PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           23 July 2002
	DOCKET NUMBER:   AR2002073126

	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. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Hubert O. Fry, Jr.		Member	
	Ms. Gail J. Wire		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 his general officer memorandum of reprimand (GOMOR) dated 15 January 1997 and associated documents be expunged from his Official Military Personnel File (OMPF) or moved to his restricted fiche.  He also requests Standby Advisory Board (STAB) consideration for promotion to Sergeant First Class, E-7 under the 2002 board criteria.

3.  The applicant states the alleged charge was dismissed by the civil authorities. His appeal of his Headquarters, Department of the Army (HQDA) bar to reenlistment under the Qualitative Management Program (QMP) was approved.  Expunging this GOMOR will allow him the opportunity to excel in his career and compete with his peers for promotion.  He provides three letters of support dated 4 March, 18 April, and 23 April 2002; the court document showing his case was dismissed without prejudice; the Department of the Army Suitability Evaluation Board (DASEB) packet; and his HQDA QMP bar to reenlistment appeal packet as supporting evidence.

4.  The applicant’s military records show that he enlisted in the Regular Army on 5 December 1986.  He was promoted to Staff Sergeant, E-6 on 1 May 1996.

5.  On 15 January 1997, the applicant was issued a GOMOR for being apprehended for driving under the influence of alcohol on 31 December 1996 at Fort Myer, VA.  His blood alcohol content had registered at 0.12 percent.  He submitted a statement in his own behalf.  He offered his apology for the embarrassment he placed on his command and noted that his recent infraction of driving while under the influence was unprofessional and unbecoming a noncommissioned officer.  The poor judgment he displayed on that day brought shame to the noncommissioned officer corps.  He stated that this was the first, and it would be the last, derogatory act he will have committed.  On 14 February 1997, the appropriate authority directed the GOMOR be filed in his OMPF.

6.  On 14 March 1997, the charge of driving while intoxicated was dismissed without prejudice by the civil court.

7.  The applicant rebutted the GOMOR to the DASEB on 4 January 1999.  He contended that the offense was unfounded (dismissed without prejudice) and that the infraction was in no way a direct reflection of his 12 years of faithful and unblemished service.  He had provided a letter from the legal assistance counsel who argued that the reason the case was dismissed was “due to an incorrect calibration of the Breathalyzer machine.”  The DASEB contacted counsel and advised him that written proof from the court as to why the case was dismissed was required.  The DASEB noted that multiple calls to counsel’s office produced no additional evidence.  (A 5 March 1999 letter from counsel to the DASEB, attached to the HQDA QMP appeal packet, noted that counsel made numerous attempts to acquire the applicant’s file regarding this matter. A Special Assistant U. S. Attorney informed him that the file may or may not still exist but he could not locate it.  The Fort Myer Military Police stated they had no record of the incident).  

8.  The DASEB noted that the applicant’s case was dismissed “without prejudice,” which meant the court could rehear the case if desired.  This fact indicated to the DASEB that the Judge was not absolutely convinced the applicant was not guilty and there was no clear and convincing evidence to support the claim that the Breathalyzer was not functioning properly.  The DASEB noted that in the applicant’s rebuttal to the GOMOR he admitted he caused an embarrassment to the command and displayed poor judgment on that day.  The DASEB believed that the applicant’s comments made it clear that he was drinking and driving, which formed the underlying basis for the reprimand.  With regards to transferring the GOMOR, the DASEB noted that the applicant’s noncommissioned officer evaluation report (NCOER) covering the period of the incident referred to an off-duty alcohol-related incident and he did not appeal the NCOER.  The DASEB noted that NCOERs subsequent to the incident were average.  By memorandum dated 31 August 1999, the DASEB voted to deny the removal/transfer of the GOMOR.  This memorandum was filed on the applicant’s OMPF along with the GOMOR.

9.  By letter dated 31 August 2000, the applicant was notified that he had been selected for a HQDA QMP bar to reenlistment.  The notification cited the GOMOR and the NCOER that referred to the incident as the basis for the action. He appealed the QMP.  His appeal was approved on 9 April 2001.  

10.  The applicant’s NCOER for the period ending October 1999 shows that his rater gave him three excellence and two success ratings in NCO responsibilities, an among the best rating for promotion potential, and his senior rater rated his overall performance and potential for promotion as 1/1.  His NCOER for the period ending October 2000 shows that his rater gave him two excellence and three success ratings in NCO responsibilities, an among the best rating for promotion potential, and his senior rater rated his overall performance and potential for promotion as 2/1.  His NCOER for the period ending March 2001 shows that his rater gave him two excellence and three success ratings in NCO responsibilities, an among the best rating for promotion potential, and his senior rater rated his overall performance and potential for promotion as 1/1.  His NCOER for the period ending August 2001 shows that his rater gave him two excellence and three success ratings in NCO responsibilities, an among the best rating for promotion potential, and his senior rater rated his overall performance and potential for promotion as 1/1.  His NCOER for the period ending February 2002 shows that his rater gave him three excellence and two success ratings in NCO responsibilities, an among the best rating for promotion potential, and his senior rater rated his overall performance and potential for promotion as 1/1.

11.  Army Regulation 600-37 sets forth policy and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, and ensure that the best interest of both the Army and the soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.  In pertinent part, it states that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Only letters of reprimand, admonition or censure may be the subject of an appeal for transfer to the restricted fiche.  Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer will be in the best interest of the Army.  The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met.  

12.  Army Regulation 600-8-19 prescribes the enlisted promotions and reductions function of the military personnel system.  Chapter 4 provides that a case may be referred to a STAB upon determining that a material error exists.  Error is considered material when there is a reasonable chance that had the error not existed the soldier may have been selected.

CONCLUSIONS:

1.  The Board agrees with the DASEB’s contention that there was no clear and convincing evidence to support the claim that the applicant’s case was dismissed by the court because the Breathalyzer was not functioning properly.  There is no clear and convincing evidence submitted with this application, either.  As also noted by the DASEB, his case was dismissed “without prejudice,” which meant the court could rehear the case if desired.  This indicates to the Board, as it did to the DASEB, that the Judge was not absolutely convinced the applicant was not guilty.  The applicant provides no explanation as to why, if his case was dismissed in March 1997 because the Breathalyzer was not functioning properly and he did nothing wrong (in the way of overindulging in alcohol and then driving), he did not appeal either the GOMOR or the NCOER, or both, immediately, when the evidence which may have supported his claim presumably would have still been available.  

2.  It does not appear to the Board that the GOMOR was unjustly issued or filed on the applicant’s OMPF.  

3.  However, it appears to the Board that the GOMOR’s intended purpose has been served and that its transfer will be in the best interest of the Army.  It has been five years since the GOMOR was issued, the applicant has had no further record of indiscipline, and his NCOERs indicate that he is an above average soldier.  It would be equitable and within regulatory guidance to transfer the GOMOR and related documents to the applicant’s restricted fiche at this time.
4.  Nevertheless, since this decision is based only on intent served and there was no material error in the applicant’s records (it appears to the Board that the GOMOR was properly issued and filed), the applicant is not eligible for promotion reconsideration to E-7 by a STAB.

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by transferring the GOMOR issued to the applicant on 15 January 1997, with all related endorsements and enclosures, and the 31 August 1999 DASEB memorandum denying his appeal of the GOMOR to his restricted fiche.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

___JLP__  __HOF__  __GJW__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Jennifer L. Prater ___
		        CHAIRPERSON

INDEX

CASE ID	AR2002073126	
SUFFIX		
RECON		
DATE BOARDED	2002/07/23	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	PARTIAL GRANT	
REVIEW AUTHORITY		
ISSUES         1.	134.04	
2.	131.1100	
3.		
4.		
5.		
6.