IN THE CASE OF:	   

		BOARD DATE:	  15 May 2014

		DOCKET NUMBER:  AR20140005693 


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 or transfer of the following documents to the restricted folder of his Army Military Human Resource Record (AMHRR): 

* General Court-Martial Order Number 3, dated 25 February 2004
* General Officer Memorandum of Reprimand (GOMOR), dated 30 April 2004

2.  The applicant states, in effect:

* he has paid for his mistake with time, money, and missed opportunities
* he believes the documents have served their purpose
* he has continued to serve honorably, but the documents in question affect his opportunities for promotion
* during his court-martial, the prosecutor introduced information related to him driving under the influence (DUI); however, the information was not true
* there was no blotter report to support this claim and his chain of command and military police were not informed of the allegations
* the German police informed his chain of command that no such evidence was available
* his battalion commander recommended the GOMOR be filed locally, due to the conflicting information surrounding this incident

3.  The applicant provides General Court-Martial Order Number 3, dated 25 February 2004, and an Administrative Reprimand, dated 16 December 2003, with rebuttal, filing recommendations, and filing directive.

CONSIDERATION OF EVIDENCE:

1.  The applicant is a Regular Army sergeant first class who entered active duty on 13 October 1991.  He served through multiple extensions or reenlistments in a variety of stateside or overseas assignments.  He holds military occupational specialty 14T (Patriot Launching Station Enhanced Operator/Maintainer). 

2.  At the time of the incident in 2003, he held the rank/grade of staff sergeant (SSG)/E-6 and he was serving in Germany with Headquarters, U.S. European Command.  

3.  On 16 December 2003, the applicant was reprimanded by the Commanding General (CG), 21st Theater Support Command, Germany, for DUI of alcohol on 5 January 2003 in Boeblingen, Germany.  A breath analyzer test showed a result of .54 mg/L breath alcohol content, which is equivalent to .11 g/210L.  The legal limit for blood alcohol content while driving a vehicle on a German public highway is 0.05%.  The GOMOR stated: 

	a.  The applicant violated Army values when he made the decision to drive while drunk.  His conduct causes the CG to question whether he can be counted on to successfully perform at the level the Army demands from its Soldiers.  Despite extensive publicity about the tragic consequences of driving drunk, and the determined efforts of his chain of command to educate him about the need to drive responsibly, he made a very foolish decision to drive while under the influence of alcohol.  His bad decision placed him and many others at tremendous risk of death or serious injury.  The decision to drink and drive is irresponsible and totally unacceptable in the Army today.

	b.  He was charged to immediately evaluate his goals and personal standards to ensure they meet the high level of professionalism and commitment required for service in the United States Army.  This reprimand is imposed as an administrative measure under Army Regulation (AR) 600-37 (Unfavorable Information and not as punishment under Article 15, Uniform Code of Military Justice (UCMJ).

4.  The applicant acknowledged receipt of the administrative reprimand and responded with a statement wherein he stated that he understood that the charges of DUI were never levied against him and that the Provost Marshal had no record of a DUI on him.  
5.  The applicant's chain of command (battalion and senior commanders) recommended the GOMOR be placed in the local file. 

6.  After careful consideration of the facts and circumstances pertaining to the applicant, the applicant's statement, and the chain of command recommendations, the imposing CG directed permanent filing of the GOMOR in the applicant's AMHRR.

7.  On 23 December 2003, he was arraigned in Stuttgart, Germany, on the following offenses at a general court-martial:  

	a.  Charge I, Article 134, Plea: Not Guilty, Finding: Not Guilty, but Guilty in violation of Article 128 of the Uniform Code of Military Justice (UCMJ).

		Specification 1:  On or about 16 November 2002, maimed Petty Officer RAR, by striking Petty Officer RAR about the head and face with a drinking glass and with his hand, thereby causing Petty Officer RAR, to lose his eye.  Plea:  Not Guilty.  Finding:  Not Guilty, but Guilty of aggravated assault with means or force likely to produce grievous bodily harm, in violation of Article 128, UCMJ  (Upon a motion by the defense counsel, the military judge amended the specification  prior to findings by deleting "and with his hand)."

	b.  Charge II:  Article 107.  Plea:  Not Guilty.  Finding:  Not Guilty.

		Specification 1:  On or about 18 November 2002, with intent to deceive, made a false official statement, to wit: "he started the fight, he pushed me several times and then took a swing at me," or words to that effect, which statement was totally false and was known by the said to be false.  Plea:  Not Guilty.  Finding:  Not Guilty.

	c.  Charge III.  Article 134.  Plea:  Not Guilty.  Finding:  Not Guilty.

		Specification 1:  Between on or about 16 and 27 November 2002, wrongfully endeavor to alter the testimony of Ms. JMK, by asking her to give false statements to authorities conducting an investigation, to wit: "that the white guy started the fight," or words to that effect, and concerning how much alcohol [Applicant] had to drink during the evening of the incident.  Plea:  Not Guilty.  Finding:  Not Guilty.  The military judge modified the specification prior to findings as follows: "by asking her to give a false statement to authorities concerning an investigation, to wit, concerning how much alcohol."


8.  The court sentenced him to be reprimanded; to be reduced to the grade of E4, to forfeit $912.00 pay for 2 months, to be restricted to the limits of Patch Barracks for a period of 60 days, and to perform hard labor without confinement for a period of 60 days.

9.  General Court-Martial Order Number 3, issued by Headquarters, 21st Theater Command, Germany, on 25 February 2004, shows the convening authority approved the sentence and ordered it executed.  The general court-martial order is filed in the performance folder of the applicant's AMHRR. 

10.  On 25 February 2004, he was reprimanded by the CG, 21st Theater Support Command, for committing an aggravated assault on Petty Officer RAR.  He struck Petty Officer RAR in the face with a drinking glass by which he put out one of his eyes.  Inflicting such a profound and permanent injury upon a fellow service member demonstrated a gross disregard for the welfare of others.  His conduct was disgraceful and, wholly unbecoming a Soldier and the values for which he was expected to stand. 

11.  AR 600-8-104 (AMHRR Management) governs the composition of the AMHRR and states the performance section is used for filing performance, commendatory, and disciplinary data.  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 certain agencies, to include this Board.  Appendix B-1 states:

	a.  Court-Martial documents:  File in the Performance folder when there is an approved finding of guilty on at least one specification.  If all approved findings are not guilty, file the order in the Restricted folder.  If all charges and specifications are later dismissed or if all findings of guilty have been reversed in a supplemental order, remove all related orders from the Performance folder and transfer them to the Restricted folder.

	b.  Letter of Reprimand:  Per AR 600-37, a letter, regardless of the issuing authority, may be filed in the AMHRR only upon the order of a general officer (to include one frocked to the rank of brigadier general) senior to the recipient or by direction of an officer having general court-martial jurisdiction over the individual. Letters filed in the AMHRR will be filed in the performance portion.  The direction for filing in the AMHRR will be contained in an endorsement or addendum to the letter.  File in Performance folder unless directed otherwise by Department of the Army Suitability Evaluation Board. 


12.  AR 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 AR 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.

DISCUSSION AND CONCLUSIONS:

1.  With respect to the GOMOR, dated December 2003: 

	a.  The complete facts and circumstances surrounding the applicant's DUI in Germany are not available for review with this case.  However, it appears the applicant was apprehended by German police for the criminal offense of DUI with a high breath alcohol content.  He was holding the rank/grade of SSG/E-6 at the time. 

	b.  Accordingly, he received a GOMOR.  He was afforded the opportunity to review the reprimand and to submit matters in his own behalf prior to a final filing decision and he did so.  After careful consideration of the applicant's case and his rebuttal, 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.

	c.  The quality of a Soldier’s service is affected by conduct that is of a nature to bring discredit upon the Army or that is prejudicial to good order and discipline. The applicant was a SSG, in 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.  His conduct was inexcusable and his actions brought discredit to himself and the Army.  Although he stated in his rebuttal to the GOMOR that the Provost Marshal had no record of a DUI on him it appears the imposing authority believed the German police had a record of the DUI (since the GOMOR mentioned driving on a German public highway).  The GOMOR was correctly filed.  The applicant has not proven this GOMOR to be either untrue or unjust.

2.  With respect to the court-martial: 

	a.  While his DUI reprimand was taking shape, the applicant was convicted by a general court-martial of striking a petty officer in the face with a drinking glass by which he put out one of his eyes.  Inflicting such a profound and permanent injury upon a fellow service member demonstrated a gross disregard for the welfare of others.  

	b.  He was sentenced by the court-martial and the convening authority approved his sentence.  Since there was an approved finding of guilty of at least one specification, as required by the regulation, the court-martial document was filed in the performance folder of his AMHRR.  

3.  The AMHRR serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods and any corrections to other parts of the AMHRR.  Once placed in the AMHRR, the document becomes a permanent part of that file and will not be removed from or moved to another part of the AMHRR unless directed by an appropriate authority.

4.  It is acknowledged the applicant has continued to serve.  Nevertheless, the Army has an interest in maintaining the integrity of its records.  The information in those records must reflect the conditions/circumstances that existed at the time the records were created.  The fact that these documents have affected his promotion opportunities is a natural outcome of his behavior/performance.  The Board is generally reluctant to remove adverse information from an AMHRR when it places the applicant on par with others with no blemishes for promotions, assignments, and other favorable actions.  

5.  In view of the foregoing evidence, the applicant 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)                                         AR20140005693



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ABCMR Record of Proceedings (cont)                                         AR20140005693



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