MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            15 February 2000                  
	DOCKET NUMBER:    AR1999024822

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Karol A. Kennedy		Member	
	Mr. Roger W. Able		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 his memorandum of reprimand (MOR) be moved to the restricted fische of his Official Military Personnel File (OMPF).

APPLICANT STATES:  That it has now been in his performance fische for over 3 years.  In that time he has been fulfilling greater duties and respondibilities and his dedication to the Army has never dwindled.

In support of his application he submits a copy of his Pennsylvania driving record which shows his licence expired on 20 April 1995.  It also shows that he was convicted for leaving the scene of an accident on 6 September 1988.  He also submits a letter from his attorney which informed him that the charge of driving under the influence of alcohol on Fort Genning on 16 September 1995 had been withdrawn by the U.S. Magistrate.  Also submitted is a memorandum from his commander in 1997 in which his commander stated that the applicant was charged with refusal to take a breathalyzer test but the charge was dismissed when he pled not guilty.  His commander recommended that personnel actions be taken on the applicant without regard to the MOR he was given for that incident.

EVIDENCE OF RECORD:  The applicant's military records were not provided to the Board.

In the processing of this case the Department of the Army Suitability Evaluation Board (DASEB) decisional summary was provided to this Board.  In that summary the DASEB stated that it did not find “the appellant’s plea of innocence makes the DUI statement in the GOMOR untrue or unjust.  The decisions rendered in civilian court binds neither the DASEB nor the imposing authority in their decision-making responsibilities.”  The DASEB concluded that the applicant had not submitted any evidence which would show he was not drinking alcoholic beverages on the night he was arrested nor had he submitted any evidence that he had taken any rehabilitative measures in regard to his consumption of alcoholic beverages.  The DASEB disapproved the applicant’s appeal.

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

1.  Unlike a court of law where the rules of evidence apply, an officer issuing an MOR must only have a reasonable belief that the soldier committed an offense.  As such, the dismissal of the DUI charge does not, in itself, invalidate the MOR.

2.  This Board will not recommend the removal of the MOR without evidence that the applicant was not drinking the night in question and did not refuse the breathalyzer test.

3.  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

_fne ____  _kak____  _rwa ____  DENY APPLICATION

Karl F. Schneider
Director, Army Review Board Agency

INDEX

CASE ID	AR1999024822	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000215	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	134.01	
2.		
3.		
4.		
5.		
6.