MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  23 January 2001
	DOCKET NUMBER:  AR2000044595

	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. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Thomas E. O’Shaughnessy		Member	
	Mr. Walter T. Morrison		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 General Officer Memorandum of Reprimand (GOMOR) and related documents be expunged from his record.

APPLICANT STATES:  In effect, that on 3 June 1998, he celebrated the completion of Command and General Staff College at Fort Leavenworth, at a night club in the city of Leavenworth, Kansas.  When he left the club at 0100 hours, he realized that he was not in condition to drive his vehicle, a pick up truck, so he decided to sleep it off on the bench seat of his truck.  He had put his keys in the ignition, but had not turned on the vehicle.  He was awoken in his truck by a city policeman at about 0445 hours.  The policeman noticed the strong odor of alcohol and gave him a sobriety test and a breathalyzer test which showed 1.41% blood alcohol level.  He was charged with Driving Under the Influence (DUI) and spent 8 hours in jail awaiting disposition.  He contends that he did not operate his vehicle while under the influence of alcohol and was not driving under the influence (DUI).  On 11 June 1998, he appeared before the city attorney to pay the requisite fees and sign the diversion agreement.  The city attorney reviewed the charges and circumstances of the incident and determined that the applicant had acted responsibly in not operating his vehicle and had broken no laws.  The charges were dropped and the case closed.  The city attorney provided a letter to this effect.  The applicant contends that the subsequent GOMOR was unjust since he was not guilty of DUI and had acted responsibly in not driving and choosing to sleep off the effects of the alcohol he had consumed.

COUNSEL CONTENDS:  In effect, that the issue of the GOMOR is a disproportionate response to an incident in which the applicant acted commendably and did not violate any law.  He argues that to issue a GOMOR under such circumstances is unjust, unfair, and “flat wrong”.  The counsel points out that the applicant was: 1) legally parked in a private, free parking lot in front of the club; 2) had his pickup truck in “park” gear; 3) never started the truck or even moved it after he left the club; 4) had the keys in the ignition but never started the engine; 5) was lying down across the seat of the cab when a city policemen noticed him; 6) was in a decent and respectable part of town; 7) entered and left the club alone; 8) was a gentleman while at the club; 9) and the city attorney determined that no crime had been committed, dropped the charges, and closed the case.  The imposition of a GOMOR in the OMPF that will terminate a 14 year career is disproportionate to this incident of minor consequence.  The action of the city attorney of dropping the charges is proof that the applicant’s actions did not give the appearance of DUI.  In fact, the city attorney complimented the applicant for his good judgement.  The issue of the GOMOR is a case of overkill.

The counsel further contends that the issue of the GOMOR is disproportionate and unfair for the following reasons: 1) the applicant’s acts were not criminal; 

2) he committed no offense, did not break any laws, and was not in control of the vehicle as determined by civil law; 3) the applicant has been reprimanded for his good judgement; 4) as to use of the GOMOR in terms of deterrence, the next individual placed in such a dilemma could well take a chance on driving since one will be “hanged” for not driving as well as for driving under the influence; 
5) facts in the GOMOR are wrong where it states numerous times that the applicant was in a car when in fact he was in a truck cab, a significant distinction under the law and the Uniform Code of Military Justice; 6) the logic for the GOMOR is faulty in that under the same logic, a person could receive a GOMOR for wisely pulling over and sleeping in his vehicle when too fatigued to drive safely; 7) there was little or no military connection or nexus while the applicant was off post in an off duty status and committed no offense; 8) his immediate superior at CGSC agreed that the offense did not justify a GOMOR; and 9) no entries were made on his academic evaluation report related to the incident.

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

That he, a major, was attending Command and General Staff College (CGSC) at Fort Leavenworth, Kansas and had completed the course on or about 3 June 1998.  On 4 June 1998, he was confined by civil authority for DUI for approximately 8 hours after which he was released.  On 11 June 1998, the civil authority dropped the DUI charge finding no basis for it and closed the case.

On 19 June 1998, the Fort Leavenworth general officer issued the applicant a GOMOR for creating the appearance of DUI and for the unprofessional conduct of being intoxicated outside a local bar at 0500 in the morning.  The applicant submitted a rebuttal to the GOMOR contending that he was not DUI, that he had acted responsibly, and requested that the GOMOR be filed in his local file.  His academic counselor and evaluator, a lieutenant colonel, stated that the applicant was an outstanding officer and he recommended that he was “worth saving.”  
On 13 July 1998, the general officer directed that the GOMOR be filed in the applicant’s Official Military Personnel File (OMPF).

On 25 August 1999, the applicant appealed to the Department of the Army Suitability Evaluation Board (DASEB) for removal of the GOMOR from his OMPF.  On 22 December 1999, the DASEB determined that the GOMOR had served its intended purpose and transferred the GOMOR to the applicant’s OMPF restricted fiche.  The DASEB could not grant full relief of expunging the GOMOR from the OMPF since the DASEB stated that it did not have such authority but referred the applicant to this Board for that consideration.  The applicant’s current OMPF performance fiche shows no evidence of this incident.  The GOMOR and all such evidence is recorded on the applicant’s OMPF 

restricted fiche.  His academic evaluation report for CGSC makes no mention of the incident and shows that he achieved course standards.  His two subsequent Officer Evaluation Reports are above center of mass reports with ratings as best qualified and outstanding performance, must promote.

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.  There is no question that the applicant was not DUI under the law or the UCMJ since no military or civilian disciplinary action was taken for that offense.  The GOMOR recognizes this fact.  The GOMOR charges the applicant with unprofessional conduct of a field grade officer giving the appearance of DUI and being intoxicated outside a local bar at nearly 0500 in the morning slumped over in his car (or asleep as the applicant asserts).  The counsel and the applicant contend that he used good judgement choosing not to drive in an intoxicated condition demonstrating good professional conduct.  Counsel also contends that the incident happened off duty, off base, and had little if any bearing on the military.  It is the considered opinion of this Board that any conduct of an officer on or off duty has significant and direct bearing on the reputation of the Army and the officer corps.  Professional conduct in this case would have been for the applicant to call for a cab or to call a friend or classmate to drive him to his residence, either of which would have been possible with the proximity of the city of Leavenworth to Fort Leavenworth.  The applicant’s blood alcohol content of 1.41% at 0500 in the morning suggests that his blood alcohol would have been significantly higher at 0100 when he left the club.  This demonstrates an unprofessional lack of alcohol consumption discipline and prudent conduct expected of an officer.

2.  The technical error in the GOMOR of referring to the applicant’s vehicle as a car instead of a truck does not invalidate the GOMOR since it deals with the unprofessional conduct and appearance and is not a military justice or judicial action for DUI.

3.  The GOMOR has been moved to the applicant’s OMPF restricted fiche by the DASEB on the basis that the GOMOR had served its purpose.  The DASEB decision does not imply that the GOMOR was unjust, unfair, or inaccurate.  It is the conclusion of this Board that the GOMOR was correct, just, and fair considering the applicant’s unprofessional conduct but that the GOMOR has served its purpose and was properly moved to the applicant’s OMPF restricted fiche.  The Board finds no basis on which to expunge the GOMOR from the OMPF. 

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

__ls____  ___to__  ___wm_____  DENY APPLICATION

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

INDEX

CASE ID	AR2000044595	
SUFFIX		
RECON		
DATE BOARDED	20010123	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.123.07	GOMOR Removal	
2.		
3.		
4.		
5.		
6.