BOARD DATE: 14 January 2014 DOCKET NUMBER: AR20130019363 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests the transfer of a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) and general officer memorandum of reprimand (GOMOR) to the restricted folder of his Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File). 2. He states he was negatively impacted by the following as a result of one incident of driving under the influence (DUI) of alcohol: * receipt of an Article 15 and a GOMOR filed in his records * 2 months of a reduction in his pay by half * receipt of a referred officer evaluation report (OER) * suspension of his U.S. Army Europe (USAREUR) motor vehicle operator's license for 1 year which required him to rely on public transportation * a heavy increase in his car insurance * a passover for promotion to captain/O-3 * the loss of confidence of his peers and superiors 3. He states that since the incident he has: * received an Army Achievement Medal (AAM) for saving the life of a local national who had a seizure in a restaurant * received an Army Commendation Medal (ARCOM) for being the officer in charge (OIC) of Expert Field Medical Badge testing for USAREUR * received an "above the zone" OER rating from his brigade commander as one of his best company-grade officers * referred himself to the Behavioral Health Clinic to help him better deal with personal and family issues (a divorce and loss of custody of his children) * worked directly with the Army Substance Abuse Program (ASAP) to found an Alcoholics Anonymous (AA) chapter in Bamberg, Germany, and now leads sessions * volunteered as a CrossFit trainer free of charge for Soldiers stationed at Bamberg, Germany 4. He states many superior officers have told him that his punishment was too harsh due to the timing of the incident and pressure from higher-ups. He requests consideration of everything he has done and everything he has yet to give to the Army. He knows he made a mistake and was rightly punished for his actions. He knows he can recover and still give a lot to the Army. He has many commendations and awards and this incident is the only time in his over 10-year military career that he has made a gross error in judgment. 5. He provides: * Department of the Army Suitability Evaluation Board (DASEB) Docket Number AR20130010100 Record of Proceedings and associated documents * 13 memoranda of support * Officer Record Brief * two DA Forms 67-9 (OER) * AAM Certificate * ARCOM Certificate CONSIDERATION OF EVIDENCE: 1. On 26 June 2002, the applicant enlisted in the Regular Army and continued his service through two reenlistments. Effective 1 November 2006, he was promoted to staff sergeant. 2. On 16 June 2008, he extended his enlistment to meet the retention requirements for participation in the Green to Gold Program. Following a period of service in the U.S. Army Reserve as a Reserve Officers' Training Corps cadet, he executed the oath of office as an Regular Army second lieutenant in the Medical Service Corps on 7 May 2010. 3. On 20 October 2011, Headquarters, U.S. Army Human Resources Command, Fort Knox, KY, issued Order Number 293-026 promoting him to first lieutenant effective 22 November 2011. 4. On 2 April 2012, he received nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for physically controlling a car while drunk at or near Bamberg, Germany, on or about 5 February 2012. The imposing authority, a colonel, directed punishment consisting of forfeiture of $2,255 per month for 2 months and directed filing the DA Form 2627 documenting the NJP in the performance folder of the applicant's AMHRR. The applicant appealed the punishment and his appeal was denied. The DA Form 2627 documenting the NJP is filed in the performance folder of his AMHRR. 5. On 13 April 2012, Major General B____, Deputy Commanding General, 7th U.S. Army Joint Multinational Training Command, reprimanded the applicant for operating a motor vehicle on a public road while drunk. The reprimand was imposed as an administrative measure and not as punishment under Article 15, UCMJ. In the GOMOR, the imposing authority stated: * on 5 February 2012, the Polizei (German police) stopped the applicant's vehicle as he was weaving in and out of traffic without using turning signals * the Polizei detected an odor of alcohol emitting from his person and a blood test resulted in a reading of 0.168 milligrams of alcohol per 100 milliliters of blood * the applicant had driven while his blood-alcohol content exceeded the limit imposed by the UCMJ * the applicant's decision to drive showed a gross lack of judgment compounded by the fact that he almost caused two accidents by his erratic driving * the applicant made the decision to drive drunk without concern for his safety or the safety of others * the applicant failed to make an adequate plan to get home after drinking to excess * he questioned whether someone with the bad judgment, poor planning skills, and indifference toward the well-being of others should be entrusted with the responsibility to lead Soldiers in the future 6. On 27 April 2012, the applicant acknowledged receipt of the GOMOR and elected to submit documents or statements in his behalf. 7. The records indicate the applicant submitted a letter of support from an ASAP Counselor, U.S. Army Garrison Bamberg, dated 6 April 2012, in response to the GOMOR. The ASAP Counselor stated the applicant had been referred to ASAP following an alcohol-related incident and that, in hindsight, the applicant understood he made an unwise decision. During clinical assessment, he accepted full responsibility for his actions and determined he was going to use his experience as a teaching tool to help other Soldiers. He cleaned up an AA room that had been unused for over a year, gathered the literature needed to help him get started, selected a time for AA meetings when Soldiers would be available, and edited the existing AA flyer to one younger Soldiers would identify with. She stated his efforts worked and she believed he turned his bad decision into an opportunity to make a difference. 8. On 29 June 2012, the GOMOR imposing authority directed filing the GOMOR in the applicant's AMHRR. The GOMOR is filed in the performance folder of the applicant's AMHRR. 9. The applicant's OER for the rating period ending 22 May 2012 shows the report was referred to him and he indicated he did not wish to make comments. In Part Iva (Army Values), his rater marked the "No" box for Integrity and the "Yes" box for all other items. In the space provided for rater comments on performance, his rater noted the applicant failed to live up to Army values by driving while intoxicated, but had learned his lesson, taken corrective action, and continued to perform above his peers. In the space provided for his senior rater's comments on performance/potential, his senior rater noted the DUI incident and stated the applicant had overcome the mistake and should be given the opportunity to continue as an Army officer. 10. OER's for rating periods ending 22 December 2012 an 4 September 2013 show he received ratings of "Outstanding Performance, Must Promote" from his rater (the brigade deputy commander) and ratings of "best qualified" from his senior rater (the brigade commander). 11. On 27 August 2013, the President, DASEB, notified the Commander, U.S. Army Human Resources Command, that the DASEB had voted to deny transfer of the Article 15 and GOMOR to the restricted folder of the applicant's AMHRR. 12. The applicant provided 13 memoranda of support commending his duty performance, intelligence, and talent. The memoranda state, in effect, that his DUI incident was out of character and was an isolated incident from which he has learned a lesson that he has used to help others. Several of the memoranda state, in effect, that he should be allowed to continue his career based on his overall performance. 13. The applicant also provided: * an AAM Certificate showing he received the award for his actions on 7 September 2012 when he stabilized a restaurant customer who was suffering from a seizure * an ARCOM Certificate showing he received the award for his service and performance while serving as the Land Navigation OIC for the Fiscal Year 2012 USAREUR Expert Field Medical Badge testing 14. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice. Chapter 3 states NJP is imposed to correct misconduct as a result of intentional disregard of or failure to comply with prescribed standards of military conduct in violation of the UCMJ. NJP may be set aside or removed upon a determination that under all the circumstances of the case, a clear injustice has resulted. a. Paragraph 3-6 addresses filing of NJP and provides that a commander's decision whether to file a record of NJP in the performance folder of a Soldier's AMHRR is as important as the decision relating to the imposition of NJP itself. In making a filing determination, the imposing commander must carefully weigh the interests of the Soldier's career against those of the Army to produce and advance only the most qualified personnel for positions of leadership, trust, and responsibility. In this regard, the imposing commander should consider the Soldier's age, grade, total service (with particular attention to the Soldier's recent performance and past misconduct), and whether the Soldier has more than one record of NJP directed for filing in the restricted folder. However, the interests of the Army are compelling when the record of NJP reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, or evidence of serious character deficiency or substantial breach of military discipline. In such cases, the record should be filed in the performance folder. b. Paragraph 3-37b(1)(a) states the decision to file the original DA Form 2627 in the performance or restricted folders in the AMHRR will be made by the imposing commander at the time NJP is imposed. The filing decision of the imposing commander is subject to review by superior authority. For Soldiers in the ranks of sergeant and above, the original will be sent to the appropriate custodian for filing in the AMHRR. 15. The Manual for Courts-Martial (MCM) states that, in the case of the operation or control of a vehicle, aircraft, or vessel outside the United States, the applicable blood-alcohol content limit is 0.10 grams of alcohol per 100 milliliters of blood. The MCM states authorized punishments for officers under Article 15, UCMJ, include forfeiture of not more than one-half of 1 month's pay per month for 2 months. 16. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual AMHRR's; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual AMHRR's; and ensure that the best interests of both the Army and Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from AMHRR's. This regulation provides that letters of reprimand and records of NJP may be transferred upon proof that their intended purpose has been served or that their transfer would be in the best interest of the Army. DISCUSSION AND CONCLUSIONS: 1. The applicant had nearly 10 years of military service at the time of his DUI incident. While his records show he has performed well in his duties as an officer since the incident and has made an effort to use the lessons he learned to help others, his performance alone is insufficient to overcome the fact that he committed and was caught in an act that all Soldiers know will not be tolerated. His misconduct warranted the NJP and GOMOR he received and the effects of these documents are a natural outcome of his misconduct. 2. The available evidence shows the GOMOR and NJP he received accurately describe his misconduct. He provided no substantive evidence to support his contention that his punishment was too harsh. The NJP he received was within the authority of the imposing commander. Further, the evidence supports the decisions to file the GOMOR and DA Form 2627 in the performance folder of his AMHRR. a. Regarding the NJP, by driving while his blood-alcohol content was well above the limit established in the MCM, he could have harmed himself or others, which shows a lack of integrity. Therefore, the interests of the Army are compelling and the filing of the DA Form 2627 in the performance folder of the AMHRR is required. b. Regarding the GOMOR, it was imposed less than 2 years ago and there is insufficient evidence to show it has served its intended purpose. Considering the seriousness of his offense against his length of service, transfer of the GOMOR to the restricted folder of his AMHRR is not in the best interest of the Army at this time. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __X____ __X______ ___X_____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _________X________________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20130019363 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130019363 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1