BOARD DATE: 30 May 2017 DOCKET NUMBER: AR20160002658 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: 30 May 2017 DOCKET NUMBER: AR20160002658 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: 30 May 2017 DOCKET NUMBER: AR20160002658 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, in effect: a. removal of a general officer memorandum of reprimand (GOMOR), dated 25 February 2010, and all allied documents from his Official Military Personnel File (OMPF) or transfer to the restricted folder of his OMPF; b. voidance of his honorable discharge from the Regular Army on 1 November 2015 and reinstatement; and c. any other action the Board deems just and proper. 2. The applicant states: a. He concedes there has been no technical violation of any regulation. He should not have been discharged and all references to the driving while impaired offense for which he was acquitted in court should be removed from his record or placed in his restricted folder. b. His discharge under the Qualitative Management Program (QMP) was unjust and unfair. The QMP failed to take into account his entire record, to include his acquittal in civil court and his past 5 years of excellent service. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests, in effect: a. voidance of the applicant's discharge and b. removal of the applicant's GOMOR, dated 25 February 2010, and all allied documents from his OMPF or transfer to the restricted folder of his OMPF. 2. Counsel states: a. The Merriam-Webster Dictionary defines injustice, inter alia, as "an act that inflicts undeserved hurt." The purpose of this petition is to put right a clear injustice. On 1 November 2015, the applicant was discharged from the Army after nearly 15 years of impeccable military service, ostensibly for a reprimand arising from an arrest which later resulted in a full acquittal in civilian court. Following his reprimand in February 2010, his military record reveals that he was consistently rated "Among the Best" noncommissioned officers (NCOs) in the Army. He was never relieved from his duties. He never lost his security clearance. Approximately 18 months after receiving the GOMOR, he was awarded a top secret security clearance which he maintained up to his discharge. He continued to receive important assignments, to include deployments to Belize, Peru, Guatemala, and Afghanistan. Aside from the reprimand, he has a perfect record. He has displayed absolute loyalty to the Army and trusted the Army would display the same loyalty to him. Unfortunately, this was not the case. Instead, he was confronted with a ruthless and draconian QMP process that demonstrated little concern for loyalty or justice. b. He was arrested for driving while impaired on 16 January 2010. He was stopped for driving in a well-lighted area without headlights and for not wearing his seatbelt. He was polite and cooperative with the officer and he followed the officer's instructions. Later in court, the arresting officer testified the applicant did well enough on his field sobriety test to cast doubt on whether he was even impaired. The only issue was the applicant's inability to provide a sufficient sample of air when attempting to complete the alcohol breath test. While this is recorded as a refusal, he did not refuse to take the test. Based on this evidence, the judge found the applicant not guilty of driving while impaired on 19 January 2011. c. The applicant has no conviction of driving while impaired and no criminal record. Most importantly, he continued to excel in his military duties. Despite the reprimand, during this same rating period his rater commented: "absolute integrity, set the example for personal conduct, knows and enforces what's right." His senior rater recommended him for promotion and commented: "unlimited potential; will perform well in any Special Operations NCO leadership position." After this evaluation, the applicant continued to excel and his follow-on evaluations consistently ranked him "Among the Best" in overall performance and potential. A lieutenant colonel and command sergeant major provided statements on behalf of the applicant to the Department of the Army Suitability Evaluation Board (DASEB). d. The evidence that the applicant's military performance was completely unaffected by the accusation of driving while impaired is indisputable. The Army continued to deploy him to sensitive missions and trusted him to instruct Special Forces trainees. He deployed to Afghanistan in 2012 and also deployed for sensitive missions in Central and South America. Over the past 5 years, there has never been a hint of an alcohol-related incident or drinking problem. He has not received a negative counseling. The Army saw fit to award him a top secret security clearance, an action that required an extensive background check and is indicative of the trust the Army had in him. He questions why the QMP saw fit to separate the applicant. This is an example of a myopic management system that continues to place form over substance and routinely singles out exceptional Soldiers in a callous and capricious manner. e. It is clear that the applicant did a poor job of protecting his own interests after being charged with driving while impaired. First, he foolishly listened to senior NCOs who gave him poor legal advice. Rather than consulting an experienced military lawyer, he chose to "fall on his sword," convinced by non-lawyers that this presented his best chance for clemency. His "acceptance of responsibility" did little good. Moreover, he really took more responsibility than necessary. It was true that he had driven after consuming some amount of alcohol, but, by itself, this is no crime. In fact, his field sobriety test did not establish impairment and his driving was not indicative of impairment. He really was not driving recklessly. He drove in a well-lighted area with his headlights off, but virtually anyone who has driven a car has done this at some time. Granted, there were lessons learned. It is always risky to drink and drive. He is not suggesting that an arrest for driving while impaired is never an opportunity for counseling or assessment, nor is he suggesting that, depending on the facts, GOMORs are not sometimes appropriate. However, in this case, the Office of the Staff Judge Advocate did not provide any facts demonstrating this case was particularly egregious. Instead, the command seems to have relied heavily on the military police blotter report, second-hand information that is often inaccurate. f. After receiving this reprimand, the applicant went back to work. Clearly he did not slack off. He did not worry about the reprimand and he did not spend his energy worrying about his record. He trusted the Army, his family, would do the right thing. Consequently, he did not seek to remove this reprimand until he recognized that he faced elimination. Given his record and the support he generated, it is likely that he would have been successful had he sought to remove this reprimand earlier. Nevertheless, it is unfair and unjust to separate an outstanding Soldier on the basis of a single reprimand for conduct for which he was eventually acquitted. g. It has been said, "Pervasive zero-defect mentality; it is a cancer that is eating us all. [General James L. Jones, Jr., U.S. Marine Corps, speech to the U.S. Army Command and General Staff Officer’s Course, Class of 2001, Fort Leavenworth, KS, 1 December 2000]" The applicant's case is a prime example of this. By all accounts, the applicant was a highly competent and effective NCO. The evidence clearly establishes that, irrespective of how one might characterize his actions on 16 January 2010, it is clear that his arrest for driving while impaired constituted an aberration in an otherwise noteworthy record and did not reflect his overall character or military duty performance. Moreover, his performance for over 5 years following his arrest was exemplary. h. In short, the applicant is a legitimate asset to the Army and his experience, knowledge, and skill cannot easily be replaced. His departure may make sense to some "bean counter" in the Department of the Army who is more concerned with numbers than people, but losing Soldiers like the applicant reduces the effectiveness of the Army as a warfighting institution over time. Moreover, his ruthless elimination from the Army a few short years before his anticipated retirement gives short shrift to the sacrifice and dedication of a loyal Soldier. We expect more from the American Army and military justice. i. He concedes there has been no technical violation of any regulation, but there are equity considerations in this case that should be addressed and the Department of the Army's decision to separate the applicant constitutes an undeserved harm and a clear injustice. The Army Board for Correction of Military Records exists to correct injustices. Consequently, on behalf of the applicant, he requests the Board find the applicant's discharge was unjust and that he should be returned to active duty. Moreover, all reference to this driving while impaired arrest which resulted in his acquittal should be removed from his record or placed in the restricted folder of his OMPF. 3. Counsel provides: * affidavit from the applicant * Enlisted Record Brief * GOMOR * QMP memorandum with attachments, dated 26 January 2015 * QMP appeal, dated 21 May 2015 * QMP decision, dated 9 September 2015 * DASEB Record of Proceedings, dated 11 September 2015 * DA Forms 2166-8 (NCO Evaluation Report (NCOER)) for the periods – * 1 November 2008 through 31 October 2009 * 1 November 2009 through 31 October 2010 * 1 November 2010 through 31 October 2011 * 31 October 2011 through 30 October 2012 * 30 October 2012 through 29 October 2013 * 30 October 2013 through 31 July 2014 * 1 August 2014 through 31 July 2015 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 8 February 2001. 2. The applicant served in Afghanistan from 1 March 2007 to 1 November 2007 and from 21 May 2008 to 30 January 2009. 3. The applicant was promoted to sergeant first class/E-7 effective 1 April 2009. 4. Counsel provided a State of North Carolina Affidavit and Revocation Report of Law Enforcement Officer and Chemical Analyst, dated 16 January 2010, showing the applicant willfully refused to submit to a chemical analysis of his breath or blood or urine. 5. On 25 February 2010, the applicant received a GOMOR for driving while impaired. The commanding general stated the applicant was stopped by a North Carolina State Highway Patrol Officer for driving without his headlights on and failing to wear his seatbelt. Upon approaching the applicant's vehicle, the officer detected an odor of alcohol on his person. The officer asked him to perform field sobriety tests, which he failed. He was subsequently arrested for driving while impaired. He was transported to the Cumberland County Detention Center where he refused to submit to a breathalyzer and he was subsequently charged with driving while impaired. On 22 April 2010, the commanding general directed filing the GOMOR in the applicant's OMPF. 6. Counsel provided the applicant's NCOER covering the period 1 November 2009 through 31 October 2010, showing: a. He was rated "Fully Capable" for Overall Potential for Promotion and/or Service in Positions of Greater Responsibility by his rater. b. He was rated "Successful-2" for Overall Performance and "Superior-1" for Overall Potential for Promotion and/or Service in Positions of Greater Responsibility by his senior rater. 7. Counsel provided an unidentified computer-generated document, dated 25 January 2011, showing: * the applicant appeared before a magistrate for the charge of driving while impaired on 11 January 2011 * he pled not guilty * he was found not guilty 8. Counsel provided the applicant's NCOERs covering the period 1 November 2010 through 30 October 2012, showing: a. He was rated "Among the Best" for Overall Potential for Promotion and/or Service in Positions of Greater Responsibility by his raters. b. He was rated "Successful-1" for Overall Performance and "Superior-1" for Overall Potential for Promotion and/or Service in Positions of Greater Responsibility by his senior raters. 9. The applicant served in Afghanistan a third time from 11 September 2012 to 26 April 2013. 10. Counsel provided the applicant's NCOERs covering the period 30 October 2012 through 31 July 2014, showing: a. He was rated "Among the Best" for Overall Potential for Promotion and/or Service in Positions of Greater Responsibility by his raters. b. He was rated "Successful-1" for Overall Performance and "Superior-1" for Overall Potential for Promotion and/or Service in Positions of Greater Responsibility by his senior raters. 11. On 5 December 2014, the applicant was notified that a QMP Board would convene to consider him for separation as a result of information received for permanent filing in his OMPF. 12. Counsel provided a letter from the applicant's former attorney, dated 12 January 2015, stating he appeared in Cumberland Country District Court on 19 January 2011 representing the applicant. The officer testified that no other traffic was affected by the applicant's operation of his vehicle and the applicant did well enough on field sobriety tests to cast doubt on whether he was sufficiently impaired to justify a conviction. After hearing the evidence, the judge entered a verdict of not guilty. 13. On 13 April 2015, the applicant was notified he had been denied continued service under the QMP. 14. On 21 May 2015, the applicant submitted a request to the DASEB to remove the GOMOR from his OMPF. In summary, he stated: a. The judge found he did not violate the law and codified this finding by entering a verdict of not guilty of the driving while impaired charge. b. The officer testified under oath that he maintained his lane, abided by the speed limit, did not affect any other traffic by operating his vehicle, and performed well enough on field sobriety tests to cast doubt on whether he was sufficiently impaired to justify a conviction. c. The officer's testimony contradicts part of the GOMOR and establishes by clear and convincing evidence that some of the GOMOR is untrue. The GOMOR mischaracterizes the incident and his conduct. d. It is unjust to allow the continued inclusion of the GOMOR in his OMPF since he was referred to a QMP Board and denied continued service. He wants the GOMOR removed from his OMPF in order to appeal the QMP decision. 15. On 21 May 2015, the applicant also appealed the QMP decision and requested retention on active duty. 16. Counsel provided the applicant's NCOER covering the period 1 August 2014 through 31 July 2015, showing: a. He was rated "Among the Best" for Overall Potential for Promotion and/or Service in Positions of Greater Responsibility by his rater. b. He was rated "Successful-1" for Overall Performance and "Superior-1" for Overall Potential for Promotion and/or Service in Positions of Greater Responsibility by his senior rater. 17. On 9 September 2015, the U.S. Army Human Resources Command denied his QMP appeal. 18. On 11 September 2015, the DASEB voted to deny his request. The DASEB determined the evidence presented did not clearly and convincingly establish that the GOMOR was untrue or unjust. The DASEB determined the overall merits of his case did not warrant the requested relief. 19. On 1 November 2015, he was honorably discharged by reason of non-retention on active duty. He completed 14 years, 8 months, and 24 days of creditable active service. 20. A review of the performance folder in his OMPF in the interactive Personnel Electronic Records Management System (iPERMS) revealed a copy of the GOMOR in question. 21. Counsel provided an affidavit from the applicant, dated 24 November 2015, stating: a. He asks the Board to take into consideration his entire military career spanning over 14 years and determine he should be returned to active duty. He enlisted on 7 February 2001. Since taking his oath, he has dedicated himself to the service of his country. Aside from the reprimand he received in 2010, he has been the subject of no other adverse actions. He has no record of criminal convictions of any kind with the exceptions of minor traffic citations. He believes his dedication as a Soldier is represented by the information contained in his OMPF. The bottom line is that he wants to continue to serve and finish his career. He is a good Soldier and an effective NCO. b. The GOMOR stemmed from a charge of driving while impaired on 16 January 2010. He was later found not guilty of the charge. On 22 April 2010, he received the GOMOR issued by his command. At that time, he was deployed to Belize. He did not have legal counsel readily accessible and he was advised by senior NCOs in his chain of command to take responsibility for his actions, show remorse, and demonstrate growth from this incident. He was given a copy of a rebuttal of another senior NCO who had faced a similar reprimand earlier and who purportedly secured a local filing. Desperate to minimize the impact of this situation, and fully engaged in real world missions, he tracked the language of the senior NCO's rebuttal into his own. In hindsight, this was very foolish. c. He was not intoxicated on 16 January 2010 when he was stopped by the highway patrolman. He was careful to be extremely polite and cooperative when the officer approached the driver's side mirror. The officer asked for his license and registration and he gave them to the officer without difficulty. The officer asked him if he had been drinking and he told the officer the truth, that he had. The officer asked him to exit his vehicle and to walk back to his vehicle. He did so without difficulty. The officer did not ask him to perform a field sobriety test at the scene. He did so later at the law enforcement center. He had no difficulty with these tests. At some point, he was asked to provide an alcohol breath test at the law enforcement center. He agreed to do so. However, while he attempted to blow hard into the machine, he was unable to provide enough breath to get a registered sample. He was told this would be recorded as a refusal, even though he did not refuse. His driver's license was confiscated for 10 days. d. On 19 January 2011, he was found not guilty of the driving while impaired charge in Cumberland County District Court. In the meantime, he received a strong NCOER for that rating period. At no time was he flagged or was his security clearance suspended. Aside from the GOMOR, no other action was taken. He deployed with his unit and continued to do his job. His most recent awards include the Bronze Star Medal, Meritorious Service Medal, Army Commendation Medal, and Army Good Conduct Medal for his performance. REFERENCES: 1. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the Army Military Human Resource Record. Paragraph 3-6 provides that once a document is properly filed in the OMPF, the document will not be removed from the record unless directed by the ABCMR or other authorized agency. 2. Appendix B (Documents Authorized for Filing in the AMHRR and/or iPERMS) of Army Regulation 600-8-104 and the U.S. Army Human Resources Command website provide a listing of documents authorized for filing in iPERMS. The instructions state to file letters of reprimand, censure, or admonition in the performance folder unless directed otherwise by the DASEB. DISCUSSION: 1. The evidence of record shows the applicant, a sergeant first class, received a GOMOR in 2010 for: a. being arrested on 16 January 2010 in North Carolina for driving while impaired after being stopped for driving without his headlights on and failing to wear his seatbelt – the officer detected an odor of alcohol on his person; b. failing field sobriety tests; and c. refusing to take a breathalyzer test. 2. The evidence of record shows he was found not guilty of the driving while impaired charge in January 2011. 3. He contends the GOMOR should be removed from his OMPF because he was not intoxicated on 16 January 2010 when he was stopped by the highway patrol and he was later found not guilty of the driving while impaired charge. Since he admitted he told the officer he had been drinking that night and the evidence shows he refused to submit to a breathalyzer test, it cannot conclusively be determined that the driving while impaired charge was false. 4. The governing regulation states administrative letters of reprimand will be filed in the performance folder of the OMPF unless directed otherwise by the DASEB. 5. In September 2015, the DASEB voted to deny his request to remove the GOMOR from his OMPF. 6. There is no evidence the GOMOR was improperly imposed. 7. The GOMOR is properly filed in the performance folder of his OMPF. 8. There is no evidence showing his honorable discharge on 1 November 2015 for non-retention on active duty was in error. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002658 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002658 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2