BOARD DATE: 5 January 2017 DOCKET NUMBER: AR20150018215 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 BOARD DATE: 5 January 2017 DOCKET NUMBER: AR20150018215 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. BOARD DATE: 5 January 2017 DOCKET NUMBER: AR20150018215 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 removal of a general officer memorandum of reprimand (GOMOR), dated 1 April 2002, from his Official Military Personnel File (OMPF). 2. The applicant states the GOMOR was issued to him prior to his court date. He was informed that if he were found innocent of the charge, the GOMOR would be removed; however, it has mistakenly remained in his OMPF. The charges against him were dropped by the State of North Carolina due to his innocence. He is attaching a court record of his driving privileges and requests removal of all documentation pertaining to this event from his OMPF. 3. The applicant provides a North Carolina Division of Motor Vehicles Remote Driver License System Interface Driving Record, dated 8 October 2015. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 29 October 1998. He is currently serving as a staff sergeant stationed at Camp Ederle, Italy. 2. On 1 April 2002, the Commanding General, 82d Airborne Division, issued a GOMOR to the applicant for driving while impaired on 3 March 2002. A breathalyzer test administered at the time of his arrest established his blood alcohol content as .13 percent. a. The GOMOR-imposing authority stated there was no excuse for his extremely irresponsible and improper behavior. Clearly, his actions fell below the minimum standards expected of Soldiers. b. The GOMOR was imposed as an administrative measure and not as nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice. He was advised that the GOMOR-imposing authority intended to direct filing the GOMOR in his OMPF. c. He was further advised he had the right to submit matters in his behalf and that his response or rebuttal to the GOMOR must arrive within 7 days of receipt of the memorandum. 3. He acknowledged receipt of the GOMOR on 1 May 2002, having read and understood the unfavorable information presented against him, and submitted a statement in his behalf. He stated he had a tentative civilian court date of 6 June 2002. He attended a substance abuse class in Cumberland County, North Carolina, and intended to volunteer for a 40-hour substance abuse class in order to reduce his charges if offered by the court. 4. On 1 May 2002, his company commander and battalion commander recommended filing the GOMOR in his OMPF. 5. On 22 July 2002 after reviewing the case file, the filing recommendations of the applicant's chain of command, and the applicant's statement, the GOMOR-imposing authority directed permanently filing the GOMOR in the applicant's OMPF. 6. He appealed to the Department of the Army Suitability Evaluation Board (DASEB) on 27 April 2009 for transfer of the GOMOR to the restricted folder of his OMPF. On 17 September 2009, the DASEB determined the evidence submitted, to include the length of time since the incident, his stellar performance since the GOMOR, and two promotions, was sufficient to warrant transfer of the GOMOR from the performance folder to the restricted folder of his OMPF. 7. The GOMOR is currently filed in the restricted folder of his OMPF. 8. He provided a copy of his North Carolina driving record, dated 8 October 2015, showing he received a 30-day civil revocation of his driver's license imposed on 3 March 2002, and he received limited driving privileges beginning on 13 March 2002 with no ending date. The 30-day civil revocation of his driver's license was suspended on 15 April 2002. REFERENCES: 1. Army Regulation 600-37 (Unfavorable Information) provides that 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 a filing determination is made. a. 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 folder. 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 chapter 7. b. Paragraph 7-2 provides 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. c. Only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder of the OMPF. Such documents may be appealed on the basis of 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. 2. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the OMPF. Table B-1 states a memorandum of reprimand is filed in the performance folder of the OMPF unless directed otherwise by an appropriate authority (DASEB or the Army Board for Correction of Military Records). DISCUSSION: 1. The applicant's records indicate he was arrested for driving under the influence of alcohol. He claims the charges against him were dropped by the State of North Carolina due to his innocence. However, his North Carolina driving record shows his driver's license was revoked for 30 days, he was given limited driving privileges, and the 30-day revocation was suspended at approximately the 30-day mark. 2. He was issued a GOMOR for driving while impaired by the Commanding General, 82d Airborne Division, to which he provided a rebuttal in which he stated he attended substance abuse classes and intended to attend more in hopes of a reduced sentence. His company commander and battalion commander both recommended filing the GOMOR in his OMPF. After a review of the case, the statement he made in his behalf, and his chain of command's recommendations, the GOMOR-issuing authority used the discretion afforded his position and authority to direct its permanent placement in the performance folder of the applicant's OMPF. 3. He appealed to the DASEB for transfer of the GOMOR to the restricted folder of his OMPF. The DASEB reviewed the evidence and deemed it appropriate to transfer the GOMOR to his restricted folder based on his performance and length of time since issuance of the GOMOR. 4. The governing regulation provides 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018215 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018215 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2