IN THE CASE OF:	  

		BOARD DATE:	  4 June 2014

		DOCKET NUMBER:  AR20140004838 


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 that his Officer Evaluation Report (OER) for the period ending 12 September 2012 (hereafter referred to as the contested OER) be removed from his Official Military Personnel File (OMPF) or, in the alternative, that the contested OER be altered to reflect information provided in statements from his rater and senior rater.

2.  He states portions of the content of the contested OER are in error and unjust and are based on inaccurate and incomplete information.  On 15 June 2012, on Fort Bragg, NC, he was pulled over and cited for driving while intoxicated (DWI) and refusal to submit to a breathalyzer test.  As a result of these citations, he was given the contested OER.  Throughout the process, he has always admitted to failing to properly maintain his lane; however, he has consistently maintained his innocence regarding the citations for DWI and refusing to submit to a breathalyzer test.  Not only had he not been drinking at the time of his arrest, he also submitted to six breathalyzer tests on the night of the incident.  Favorable information is now available regarding this incident.  This information was not available to his rating officials at the time of his evaluation.  The information consists of a U.S. District Court decision and information regarding blood alcohol content (BAC) testing procedures.

3.  He states that on 6 August 2013 the U.S. District Court for the Eastern District of North Carolina ruled on his behalf.  The breathalyzer refusal charge was dismissed entirely and the DWI charge was changed to a charge of failure to maintain his lane.  This charge was solely due to him reaching down while driving to secure a navigation device that had fallen on the floor and not because he was intoxicated.  This information has been made available to his rating officials, who have provided statements to clarify inaccuracies in several blocks of the contested OER.  His rating officials have stated this new information would have resulted in a substantially improved evaluation had it been known at the time the contested OER was prepared.

4.  He states breathalyzer results do not show he was intoxicated according to the manual for the Intoximeter EC/IR II.  He has enclosed the results of one of the six tests he submitted to.  These are the only test results included in the police report; no others have been produced.  The result for the test is shown as "**" because the administering officer keyed in that he refused to blow.

	a.  According to the manual for the Intoximeter EC/IR II, the machine can detect the flow rate and volume of the sample provided.  Had he actually refused to blow, the test would have produced a result of “Insufficient Sample” and prompted additional attempts.  Had he persisted in his refusal, a result of “Test Aborted Insufficient Sample” would have been printed.  This is not the case here.  Instead, after a single attempt, the administering officer input “Test Refused.”  The officer did not allow him to blow again, nor did the officer allow the machine to produce its own results.  The only reason the results contained the words “Test Refused,” according to the manual, was because of subjective human input rather than the machine’s detection.

	b.  Without a doubt the machine’s objective assessment would have shown that he was not intoxicated.  In fact, nowhere in the police report is there an actual breathalyzer result showing he was intoxicated.  Furthermore, the circumstances surrounding his release serve as further evidence that he was not intoxicated.  A violation notice and receipt show he was pulled over at 0204 hours and released on his own recognizance at 0530 hours, with a supposed BAC of either .16 percent .17%.percent   When released, he was directed on how to retrieve his vehicle, in spite of the fact that he was supposedly heavily intoxicated and did not have anyone picking him up.  Had he actually been intoxicated, it is highly unlikely he would have been released on his own recognizance after less than 3 1/2 hours.  This is particularly true since he would need to drive another several hours soon after to reach his home station at Fort Eustis, VA.

	c.  The following day he spoke with the desk sergeant, who confirmed standard operating procedure is to detain any intoxicated Soldier from another military installation until the Soldier’s unit arrives or the Soldier has recovered from intoxication.  This most certainly did not happen in his case, likely due to the fact that he was not intoxicated.
5.  He states the contested OER has already served as evidence to remove him from the Fiscal Year (FY) 2012 Captain (CPT), Army Medical Department (AMEDD), Medical Service Corps (MSC) Promotion Selection List by a Promotion Review Board.  Not only has it had a substantial impact on his career, but it has also surely brought shame to his family.  However, in part because of its impact, he has displayed even greater dedication, motivation, drive, and moral character.  He has tried to serve as a role model for other Soldiers through physical fitness, his military bearing, and his professional competence.  To have this OER remain in his record is unjust, both due to the fact that it has already greatly damaged his career and the fact that it was based on charges that have never been substantiated.  He respectfully requests that the newly-received favorable information be taken into account in conjunction with the statements of his rating officials.

6.  He provides:

* Officer Special Review Board (OSRB) Record of Proceedings in  Docket Number AR20130017915 
* self-authored memorandum, subject:  Evaluation Report Appeal of [Applicant], 20120223-20120912
* contested OER and associated documents
* two memoranda, subject:  Supporting Statement for Evaluation Report Appeal of [Applicant]
* U.S. District Court, Eastern District of North Carolina (Western Division), Criminal Docket for USA v. Applicant
* Transaction Receipt
* two U.S. District Court Violation Notices
* breath test results
* excerpts from the Intoximeter EC/IR II user manual
* DD Form 2708 (Receipt for Inmate or Detained Person)

CONSIDERATION OF EVIDENCE:

1.  The applicant had 9 years, 5 months, and 18 days of prior enlisted service in the Regular Army (RA).  On 8 January 2009, he was discharged in an enlisted status to accept a commission in the Army.  He is currently serving as a first lieutenant in the RA.  

2.  A DA Form 3975 (Military Police (MP) Report), dated 15 June 2012, shows an MP observed the applicant failing to maintain the limits of his lane while driving on Fort Bragg, NC.  The MP initiated a traffic stop and upon approach to the vehicle, the MP detected an odor of alcohol emitting from the applicant.  Field sobriety tests were conducted that indicated further action was warranted.  The applicant was transported to the Office of the Provost Marshal (PMO) where he refused an intoximeter test.  The applicant was issued two citations and a suspension of driving privileges memorandum.  He was advised of his mandatory court appearance, further processed, and transported to the edge of the post where he was released on his own recognizance.

3.  In a sworn statement, dated 15 June 2012, the MP who detained the applicant stated, in part, that a field breathalyzer test showed the applicant's BAC was .17%.  A Statement of Probable Cause, also dated 15 June 2012 and signed by the same MP, shows the MP stated the applicant's BAC was .16%.

4.  A document entitled Intox EC/IR-II:  Subject Test, dated 15 June 2012, shows the entries "SUB TEST  .**  3:30am" and "TEST REFUSED."  

5.  Two U.S. District Court Violation Notices show he was charged with impaired driving (refused) and failure to maintain.

6.  On 13 July 2012, the Chief of Transportation, Fort Lee, VA, issued the applicant a general officer memorandum of reprimand (GOMOR) for DWI on 15 June 2012 at Fort Bragg, NC.  The GOMOR was imposed as an administrative action and not as punishment under the Uniform Code of Military Justice.  

7.  On 25 July 2012, the applicant submitted a five-page rebuttal to the GOMOR in which he described the incident at Fort Bragg.  He stated, in part:

* he had not had any alcohol
* he failed to maintain his lane because he was reaching for a navigation device that had fallen on the passenger-side floor
* at no time had he refused to submit to a breathalyzer test

He requested that the GOMOR be filed locally, and he stated he believed he and his civilian attorney would have the charge dismissed.

8.  His company, battalion, and brigade commanders recommended the GOMOR be filed in his OMPF.  On 17 August 2012, the Command Judge Advocate, Joint Base Langley-Eustis, VA, stated she had reviewed a packet on the applicant, the recommendations of the chain of command, and any rebuttal matters.  After her review, she recommended the GOMOR be filed in his OMPF.

9.  On 24 August 2012, the GOMOR-imposing authority directed that the GOMOR be filed in the applicant's OMPF.
10.  The contested OER is a referred change-of-rater OER covering the period 23 February through 12 September 2012. 

	a.  The OER shows the applicant's rater was CPT S____ and his senior rater was Major (MAJ) P___.

	b.  In Part IVb2 (Skills (Competence)), his rater marked the "no" box for "Conceptual."  

	c.  In Part V (Performance and Potential Evaluation), his rater marked the box for "Satisfactory Performance, Promote."  The rater entered the following comments:

[Applicant] has performed well in his military and official duties.  However, on 4 September 2012, [Applicant] received a General Officer Memorandum of Reprimand, which was filed in his OMPF, based on his arrest at FT. [sic] Bragg on 14 June 2012 for failing to maintain his lane and refusal to submit to a breathalyzer resulting in a charge of driving while intoxicated.  Despite this error in judgement [sic], his efforts directly improved the brigade's ability to provide logistical support to all branches of service for both training and war-time activities.  His technical and tactical proficiency as a medical logistics officer is without peer on FT. [sic] Eustis…He shows potential to overcome his personal difficulties and use his experiences to serve in future leadership positions within our ranks.

	d.  In Part VII (Senior Rater), his senior rater marked the boxes for "Fully Qualified" and "Center of Mass."  The senior rater entered the following comments:

[Applicant] is an excellent performer and mission-focused leader who steadily achieve superior results in his military duties.  He operates in a capacity far exceeding the expectations of his rank.  His personal actions on 15 June that resulted in a GOMOR for driving while intoxicated do not reflect his ability to execute his professional duties with skilled technical ability.  His dedication to the Soldier set the conditions for the excellent operational success of his high OPTEMPO CLS VIII section.  He possesses great potential if given the opportunity to overcome his personal mistakes.  [Applicant] is ready for leadership positions of increased responsibility.  Select for early attendance to Combine Logistics Captain's Career Course (CL3).  Place him in the relevant and demanding assignments within the Army's inventory in order to allow this dynamic officer [to] demonstrate his true potential.

11.  On 12 September 2012, his senior rater referred the contested OER to him and informed him of his right to make comments.  On 21 September 2012, he acknowledged receipt of the referral memorandum and stated he intended to submit written comments.  

12.  On 21 September 2012, in a memorandum for his senior rater, the applicant stated:

In response to the Officer Evaluation Report Referral, I respectfully submit the following:  On 15 June 2012 I was charged with refusal to submit to a breathalyzer which ultimately resulted in a charge of driving while intoxicated.  Although the Referred report is warranted because of regulatory requirements this alleged charge is one I have denied from the beginning.  The same day of this event I acquire [sic] legal representation, but have yet, to this date, received any "Notice to Appear."  According to the Central Violations Bureau, they have yet to receive a violation notice from the arresting officer/organization.

Despite receiving a "NO" entry under Conceptual, I've always demonstrated sound judgment, critical and creative thinking and relentlessly performed with moral reasoning.  As in conceptual thinking a review of my record over the past 13 years will always illustrate that I have possessed the ability to understand a situation or problem by identifying patterns and addressing the key underlying issues.  I have persistently used past professional and technical training, experience, creativity, inductive reasoning, and intuitive processes.  All of which have ultimately lead [sic] to solutions or viable alternatives that's [sic] not always easily identified when applying conceptual reasoning.

13.  The contested OER is filed in the performance section of his OMPF.

14.  On 30 July 2013, the Secretary of the Army directed the removal of the applicant's name from the FY 2012 CPT, AMEDD, MSC Promotion Selection List under the provisions of Title 10, U.S. Code, Section 629(a); Executive Order 12396; and Army Regulation 600-8-29 (Officer Promotions), paragraph 8-1b.

15.  On 23 September 2013, the applicant submitted an appeal of the contested OER to HRC.  His appeal consisted of the same contentions and supporting documents he has presented in his application to this Board.  The supporting documents he provided including.

	a.  A U.S. District Court, Eastern District of North Carolina (Western Division), Criminal Docket for USA v. Applicant shows charges against the applicant of failure to maintain lane and DWI refusal were dismissed.  The document shows a pending count of DWI was disposed of as the lesser included charge of careless and reckless, which resulted in a fine.  The document does not show why the charges of failure to maintain lane and DWI refusal were dismissed or why the pending count of DWI was disposed of as the lesser included charge of careless and reckless.

	b.  Excerpts from the Intoximeter EC/IR II user manual show testing procedures and instruct technicians to press the appropriate key when a subject refuses to provide a sample.

	c.  A memorandum, dated 22 August 2013, shows CPT S____, the rater for the contested OER, stated he had reviewed documentation provided by the applicant, including a copy of the U.S. District Court, Eastern District of North Carolina (Western Division), Criminal Docket for USA v. Applicant.  CPT S____ stated his review of that document led him to conclude that, if the applicant had originally been charged with careless and reckless driving, he would not have received a GOMOR.  The DWI charge and the GOMOR were what influenced his decision to write a referred OER for the rating period.  He stated that if the favorable information had been known at the time:

		(1) The contested OER would not have been a referred OER,

		(2) The block for "Conceptual" would have been marked "yes,"

		(3) He would have marked the box for "Outstanding Performance, Must Promote," and 

		(4) the following comments would have been deleted – 

However, on 4 September 2012, [Applicant] received a General Officer Memorandum of Reprimand, that was filed in his OMPF, based on his arrest at FT. [sic] Bragg on 15 June 2012 for failing to maintain his lane and refusal to submit to a breathalyzer resulting in a charge of driving while intoxicated.  Despite this error in judgement [sic], and…He shows potential to overcome his personal difficulties and use his experiences to serve in future leadership positions within our ranks.

	d.  In a memorandum dated 22 August 2013, MAJ P___, the senior rater for the contested OER, stated he had reviewed documentation provided by the applicant, including a copy of the U.S. District Court, Eastern District of North Carolina (Western Division), Criminal Docket for USA v. Applicant.  MAJ P___ stated his review of the information led him to the final conclusion that, if the applicant had originally been charged with careless and reckless driving, the administrative procedure of processing a GOMOR would have been unnecessary.  He stated the original DWI charge with subsequent derogatory administrative action, discussion with the applicant's rater, and consultation with the 7th Sustainment Brigade Staff Judge Advocate were the factors that influenced his decision to support a referred OER for the rating period in question.  He stated that if the favorable information had been known at the time:

		(1) He would have marked the boxes for "Best Qualified" and "Above Center of Mass,"

		(2) He would have deleted the following comments – 

His personal actions on 15 June that resulted in a GOMOR for driving while intoxicated do not reflect his ability to execute his professional duties with skilled technical ability.

He possesses great potential if given the opportunity to overcome his personal mistakes.

		(3) He would have changed the final two sentences of his comments to read as follows – 

[Applicant] demonstrates unlimited potential and must be placed in the most challenging of positions with increased responsibility, [sic] he will excel.  He is a must for immediate selection to the Combined Logistics Captains Career Course (CL3) followed immediately by Company Command.

16.  On 24 January 2014, the President, Officer Special Review Board (OSRB), notified the Commander, U.S. Army Human Resources Command, that he had approved the unanimous vote of the OSRB to deny the applicant's appeal of the contested OER.

17.  On 18 March 2014, the President, Department of the Army Suitability Evaluation Board (DASEB), notified the Commander, HRC, that the DASEB had voted to deny removal or transfer of the applicant's GOMOR, dated 13 July 2012.

18.  Army Regulation 190-5 (Motor Vehicle Traffic Supervision), paragraph 2-7, states Army commanders will take appropriate action against intoxicated drivers.  The actions include a written reprimand for refusal 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.  

19.  Chapter 4 of Army Regulation 623-3 defines the Evaluation Redress Program.  It states:

	a.  An evaluation report accepted for inclusion in the official record of a rated Soldier’s OMPF is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.

	b.  The rated Soldier or other interested parties who know the circumstances of a rating may appeal any report that they believe is incorrect, inaccurate, or in violation of the intent of this regulation.  

	c.  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 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.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support the applicant's request for removal or amendment of the contested OER.

2.  The applicant has not provided clear and convincing evidence of a strong and compelling nature establishing that the presumption of regularity should not be applied to the contested OER and that action is warranted to correct a material error, inaccuracy, or injustice.

	a.  While it is noted that the DWI charge against him was reduced to a lesser included charge by a U.S. District Court, the Court's disposition of his charges is not evidence of inaccuracy in the contested OER.

	b.  The MP records and GOMOR available in this case support the derogatory information entered on the contested OER.  Although his rater and senior rater have stated that, had he originally been charged with careless and reckless driving, he would not have received a GOMOR, the fact remains that he was charged with DWI and he did receive a GOMOR.  Absent a finding of factual inaccuracy with regard to the DWI charge and the GOMOR, the statements provided by the rater and senior rater are not a basis for amending the contested OER.  

	c.  His contentions regarding breathalyzer testing are noted; however, other than his own statements, there is no evidence contradicting the findings recorded in the MP records available in this case.

3.  In view of the foregoing, there is an insufficient basis upon which to grant 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)                                         AR20140004838



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ABCMR Record of Proceedings (cont)                                         AR20140004838



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