IN THE CASE OF:  	  

		BOARD DATE:  1 October 2015	  

		DOCKET NUMBER:  AR20150013853 


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 removal of a general officer memorandum of reprimand (GOMOR), dated 24 April 2014, from his Official Military Personnel File (OMPF).

2.  The applicant states:

	a.  He is currently scheduled to be discharged on 1 November 2015.

	b.  He requests removal of the GOMOR from his OMPF because it is based on unfounded and unsubstantiated documentation.  Allowing this GOMOR to stay in his file and be the reason he is separated from the Army through the Qualitative Management Program (QMP) process would be an injustice.

	c.  He also requests consideration of his appeal by the QMP board based on newly-discovered evidence.  He requests retention in the Army and a review of his appeal and supporting documentation, which includes an endorsement from his commanding general.

	d.  He believes this is an error and unjust because he received a GOMOR based on incomplete information.  The GOMOR was based on an improper arrest that was dismissed in court prior to trial for reasons that were undisclosed at the time.

	e.  He requests consideration of the new evidence pertaining to the corrupt actions of the arresting officer as this is the reason the case did not go to trial.  As they say, the burden of proof lies with the Soldier so he got a lawyer to help prove his innocence.  Because the case never went to trial, he was never allowed to bring in any evidence to refute the facts of the case, including the arresting officer's misconduct.  The officer's character is most definitely in question as to how he handled his case.  The presumption of guilt associated with a GOMOR shifts the burden onto the Soldier and is an unjust system.

	f.  In any other criminal court of law the burden is on the government to prove its case beyond a reasonable doubt.  This type of burden shift onto the Soldier is an unjust method of punishing a Soldier.  Although Army regulations make it clear that a GOMOR is issued as an administrative matter and not as punishment, the reality is that the far-reaching effects of a GOMOR constitute punishment leading to severe adverse actions up to and including separation.

	g.  He believes he should be given the benefit of the doubt at some point, especially when his records show no derogatory conduct and his evaluations represent the kind of Soldier/noncommissioned officer he really is.

3.  The applicant provides:

* memorandum from his commanding general, dated 13 May 2015
* QMP notification, dated 27 July 2015
* Notification of Denial of Continued Active Duty Service under the QMP, dated 13 April 2015
* appeals
* GOMOR
* Enlisted Record Brief
* six DA Forms 2166-8 (Noncommissioned Officer Evaluation Report)
* numerous character-reference statements/recommendations

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving in the Regular Army in the rank of sergeant first class.

2.  On 24 April 2014, he received a GOMOR for driving while intoxicated in Honolulu on 14 February 2014.  He was stopped by the Honolulu Police Department at a sobriety checkpoint and police detected a strong odor of an alcoholic beverage emitting from his breath.  His eyes were observed to be red, watery, and glassy.  His blood alcohol content (BAC) at the time of his arrest was 0.175 percent.

3.  He provided a District of the First Circuit, State of Hawaii, Notice of Entry of Judgment and/or Order and Plea/Judgment which shows his traffic court case was dismissed without prejudice on 16 May 2014.

4.  He submitted a rebuttal to the GOMOR on 16 May 2014.  In summary, he stated:

	a.  His criminal case was dismissed for a false reading of above the legal BAC limit.

	b.  On 14 February 2014, he went to a restaurant to pick up dinner.  While waiting for his food, which was over an hour, he consumed a small amount of alcohol.  He is always cognizant of how much he drinks when he is driving and is careful to keep his alcohol consumption to a minimum.  On his way home, he was stopped at a sobriety checkpoint.  He knew he was not intoxicated and had no qualms about pulling over.  During the field sobriety test he explained to the police officer that he was unable to perform certain things he was asked to do because of two knee surgeries.  He also told the officer he had a permanent physical profile so he was exempt from doing certain things in the Army.  The officer took that as his failure to cooperate and arrested him.  A breathalyzer test was administered at the police station.  The police told him they could not get a reading so they had him blow into the same tube over and over.  When they finally got a reading over the legal BAC, they recorded that reading.  Repeatedly blowing into the same breathalyzer tube will eventually yield inaccurately high readings.

	c.  His case was dismissed for procedural and constitutional reasons since his arrest and subsequent breathalyzer were found to have violated his rights and led to unreliable and false evidence.  The officer who administered the breathalyzer abruptly resigned from the Honolulu Police Department in the same week his case was brought to light.

	d.  He has been in the Army for almost 15 years and has never placed himself in a position where his integrity and character were in question.  He has received numerous awards, completed numerous schools, and graduated with a degree in business management.  The Army is his life and the foundation for his way of living.  His career is everything to him.  What happened on 14 February 2014 was a miscarriage of justice and he is grateful to have been exonerated through the civilian justice system.

5.  On 25 June 2014 after considering all matters in rebuttal, the commanding general directed filing the GOMOR in his OMPF.

6.  He provided a local Honolulu news article published on 14 January 2015 which states a former Honolulu Police Department officer received a 33-month prison sentence for extortion.

7.  On 13 April 2015, he was notified the QMP Selection Board conducted a comprehensive review of his record for potential denial of continued service under the QMP and recommended denying him continued active duty service.  The Director of Military Personnel Management approved the QMP Selection Board's recommendation and directed his involuntary discharge date would not be later than 1 November 2015.

8.  He also provided the following documents in support of his request:

	a.  A memorandum from the Commanding General, Headquarters, 8th Regional Sustainment Command, dated 13 May 2015, states he recommends approval of the applicant's application to appeal the QMP Selection Board results and his request for retention on active duty.

	b.  Numerous letters of support and character-reference statements recommend his retention in the Regular Army and expunction of the GOMOR from his OMPF.

	c.  Six noncommissioned officer evaluation reports covering the periods ending 31 May 2010, 31 May 2011, 31 January 2012, 20 July 2012, 20 July 2013, and 20 July 2014 show he was consistently rated "Among the Best" in overall potential for promotion and/or service in positions of greater responsibility by his rater and "Successful-1" in overall performance and "Superior-1" in overall potential for promotion and/or service in positions of greater responsibility by his senior rater.

9.  In addition, he provided a memorandum from the Director, Enlisted Personnel Management, U.S. Army Human Resources Command, dated 27 July 2015, which states:

	a.  Army policy identifies that only cases with material error, newly-discovered evidence, or the subsequent removal of documents from the Soldier's Army Military Human Resource Record are eligible for QMP appeal.  Army G-1 has identified that these requests will be validated in accordance with the rules established by Army Regulation 600-8-19 (Enlisted Promotions and Reductions), section IV, paragraph 4-13.

	b.  His appeal did not meet the criteria set forth in the aforementioned regulation and is therefore denied.

10.  On 8 April 2015, he submitted a request to the Department of the Army Suitability Evaluation Board (DASEB) to remove the GOMOR from his OMPF.  In summary, he stated:

* he maintains the GOMOR is untrue and unjust
* his performance as a Soldier and the support he receives from his unit and chain of command warrants retention
* he was pulled over without cause
* he was the victim of an erroneous arrest for driving while intoxicated
* the erroneous nature of the arrest and the court's decision to dismiss the charge was not considered when the GOMOR was issued
* the arresting officer was forced to resign due to serious misconduct
* the arresting officer was subsequently convicted for extorting a Honolulu establishment and for participating in an elaborate scheme to sell stolen cars
* he described his military performance, service, and accomplishments

11.  On 9 July 2015, the DASEB voted to deny his request.  The DASEB determined the evidence presented did not clearly and convincingly establish that the GOMOR was untrue or unjust.  The DASEB therefore determined the overall merits of his case did not warrant the requested relief.

12.  A review of the performance folder of his OMPF in the integrated Personnel Electronic Records Management System (iPERMS) revealed a copy of the GOMOR in question.

13.  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.  It states the purpose of the OMPF is to preserve permanent documents pertaining to enlistment, appointment, duty stations, assignments, training, qualifications, performance, awards, medals, disciplinary actions, insurance, emergency data, separation, retirement, casualty, administrative remarks, and any other personnel actions.

14.  Army Regulation 600-8-104, appendix B (Documents Authorized for Filing in the Army Military Human Resource Record and/or iPERMS), and the U.S. Army Human Resources Command website provide a listing of documents authorized for filing in iPERMS.  These sources state to file letters of reprimand, censure, or admonition in the performance folder unless directed otherwise by the DASEB.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was issued a GOMOR on 24 April 2014 for misconduct by driving while intoxicated on 14 February 2014.

2.  He contends the GOMOR should be removed from his OMPF because:

* it is based on unfounded, unsubstantiated, and incomplete documentation
* his improper arrest was dismissed in civil court
* the arresting officer was corrupt

3.  He contends he was pulled over without cause; however, the evidence shows he was stopped by the Honolulu Police Department at a sobriety checkpoint where police detected a strong odor of an alcoholic beverage emitting from his breath.

4.  Although his civil traffic court case was dismissed without prejudice on 16 May 2014, this information was cited for consideration in his rebuttal to the GOMOR on the same date.  After considering all matters in rebuttal, the commanding general directed filing the GOMOR in his OMPF.

5.  The governing regulation states administrative letters of reprimand will be filed in the performance folder of the OMPF unless directed otherwise by the DASEB.

6.  His remaining contentions and the supporting documentation were carefully considered.  However, since there is no evidence indicating the GOMOR was improperly imposed and the GOMOR is properly filed in the performance folder of his OMPF, there is an insufficient evidentiary basis for granting his 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)                                         AR20150013853



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ABCMR Record of Proceedings (cont)                                         AR20150013853



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