IN THE CASE OF:	  

		BOARD DATE:	  4 June 2014

		DOCKET NUMBER:  AR20140007119 


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 a General Officer Memorandum of Reprimand (GOMOR), dated 13 July 2012, be removed from his Official Military Personnel File (OMPF) or, in the alternative, that the GOMOR be transferred to the restricted portion of his OMPF.  

2.  He states:

	a.  Despite his now-proven innocence, the GOMOR has led to his removal from the Fiscal Year (FY) 2012 Captain (CPT), Army Medical Department (AMEDD), Medical Service Corps (MSC) Promotion Selection List by a Promotion Review Board (PRB).  He has been denied a second PRB, and even more significantly, this derogatory documentation has the potential to disqualify him from being recommended for promotion by the FY 2014, CPT, Army Nurse Corps, MSC, and Army Medical Specialist Corps Promotion Selection Board (PSB).  If he is not recommended for promotion by this PSB, he will be considered to have twice failed selection for promotion.

	b.  He is remorseful of the circumstances that have led him to this point in his 15-year military career.  He is not attempting to make excuses; however, his poor decision-making does not justify the charges made against him or the destruction of his career.

	c.  On 15 June 2012, in Fayetteville, NC, he was pulled over after failing to maintain his lane.  This failure was solely due to him reaching down while driving to secure a navigation device that had fallen on the floor, not because of intoxication.  He was subsequently charged with driving while intoxicated (DWI) and refusal to submit to a breathalyzer test, which resulted in him receiving the GOMOR at issue here.  Throughout this process, he had always admitted to failing to properly maintain his lane; however, he has consistently maintained his innocence regarding DWI and refusal to submit to a breathalyzer test.  Not only had he not been drinking at the time of the arrest, he submitted to a total of six breathalyzer tests the night of the incident.  

	d.  On 22 February 2013, he was notified that his record was pending review by a PRB scheduled to convene from 6-22 May 2013.  He requested an extension until the outcome of his civil case based on Army Regulation 600-8-29 (Officer Promotions), paragraph 8-6, which states “The officer will be afforded a reasonable opportunity to submit comments on that information to the PRB and the officials reviewing the recommendation.  (Fourteen days from the date of receipt of the information is considered a reasonable opportunity, unless good cause is shown for extending the time.)”

	e.  Despite the regulation, he was only given a 30-day extension, and on 30 July 2013, a PRB removed him from the FY 2012 AMEDD CPT Promotion List based on the GOMOR he had received.  On 8 August 2013, 9 days after the PRB made its determination, the U.S. District Court of the Eastern District of North Carolina ruled on his behalf and the breathalyzer refusal charge was dismissed entirely because the record showed he submitted to a breathalyzer six times.  The charge of DWI was changed to the more appropriate charge of failure to maintain his lane.

	f.  With this new favorable documentation in hand, he requested a second PRB.  Army Regulation 600-8-29, paragraph 8-8b, states, “Absent Substantiated new evidence, fraud, or error, a second PRB will not reconsider the same record previously considered by a PRB.”  The Department of the Army responded to his request, stating that because there is no appeal process for a PRB decision, his only recourse was to contact the Army Review Boards Agency if there was substantial evidence proving an injustice.  

	g. The enclosed breathalyzer results do not show that he was intoxicated according to the enclosed manual for the Intoximeter EC/IR II.  Also enclosed are 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 officer administering the test keyed in that he refused to blow.  According to the enclosed 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 person administering the test entered “Test Refused.”  The person administering the test did not allow him to blow again, nor did he allow the machine to produce its own results.  The only reason the results contain the words “Test Refused,” according to the enclosed manual, is the result of subjective human input rather than the machine’s detection.  Without a doubt, the machine’s objective assessment would have shown that he was not intoxicated.  

	h.  Furthermore, the enclosed violation notice and receipt show that he was pulled over at 0204 hours and released on his own recognizance at 0530 hours, with supposed blood alcohol content (BAC) of either 0.16 percent (%) or 0.17%.  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 in Fort Eustis, VA.  The desk sergeant at the time confirmed that 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.

	i.  The GOMOR has had a substantial impact on his career and has 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 the GOMOR remain in his record is unjust due to the fact that it has already greatly damaged his career, and due to the fact that it was based on charges that have never been substantiated.

3.  He provides:

* Department of the Army Suitability Evaluation Board (DASEB) Record of Proceeding in Docket Number AR20130020657
* self-authored memorandum, subject:  Request for Removal of Letter of Reprimand from OMPF or Transfer to Restricted Fiche [Applicant]
* GOMOR
* memorandum, subject:  PRB AP1305-05, FY 1012, CPT, AMEDD, MSC PSB
* excerpts from Army Regulation 600-8-29
* U.S. District Court, Eastern District of North Carolina (Western Division), Criminal Docket for USA v. Applicant
* 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 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.  The GOMOR states, in part:

You are hereby reprimanded for driving while intoxicated.  On 15 June 2012, you were pulled over by the Military Police at Fort Bragg, NC for failing to maintain the limits of your lane.  You were given a field sobriety test at the scene that resulted in further action being taken.  You were arrested and taken to the Military Police station where you refused to submit to a breathalyzer.  You were then charged with driving while intoxicated.  This is in violation of Virginia Law.  

7.  On 25 July 2012, the applicant submitted a five-page rebuttal to the GOMOR wherein 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.  His Officer Evaluation Report (OER) for the period ending 12 September 2012 was a referred report.  Both his rater and senior rater referred to the GOMOR in their comments.  

11.  His OER for the period ending 12 September 2013 shows he received a rating of "Outstanding Performance, Must Promote" from his rater and ratings of "Best Qualified"  and "Center of Mass" from his senior rater.

12.  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.

13.  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.

14.  He provides a U.S. District Court, Eastern District of North Carolina (Western Division), Criminal Docket for USA v. Applicant showing 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.

15.  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.  

16.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual OMPFs; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual OMPFs; and ensure that the best interests of both the Army and Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from OMPFs.  This regulation provides that letters of reprimand may be transferred upon proof that their intended purpose has been served or that their transfer would be in the best interest of the Army.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support the applicant's request for removal of the GOMOR from his OMPF or for transfer of the GOMOR to the restricted portion of his OMPF.

2.  There is no evidence indicating the GOMOR he received contained any unsubstantiated information that would serve as a basis for removing it from his OMPF.  The GOMOR-imposing authority had MP records available to him upon which to base his decision to impose the GOMOR and make a filing decision.  A review of the MP records available in this case show the GOMOR accurately summarizes the behavior for which it was imposed.

3.  The fact that a U.S. District Court reduced the DWI charge against him to a lesser included charge is noted; however, on its own, the Court's disposition of this charge should not serve as a basis for removing the GOMOR from his OMPF.  The Court's reasons for disposing of the charge as it did would have to be considered, and those reasons have not been provided.

4.  Regarding transfer of the GOMOR to the restricted portion of his OMPF, such a transfer may be made if there is proof that the intended purpose of the GOMOR has been served or that the transfer would be in the best interest of the Army.  In this case, the GOMOR was given to the applicant less than 2 years ago.  Insufficient time has passed to determine if the GOMOR has served its intended purpose. 

5.  In view of the foregoing, there is an insufficient evidentiary  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)                                         AR20140007119



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ABCMR Record of Proceedings (cont)                                         AR20140007119



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