RECORD OF PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:           3 February 2004                  
	DOCKET NUMBER:   AR2003089408

	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	
	Mr. Joseph A. Adriance 		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Ms. Regan K. Smith		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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests, in effect, that a General Officer Memorandum of Reprimand (GOMOR) be removed from his Official Military Personnel File (OMPF), or moved from the performance portion (P-Fiche) to the restricted portion (R-Fiche) of his OMPF.  

2.  The applicant states, in effect, that since receiving the GOMOR he has been placed back on track by his chain of command, allowed to complete the Command and General Staff College (CGSC), and transferred to a divisional unit where he has served for 24 months in the most demanding of branch qualifying positions (Battalion Executive Officer) as a Major.  He states that his understanding is that his chain of command, to include the general officer who issued the GOMOR, believed that he would overcome this event and be placed back into the system to remain competitive and serve as a continued asset to the Army.  

3.  The applicant claims that he finds himself more humbled each day as he struggles to recover from this episode in his life.  He also finds himself perplexed by the fact the Army has invested tremendous resources to fully qualify him as a Major only to deny him the opportunity to advance and serve at the next useful level.  He is further perplexed at the fact that the Department of the Army Suitability Evaluation Board (DASEB) suggested his past performance did not warrant approval.  He claims to have always been given the toughest assignments and has done well.  He indicates that he has consistently placed in the upper third of his year group.  

4.  The applicant states that, as he explained to his chain of command at the time, the incident was dismissed effectively removing it from occurrence.  For this reason, he was placed back into service by his leaders.  He states that he does not object to the GOMOR remaining in the R-Fiche; however, given that civil authorities have agreed to dismissal, by these documents remaining in his 
P-Fiche he is assigned guilt by the military which effectively places him in a double jeopardy dilemma that eliminates any opportunity to recover.  He claims that at the very worst, he risks being “show caused” for further service due to the inclusion of these documents in the P-Fiche.  He requests that the Board consider his service, the fact that unfortunate incident was dismissed, and the amount of suffering both he and his family have endured over the past few years while trying their best to overcome the incident.  He states that as his unit prepares to once again deploy in support of Operation Enduring Freedom, he hopes and prays for a favorable outcome.

5.  The applicant provides a civilian court order of dismissal, dated 16 August 2001, in support of his application.  
CONSIDERATION OF EVIDENCE: 

1.  The applicant’s military records show that he served on active duty in an enlisted status for three years from 14 September 1982 through 13 September 1985.  He was commissioned a second lieutenant and reentered active duty in November 1989, and as of the date of his application to the Board, he was still serving on active duty in an officer status and holds the rank of major. 

2.  On 27 December 2000, the applicant received a GOMOR from the commanding general of the United States Army Combined Arms Center (USACAC) and Fort Leavenworth, Fort Leavenworth, Kansas.  He was reprimanded for driving under the influence (DUI) of alcohol.  The GOMOR indicates the applicant was stopped by Leavenworth police on 14 December 2000, for driving left of the center line in order to drive around a police road block established to protect snow removal personnel.  The applicant failed a field sobriety test and a portable breathalyzer test.  He was subsequently determined to have an alcohol content of .127, which exceeded the State of Kansas legal limit of .08.  

3.  On 1 January 2001, the applicant acknowledged receipt of the GOMOR and indicated that he read and understood the unfavorable information presented against him.  He also indicated that he understood that he could submit statements or documents in his own behalf through his chain of command.  

4.  On 10 January 2001, the applicant submitted a memorandum he categorized as an apology rather than a rebuttal.  He indicated that he accepted full responsibility for his actions and recognized the significance of the event.  He stated that he had attended a birthday party on his behalf with fellow CGSC students and lost track of the amount of alcohol he had consumed.  He indicated that he had been reluctant to attend the party to begin with, but decided to attend in order to not seem unfriendly or unsociable.  He claims that toward the end of the evening, he was prepared to call for a Taxi, but was asked for a ride home by a colleague who suggested that he was fine.  In a lapse of judgment while in an impaired state, he made the wrong decision.  This ultimately resulted in the most embarrassing event of his life.  He claimed this was not an excuse, but rather an explanation of the events.  He concluded by stating that in the past, he always made it a point  to drink infrequently and on occasions when he did drink, he never drove even after having had only one drink.  He also indicated that he had enrolled in an alcohol education program, apologized to his colleagues for the embarrassment and would serve as a volunteer in the Mothers Against Drunk Driving (MADD) program in the near future.  He concluded by indicating that he accepted the consequences deemed necessary by the command.  

5.  On 22 January 2001, the commanding general of the USACAC, after having considered the documents supporting the applicant’s reprimand and the circumstances of the case as well as alternative nonpunitive measures, determined that the GOMOR should be permanently filed in the applicant’s OMPF. 

6.  The applicant provides a copy of an Order for Dismissal, dated 16 August 2001, issued by the Leavenworth City/County Probation Office, Leavenworth, Kansas.  This document indicates that he was granted a court diversion on 
15 February 2001, in reference to charges of DUI.  It further states that the applicant had completed all terms of diversion and requested that the court dismiss the charges.  The Diversion Officer concurred that the court should dismiss the charges.  The Order of Dismissal was approved by the Municipal Court Judge.  

7.  On 16 January 2003, the applicant petitioned the DASEB for relief from the GOMOR and associated documents filed in the P-Fiche of his OMPF because the GOMOR had served its purpose.  He indicated that the alleged offense was dismissed on 16 August 2001, as a result of his completion of the county’s DUI diversionary requirements.  He further indicated that at the time of the incident he was under extraordinary mental duress and anguish due to an ongoing investigation of professional improprieties unrelated to the DUI incident, which was subsequently resolved in his favor.  

8.  On 13 March 2003, after considering all the evidence, the gravity of the misconduct, and the short period of time (approximately 2 years) since the action, the DASEB was not convinced that the incident was only a one-time mistake.  It further stated that the continued strong duty performance by the applicant with no further act of misconduct over time would be more convincing evidence that the GOMOR had served its intended purpose and that it would be in the interest of the Army to transfer the GOMOR.  

9.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files.  Paragraph 7-2 (Policies and Standards) states, in pertinent part, 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.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. 

10.  Army Regulation 15-185 prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  It provides for the correction of military records in cases where there is clear evidence that the record is in error or unjust.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s arguments supporting his contention that the GOMOR on file should be removed from or transferred the R-Fiche of his OMPF were carefully considered.  However, the factors he raises do not provide a sufficient evidentiary basis to support the requested relief.  

2.  The evidence of record includes an Order of Dismissal from civilian authorities that dismissed the DUI charge against the applicant based on his completion of the county’s diversionary program requirements.  However, this dismissal action 
did not go to the validity of the original charge or that would indicate that the applicant was improperly or unfairly charged.  To the contrary, in written explanations he provided during the GOMOR process, the applicant has admitted to driving in an impaired state as a result of alcohol he consumed at a party.  As a result, there is no evidence to show any error or injustice related to the original issue of the GOMOR or with its filing in the OMPF.  

3.  The evidence of record further shows that the DASEB, who has the Departmental authority to act on these cases, found that insufficient time has passed to support a conclusion that the applicant’s misconduct was a one-time mistake.  As a result, the DASEB concluded that there was insufficient evidence to show the GOMOR has served its intended purpose.  Therefore, it denied the applicant’s request to transfer the GOMOR to the R-Fiche of his OMPF. 

4.  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.  It is noted that although the applicant indicates that his chain of command supports his request, no letters of support from members of his chain of command were provided with his application.  Lacking evidence that shows an error or injustice related to the original DUI charge, or to the GOMOR process, there is an insufficient basis for this Board to substitute its judgment for that of the properly constituted DASEB.  

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_RKS___  __SAC___  __CLG__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

		Samuel A. Crumpler
		   CHAIRPERSON

INDEX

CASE ID	AR2003089408	
SUFFIX		
RECON		
DATE BOARDED	2004/02/03	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  280	126.0300	
2.		
3.		
4.		
5.		
6.