MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            29 April 1999
	DOCKET NUMBER:   AC98-11138
                                              AR1998014481

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. Michael L. Engle		Analyst	

  The following members, a quorum, were present:

	Ms. Ann M. Campbell		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. Cristopher J. Prosser		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                            records
	Exhibit B - Military Personnel Records (including
	                 advisory opinion, if any)

APPLICANT REQUESTS:  That the general officer memorandum of reprimand (GOMOR) dated 29 March 1995 and other documents relating to it be removed from his official military personnel file (OMPF).

APPLICANT STATES:  That he has exhausted all administrative remedies, yet this GOMOR remains in his OMPF.  The basis for the GOMOR was an isolated incident on 26 March 1995 when he was wrongfully charged with driving under the influence.  As a result he was barred from reenlistment under the Department of the Army Qualitative Management Program (QMP).  He contends that he successfully appealed this bar, which was based solely on the GOMOR, and now wants the GOMOR removed from his OMPF.

EVIDENCE OF RECORD:  The applicant's military records show:

At the time he submitted his application he was serving on active duty in the rank of staff sergeant.

On 29 March 1995 the applicant received a GOMOR for driving left of the center line, failing a field sobriety test and refusing to take a breathalyzer test on 
26 March 1995.  He had been stopped by the military police (MP) at Fort Bragg, North Carolina.  The GOMOR was an administrative action and was not imposed as punishment under the Uniform Code of Military Justice.

On 16 April 1996 the applicant was barred from reenlistment under the QMP solely on the  basis of the above-mentioned GOMOR.  On 24 June 1996 the applicant submitted his appeal based upon alleged inaccuracies in the MP’s statements, a lack of credible evidence, and a lack of breathalyzer results.

On 21 October 1996 the Commander, United States Army Enlisted Records and Evaluation Center approved the applicant’s appeal and moved the QMP action to the Restricted portion of his OMPF.

In the processing of this case, a staff advisory opinion was obtained from the Department of the Army suitability Evaluation Board (DASEB) and was forwarded to the applicant, along with a copy of the DASEB case summary, for comment on 30 December 1998.  As of this date, no response has been received.  

The DASEB found that the applicant had submitted no clear or convincing evidence to support his allegations.  Also, the applicant’s chain of command’s favorable endorsements of his QMP appeal were intended to support his retainability and not to confirm or deny the events of the incident.  DASEB stated that documents properly filed in the Performance portion of the OMPF may, under the appeal process, be removed or transferred to the the Restricted portion.  Removing documents is possible when it can be shown that the documents are untrue or unjust, in whole or in part, thereby warranting its alteration or removal.  Transferring documents from the Performance portion of the OMPF to the Restricted portion is possible when it can be shown that the intended purpose has been served, and/or its transfer is in the best interest of the Army. 

The DASEB concluded that the applicant has submitted insufficient evidence to overcome the presumption of regularity for removal; however, the evidence indicated that the GOMOR has served its intended purpose and it was in the best interest of the Army to transfer the documents to the Restricted portion of the OMPF.  The DASEB was persuaded that the applicant’s otherwise unblemished record and the passage of time supported a transfer of the documents.

Subsequently, the DASEB notified the Commander, United States Army Enlisted Records and Evaluation Center to transfer the GOMOR from the Performance to the Restricted portion of the applicant’s OMPF and at the same time informed the applicant of that action.     

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The GOMOR was properly administered in accordance with applicable regulations and properly filed in the Performance section of the applicant’s OMPF.  There is no evidence of any violation of any of the applicant’s rights.

2.  While the applicant did successfully appeal his QMP, which was based solely on the GOMOR, he has submitted no evidence disputing the issues addressed in the GOMOR.  The Board is inclined to agree with the DASEB in concluding that  his successful appeal of the QMP had more to do with his retention in the Army and less or nothing to do with whether there was sufficient evidence to refute the issues addressed in the GOMOR.  

3.  The Board finds no basis for completely removing the GOMOR from the applicant’s records.  It is of the opinion that the transfer of the GOMOR by the DASEB to the Restricted fiche, which is not routinely seen by selection boards was appropriate and relief beyond that is not warranted. 

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990428	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY 	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.