MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  31 August 2000
	DOCKET NUMBER:  AR2000040528

	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. Carl W. S. Chun		Director	
	Mr. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler 		Chairperson	
	Ms. Barbara J. Ellis 		Member	
	Mr. Joe R. Schroeder 		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 a GOMOR (General Officer Memorandum of Reprimand), dated 14 July 1998 be removed from his OMPF (Official Military Personnel File).

APPLICANT STATES:  That, the GOMOR references an incident of which he was innocent of any wrongdoing. He was found “not guilty” in court of all charges. The GOMOR specifically states that he was “impaired by alcohol” and “fled the scene”.  The GOMOR is not only incorrect, it is based purely on accusation but also it is written as if it were fact.  The GOMOR, because it is in his OMPF, has already caused him to overturn a bar under the QMP (Qualitative Management Program) and holds him back from promotion.  He provides four memorandums of support – all addressed to the Enlisted Records and Evaluation Center, for appeal of a bar to reenlistment.

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

On 26 June 1998, the applicant was cited by civil authorities for operating a motor vehicle while impaired by alcohol; crashing into a fence; fleeing the scene of the accident; and, refusing a breathalyzer (Blood Alcohol Test) (BAT), once he was arrested.  

On 14 July 1998, the applicant was issued a GOMOR for flagrant disregard for the law and safety of fellow soldiers and the general public.

On 22 July 1998, the applicant petitioned the general officer that wrote the GOMOR to withdraw it; however, it was returned without action.  He indicated “On 26 June 1998, I committed a grave error in judgment for which I was charged with Driving while Impaired.  In making this error, I have embarrassed not only myself but the Special Forces community“.  He indicated that he had total respect for the law, which was why he immediately paid for the property damage for which he caused.

The applicant petitioned the Department of the Army Suitability Evaluation Board (DASEB) to withdraw it; however, it was denied.

The DASEB opined that the applicant has not provided clear and convincing evidence that he was not drinking and driving at the time of the incident nor has he provided evidence that he did not refuse a BAT.  In his rebuttal, he admits that he was at fault and that he was involved in an alcohol related incident.  The fact that the court found him not guilty of DWI (driving while intoxicated) is not adequate proof to overturn his administrative reprimand.  There is insufficient evidence to justify transfer to the restricted fiche at this time. 

On 24 April 2000, the DASEB opinion was furnished to the applicant for his acknowledgment/rebuttal.

On 20 May 2000, the applicant responded to the DASEB opinion. 

Army Regulation 190-5 provides that officers and NCO's will be issued an administrative LOR for alcohol related driving incidents in the following circumstances: When there is a conviction for driving while intoxicated or driving under the influence of alcohol or drugs; a refusal to take a properly requested blood, urine or breath test; when the individual was driving or in physical control of a vehicle on post with a BAC of .10 or off post with a BAC in violation of State law, irrespective of other charges; or driving or in physical control of a vehicle when a lawfully requested test reflected the presence of other drugs.

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, it is concluded:

1.  The GOMOR was issued for flagrant disregard for the law and safety of fellow soldiers and the general public and the applicant admitted that he “committed a grave error in judgement” and that he “makes no excuses”.  He admits that he had paid for the property damage he caused.  The GOMOR appears administratively correct and issued in accordance with pertinent regulations, and there is no reason to remove it from his records.  He has not shown otherwise. 

2.  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 this requirement.

3.  There is no error or injustice in the applicant’s records.

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:

_sc___  ___be_____  __js____  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000040528	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000831	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.100	GOMOR	
2.		
3.		
4.		
5.		
6.