IN THE CASE OF:	  

		BOARD DATE:	  16 June 2015

		DOCKET NUMBER:  AR20150006661 


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 requests removal of the General Officer Memorandum of Reprimand (GOMOR), dated 30 January 2014, from her official military personnel file (OMPF).

2.  The applicant states, in effect:

* the GOMOR resulted from an incident in which she was charged with driving while intoxicated by civilian authority
* her case was dismissed and therefore the GOMOR should be removed
* she feels her commander acted too quickly, not waiting first for the case to reach its conclusion
* she is a good Soldier both in and out of uniform; she wishes to make the Army her career and the GOMOR will hinder her

3.  The applicant provides a copy of a court order from a Circuit Court.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 2 February 2010.  After completing initial training, she was awarded military occupational specialty 68G (Patient Administration Specialist).  She is currently on active duty in the rank/grade of specialist/E-4.

2.  On 30 January 2014, she was administered a GOMOR, which essentially stated:

* on 12 January 2014, the applicant was pulled over by a member of a County Sheriff's department for exceeding the speed limit
* when the officer approached her vehicle he noticed her eyes were bloodshot and glassy, and that she smelled of alcohol
* she was given a field sobriety test, which she failed
* after being placed under arrest, the applicant became highly uncooperative, pulling away from the officer
* the officer placed her in his vehicle and made several unsuccessful attempts to close the door; the applicant purposely pushed her knee in the way
* after four attempts at being given a breath alcohol test, and almost an hour and a half later, the blood alcohol test revealed a level of .072 which is twice the legal limit in the State in which she was driving

3.  The applicant provided a rebuttal, which said, in effect:

* on the date of the incident, she was driving home when the car in front of her abruptly stopped, forcing her to suddenly change lanes
* as she returned to ongoing traffic, she saw a police car with its lights flashing; she pulled over
* the officer told her he had stopped her for speeding, then asked her to step out of the vehicle
* she was asked to perform a sobriety test, and was then arrested for driving under the influence
* she accepted and took full responsibility for her actions
* she noted she had lost her on-post driving privileges and had to walk to work
* she successfully completed the Army's Alcohol and Drug Abuse Prevention Training (ADAPT) program
* she accepted all consequences and requested the GOMOR be locally filed
* she believed she could prove her value to the Army if given the opportunity

4.  In an undated addendum to the GOMOR, the applicant's commander directed the GOMOR to be permanently filed in her OMPF.

5.  The applicant provides a copy of a court order showing, on 10 March 2015, the applicant went before a Circuit Court.

	a.  She was charged with:

* driving under the influence with a blood alcohol level of 0.08
* operating an uninsured vehicle

	b.  Both charges were dismissed by motion of the State.

6.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) governs the composition of the OMPF and states the performance folder is used for filing performance, commendatory, and disciplinary data.  Once placed in the OMPF, the document becomes a permanent part of that file.  The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board.  Appendix B-1 states a letter of reprimand is filed in the performance folder of the OMPF.

7.  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.  

	a.  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.

	b.  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.  

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

	d.  Also in paragraph 7-2 is guidance regarding the transfer of memoranda of reprimand to the restricted portion of the OMPF.  It states such an appeal is based on proving the intended purpose has been served, and their transfer would be in the best interests of the Army.  The burden of proof rests with the recipient of the memorandum and substantial evidence must be provided to show these conditions have been met.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was reprimanded for driving while intoxicated and for being uncooperative while being arrested by civil authority.  She was afforded the opportunity to submit matters in her own behalf.  In her rebuttal, she took responsibility for her actions and, essentially, requested leniency.

2.  After careful consideration of the applicant's case, the imposing general officer ordered the permanent filing of the GOMOR in the applicant's OMPF.  The GOMOR is currently filed in the performance section of her OMPF.

3.  For removal, the regulation requires the applicant to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part.  The fact the Circuit Court dismissed the charge does not negate the basis for the GOMOR.  Additionally, the applicant acknowledged the GOMOR was substantively accurate.  

4.  Among the purposes of filing unfavorable information is protection, not just for the Soldier's interests but for the Army's as well.  There is a reluctance to remove or transfer adverse information to the restricted section of an OMPF when it places the applicant on par with others with no blemishes for promotions, assignments, and other favorable actions.  When this Board does move unfavorable information, it only does so if it has truly served its intended purpose. 

5.  In this case, the GOMOR is properly filed and the applicant has offered no evidence the document was either untrue or unjust.  On that basis, the requested relief should not be granted.

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)                                         AR20150006661





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ABCMR Record of Proceedings (cont)                                         AR20150006661



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