PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:            26 September 2000
	DOCKET NUMBER:    AR2000035774

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

	Mr. Carl W. S. Chun		Director	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Thomas F. Baxter		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that a General Officer Memorandum of Reprimand (GOMOR), dated 16 June 1998, be removed from his Official Military Personnel File (OMPF).

3.  The applicant states, in effect, that the Justice Court, Temple Precinct, Maricopa County, Arizona found him not guilty of the allegations on which the GOMOR was based.  He submits a Department of the Army Suitability Evaluation Board (DASEB) appeal for removal or transfer of the GOMOR; a DASEB decision; Arizona State Court decisions dated 28 August 1998 and 
12 October 1999; and a memorandum from the Department of the Army Enlisted Standby Advisory Board (STAB).  He also submits memoranda written in his behalf by his attorney, his commander, previous commanders, and various other members of his chain of command. 

4.  The available records show that on 3 August 1989 the applicant enlisted in the Regular Army and has continued to serve for more than 11 years through a series of continuous reenlistments.  He is currently a sergeant first class (SFC), pay grade E-7, serving in military occupational specialty (MOS) 18D (Special Forces Medical Sergeant). 

5.  On 28 December 1997, the applicant departed Japan on casual leave enroute to Washington, DC to attend military training.  Apparently, while enroute to Washington, on 1 January 1998, a Maricopa County sheriff stopped him as a result of improper lane usage.  Upon approaching the applicant’s vehicle, the sheriff noticed a strong smell of alcohol and was suspicious that the applicant may have been driving while intoxicated (DWI).  He admitted that he had consumed two beers and he failed a field sobriety test and two consecutive Breathalyzer tests 1.78 and 1.76 (1.0 is considered legally drunk).

6.  On 16 June 1998, an administrative GOMOR was tendered to the applicant by the commanding general (CG), US Army Military District of Washington, Fort Lesley J. McNair, Washington, for DWI on 1 January 1998.  The GOMOR stated that DWI was a serious breach of acceptable conduct, he had showed a callous disregard for potential injury to others and damage to property.  Additionally, the GOMOR stated that he had demonstrated a lack of discipline and good judgement, both of which are qualities expected of noncommissioned officers in the United States Army.  The CG stated that he was considering filing the GOMOR in his OMPF.  The applicant had 5 days to submit a rebuttal.  The rebuttal and the final filing instructions are not contained in the available records. 

7.  Due to the applicant’s unit designation, there is a DA Form 1613 (Cross Reference) in his OMPF to indicate that the GOMOR is filed off line in a limited access file.  Most likely the rebuttal/filing instructions are filed off-line and are to be considered an integral part of the GOMOR action.

8.  On 13 August 1998, the applicant was assigned to Fort Lewis, Washington. 

9.  On 28 August 1998, the Justice Court, Temple Precinct, Maricopa County, found the applicant not guilty of driving while under the influence (DUI) and not guilty of having a blood alcohol level that would indicate that he was legally drunk.  He was only found guilty of unsafe lane usage and he was fined $80.00.

10.  On 30 September 1998, Headquarters, Department of the Army (HQDA) notified the applicant that he had been identified for removal from the SFC Promotion List that recessed on 27 June 1997.

11.  On 22 February 1999, a STAB retained the applicant on the promotion list and his promotion was backdated to 1 July 1998.

12.  On 15 September 1999, the DASEB concluded that since the applicant admitted that he had consumed alcohol, he had not provided clear convincing evidence that demonstrated he had not been drinking and driving at the time of the incident.  The fact that the judge found him not guilty of DWI was not adequate proof to overturn the GOMOR.  Further, the GOMOR had not served its intended purpose.

13.  On 27 September 1999, the DASEB issued a memorandum to the applicant, subject:  Resolution of Unfavorable Information, which informed him of the denial of request for transfer of the GOMOR.

14.  On 12 October 1999, the Justice Court, Temple Precinct, Maricopa County issued the applicant a letter that stated that the court found the Breathalyzer tests to be unreliable and that the prosecution had failed to prove that his movements were impaired.  This decision resulted in the applicant’s acquittal of driving under the influence or above the legal alcohol limit.  This statement showing that the Breathalyzer tests were unreliable was not presented to the DASEB that denied his request for removal of the GOMOR.  

15.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) prescribes the policies governing the OMPF, the Military Personnel Records Jacket, the Career Management Individual Files, and Army Personnel Qualification Records.  Paragraph 2-4 of this regulation states that once a document is placed in the OMPF, it becomes a permanent part of that file.  That paragraph provides for appeals for transfer/removal of the GOMOR by this Board or by certain other Departmental agencies, to include the DASEB.

16.  Army Regulation 600-37 prescribes policies and procedures regarding unfavorable information considered for inclusion in OMPF’s.  Chapter 3 covers unfavorable information in OMPF’s.  Paragraph 3-4 applies to filing of nonpunitive administrative letters of reprimand or censure in OMPF’s.  Paragraph 
3-4(b) states that a letter, regardless of the issuing authority may be filed in the 
OMPF maintained by the PERSCOM, or the proper State Adjutant (for Army National Guard Personnel) only upon the order of a general officer having court-martial jurisdiction over the individual.  Letters filed in the OMPF will be filed on the performance fiche (P-fiche).  The direction for filing in the OMPF will be contained in an endorsement or addendum to the letter.

CONCLUSIONS:

1.   The 16 June 1998 GOMOR was properly imposed as an administrative measure and was properly filed in accordance with applicable regulations.

2.  Even though the applicant admitted to having consumed two beers prior to being stopped as a result of improper lane usage, without a valid sobriety/Breathalyzer test there is no evidence to show that he was DWI.

3.  The basis for the GOMOR was that the applicant was DWI.  Since he was found to be not guilty of DWI and that the Breathalizer tests were invalid, the continued existence of the GOMOR in his OMPF, to include the rebuttal/ correspondence concerning filing of the GOMOR, the memorandum, subject: Resolution of Unfavorable Information, dated 27 September 1999 from the DASEB and all paper copies of the GOMOR filed off line would be unfair to him.  They should be expunged.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all Department of the Army records related to this case be corrected by expunging the 16 June 1998 GOMOR, to include all copies filed off line, the rebuttal/filing instructions of the GOMOR, the memorandum, subject:  Resolution of Unfavorable Information, dated 27 September 1999 and the DA Form 
1613 from the OMPF of the individual concerned.

2.  That, following completion of the administrative correction directed herein, the proceedings of the Board and all documents related to the subject GOMOR be returned to the Board for permanent filing.

BOARD VOTE:  

__aao___  __mhm__  __tfb____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Arthur A. Omartian__
		        CHAIRPERSON

INDEX

CASE ID	AR2000035774	
SUFFIX		
RECON		
DATE BOARDED	20000926	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	134.0000	
2.		
3.		
4.		
5.		
6.