IN THE CASE OF:	  

		BOARD DATE:	    13 October 2015

		DOCKET NUMBER:  AR20150001188


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests removal of the applicant's general officer memoranda of reprimand (GOMOR), dated 23 March 2010 and 21 May 2010, or transfer of the GOMORs to the restricted folder of her official military personnel file (OMPF).

2.  Counsel states:

	a.  The GOMORs contained material errors and were substantially prejudicial to the applicant's rights.  The GOMOR, dated 23 March 2010, was incorrect in every aspect and the GOMOR, dated 21 May 2010, was based on empirical analysis that was not individualized.

	b.  The analysis by the German police determined the applicant was fit to drive and her command had to use mathematical extrapolations to draw a conclusion contrary to the police officer who physically observed her.

	c.  The GOMOR, dated 23 March 2010, related to events that occurred on 19 February 2010 and the GOMOR, dated 21 May 2010, related to events that occurred in May 2009.  Both incidents occurred in Germany.

	d.  The Department of the Army Suitability Evaluation Board (DASEB) suggested the GOMORs had served their intended purpose but declined to grant relief because of the belief that the applicant had been nonparticipating in her unit.  The Chief, Military Personnel, U.S. African Command, explained the applicant made a good-faith effort to participate in training but she was not given the opportunity to do so.

	e.  Allegations in the GOMORs were unsubstantiated by a field board of inquiry.

	f.  The GOMOR, dated 23 March 2010, alleges the applicant drove her vehicle while intoxicated on 19 February 2010, but the evidence was to the contrary and the military police found she was not intoxicated.  She was subjected to three different tests, two from the German police station and one from the military police station.

	g.  The German police tests produced results below 0.08 blood alcohol concentration (BAC) and the military police test result was 0.00 BAC.  The German findings were based on a mathematical extrapolation.  They used gravimetric analysis and produced a figure of 0.42 which was converted to 0.088 and the generally accepted conversion factor is 2.1.  Her command took the measurement of 0.42 and multiplied it by 2.1 to reach a figure of 0.88 milligrams of alcohol per liter of breath.  The conversion to milligrams/deciliter creates a figure of 0.088.  This empirical approach is subject to error and is not individualized.  There is no assurance the applicant's BAC was over the legal limit.

	h.  The GOMOR, dated 23 March 2010, erroneously alleges the applicant was ambivalent about the cause of the accident, concerned about her security clearance, and lied about knowing who her commander was.  This was untrue and the cause of the accident was not in dispute.

	i.  The applicant skidded into oncoming traffic on a rainy and wet road.  There is nothing ambiguous or ambivalent about her appreciation of the cause of the accident and her sworn statement is the only official statement memorialized.  She never expressed that she was concerned about her security clearance; this was a suggestion that was mistakenly added to the military police report.  The issue of the applicant's security clearance was never discussed at the military police station.  Her company commander arrived on station within 48 hours from a deployment to Afghanistan and had she been asked about her commander, her answer would have been that she did not know who the company commander was.  She worked for the U.S. Army Europe G-2 and there was no reason for her to interact with the Headquarters and Services Company Commander.  All administrative actions went through her chain of command on another post.

	j.  The applicant successfully completed the Army Substance Abuse Program, she continues to hold a Top Secret security clearance, and her clearance has always been favorably adjudicated.  Her evaluations demonstrate the GOMORs served their intended purpose and can be moved to the restricted folder of her OMPF.

3.  Counsel provides the attachments as listed in tabs A through K of his brief.

CONSIDERATION OF EVIDENCE:

1.  The applicant accepted an appointment as a Reserve commissioned officer in the rank of second lieutenant on 12 May 2000.

2.  On 20 January 2006, she was promoted to captain.

3.  On 6 November 2009, she was ordered to active duty in support of Operation Enduring Freedom with duty in Heidelberg, Germany.

4.  On 23 March 2010, she received a GOMOR for reckless driving while under the influence of alcohol on 19 February 2010 and for her subsequent lies and omissions in accounting for the accident.

5.  On 12 April 2010, she provided a response to the GOMOR in which she acknowledged her conduct was improper.  She admitted she was at fault and caused an accident.  She further stated she took issue with the allegation that the accident was the result of her alcohol consumption.  She stated:

	a.  It was raining and the roads were wet.  She lost traction, over corrected her error, and slid into another vehicle.  While she was driving within the speed limit, she was driving too fast for the road conditions.  Her failure to operate her vehicle in a manner consistent with the weather conditions was an act of carelessness, not recklessness.

	b.  She did have something to drink prior to the accident; however, the suggestion that the accident occurred as a result of the influence of alcohol is not supported by the evidence.  Prior to her meal she had a glass of wine at 1700 hours and she had a second glass of wine an hour later.  The accident occurred at about 2045 hours.

	c.  She never provided a statement to the German police and her friend, a German national, attempted to assist as a translator.  The German police asked if she was on the phone at the time of the accident and her friend told them they were on the phone while stopped at a gas station.  He tried to contact her after they hung up, but he received no answer.

	d.  The German police misunderstood her friend and inaccurately relayed to the Police Liaison Officer that she was on the phone when the accident occurred.  The Police Liaison Officer inaccurately relayed this information to the military police.

	e.  A sworn statement was taken in an interview format from a military police officer nearly 1 month after the accident.  It stated, "…she mentioned that she had a Secret clearance and was going for her Top Secret.  She also kept asking if this incident was going to ruin it."  This conversation never took place as reported in the statement.  She did not discuss her security clearance information with the military police officer and he was incorrect, even in the details.

	f.  Her failure to notify her company commander was an oversight and not borne of any effort to be evasive.  She discussed the matter with her immediate supervisor when her supervisor picked her up.  Her supervisor said she would make contact with the chain of command and every officer in her rating chain was aware of the incident the next day.

6.  After reviewing the applicant's rebuttal and considering all available matters, the Acting Commanding General, Headquarters, V Corps, directed filing the GOMOR in the applicant's OMPF.

7.  On 21 May 2010, she received a second GOMOR for driving under the influence of alcohol on or about 1 May 2009.  This GOMOR states she was stopped for a routine traffic stop and, upon making contact, a German police officer detected the odor of alcohol on her breath.  She was transported to the German police station and administered a breath alcohol test which resulted in a measurement of 0.42 milligrams per liter and, when converted to BAC, the test equaled a BAC of 0.088.  The GOMOR also shows the comments, "This command has repeatedly emphasized its policy against driving under the influence of alcohol.  As a Leader, you are expected to follow policies set forth by this command."

8.  On 28 May 2010, she provided a response to the GOMOR wherein she assumed full responsibility for her actions and admitted she had been drinking while celebrating her birthday with friends.  She assumed she did not violate any Army policy since the German police did not charge her with an alcohol offense.  She was stunned to learn about this additional reprimand so long after the incident and realized the two incidents were connected only because her earlier rebuttal caused a deeper investigation that discovered this unrelated incident.  She further stated:

	a.  Her breath test result was 0.04 and she did not know there was a difference between the way the Germans and the United States record blood alcohol levels.

	b.  Her blood alcohol level with regard to the GOMOR, dated 28 March 2010, was well within the legal limits and a follow-on blood alcohol test by the military police shows no BAC.

	c.  She entered the Army Substance Abuse Program as a result of the incident and she resolved that alcohol would no longer be a significant part of her life because her career was for too important.

	d.  She requested having the GOMOR filed locally.

9.  On 16 July 2010 after reviewing the applicant's rebuttal and considering all matters available, the Deputy Commanding General, Headquarters, V Corps, directed filing the GOMOR in her OMPF.

10.  On 11 October 2012, the DASEB denied her request for removal or transfer of the GOMORs.

11.  On 26 June 2012, counsel for the applicant petitioned the DASEB for removal or transfer of the GOMORs from the performance folder to the restricted folder of her OMPF.  On 11 October 2012, the DASEB denied this request.  The GOMORs remain in the performance folder of her OMPF.

12.  On 22 October 2013, the applicant was notified the elimination action initiated against her on 3 May 2012 was terminated due to her two-time nonselection for promotion to major.  She was further notified that her discharge date due to nonselection was 1 January 2014.

13.  On 1 January 2014, the applicant was honorably discharged from the U.S. Army Reserve.

14.  Counsel provided attachments listed as tabs A through K which include, in part:

	a.  a German police report (tab F) that shows the applicant was stopped for exceeding the speed limit on 1 May 2009 and alcohol was detected on her breath.  She was given two evidential tests and the average showed 0.42 milligrams per liter of alcohol in her breath.  She elected not to make a statement and was released to girlfriends.  An Administrative Order from the Office of the Public Prosecution Heidelberg, dated 7 May 2009, states the investigations did not produce sufficient reason for preferring public charges and all other circumstances did not give sufficient evidence to prove she was unfit to drive;

	b.  documentation (tab I) verifying her Top Secret security clearance as of 29 June 2012;

	c.  three DA Forms 67-9 (Officer Evaluation Report) (tab J) that show she received "Best Qualified" ratings and a letter of explanation for non-rated time showing she made a good faith effort to participate in training but was not able due to a misapprehension of Army regulations (presumed to be the command's); and

	d.  extracts of her field board of inquiry (tab K) concerning her elimination.

15.  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.

16.  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 folder.  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.

17.  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 that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.

18.  Only memoranda of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder.  Normally, such appeals will be considered only from Soldiers in grades E-6 and above, officers, and warrant officers.  The above 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.

19.  Army Regulation 600-8-104 (Army Military Human Resource Records 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 folder of the OMPF unless directed otherwise by an appropriate authority (DASEB or this Board).

20.  Title 10, U.S. Code, section 911, defines drunken or reckless operation of a vehicle, aircraft, or vessel.  It states that in the case of the operation or control of a vehicle, aircraft, or vessel outside of the United States, the applicable BAC limit is 0.10 grams of alcohol per 100 milliliters of blood and, with respect to alcohol concentration in a person's breath, the limit is 0.10 grams of alcohol per 210 liters of breath as shown by chemical analysis or such lower limits as prescribed by the Secretary of Defense.

DISCUSSION AND CONCLUSIONS:

1.  Counsel's request for removal or transfer of the applicant's GOMORs to the restricted folder of her OMPF was carefully considered.

2.  Although counsel argues the conversion of the applicant's BAC was not in violation of limits set forth in Title 10, U.S. Code, section 911, her commanding general officer nevertheless determined she exceeded the limits established by her command.  Further, her 21 May 2010 GOMOR shows repeated emphasis was placed on the command's driving under the influence policy.  As an officer it is expected she would have been aware of this policy.

3.  The evidence of record shows she received GOMORs for alcohol-related offenses on two occasions.  The imposing general officer did not specifically cite her for violating Title 10, U.S. Code, section 911, in either GOMOR.  She was afforded the opportunity to review the reprimands and to submit matters in her own behalf prior to a final filing decision and she did so.  After careful consideration of her offenses and her rebuttals, the imposing general officers directed filing the GOMORs in her OMPF.  The GOMORs are currently filed in the performance folder of her OMPF.

4.  The OMPF 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 OMPF.  Once placed in the OMPF, the document becomes a permanent part of that file and will not be removed from or moved to another part of the OMPF unless directed by an appropriate authority.

5.  The applicant continued to honorably serve and without incident.  Nevertheless, the Army has an interest in maintaining the integrity of its records.  The information in those records must reflect the conditions and circumstances that existed at the time the records were created.  The fact that these documents affected her promotion opportunities is a natural outcome of her behavior/
performance.  There is a reluctance to remove adverse information from an OMPF when it was not erroneously filed.

6.  The GOMORs are properly filed and counsel did not provide substantial evidence showing the GOMORs served their intended purpose and that their transfer to the restricted folder of her OMPF would be in the best interest of the Army.

7.  In view of the foregoing evidence, there is no basis for granting 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 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)                                         AR20140009521



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ABCMR Record of Proceedings (cont)                                         AR20150001188



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