00 fine.  The Kentucky prosecutor and Court recognize that the police officer made an error.  A Board of Officers found that he did not demonstrate conduct unbecoming an officer, that the DUI charge was not substantiated, and his performance had been exemplary before, during, and after this incident.  A mistake by a police officer should not keep him from continuing his Army career.  If the error remains in his record that is what will occur in March 2014.

	h.  his performance of duties before and after the incident along with the other evidence he has presented should convince the Board that he was not DUI.

	i.  the commanding general who issued the GOMOR provides a recommendation to remove the GOMOR and states "I undertake this request after careful consideration, much thought, and many conversations with CPT (Captain) [applicant's last name]’s chain of command.  Please remove the Memorandum of Reprimand dated 01 October 2012 from CPT [applicant's last name]’s file immediately."  He further states "Although CPT [applicant's last name] was eventually exonerated in civil court, the seriousness of the charge and the preponderance of the available evidence at the time led me to file the adverse action."

	j.  he appreciates that he has been able to either keep or regain the trust of his superiors since this incident.  He appreciates the letters of support that his superiors have provided the Board.  All of these officers recommend the GOMOR be removed from his records.     

3.  The applicant provides 10 documents outlined on the last page of his statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a second lieutenant on 13 May 2006 and he entered active duty on 4 June 2006.  He was promoted to:

* first lieutenant on 27 November 2007
* captain on 1 June 2009

2.  On 1 October 2009, he received a GOMOR for driving a motor vehicle on 
5 September 2009 in the state of Kentucky with a blood alcohol of .133 percent or higher, in violation of Kentucky law.  On 2 December 2009, the commanding general directed permanently filing the GOMOR in the applicant's AMHRR.

3.  He received a Relief for Cause Officer Evaluation Report (OER) and he was relieved as the company commander of a forward support company. 

4.  He completed a tour in Afghanistan.

5.  In September 2011, elimination proceedings were initiated against the applicant to show cause for retention for misconduct and receipt of a GOMOR.





6.  He provides a letter, dated 18 November 2011, from his attorney who states:

* the charge of DUI was dropped
* the applicant entered a guilty plea to the substitute charge of reckless driving and paid a fine ($100.00) with no other conditions or any probation
* per the second officer at the scene, the arresting officer performed the field sobriety test improperly
* the arresting officer was not certified as a breath alcohol officer
* the applicant's conduct and performance on the field sobriety test evidenced that he was not impaired 

7.  On 22 November 2011, the Board of Inquiry convened and recommended the applicant be retained on active duty.  His chain of command also recommended he be retained in the Army. 

8.  A memorandum, dated 26 November 2011, from the Commanding General, Headquarters, 82d Airborne Division, Kandahar Airfield, Afghanistan states after considering the recommendations of the applicant's chain of command, the rebuttal matters, and the Board of Inquiry's findings and recommendations concerning the show cause proceedings of the applicant, the elimination proceedings were closed and the applicant would be retained in the Army.

9.  In January 2013, he submitted a request to the DASEB to remove the GOMOR from his AMHRR or transfer it to the restricted section of his AMHRR.

10.  In May 2013, the DASEB voted to approve the transfer of the GOMOR to the restricted section of his AMHRR.

11.  His DA Forms 67-9 (OERs) for the period 9 September 2009 to 31 January 2014 show he was rated:

* "Outstanding Performance, Must Promote" by his raters for his performance during the rating periods and potential for promotion
* "Best Qualified" by his senior raters for promotion potential

12.  He was rated "Above Center of Mass" by his senior raters on his last three OERs.

13.  A review of the restricted section of his AMHRR on the interactive Personnel Electronic Records Management System (iPERMS) revealed a copy of the GOMOR in question.

14.  He provides a statement from the commanding general who issued the GOMOR in question and he recommends the GOMOR be removed from the applicant's file immediately.  

15.  He also provides five letters of support from his superiors who recommend the GOMOR be removed from his records. 
 
16.  Army Regulation 600-8-104 (AMHRR Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR.  It states the purpose of the AMHRR is to preserve permanent documents pertaining to enlistment, appointment, duty stations, assignments, training, qualifications, performance, awards, medals, disciplinary actions, insurance, emergency data, separation, retirement, casualty, administrative remarks, and any other personnel actions.

17.  Army Regulation 600-8-104, appendix B (Documents Authorized for Filing in the Army Military Human Resource Record and/or interactive Personnel Electronic Records Management System), and the U.S. Army Human Resources Command website provides a listing of documents authorized for filing in iPERMS.  It states to file letters of reprimand, censure, or admonition in the performance folder unless directed otherwise by the DASEB.

DISCUSSION AND CONCLUSIONS:

1.  The applicant, a captain, received a GOMOR for DUI in September 2009.

2.  His civilian DUI charge was dropped to reckless driving in 2010.  

3.  He contends the GOMOR should be removed from his AMHRR because the GOMOR is misleading, in error and unjust because he was not DUI, he was not impaired, and the blood alcohol test does not properly reflect his blood alcohol content.  However, at the time the GOMOR was imposed, the applicant indicated he made a terrible lapse in judgment.  Since he did not state he was not guilty of DUI which served as a basis for the GOMOR, it is a reasonable inference that he was acknowledging that he was DUI.  In addition, the commanding general stated "the seriousness of the charge and the preponderance of available evidence at the time led me to file this adverse action."

4.  The governing regulation states administrative letters of reprimand will be filed in the performance folder of the AMHRR unless directed otherwise by the DASEB.

5.  In 2013, the DASEB voted to approve the transfer of the GOMOR to the restricted section of his AMHRR.

6.  The letter from the commanding general who issued the GOMOR and the letters of support from his superiors were carefully considered.  However, there is no evidence that the GOMOR was improperly imposed.  

7.  The GOMOR is properly filed in the restricted section of his AMHRR as directed by the DASEB.

8.  In view of the foregoing, there is no 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)                                         AR20140003463





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ABCMR Record of Proceedings (cont)                                         AR20140003463



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