IN THE CASE OF:  	  

		BOARD DATE:  6 August 2015	  

		DOCKET NUMBER:  AR20140018863 


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 the general officer memorandum of reprimand (GOMOR) dated 25 April 2012 be removed from his Official Military Personnel File (OMPF) or transferred to the restricted section of his OMPF.

2.  The applicant states, in effect, he served honorably and progressed rapidly through the ranks of a noncommissioned officer due to great leadership and determination.  He does not wish to have a tarnished record by having a GOMOR on his permanent record.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 20 July 2012
* Amendment orders, dated 18 July 2012
* Documents from the New Jersey Automated Traffic System – Plea Entry/Court Date Adjournments, dated 11 April 2012
* GOMOR Processing Sheet
* New Jersey Defensive Driving Certificate of Completion
* DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the period ending 20 July 2012

CONSIDERATION OF EVIDENCE:

1.  On 23 October 2004, the applicant enlisted in the U.S. Army Reserve in pay grade E-1 for a period of 8 years.
2.  He was promoted to staff sergeant (SSG)/E-6 on 15 April 2009.

3.  On 28 September 2009, he was ordered to active duty in support of Operation Enduring Freedom.  

4.  On 25 April 2012, he received a GOMOR for operating a vehicle while intoxicated.  The imposing official stated:

   a.  He was involved in an accident on 10 March 2012.
   
   b.  When an officer from the Morristown, NJ, Police Department arrived, the applicant had trouble telling the officer how the accident occurred and the officer suspected the applicant was intoxicated.
   
   c.  The applicant failed a field sobriety test.  When the applicant arrived at the Morristown Police Department, he refused to submit to a breathalyzer test.
   
   d.  By operating a motor vehicle while impaired, the applicant subjected himself and others to unacceptable risk.  Safety has been a continued point of emphasis for the Army.  The applicant's conduct exhibited a profound lack of good judgment and his potential for further productive service was in question.

5.  The GOMOR was imposed as an administrative measure under the provisions of Army Regulation 600-37 (Unfavorable Information), paragraph 3-4, and not as punishment under Article 15, Uniform Code of Military Justice.  The imposing official indicated he was considering filing the GOMOR permanently in the applicant's OMPF.

6.  On 10 May 2012, the applicant acknowledged receipt of the GOMOR and elected to submit statements in his behalf.  

7.  On 11 May 2012, the applicant requested that the GOMOR be filed in his Military Personnel Records Jacket or completely expunged “as per the imposing official's discretion after seeing supporting documentation.”  The applicant stated:

	a.  He accepted responsibility for his actions pertaining to carelessly driving and leaving an automobile accident with a neighbor's vehicle.  He was very fortunate that nobody was hurt because of his carelessness.

	b.  He did not accept responsibility for operating a vehicle while intoxicated.  When the police arrived at the residence his vehicle was parked in his driveway and he was not operating a vehicle.  One hour had elapsed prior to the police's arrival for a fender bender accident with the neighbor's vehicle.  The courts also agreed that he had not been operating a vehicle intoxicated and the administering of a field sobriety test was unfounded due to the elapsed time and unaccountability of his whereabouts and actions in his home during that time.

	c.  He fully accepted responsibility for refusing to submit to a Breathalyzer due to thinking he had a right to refuse since he was not operating a vehicle intoxicated.  

	d.  He immediately enrolled in an online Defensive Driving Course offered by the New Jersey Motor Vehicle Commission to “omit points on my driving record, which has thus far had no points to date.” 

	e.  He apologized for the negative reflection any of his actions may have had on his Battalion, Brigade and First Army Division East.  He indicated that he had worked hard the past three years as an OCT/T (operations controller/trainer) and "SST" helping with the training mission; he did not wish for his hard work and dedication to end in this fashion.

	f.  He had a solid career as a Soldier in the U.S. Army and he requested the issuing official’s understanding pertaining to his administrative reprimand.  He stated he truly believed in the values taught by the U.S. Army and he would continue to attempt to excel as a Soldier.

8.  On 22 June 2012, the imposing authority directed that the GOMOR be filed permanently in the applicant’s OMPF.

9.  On 20 July 2012, he was honorably released and transferred to his Reserve unit.

10.  He provides the following documents:

	a.  New Jersey Automated Traffic System - Plea Entry/Court Date Adjournments, dated 11 April 2012, which shows he was issued a ticket on 10 March 2012 for operating a vehicle under the influence of liquor or drugs.  His court date was scheduled for 9 April 2012.  Case notes show dismissed in court on 9 April 2012.

	b.  Two New Jersey Automated Traffic System –Modify Court Dispositions, both dated 11 April 2012, which show:

        (1)  He consented to take samples of breath.

        (2)  The violation was amended to careless driving:  likely to endanger person.  He plead guilty to the violation.  

	c.  New Jersey Defensive Driving Certificate of Completion, dated 11 April 2012, which shows he completed the Easy Fast Cheap Defensive Driving Program.

	d.  GOMOR Processing Sheet, which shows his battalion and brigade commanders recommended the GOMOR be filed in his local record.  The battalion commander stated the applicant made a big mistake, but he has owned up to it.  The applicant has taken steps to ensure that this never happens again and he has been very open and honest with his chain of command.  The brigade commander stated the driving under the influence (DUI) charge and his refusal to submit charges were dismissed.  The applicant has taken/completed the New Jersey Defensive Driving Course since the incident.  It is now a traffic incident; does not involve alcohol.  

	e.  NCOER covering the period 28 September 2011 through 20 July 2012, which shows he was rated as an observer controller/trainer and his rater evaluated his overall potential for promotion and/or service in positions of rater responsibility as "Among the Best" and his senior rater assessed his overall performance as Successful/block 2 and Superior/block 1.

	f.  Memorandum, dated 14 August 2013, subject:  Appeal for Administrative Reprimand (applicant's name (Retired) xxx-xx-xxxx), addressed to the President, Department of the Army, Suitability Evaluation Board (DASEB), in which the applicant states it had been over a year since the incident occurred (10 March 2012).  He was honorably separated from the U.S. Army on 22 October 2012.  He served honorably with the U.S. Army and he was thoroughly disappointed that the highest of the command echelon did not take into consideration recommendations from his colonel, lieutenant colonel, commanders, NCOER, nor the New Jersey State Judicial System.  He served this brigade with honor and integrity and it ended with the emotions of being shunned and forgotten without any awards or commendations for a traffic violation.  

	g.  Letter, dated 6 August 2014, from the DASEB, which shows he was informed that his request to transfer the GOMOR to the restricted section of his record was returned without action.  The letter indicated that in accordance with Army Regulation 600-37, the DASEB will only consider appeals and petitions for active Army, Reserve, and Army National Guard Soldiers.  In the applicant's petition, he stated he was both discharged and retired.  His DD Form 214 shows he was released from active duty on 20 July 2012 and reassigned to a unit at Fort Totten, NJ.  The applicant was informed the DASEB was unable to determine his current status.  He was advised to resubmit his petition to the DASEB with clarification of his status or if he did not have any status, the authority to transfer a GOMOR rests with this Board.  

11.  Army Regulation 600-37 (Unfavorable Information) prescribes policies and procedures regarding unfavorable information considered for inclusion in OMPF’s.

	a.  Paragraph 3-4 applies to filing of nonpunitive administrative letters (or memoranda) of reprimand or censure in official personnel files.

	b.  Paragraph 3-4(b) states that a letter (or memorandum), regardless of the issuing authority, may be filed in the OMPF maintained by the U.S. Army Human Resources Command or the proper State Adjutant General (for Army National Guard Personnel) only upon the order of a general officer (to include one frocked to the rank of brigadier general) senior to the recipient by direction of an officer having general court-martial jurisdiction over the individual.  Letters (or memoranda) filed in the OMPF will be filed in the performance folder.  The direction for filing in the OMPF will be contained in an endorsement or addendum to the letter (or memorandum).

	c.  Paragraph 7-2b(1) states that 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.

12.  Army Regulation 190-5 (Motor Vehicle Traffic Supervision) states that Army commanders (any general officer, and any officer frocked to the grade of brigadier general) will take appropriate action against intoxicated drivers.  These actions may include a written reprimand, administrative in nature, issued to active duty Soldiers who refuse 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 DUI of alcohol or drugs.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant's charge of DUI was dismissed and he pled guilty to a charge of careless driving.  This indicates he "plea bargained" with the court for a lesser charge.  Regardless of whether or not the charge was dismissed, the fact of the matter is he "refused" to consent to a breath analysis test.  As cited in Army Regulation 190-5, a written reprimand may be issued to active duty Soldiers who refuse to take a breath analysis test.
2.  The applicant's contention that he does not wish to have a tarnished record by including a GOMOR in his permanent record is acknowledged.  However, the available evidence does not support that the GOMOR was inaccurate or unjust.  

3.  There is no evidence and he has not provided any to show the GOMOR was rendered in error.  Therefore, in the absence of more compelling evidence, there is no basis to grant the relief requested.

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)                                         AR20140018863



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ABCMR Record of Proceedings (cont)                                         AR20140018863



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