APPLICANT REQUESTS:  The removal from his Official Military Personnel File (OMPF) of a memorandum of reprimand (MOR) issued to him by a general officer on 19 May 1996.  

APPLICANT STATES:  That he received the LOR for driving under the influence prior to his being heard in a court of law.  He further states that he was found not guilty of the offense by civil authorities but was punished by the military.  He goes on to state that he was informed by his unit that the MOR would be filed in his local unit records and was never informed that it would be filed in his OMPF.  He also states that he did not feel that he was afforded the proper time to seek counsel as he was transferred to another unit within 1 week and prior to being found innocent of the charge.  He continues by stating that he was unaware of the presence of the MOR until he received a copy of his OMPF.  In support of his application he submits a copy of his reassignment orders and a copy of a document from the police department indicating the punishment he received for the offenses for which he was charged.    

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

On 16 May 1996, while serving in the pay grade of E-5, the applicant received a general officer MOR based on his being apprehended by civilian police on 12 May 1996 and after being administered a breathalyzer test indicating 0.15 grams of alcohol per 100 milliliters of blood, being cited for driving under the influence (DUI), laying drag, and reckless driving.  The imposing officer informed the applicant that it was his intent to file the MOR in the applicant’s OMPF; however, he would consider any matters submitted by the applicant prior to making his final decision.

The applicant acknowledged receipt of the MOR and his company and battalion commander recommended that the MOR be filed in his local records.  However, the brigade commander recommended that the MOR be filed in the applicant’s OMPF.

On 26 June 1996 the imposing authority directed that the MOR be filed in the applicant’s OMPF.  Accordingly, it was filed on the performance fiche of his OMPF.  The distribution of the decision to file the MOR in the applicant’s OMPF indicates that a copy was provided to the individual concerned as well as his chain of command.

The reassignment orders provided by the applicant with his application dated 16 May 1996 indicates that he was transferred to Fort Bragg, North Carolina, with a report date of 28 June 1996.  Based on the amount of leave taken by the applicant combined with authorized travel time, it appears that the applicant departed Fort Stewart, Georgia on 3 June 1996.

The document from the police department provided by the applicant indicates that he pled guilty to the charges of reckless driving and laying drags and pled not guilty to DUI.  He was fined $1,259.00 for reckless driving and his fine for laying drags was suspended.  There is no indication of any fine for the DUI offense.

On 10 June 1997 the applicant submitted an appeal to remove the MOR from his OMPF to the Department of the Army Suitability Evaluation Board (DASEB).  The DASEB opined that the applicant was afforded the opportunity to submit a statement in his own behalf regarding the imposition and filing of the MOR and elected not to do so.  Furthermore, the applicant was aware that the filing decision was pending when he departed his duty station and could have inquired about the outcome when he arrived at his next duty station if he did not receive his copy of the filing decision within a reasonable amount of time.  The OSRB further opined that the document provided by the applicant did not find him not guilty of the offense of DUI and the applicant did not submit evidence to show that he was not driving under the influence or that the breathalyzer test administered to him was inaccurate.  The DASEB denied his request on 21 August 1997.

Army Regulation 600-8-104 sets forth the basic authority for filing of documents in the OMPF.  It provides in pertinent part, that a nonpunitive nature will be filed on the performance fiche of the OMPF only if the provisions of Army Regulation 600-37 had been complied with. 

Army Regulation 600-37 sets forth the basic authority for the filing of unfavorable information in the OMPF.  It states, in pertinent part that a MOR or admonition will be filed in the OMPF only when directed by a general officer senior to the recipient or by direction of the officer having general court-martial jurisdiction over the recipient.   

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

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement. 

2.  The administrative MOR was properly imposed as an administrative measure and was properly filed on the performance fiche of the OMPF in accordance with applicable regulations.

3.  The applicant’s contentions that he was found not guilty of the charge of DUI, that the MOR was unjustly imposed before his guilt was established, and that he was denied the opportunity to appeal the filing decision of the MOR appears to be without merit.  Not only did the MOR specify that he was being reprimanded for all three charges against him, there is no evidence to suggest that he was found not guilty of the charge of DUI or that the breathalyzer tests administered to him was flawed.  Furthermore, the MOR was properly referred to him for comment with the imposing authority’s intent to file the MOR in his OMPF.  Had the applicant been truly concerned he would have submitted matters in his own behalf at that time.

4.  The fact that the applicant departed his duty station before the imposing authority made his decision has no bearing on the outcome of the imposing authority’s decision nor the applicant’s right to submit an appeal of the MOR.  Therefore his argument has no merit.      

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

                       DENY APPLICATION

						Karl F. Schneider
						Acting Director