APPLICANT REQUESTS:  That the general officer letter of reprimand he received in December 1992 for driving while intoxicated be removed from his Official Military Personnel File (OMPF).

APPLICANT STATES:  In effect, the letter of reprimand was written before any facts or verdicts were known about the case.  It was sent to Department of the Army (DA) on 4 January 1993; all charges were dropped against him on             5 January 1993.  The DA Suitability and Evaluation Board (DASEB) elected not to remove the letter of reprimand.  That is unjust.  (However, the DASEB action the applicant attaches concerns a letter of reprimand he received in January 1998.  He did appeal to the DASEB for removal of the 1992 letter, but the DASEB denied his request on 3 November 1993).

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

After 4 years of prior enlisted service, the applicant was ordered to active duty on 17 June 1988 in pay grade 0-3 in specialty 62A, Emergency Medicine Intern.  He was promoted to Major on 19 June 1992.

On 27 November 1992, the applicant was stopped by a member of the local sheriff’s office because he failed to dim his headlights for oncoming traffic..  Upon approaching the vehicle, the officer identified him as the operator and detected an odor of alcohol emitting from his breath.  He administered a field sobriety test, which the applicant failed.  He was arrested and at the station he was administered, and failed, a breath alcohol test.

On 14 December 1992, the commanding general gave the applicant a letter of reprimand for the incident.  The applicant responded to the letter in part:  “In all my military experience, my service record has been exemplary.  I have never had any type of alcohol related incident. …As chief resident…I expected junior residents to make mistakes, but I would not tolerate the same mistake twice.  I understand that field grade officers are not expected to make mistakes.  It happens, however, and when it does, the penalty is severe.   “

On 4 January 1993, the commanding general considered the applicant’s statement and determined the letter of reprimand should be permanently filed in his OMPF.

On 5 January 1993, the prosecuting attorney’s office elected not to proceed with prosecution.  The reasons are not given, but the Deputy Commander for Clinical Services, in supporting the applicant in his request for removal of this letter, noted that it may have had to do with the devices used to measure breath and blood alcohol levels not being properly calibrated.

Army Regulation 27-10 provides that the officer imposing non-judicial punishment, to include written letters of reprimand, was to determine whether the non-judicial punishment was to be filed on the individual’s restricted or performance fiche.  In making a filing determination, he must weigh carefully the interests of the soldier’s career against those of the Army to produce and advance only the most qualified personnel for positions of leadership, trust and responsibility.  In this regard, the imposing commander should consider the soldier’s age, grade, total service and the fact that the filing decision is not subject to direct appeal.  The interests of the Army are compelling when the record of non-judicial punishment reflects …substantial breach of military discipline.  In such cases, the record should be filed in the performance fiche.

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.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The fact that the local prosecutor chose to forego prosecution, for whatever reason, is not an indicator that the applicant did not drive while intoxicated.  It may only mean that the prosecutor felt his office could not prove the case beyond a reasonable doubt and so did not want to spend public time, money and effort on the case.

3.  In the applicant’s response to the commanding general’s letter of reprimand, he did not deny he had been driving while intoxicated.  By stating, “…field grade officers are not expected to make mistakes.   It happens, however…” he gives the impression that he admits to that particular mistake.

4.  Given the Army’s long-time policy of zero tolerance for driving while intoxicated offenses and the applicant’s grade and years of experience in the Army, the filing instructions for the letter of reprimand were and still are appropriate.

5.  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

						Loren G. Harrell
						Director