IN THE CASE OF:	  

		BOARD DATE:	  9 December 2014

		DOCKET NUMBER:  AR20140019232 


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 reconsideration of his earlier request for correction of his records by:

* Removing a General Officer Memorandum of Reprimand (GOMOR), dated 12 September 2008, from the restricted folder of his Official Military Personnel File (OMPF)
* Reinstating him to the Fiscal Year 2008 (FY 08) Master Sergeant/Pay Grade (MSG/E-8) E-8 Promotion List
* Promoting him to MSG/E-8 with original effective date and date of rank and all back pay and allowances
* Considering him, by a standby advisory board (STAB), for promotion to sergeant major, pay grade E-9 (SGM/E-9)

2.  The applicant makes a statement classified "SECRET."  In summary, without including any classified elements of his statement, he makes the following contentions and arguments:

	a.  He did not drink and drive and was innocent of the charge of driving under the influence (DUI).  He contends that he never claimed to be guilty of this charge.

	b.  The commanders, a lieutenant general and a colonel, both left command and retired shortly after his GOMOR was issued to him.  Accordingly, it was a challenge contacting them for assistance.

	c.  He believes that the GOMOR was written in haste without a full review of the facts.  There was no discussion between the parties involved.

	d.  He contends that he has done everything he can to prove his innocence and does not know what else he could do.

3.  The applicant provides copies of:

* A 2-page memorandum from a squadron command sergeant major, dated              17 November 2014 (classified "SECRET")
* A memorandum from a unit fire support SGM, dated 17 November 2014 (classified "SECRET")
* A memorandum from a human resources SGM, dated 17 November 2014 (classified "SECRET")
* A memorandum from a lieutenant general, dated 26 September 2014
* A memorandum from a lieutenant general, dated 7 November 2014
* A memorandum from a colonel, dated 14 November 2014

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140010205, on 25 June 2014.

2.  The applicant's enclosures and argument are considered to be new evidence which requires consideration by the Board.

3.  The original ROP shows the Board considered the following evidence:

	a.  At the time the applicant was a Regular Army (RA) sergeant first class (SFC).  He held military occupational specialty 13F (Fire Support Specialist).

	b.  The applicant had served through multiple reenlistments in a variety of stateside or overseas assignments, including Iraq and Afghanistan.

	c.  The applicant was assigned to Fort Bragg, NC and had been selected for promotion to MSG/E-8 by the FY 08 Promotion Board and his name was on the promotion list

	d.  On 12 September 2008, he was reprimanded by his Commanding General (CG) at Fort Bragg, NC for operating a motor vehicle while intoxicated.  

	e.  The GOMOR stated that on 24 August 2008, the applicant was arrested and cited by a Kentucky police officer for operating a motor vehicle while under the influence of alcohol.  The offense occurred while he was in a temporary duty status.  He was administered a breathalyzer test that yielded a blood alcohol content of 0.10 percent.

	f.  The GOMOR further stated that the applicant's conduct was inexcusable.  The Army and his command have consistently emphasized the dangers of driving after consuming alcohol.  In committing this offense, he exercised extremely poor judgment.  His disreputable actions were inconsistent with the high standards expected of him as an NCO.

	g.  On 29 October 2008, the applicant acknowledged receipt of the GOMOR and elected to submit a rebuttal statement.  In his rebuttal, he:

* acknowledged his failure to exercise proper care and placing his life and career at risk
* stated at the time of his arrest, he had no intention of driving his vehicle; he intended to sleep until the sun rose and then return to his hotel room
* added that since his arrest, he had visited two psychiatrists whose assessment was that he was not alcohol dependent
* attended the Fort Bragg Alcohol and Drug Abuse Prevention course in an effort to become better aware/informed
* accepted the consequences of his actions but did not believe this incident should curtail his advancement or career
* requested to be allowed to continue his service and the GOMOR be locally filed

	h.  On 19 November 2008, his senior commander recommended the contested GOMOR be filed in the performance folder of his OMPF.  The senior commander opined that the command continually emphasized the importance of safety.  The applicant’s decision to drink and drive demonstrated a complete lack of concern for the safety of others.  As a senior NCO with 14 years of service, his chain of command expected more from him.  He made a poor choice which resulted in this incident.  However, given his record, it is recommended the filing be reconsidered in 2 years.

	i.  On 23 April 2009, a Christian County District Judge dismissed the applicant’s charges for operating a motor vehicle under the influence of alcohol because the arresting officer was no longer with the police department and had failed to produce video evidence.

	j.  On 17 June 2009, a Department of the Army Enlisted STAB convened on 17 June 2009.  It recommended that the Director of Military Personnel Management (DMPM) remove the applicant’s name from the FY 08 MSG Promotion Selection List.

	k.  On 23 September 2009, the imposing CG ordered the filing of the GOMOR in the applicant's OMPF.  It was so filed.

	l.  On 20 November 2013, the Department of the Army Suitability Evaluation Board (DASEB) reviewed the applicant's case.  Based on the following findings, it directed transfer of the contested GOMOR and its allied documents to the restricted folder of his OMPF:

* the GOMOR was neither improper nor untrue; however, the intended purpose had been served
* its transfer to the restricted folder would be in the best interest of the Army and the Soldier
* this action is not retroactive and does not constitute grounds for promotion reconsideration

	m.  Since the incident, the applicant's duty performance was rated as excellent.  He also received the following awards:

* Bronze Star Medal
* Meritorious Service Medal
* Joint Service Commendation Medal
* Army Good Conduct Medal (5th and 6th awards)
* Valorous Unit Award (two awards)

	n.  Multiple senior officers and NCOs opined that:

* the applicant had suffered in that he received a GOMOR, was removed from the promotion standing list, and lost some special pay
* the civilian charges against him were dropped/dismissed based on the judge’s review and lack of evidence
* since his incident, he has served with distinction, received multiple awards, completed several deployments, and received excellent ratings

	o.  A legal assistance officer of the Fort Lee, VA military community recommended restoration of the applicant’s grade to MSG/E-8.  He restated the events and provided a legal analysis and argument in favor of the applicant.

	p.  The successor CG of the same unit of the CG that imposed the GOMOR recommended the applicant’s records be considered by a STAB citing the dismissal of the civilian charges.  The CG also recommended the applicant’s reinstatement to the FY 08 promotion list and consideration for promotion to SGM/E-9. 

	q.  The Director of Enlisted Personnel Management at HRC stated that a Department of the Army QSP had convened and identified the applicant for separation no later than 1 March 2015.

4.  The three classified memoranda provided by the applicant in support of this application were written by a squadron command sergeant major and two sergeants major.  They each requested that adverse information be removed from the applicant's OMPF and that he be reinstated to the MSG/E-8 promotion list and be promoted with back pay.  They further discussed their relationship to the applicant and pointed out that he was not determined to be guilty of the DUI by civilian or military authorities.  Accordingly, they contended that the GOMOR was erroneous and keeping it in his OMPF was wrong and unjust, and is a disservice to the Army and to a good Soldier.

5.  The three unclassified memoranda provided by the applicant in support of this application were written by the imposing lieutenant general who is now retired, the lieutenant general who succeeded the imposing general, and a retired colonel.  The imposing general officer states that after he had issued the GOMOR, he became aware that the civilian court case had been dismissed.  He now contends that on that basis, the GOMOR should also have been removed from the applicant's OMPF.  The subsequent general officer unequivocally concurs with the imposing general officer's memorandum requesting removal of the GOMOR.  He argues that the GOMOR should be removed because it is the moral, legal, and ethical action to take.  The colonel states he was the applicant's unit commander at the time of the charges for DUI.  He had reviewed the police report and attendant charges.  Based on those accusations and the recommendations from his chain of command, he recommended the GOMOR.  Now he believes, absent any independent evidence, that retaining the GOMOR in the applicant's OMPF is an error.

6.  Army Regulation 600-37 (Unfavorable Information) 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.

7.  A memorandum of reprimand may be filed in a Soldier's OMPF 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 OMPF, the recipient's submissions are to be attached.  Once filed in the OMPF, the reprimand and associated documents are permanent unless removed in accordance with Army Regulation 600-37, chapter 7.  Paragraph 7-2 provides that 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.  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 OMPF.

8.  Army Regulation 600-8-104 (Army Military Human Resource Record Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the OMPF.  Table B-1 states a memorandum of reprimand is filed in the performance section of the OMPF unless directed otherwise by an appropriate authority (DASEB or this Board).

9.  Army Regulation 600-8-19 (Enlisted Promotions or Reductions) prescribes the enlisted promotions and reductions function of the military personnel system.

	a.  Paragraph 4-13 (Rules for processing STAB) states the Army G-1 or designee may approve cases for referral to a STAB upon determining that a material error existed in a Soldier’s OMPF when the file was reviewed by a promotion board.  For the purpose of this paragraph, HRC is a designee.  An error is considered material when there is a reasonable chance that had the error not existed, the Soldier may have been selected.  STABs are convened to consider records of those (1) Soldiers whose records were not reviewed by a regular board; (2) Soldiers whose records were not properly constituted, due to material error, when reviewed by the regular board; (3) Recommended Soldiers on whom derogatory information has developed that may warrant removal from a recommended list; and other reasons pertaining to appointment to command sergeant major.   Soldiers selected by a STAB will be added to the appropriate recommended list and promoted along with their contemporaries when their seniority sequence number is reached.  Reconsideration normally will be granted when one or more condition (listed as 1 through 11) existed on the Soldier’s OMPF at the time it was reviewed by a promotion selection board.  

	b.  Paragraph 4-17 (Removals from a centralized promotion list by Headquarters, Department of the Army) states HRC will continuously review promotion lists against all information available to ensure that no Soldier is promoted where there is cause to believe that a Soldier is mentally, physically, morally, or professionally unqualified to perform duties of the higher grade.  A Soldier may be referred to a STAB when a memorandum of reprimand placed in the OMPF or when adverse documentation is filed in the OMPF.

	c.  Paragraph 4-18 (Appeals of removal from a centralized promotion list) states a Soldier who is removed from a promotion list may appeal that action only in limited circumstances.  HRC will take final action on any appeal.  Soldiers may appeal a removal action when the underlying basis of the removal is subsequently determined to be erroneous.  The subsequent determination must be based on facts that were not available or reasonably discoverable at the time of the original action or at the time that the Soldier was notified of the removal action.  An appeal may also be submitted for other compelling reason(s).  Appeals must be referred through command channels, to include a General Court-Martial Convening Authority to Commander, HRC.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected by:

* Removing a GOMOR dated 12 September 2008, from the restricted folder of his OMPF
* Reinstating him to the FY 08 Master Sergeant/Pay Grade (MSG/E-8) E-8 Promotion List
* Promoting him to MSG/E-8 with original effective date and date of rank and all back pay and allowances
* Considering him, by a STAB, for promotion to SGM/E-9

2.  The available evidence in this case clearly shows that the applicant was arrested and charged with DUI.  Subsequent to his arrest, but prior to his civilian court trial, his commander recommended he receive a GOMOR, which was approved and filed in the performance folder of his OMPF.  The GOMOR clearly states he was administered a breathalyzer test which determined his blood alcohol content was 0.10 percent.

3.  The available evidence further shows that the civilian judge dismissed the charge(s) because the arresting officer was no longer a member of the police department and had not complied with the court's subpoenas.  This technical legal finding in no way translates to the applicant being innocent of the charges.  In fact, his remorseful statement in rebuttal to the GOMOR acknowledged his failure to exercise proper care had put his life and career at risk is an admission of guilt.  The applicant stated he accepted the consequences of his actions because as a noncommissioned officer he knows the importance of maintaining a clear mind.

4.  The evidence and argument presented by the applicant is insufficient to show any error or injustice in this case.  Accordingly, his request to remove the GOMOR and allied documents from his OMPF should be denied.  Therefore, his related issues concerning reinstatement to the promotion list, promotion to MSG/E-8, and subsequent promotion consideration to SGM/E-9 should also 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 to amend the decision of the ABCMR set forth in Docket Number AR20140010205, on 25 June 2014.



      _______ _   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)                                         AR20140019232





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ABCMR Record of Proceedings (cont)                                         AR20140019232



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