IN THE CASE OF: BOARD DATE: 3 May 2016 DOCKET NUMBER: AR20150011315 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 3 May 2016 DOCKET NUMBER: AR20150011315 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. IN THE CASE OF: BOARD DATE: 3 May 2016 DOCKET NUMBER: AR20150011315 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: * transfer of a General Officer Memorandum of Reprimand (GOMOR), dated 20 September 2012, to the restricted section of his official military personnel file (OMPF) * transfer of the Department of the Army Suitability Evaluation Board (DASEB) correspondence to the restricted section of his OMPF * expeditious processing of his application * a personal appearance before the Board 2. The applicant states, in effect: a. The Army Board for Correction of Military Records (ABCMR) should find by a preponderance of evidence that the filing of the GOMOR, dated 20 September 2012, is an injustice. b. This GOMOR should be transferred to the restricted section of his OMPF based on the substantiated evidence that is presented showing the GOMOR has served its intended purpose. c. The DASEB denied him relief and he has exhausted all his administrative remedies. d. The board that convened on 13 November 2014 unanimously recommended the transfer of the GOMOR to the restricted section of his OMPF. However, the Deputy Assistant Secretary of the Army (Review Boards) (DASA (RB)) rejected the board's decision and ordered the GOMOR retained in the performance section of his OMPF, alleging that he had not shown the intent of the GOMOR had been served or that it would be in the best interest of the Army to transfer it. e. His appeal to the ABCMR is based on the DASA's decision. He asserts that the GOMOR has served the intended purpose of punishment for a particular single incident. He was non-selected in 2013 and 2014 for promotion to sergeant first class/E-7. The Army also flagged him and prohibited him from deploying and accepting certain missions in 2012 and 2013. f. The purpose of the GOMOR is to punish a member for one incident, not nullify an otherwise extraordinary and stellar career. It is in the best interest of the Army to transfer the GOMOR to the restricted section of his OMPF, as he has a critical skill set, and his chain of command deemed him such a viable asset that he has acquired additional critical skills as a Counterintelligence Special Agent from his recent graduation of the coveted 20-week Advanced Foreign Counterintelligence Curriculum. Only a handful are selected Department of Defense (DOD) wide to attend this course. g. The GOMOR in his permanent file has served its originally intended purpose of punishment for his arrest for "driving under the influence (DUI) with blood alcohol contents levels of 15 and 16 percent (%)." Substantial proof is that the Army immediately flagged him for pending adverse action that prohibits attending all military schools, promotion consideration, receiving awards, suspension of security clearance, and denial of leave requests. During the flagged period, his unit denied him leave to attend a funeral for a childhood friend. He lost his privileges of driving on the base for more than 90 days. He has temporarily lost his access to classified information that is permanently annotated on his Security Clearance Adjudication record. h. The GOMOR cited a blood alcohol content; however, he was never administered a blood alcohol test. He was administered a breathalyzer examination which was thrown out due to credibility and reliability issues. The deputy's incident and arrest reports were also thrown out due to discrepancies between the cruiser dash camera recording and his statement. The State of Florida dismissed the charges and his criminal record was expunged. i. He attended the DOD-mandated Substance Abuse Screening and was found not to require treatment. He completed the Florida-mandated DUI education in November 2012. He also self-enrolled in a substance abuse counseling program which he completed in March 2013, after the State's Attorney issued the Nolle Prosequi (will not prosecute), in order to gain self-awareness and to impress upon his unit and the Army his commitment to self-care and improvement. j. He is currently under consideration by the Qualitative Management Program (QMP) board for possible denial of continued service as a result of this derogatory, but partially inaccurate information. If selected, he will be coded with a bar to reenlistment for all branches of the service, including the Reserves and National Guard with no retirement benefits. Transfer of the reprimand to the restricted section of his OMPF would allow him to appeal the QMP board’s decision in the event he is denied continued service, which would allow him to continue to provide the Army a valuable service and a return on their investment. k. Since 2012, he has been rated above his grade and received excellent leadership ratings, overall "Among the Best" ratings, and 1/1 senior ratings on two evaluations. His senior rater observed his unlimited potential and that he would be an asset to any organization as a senior noncommissioned officer (NCO). He has proven his military occupational specialty (MOS) expertise by flawlessly performing responsibilities normally assigned to a senior military intelligence warrant officer. He has also demonstrated his competence to his supervisors and unit leadership who have entrusted him with increased responsibilities and tasked him with demanding and complex assignments. l. The Army has spent a tremendous amount of money on training him, even after his GOMOR was issued. After the reprimand, he deployed to Afghanistan, earned awards and accolades, and graduated from coveted intelligence training. He has many good years to give back to the Army. 3. The applicant provides: * Enlisted Record Brief (two copies) * Refusal of Services Under Advisement of Area Defense Counsel memorandum * GOMOR and GOMOR filing memoranda * Level 1 Curriculum of Substance Abuse and Driving Education completion certificate * Nolle Prosequi * Addictions and Substance Abuse Program Certificate of Achievement * Alcohol and Drug Abuse Prevention and Treatment memorandum * letter from the Florida Department of Law Enforcement * Order to Expunge Records * two DASEB Record of Proceedings (ROP) and appeal documentation * DASA (RB) memorandum * six letters of support CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 26 October 2004 and he held MOS 35L (Counterintelligence Agent). He was promoted to the rank/grade of staff sergeant/E-6 on 1 March 2009. 2. He provides copies of the following: a. A Refusal of Services Under Advisement of Area Defense Counsel memorandum, dated 14 September 2012, in which he declined services from the Alcohol and Drug Abuse Prevention Treatment Program and elected to return to the program once all judicial proceedings had been completed. b. A GOMOR, dated 20 September 2012, issued for his lack of judgment and responsibility. The memorandum stated on 2 September 2012, he failed the field sobriety test administered to him and was subsequently arrested for DUI with a blood alcohol content level of .15% and .16%. c. A Response to the GOMOR memorandum, dated 25 September 2012, in which he stated that he accepted full responsibility for his poor judgment which led to his arrest. He also stated that he should not have elected to drive home after consuming alcoholic beverages and should have arranged a safe ride home. He requested the imposing officer file the reprimand in the local file. d. A GOMOR memorandum, dated 25 October 2012, in which the Commanding General directed the GOMOR be permanently filed in the applicant's OMPF. e. A Level 1 Curriculum of Substance Abuse and Driving Education completion certificate, dated 27 November 2012. f. An Nolle Prosequi, dated 28 January 2013, citing insufficient evidence to prove the charge against the applicant. g. An Addictions and Substance Abuse Program Certificate of Achievement, dated 19 March 2013. h. An Alcohol and Drug Abuse Prevention and Treatment memorandum, dated 24 April 2013, showing he successfully completed the alcohol and drug abuse prevention and treatment program on 11 June 2012. i. A letter, dated 6 September 2013, in which the Florida Department of Law Enforcement provided the applicant's law firm with a Certificate of Eligibility to file a petition in the court of proper jurisdiction for sealing or expunging the applicant's records. j. An Order to Expunge Records, dated 4 October 2013, expunging his arrest records. k. A DASEB ROP, dated 13 November 2014, in which the DASEB recommended partial relief by transferring the GOMOR to the restricted section of his OMPF. The DASEB determined the overall merits of the case did not warrant removal of the GOMOR. l. A memorandum, dated 22 January 2015, in which the DASA (RB) rejected the DASEB's decision to transfer the GOMOR and to retain it in the performance section of the applicant's OMPF. The DASA (RB) opined that the applicant's behavior violated Army regulations, policies, protocols, and he had not shown, by substantial evidence, that the intent of the GOMOR had been served or that it would be in the best interest of the Army to transfer it. m. A DASEB ROP, dated 7 May 2015, in which the board determined there was insufficient evidence to grant him relief. n. Six letters of support, dated between 15 and 24 June 2015, in which the applicant's superiors recommended removal of the GOMOR from the applicant's OMPF in order for him to continue his career. REFERENCE: 1. 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. It ensures that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files and ensures that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. It states unfavorable information that should be filed in official personnel files includes indications of substandard leadership ability, promotion potential, morals, and integrity. The regulation states: a. An administrative memorandum of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the Soldier. The memorandum must be referred to the recipient and the referral must include and list applicable portions of investigations, reports, or other documents that serve as a basis for the reprimand. Statements or other evidence furnished by the recipient must be reviewed and considered before filing determination is made. b. A memorandum of reprimand may be filed in a Soldier's OMPF only upon the order of a general officer-level authority and is to be filed in the performance section. The direction for filing is to be contained in an endorsement or addendum to the memorandum. If the reprimand is to be filed in the OMPF, the recipient's submissions are to be attached. Once filed in the OMPF, the reprimand and associated documents are permanent unless removed in accordance with Army Regulation 600-37, chapter 7. c. Only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted section of the OMPF. Such documents may be appealed based on proof that their intended purpose has been served and that their transfer would 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. If an appeal is denied, a copy of the letter of notification regarding this outcome will be placed in the commendatory and disciplinary portion of the performance record. The appeal is placed in the restricted section of the OMPF. 2. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes the policies governing the OMPF and its composition. This regulation states that once a document is placed in the OMPF it becomes a permanent part of that record and will not be removed from or moved to another folder unless directed by the proper authorities listed in the regulation. Table B-1 states a memorandum of reprimand is filed in the performance section of the OMPF unless directed otherwise by an appropriate authority (DASEB or ABCMR). 3. Title 10, U.S. Code, section 1552(a) (1), states the Secretary of a military department may correct any military record of the Secretary's department when the Secretary considers it necessary to correct an error or remove an injustice. Except as provided in paragraph (2), such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that military department, (3) Corrections under this section shall be made under procedures established by the Secretary concerned. In the case of the Secretary of a military department, those procedures must be approved by the Secretary of Defense. 4. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The regulation states: a. ABCMR members will review all applications that are properly before them to determine the existence of error or injustice. If persuaded that material error or injustice exists and that sufficient evidence exists on the record, direct or recommend changes in military records to correct the error or injustice. b. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing (personal appearance) whenever justice requires. DISCUSSION AND CONCLUSIONS: 1. With respect to transfer of the GOMOR to the restricted section of the OMPF, the evidence shows: a. On 20 September 2012, he was issued a GOMOR for his lack of judgment and responsibility after failing a sobriety test and his subsequent arrest for a DUI. The GOMOR does not state he was charged with or received a DUI, it simply stated that he was arrested for DUI. He submitted a rebuttal stating he accepted full responsibility for his poor judgment. Since he did not state he was not guilty of a DUI, which served as a basis for the GOMOR, it is a reasonable inference that he was acknowledging that he was DUI. b. He petitioned the DASEB for removal and/or transfer of the GOMOR basing his appeal on the fact that the intent of the GOMOR had been served. After careful consideration of the evidence submitted, the DASEB recommended the GOMOR be transferred to the restricted section of his OMPF. The DASEB determined the overall merit did not warrant removal of the GOMOR. On 22 January 2015, the DASA (RB) rejected the DASEB's recommendation citing the applicant's behavior violated Army regulations, policies, and protocols. c. Driving under the influence of alcohol is an extremely serious offense. In this case, the GOMOR states the applicant’s actions reveal a serious demonstration of misjudgment on his part. It appears this incident could have resulted in more serious and tragic events had he not been apprehended by local authorities for DUI. His actions did not exhibit the self-discipline one would reasonably expect from an NCO, performing above standards, with over 8 years of service. d. The fact that a civilian court dismissed the charge against him and expunged his arrest records is neither evidence of his innocence nor evidence that the GOMOR is inaccurate. The standard of proof for conviction in a civilian court is not the same as that required to justify imposition of a GOMOR. e. Notwithstanding his contentions and given the misconduct occurred while he was serving in his current grade and at his current level of responsibility, it is not clear the intended purpose of the GOMOR has been served. By his own admission, after the reprimand, he temporarily lost access to classified information, deployed to Afghanistan, received overall "Among the Best" ratings, earned awards and accolades, and graduated from coveted intelligence training. f. Absent evidence of an error or injustice related to the imposition of the GOMOR, there is an insufficient evidentiary basis to support granting the requested relief. 2. With respect to the transfer of the DASEB correspondence to the restricted section of his OMPF, by regulatory guidance, when an appeal is denied a copy of the letter of notification regarding this outcome is filed in the commendatory and disciplinary portion of the performance record. The appeal is filed in the restricted section of the OMPF. 3. With respect to his request for a personal appearance before the Board, by regulation, an applicant is not entitled to a hearing before the Board. A panel of the Board or the Director of the ABCMR may authorize personal appearance before the Board. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011315 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011315 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2