IN THE CASE OF:	

		BOARD DATE:	  17 September 2015

		DOCKET NUMBER:  AR20150010741 


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 removal of a General Officer Memorandum of Reprimand (GOMOR) from his Official Military Personnel File (OMPF).

2.  The applicant states his GOMOR should be removed from his record because he was acquitted of all the charges that were filed against him.  This is his second attempt to have this GOMOR removed.  The GOMOR in his OMPF hinders him from serving in multiple areas or levels of his career field.  He applied to the Department of the Army Suitability Evaluation Board (DASEB); however, the DASEB refused to accept his request because he holds the rank/grade of sergeant (SGT)/E-5.  The U.S. Army Human Resources Command (HRC) told him he should send his request to the Army Board for Correction of Military Records (ABCMR). 

3.  The applicant provides:

* an extract of DA Form 3975 (Military Police Report), dated 22 April 2012
* breath test, dated 21 April 2012
* GOMOR, dated 5 July 2012
* 3 Memoranda/filing recommendations
* memorandum of acknowledgment/receipt, dated 9 July 2012
* memorandum/filing determination, dated 29 July 2012 




CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  Following prior enlisted service, the applicant enlisted in the Regular Army on 16 December 2005 and has subsequently served through a number of reenlistments.

3.  His record contains a DA Form 3975, dated 22 April 2012, which shows he was apprehended and arrested by civil authorities at 0252 hours on 21 April 2012, for driving while impaired after he was stopped for weaving within his lane. He was later transported to the Cumberland County Detention Center (CCDC) where an intoximeter test was administered.  The test indicated he had an alcohol content (AC) of .13 percent (%).  He then appeared before the magistrate, who released him on a written promise to appear in court on 19 June 2012.  He was released at the CCDC and his unit was notified to bring him into the Provost Marshal Office (PMO) to be issued a suspension of post driving privileges letter.

4.  His record contains the documented results of an intoximeter breath test, dated 21 April 2012, which shows he had an AC of .13%

5.  He was issued a suspension of driving privileges letter, undated, which informed him he would not be permitted to operate a motor vehicle on post until the matter of his operating a motor vehicle with a blood alcohol content (BAC) of .08 % by volume or higher had been resolved.

6.  His record contains a GOMOR, dated 5 July 2012, which states he was reprimanded for operating a vehicle while intoxicated.  On 21 April 2012, at approximately 0252, a Fayetteville police officer observed him weaving within his lane and initiated a traffic stop.  He was escorted to the CCDC and administered an intoximeter test that revealed a .13% AC.  This GOMOR also states the GOMOR was an administrative action, and not punishment under the Uniform Code of Military Justice (UCMJ).  Additionally, the Commanding General indicated he had not yet made the determination as to whether to file the GOMOR in his local file or his OMPF.

7.  The applicant acknowledged receipt of the GOMOR on 9 July 2012.

8.  His record contains a letter of response to the GOMOR, dated 12 July 2012, wherein he stated/requested:

* the GOMOR be placed in his local file
* he acknowledged he was driving while intoxicated and took full responsibility for his actions
* he apologized for his mistake and indicated a desire to return to excellence
* since the incident he had voluntarily enrolled in and completed the PRIME For Life program aimed at preventing problems stemming from alcohol use

9.  By  memorandum, dated 29 July 2012, the Commanding General informed the applicant of his decision to file the GOMOR in his OMPF.

10.  His record is void of documentation that shows he was acquitted of the charges filed against him for driving under the influence.

11.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) establishes the responsibilities, policies, and procedures for maintaining and controlling the OMPF.  It states that once a document is placed in the OMPF, it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation.

12.  Army Regulation 600-37 (Unfavorable Information):

	a.  Paragraph 3-4(1)(a) states a letter will be included in a Soldier’s OMPF that is referred to the recipient concerned for comment.  The referral will include 
reference to the intended filing of the letter.  This referral will also include and list applicable portions of investigations, reports, and other documents that serve, in part or in whole, as the basis for the letter, providing the recipient was not 
previously provided an opportunity to respond to information reflected in that 
documentation.  Additionally, documents, the release of which requires approval of officials or agencies other than the official issuing the letter, will not be released to the recipient until such approval is obtained.

	b.  Paragraph 7-2a 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.  Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant received a GOMOR for driving under the influence with an AC of .13%.  Records show he acknowledged guilt and apologized for his actions.

2.  The removal of a GOMOR from an OMPF requires clear and convincing evidence that the GOMOR is untrue or unjust.  The applicant is unable to meet the regulatory criteria for the removal of his GOMOR for two reasons.

	a.  First, he essentially admitted to and apologized for the offenses described in the GOMOR in his letter of response.

	b.  Second, he has not provided any proof to show he was acquitted of the charges or that the GOMOR is unjust or untrue.  

3.  Based on the foregoing, there is insufficient evidence to justify removing the GOMOR from his OMPF.

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)                                         AR20150010741





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ABCMR Record of Proceedings (cont)                                         AR20150010741



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