IN THE CASE OF:	  

		BOARD DATE:	  25 June 2015

		DOCKET NUMBER:  AR20140016076 


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.  removal of a general officer memorandum of reprimand (GOMOR), dated 5 October 2011, from his official military personnel file (OMPF);

	b.  a change of his separation code from "JNC" (misconduct moral or professional dereliction) to a more suitable and less detrimental separation code; and

	c.  a change to his narrative reason for separation.

2.  The applicant defers to counsel with regard to his statements.

3.  The applicant defers to counsel with regard to the evidence provided.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests:

	a.  A change be made to the narrative reason shown on the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) to a more appropriate narrative reason based on the dismissal of the driving under the influence (DUI) charges and the greater weight of the applicant's overall outstanding military service.

	b.  A change to the separation code shown on the applicant's DD Form 214 to a more appropriate separation code based on dismissal of the DUI charge and the greater weight of his overall outstanding service record.

	c.  Removal of the GOMOR from the applicant's OMPF.  The GOMOR was a harsh overreaction to an alleged DUI weighted against his outstanding service record and based on dismissal of the DUI charges.

2.  Counsel states:

	a.  The applicant was an outstanding U.S. Army officer having served as an enlisted Soldier and achieving an officer rank through the Reserve Officers' Training Corps (ROTC).  

	b.  He excelled at his duties and the Army spent a great amount of money training him and ensuring that he provided his command with an accurate assessment of a current intelligence picture in order for his commander(s) to make accurate decisions impacting the lives of Soldiers in combat.

	c.  He was consistently rated "Among the Best" on his Officer Evaluation Reports (OERs) including his deployment to Iraq in which he was decorated with the Bronze Star Medal.

	d.  During the stop by the officer, there were no observable behaviors that characterized him as uncooperative or belligerent.

	e.  Of note on the officer's observation sheet is the discrepancy between the narrative and the sheet stating there was no odor of alcohol, where twice in the report the officer stated he did smell the odor of alcohol.  His demeanor was none other than professional and polite throughout the incident.

	f.  The applicant did everything possible to salvage his career for a single act of alleged misconduct.  He wrote remorseful letters to the commanding general (CG), he attended substance abuse classes, he completed a defensive driving course, and he requested a separation board hear his case.

	g.  Although not mandatory, it seems that it would have been more advisable to wait until the outcome of the civil action before administering the GOMOR.  Had the command waited, it may have impacted the outcome of the GOMOR by either a local filing or outright not filing of the action.

	h.  The narrative reason for separation and the separation code on the applicant's DD Form 214 reflect misconduct though the applicant received an honorable discharge upon separation.  The narrative reason for separation and the separation code are a mismatch considering he received an honorable discharge and his DD Form 214 should be changed to reflect a more accurate and honorable narrative and separation code.

3.  Counsel provides documents as listed in his "Index" sheet.

CONSIDERATION OF EVIDENCE:

1.  On 17 August 2005, the applicant enlisted in the U.S. Army Reserve as a cadet in the ROTC program.  He was discharged from ROTC on 4 May 2007 to accept an appointment as a Reserve commissioned officer.

2.  On 5 May 2007, the applicant accepted an appointment as a Reserve commissioned officer in the rank of second lieutenant (O-1).  Upon his acceptance, he was ordered to active duty for a 7-year commitment effective 9 June 2007.

3.  He was promoted to first lieutenant (O-2) on 26 November 2008.  He was promoted to captain (O-3) on 1 June 2010.

4.  On 9 September 2011, the applicant was arrested by the Sierra Vista Police Department for DUI.  According to the Sierra Vista Police Department Narrative Report, at the time of the traffic stop his eyes were watery and he was answering the officer's questions slowly.  He was given some field sobriety tests which he failed.  He was placed into custody and he was advised that he was under arrest for suspicion of DUI.  The arresting officer stated that while en-route to the police department, he could detect a light odor of alcohol coming from his back seat where the applicant was sitting.  Upon arrival at the police department, the applicant agreed to two breath tests on the intoxilyzer 8000.  He blew a .161 and a .160 blood alcohol concentration (BAC) level.  After being advised of the charges against him, he was escorted to the main gate of Fort Huachuca, Arizona, due to the fact that he was a Soldier in the United States Army.  He was transported to the military police (MP) station where he was issued a Suspension/Revocation Letter and he was later released to his commanding officer.

5.  On 20 September 2011, the applicant successfully completed the online Defensive Driving Program provided by Driving University, LLC, a course provider approved by the Arizona Supreme Court.

6.  On 2 October 2011, the applicant successfully completed 16 hours of DUI/Substance Abuse Education.
7.  On 5 October 2011, the applicant received a GOMOR for DUI.  He was told that as an officer, he had a duty to act responsibly in every situation, to do what is right, and to set a positive example for the subordinates he led.  The commanding general (CG) stated the applicant had completely failed in his responsibilities and discredited himself and the U.S. Army.  The CG stated that he seriously questioned the applicant's judgment and potential for further military service and that his actions embarrassed and disappointed his chain of command.  The applicant was told:

	a.  The GOMOR is an administrative action and not punishment under the Uniform Code of Military Justice (UCMJ).

	b.  The GOMOR may be filed in his OMPF.

	c.  A final determination would be made after reviewing his rebuttal, if any.

8.  The applicant acknowledged receipt of the GOMOR on 12 October 2011 and he elected to submit a statement or document in his own behalf.  On 14 October 2011, the applicant submitted a rebuttal to the GOMOR stating:

	a.  There was no excuse for his DUI.

	b.  He had "come to grips" and he realized the severity of his offense.

	c.  Because of the terrible moral and ethical decisions he made, only he was to blame.

	d.  He knew in his heart that the hardest part was over because he had come to terms with what he had done.

	e.  There was nothing that excused his disregard for the law and utter lack of consideration for the welfare of others.

	f.  He deeply regretted the humiliation and disappointment he has caused his family and himself.

	g.  He was truly sorry as he had failed his chain of command, tarnished the image of the military and its officer corps within the community, and embarrassed his organization.

	h.  Trust in him and had been severely damaged before it could be solidified and while he would attempt to restore it, his efforts may prove to be futile.

	i.  He placed his career in jeopardy and no longer had any degree of control over the possibility of making the Army a career.

	j.  He would potentially have to separate from the military and if given the privilege to continue serving this Nation, he would make every effort to redeem and restore his reputation.

	k.  He allowed himself to have character amnesia by taking for granted precious things like driving, his career and numerous safety briefings that he received.

	l.  He had to tell his immediate family about the problems he caused, but he had not told his parents because his father taught him to be responsible for his actions and to be man enough to face the consequences.

	m.  Although remorseful, he must continue to look forward and his self-referral and successful completion of a substance abuse program was only one small step.  His enrollment and completion of driver safety training was another.

	n.  He believes that he has proven himself and that he possesses potential for future service.  He served every assignment and in each duty position with distinction.

	o.  As a result of his efforts, hard work, and dedication he served in Southwest Asia and was awarded the Meritorious Service Medal, the Army Commendation Medal, and a foreign award.

	p.  He realizes that only he is to blame for his actions.  The remorsefulness he feels is unexplainable and he is willing to accept his punishment.

9.  On 25 October 2011, the CG directed that the GOMOR be filed in the applicant's OMPF.

10.  On 17 November 2011, the applicant was notified that action to eliminate him from the Army was being initiated.  He was told that he was required to show cause why he should be retained on active duty as opposed to being discharged under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 4-2(b), because of misconduct, moral, or professional dereliction.  The notification cited his apprehension for DUI, the two breathalyzer tests that he took, the GOMOR he received, and conduct unbecoming an officer as the basis for the elimination action.  He was told that if an honorable or a general discharge was recommended, his case would be forwarded directly to the U.S. Army Human Resources Command for submission to the Deputy Assistant Secretary (Army Review Boards), without referral to a Board of Inquiry.

11.  The applicant acknowledged receipt of the notification and he elected to submit a statement or document in his own behalf.  However, the statement or document he indicated he was providing is not filed in his OMPF.

12.  On 18 January 2012, The Justice Court of the State of Arizona ordered the case against the applicant dismissed without prejudice because the officer failed to make himself available for interview by the court.

13.  The applicant's chain of command and CG recommended the applicant's separation with a characterization of service of honorable.  The Department of the Army Ad Hoc Review Board reviewed the applicant's elimination case.  On 17 February 2012 the Deputy Assistant Secretary (Army Review Boards) approved the recommendation and directed the applicant's discharge with an honorable characterization of service.

14.  On 6 March 2012, the applicant was honorably discharged under the provisions of Army Regulation 600-8-24, due to unacceptable conduct.  He received a "JNC" (unacceptable conduct) separation program designator (SPD).

15.  On 20 June 2014, the Army Discharge Review Board by unanimous vote denied the applicant's request to change his narrative reason for separation.

16.  The applicant provides a letter from the pastor of his church attesting to his good character both as an Army officer and as a citizen.  He also provides copies of his Officer Evaluation Reports showing he was rated "Best Qualified," Service School Academic Evaluation Reports, academic certificates, awards certificates, and permanent orders.

17.  Army Regulation 600-37 (Unfavorable Information) sets forth policy and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, and ensure that the best interest of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.  It states:

	a.  Once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority; and

	b.  Unfavorable documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would be in the best interest of the Army.  The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met.  Documents can be removed upon a showing of clear and convincing evidence that the document is untrue or unjust in whole or in part.

18.  Army Regulation 600-8-24 prescribes the policy, guidance and instruction on the transfer and discharge of officers.  An officer is permitted to serve in the Army because of the special trust and confidence the President and the nation have placed in the officer's patriotism, valor, fidelity and competence.  An officer is expected to display responsibility commensurate to this special trust and confidence and to act with the highest integrity at all times.  However, an officer who will not or cannot maintain those standards will be separated.  Some of the conditions or acts that warrant elimination action are failure of an officer to exercise necessary leadership or command expected of an officer of their grade, failure to conform to prescribed military deportment, mismanagement of personal affairs to the discredit of the Army and acts of personal misconduct including but not limited to acts committed while in a drunken or intoxicated state.   When adverse information is filed in the OMPF elimination action should be initiated by the commander.

	a.  An honorable characterization of service is normally issued when the quality of the officer's service has met the standards of acceptable conduct and performance of duty.

	b.  An under honorable conditions characterization of service (general discharge) is normally issued when the officer's military records is satisfactory but not sufficient meritorious to warrant an honorable discharge.  A general discharge is normally warranted when an officer is separated for misconduct. 

19.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (regulatory, statutory, or other directives) and reasons for the separation of members from active military service and the SPD codes to be used for these stated reasons.  The SPD code "JNC" applies to individuals discharged for unacceptable conduct.

DISCUSSION AND CONCLUSIONS:

1.  The contentions made by the applicant and his counsel have been noted.  His supporting evidence has been considered to include his OERs, academic evaluations, authorized awards and decorations, and his combat service.

2.  While he was not uncooperative or belligerent during his apprehension, the fact is he was given two breathalyzer tests and some field sobriety tests which he failed.  He admitted that he committed the DUI offense and he took full responsibility for his actions in the rebuttal statement he submitted to the GOMOR.  The fact that the case was dismissed in civilian court does not negate his unacceptable conduct that is a discredit to the Army.  

3.  According to the applicable regulation, once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Documents can be removed upon a showing of clear and convincing evidence that the document is untrue or unjust in whole or in part.  The applicant and counsel have not shown that the GOMOR is untrue or unjust; therefore, it is properly filed as directed by the CG.

4.  His records show he was discharged for unacceptable conduct.  Although he took a defensive driving course and a DUI/substance abuse course after he received his DUI, he has not shown an error or injustice in his narrative reason for separation or the assigned SPD.  He was assigned SPD code "JNC" which coincides with his narrative reason for separation.

5.  Counsel makes an argument that the applicant's character of service and reason for separation are a "mismatch."  The Ad Hoc Review Board and discharge official determined after reviewing the applicant's complete file that his overall service was honorable and warranted an honorable characterization of service.  Notwithstanding his overall honorable service, the applicant did commit an act that is considered unacceptable conduct for a commissioned officer and warranted appropriate discipline.  Based upon his unacceptable conduct and subsequent discipline, he was appropriately separated with no evidence of procedural error that could have jeopardized his rights. 

6.  Therefore, in view of the foregoing, the requests made by the applicant and his counsel should be denied.


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)                                         AR20140016076



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ABCMR Record of Proceedings (cont)                                         AR20140016076



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