MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           25 SEPTEMBER 2003                   
	DOCKET NUMBER:  AR2003085680

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Linda D. Simmons		Member	
	Ms. Regan K. Smith		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 10 May 1999 General Officer Memorandum of Reprimand (GOMOR) be removed from his Official Military Personnel Records (OMPF).  

APPLICANT STATES:  The GOMOR was issued to him before his civil case was adjudicated.  Ultimately, he was found not guilty in civilian court of driving under the influence (DUI) of alcohol.  DUI charges were dismissed.  He was found guilty of reckless driving.

While on temporary duty at Fort Benning, Georgia, he was pulled over by military police on 9 May 1999 because he allegedly crossed over the road's yellow line.  He submitted to a field breath analyzer test and was told that it registered under the limit.  He submitted to two more tests at the MP (Military Police) station and was told that he was over the legal limit.  The Fort Benning post commander issued him a reprimand for DUI.  In his rebuttal he asked that officer to delay his filing determination until his case went to trial; however, the post commander denied his request.  He returned to his home unit at Fort Carson, Colorado.  He hired a civilian attorney, and on 29 June 1999 pled guilty in absentia to improper lane use and reckless driving.  He was never convicted of DUI.  

He transferred to Korea in 1999 with the belief that the GOMOR had been rescinded.  He learned otherwise.  In September 2002 he appealed to the Department of the Army Suitability Evaluation Board (DASEB).  The DASEB denied his petition.  The filing decision of the Fort Benning post commander was premature based on the fact that he had not been adjudged guilty in court.  

The applicant provides letters of support from members of his chain of command and from an Army colonel, who at that time was the Deputy Chief of Staff at Fort Carson, who inquired why his case was decided in such haste. 

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

The applicant enlisted in the Army on 13 January 1987 and has remained on continuous active duty.  He was promoted to staff sergeant on 18 June 1997.  His NCO evaluation reports indicate that his rating officials considered him to be an outstanding soldier.

A 9 May 1999 military police report shows that the applicant was stopped by military police at Fort Benning because he crossed over the center line of the road several times.  He was administered and failed a field sobriety test.  He was apprehended and taken to the military police station and administered a breath test, processed, and released to his unit.

On 10 May 1999 the Commander of the Fort Benning Infantry Center issued the applicant a memorandum of reprimand for driving under the influence of alcohol.
In his rebuttal thereto, the applicant stated that the infraction was the first time that he had been in trouble with the law, and that he hoped that his one mistake would not destroy all that he had worked for.  He requested that the letter [of reprimand] not be sent forward until he had been convicted in a court of law, and that if he was not convicted, it be dismissed.

In a 21 May 1999 recommendation, the applicant's commander stated that the applicant had admitted to having an alcohol problem in the past.  He recommended that the memorandum of reprimand be filed in the applicant's OMPF.  His battalion commander stated that the applicant suffered from alcohol abuse.  Both he and his brigade commander recommended that the memorandum be filed in the applicant's OMPF.  On 3 June 1999 the Infantry Center Commander directed that the memorandum of reprimand be permanently filed in the applicant's OMPF.

On 29 June 1999 the applicant pled nolo contendere to reckless driving and improper lane use on 9 May 1999 in the United Stated District Court, Middle District of Georgia, Columbus Division.  

In a 13 November 2002 letter to a legal assistance division officer at Fort Carson, an attorney stated that he represented the applicant in a DUI and improper lane change charge, and that he had noticed several mistakes that the military police made when he stopped the applicant, to include improper testing procedures under state law.  He stated that if the applicant could have returned to the Columbus area, he would have been acquitted.  He stated that he was able to secure a reduced charge against the applicant.  The applicant pled nolo contendere because he could not return to Columbus.  He stated that at no time did the applicant enter the plea because he felt that he was guilty.

On 6 September 2002 the applicant petitioned the DASEB, requesting that the GOMOR be removed from his OMPF.  He stated that the basis on which the reprimand was issued was proven invalid.  Thus, the GOMOR was unjust and untrue.  He stated that the filing of the reprimand condemned him before the state of Georgia determined his ultimate innocence.

The DASEB denied the applicant's appeal, stating that there was no statement of support provided by the imposing authority or from anyone else in his previous chain of command.  The DASEB noted that the applicant admitted to the misconduct as a mistake, and that he let people down.  That board also indicated that the applicant did not accept responsibility for his misconduct, nor did he indicate remorse in his appeal statement.  

Army Regulation 600-37 sets forth the basic authority for the filing of unfavorable information in the OMPF, and provides, in pertinent part, that a nonpunitive letter of reprimand or admonition would be filed in the OMPF only when directed by a general officer senior to the recipient or by direction of the officer having general court-martial jurisdiction over the recipient.

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.  Notwithstanding the applicant's contentions, he has provided no evidence that the 10 May 1999 memorandum of reprimand was unfair or unjust.  The applicant himself, in his rebuttal to the memorandum of reprimand, admitted to his wrongdoing.  Only after his case was judged in civil court, in which he pled nolo contendere to the charge of reckless driving and improper lane change, did he determine that he was innocent of DUI. 

2.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

3.  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 that requirement.
   
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

__JNS __  __LDS __  __RKS __  DENY APPLICATION

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

INDEX

CASE ID	AR2003085680	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030925	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	134.00	
2.		
3.		
4.		
5.		
6.