BOARD DATE: 16 August 2016 DOCKET NUMBER: AR20160009575 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: 16 August 2016 DOCKET NUMBER: AR20160009575 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: 16 August 2016 DOCKET NUMBER: AR20160009575 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: a. removal of a general officer memorandum of reprimand (GOMOR), dated 29 November 2012, from his Official Military Personnel File (OMPF) and b. amendment of his DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the period 1 December 2011 through 30 November 2012. 2. The applicant states: a. He requests removal of the GOMOR and changes to his NCOER to reflect the true characterization of his service. b. The actions he received are untrue and unjust because the case filed against him was dismissed in civilian court. An arresting officer did not follow proper protocol and he was wrongly arrested. c. A police officer's underlying misconduct report without any further findings by a competent court is being used against him. The outcome produces a situation where no formal charges are forwarded for prosecution, but the military finds misconduct nonetheless based on unproven assertions in a police report. d. In 2015, the Qualitative Management Program (QMP) Selection Board recommended his retention. 3. The applicant provides: * self-authored letter, dated 24 May 2016 * memorandum, dated 30 April 2014 * letter from the North Carolina Department of Transportation, dated 29 January 2013 * breathalyzer test results * North Carolina traffic citation * letter from his rater at the time in question, dated 10 June 2013 * letter from his senior rater at the time in question, dated 12 June 2013 * letter from his attorney, dated 27 February 2013 * character-reference letters * QMP notification letter, dated 28 September 2015 * Department of the Army Suitability Evaluation Board (DASEB) appeal * DASEB proceedings * Enlisted Special Review Board (ESRB) appeal * ESRB proceedings * criminal record search results * DA Forms 2166-8 CONSIDERATION OF EVIDENCE: 1. The applicant is currently serving on active duty in the rank of staff sergeant. 2. The contested annual NCOER covers the period 1 December 2011 through 30 November 2012. a. In Part IV (Values/NCO Responsibilities), he was rated "Needs Improvement (Some)" for Leadership by his rater with the following bullet comments: * exercised poor judgment as a Noncommissioned Officer by operating a motor vehicle under the influence of alcohol * mentored two Soldiers to appear before the promotion board and promoted to Sergeant; four other Soldiers earned accolades for their outstanding performance * demonstrated his leadership ability while serving as the Platoon Sergeant for 30 days during RIP/TOA [relief-in-place/transition of authority] with the incoming Battalion and redeployment b. In Part Va (Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), he was rated "Fully Capable" by his rater. c. In Part Vc (Overall Performance), he was rated "Successful-3" by his senior rater. d. In Part Vd (Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), he was rated "Superior-3" by his senior rater with the following bullet comments in Part Ve (Senior Rater Bullet Comments): * do not promote at this time * send to Senior Leaders Course now * an excellent performer for [military occupational specialty] and Army tasks [who] made a decision contradictory to good order and discipline * this NCO has the potential to excel and achieve phenomenal results with more mentorship and military education 3. On 29 November 2012, he received a GOMOR for: * being arrested on 8 September 2012 in Fayetteville, North Carolina, for driving while impaired after being stopped for failure to maintain lane control * refusing to take a lawfully requested intoximeter test * failing to inform the arresting police officer that he had a privately owned handgun in the center console of his vehicle 4. On 4 January 2013, the commanding general directed permanently filing the GOMOR in the applicant's OMPF. 5. He provided a letter from his attorney, dated 27 February 2013, which states his driving while impaired, failing to maintain lane control, and carrying a concealed weapon charges were dismissed. 6. In March 2013, he submitted a request to the DASEB to remove the GOMOR from his OMPF. In summary, he stated: a. The GOMOR is wholly untrue and unjust. The GOMOR states he was driving under the influence of alcohol which is untrue. b. His criminal record report shows the prosecutor dropped all charges related to his arrest for driving while impaired. Therefore, since he did not commit the alleged offense, it is unjust to allow the GOMOR to remain in his OMPF. c. He has never had any other adverse administrative or Uniform Code of Military Justice action. d. Though the reprimand is relatively recent, its short existence has seriously compromised his career and ability to serve the Army. 7. He provided a letter from his rater at the time in question, dated 10 June 2013, which states he served as the applicant's platoon sergeant during the period 1 December through 30 November 2012. He concurs with the changes the applicant has requested to make to the contested NCOER. The following changes are requested to the NCOER: a. Part IVd ( Leadership), change from "Needs Improvement" to "Excellence." Bullet comment reads: "exercised poor judgment as a Noncommissioned Officer by operating a motor vehicle under the influence of alcohol"; change to "demonstrated his leadership ability while serving as the Platoon Sergeant for over 60 days during the Battalion redeployment and reintegration process." b. Part Va (Rater), change block check from "Fully Capable" to "Among the Best." c. Part Vb (Rater), change from "Launcher Section Chief" to "Platoon Sergeant." d. Part Vb (Rater) reads: "Operations Sergeant"; change to "AIT [advanced individual training] Platoon Sergeant." e. Part Vb (Rater) reads: "Instructor"; change to "Drill Sergeant." 8. He provided a letter from his senior rater at the time in question, dated 12 June 2013, which states this is a request for minor corrections to the applicant's NCOER for the rated period 1 December 2011 through 30 November 2012. He served as the applicant's senior rater during this period and would like to approve/request the following changes based on incorrect information being placed on his evaluation. He approved of the changes requested by the applicant's rater. a. Part Vc (Senior Rater, Overall Performance), change block check from "3" to "1." b. Part Vd (Senior Rater, Overall Potential), change block check from "3" to "1." c. Part Ve (Senior Rater Bullet Comments), change bullet comment from "do not promote at this time" to "promote to Sergeant First Class ahead of peers; continue to place in leadership positions." d. Part Ve (Senior Rater Bullet Comments), change bullet comment from "an excellent performer for MOS and Army tasks that [who] made a decision contradictory to good order and discipline" to "a proven combat leader who is dedicated to ensuring mission accomplishment; demonstrates driving initiative and always seeks to improve himself and the unit." e. Part Ve (Senior Rater Bullet Comments), change bullet comment from "this NCO has the potential to excel and achieve phenomenal results with more mentorship and military education" to "demonstrates tremendous potential to serve at the highest levels of the NCO Corps; his leadership has had a remarkable effect on the entire formation." 9. On 27 June 2013, 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. 10. On 4 July 2013, he submitted a request to the ESRB to amend his NCOER covering the period 1 December 2011 through 30 November 2012. In summary, he stated: a. His appeal is based on substantive inaccuracy. b. The comment that he was driving while impaired is untrue since the district attorney dropped all charges related to his driving while impaired citation. Since he did not commit the alleged offense, it is unjust to allow the false information to remain in his NCOER. c. His actions did not result in any level of criminal or civil punishment, but he understands the discredit such allegations brought upon the Army and himself. d. Other than the negative information placed in his NCOER and a GOMOR that he has also appealed, he has never been the subject of any adverse administrative or Uniform Code of Military Justice action. 11. On 6 November 2014, the ESRB voted to deny his request. The ESRB determined the evidence presented did not establish clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice. The ESRB determined the overall merits of his case did not warrant the requested relief. 12. He provided a memorandum, dated 28 September 2015, which states the QMP Selection Board conducted a comprehensive review of his records for potential denial of continued service under QMP and recommended his retention. 13. His OMPF in the interactive Personnel Electronic Records Management System (iPERMS) contains a copy of the GOMOR and DA Form 2166-8 in the performance folder. 14. He provided NCOERs covering the periods 1 December 2012 through 20 April 2015 showing he was rated: a. "Excellence" by his raters in Part IV (Values/NCO Responsibilities), b. "Among the Best" by his raters in Part Va (Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), c. "Successful-1" by his senior raters in Part Vc (Overall Performance), and d. "Superior-1" by his senior raters in Part Vd (Overall Potential for Promotion and/or Service in Positions of Greater Responsibility). 15. He provided numerous character-reference letters from his superiors and peers attesting: * he is a genuine leader and he needs to stay in the Army * he is intelligent, adaptive, and competent * he is an outstanding Soldier * he embodies the Warrior Ethos and lives the seven Army values * he always maintains a very high standard of dress and appearance * he is an outstanding asset to the U.S. Army * he is an excellent team builder and inspires his Soldiers to perform at their top level * he has always displayed the discipline, dedication, and commitment required to be a successful leader * he displayed integrity, discipline and moral courage that were emulated by the platoon's Soldiers and his peers 16. He also provided a self-authored letter, dated 24 May 2016, which states: a. He submitted two appeals to the DASEB. His first appeal was denied and his second appeal was returned to his unit without his knowledge because he had relocated to his new duty station in Germany. After he found out the board did not receive his second packet, he prepared a third packet to present to the board. During this process he found out he was selected for the 2015 QMP Board. At this point he was devastated and focused all of his extra time and energy building his packet for the QMP Board. The QMP Board recommended his retention in the Army. b. The GOMOR is wholly untrue and unjust. He fully understands a GOMOR is issued based on underlying misconduct rather than any conviction in civilian court. However, certain deference must be given to the evidence presented in any civilian proceeding as well as witness statements. Without any consideration of the actual evidence, an arresting officer is placed in the position of judge and jury. A case dismissed in civilian court, while not dispositive of a military administrative action, should shed light on whether any actual misconduct occurred. Certain cases are not pursued by civilian prosecutors when the arresting officer fails to appear, there is a lack of probable cause for the arrest, or where the arrest was unlawful. Here, the police officer's underlying misconduct report, without any further findings by a competent court, is being used against a Soldier. The outcome produces a situation where no formal charges are forwarded for prosecution but the military finds misconduct nonetheless based on unproven assertions in a police report. c. In a separate hearing against the State of North Carolina Department of Transportation Division of Motor Vehicles, the division determined his driving privileges would not be revoked for his refusal to submit to a chemical analysis. This decision was made before his case was dismissed. He was command-referred to the Army Substance Abuse Program, but it was determined he did not have a problem with alcohol and did not need the program. d. In order to remove a GOMOR, the burden of proof rests with the applicant to provide evidence of a clear and convincing nature. Appeals that merely allege injustice of error without supporting evidence are not acceptable and will not be considered. The clear and convincing standard does not require an applicant to prove that the misconduct did not occur. Instead, the Soldier only has to establish some reasonable doubt that the misconduct did occur and the GOMOR was untrue or unjust. This evidentiary burden is low and the weight of the evidence in this case will clearly weigh in his favor. Two official statements (one by the applicant and one by the passenger), the dropping of all charges by a civilian prosecutor due to a lack of evidence, and the failure of the arresting officer to appear for questioning about his misconduct on three separate occasions all lean heavily in his favor. Conversely, the only evidence against him in this case is an unlawful arrest without any field sobriety tests or any opportunity for him to explain any of his actions. Again, it is highly probative that a civilian prosecutor dropped all charges because of a lack of evidence. In addition, he did not verbally or physically refuse to take the breathalyzer test at the police station. The breathalyzer timed out due to the fact he was ordered to stand on the opposite side of the room with his back facing a wall then walk 20 feet to the machine when ordered after the test was ready for him to blow. He was later notified this is not the proper process for submitting an accurate breathalyzer test. The officer stated that he implemented this process because the person before him was trying to read the machine while waiting to submit a sample. The actual results of the test do not state he refused to take any test. It clearly states "TEST TIME OUT." e. The passenger in the vehicle on the night of the arrest appeared with him on all three court dates to testify on his behalf on what happened the night of the arrest. He testified he only consumed two beers that night in a 3-hour time period, the officer was out of line, did not follow protocol, and there was no proper cause to pull his vehicle over in the first place. f. The arresting officer's citation states, "by failing to drive as nearly as practicable entirely within a single lane." The statements by the arresting officer that he smelled alcohol were probably accurate because two beers were consumed that night. However, any reasonable officer acting within the scope of his duties would have administered a field sobriety test or, at a minimum, initiated more questioning to properly determine if he was intoxicated. There procedures were not followed. He was asked by the officer if he had anything to drink that night and he responded yes, that he had two beers but it was an hour ago. The officer stated that he hears that a lot and he was asked to exit the vehicle and was immediately placed under arrest. The fact that proper procedures were never followed by the officer made it impossible for him to establish probable cause regarding his arrest. There was no underlying misconduct because he was never found to be intoxicated. Therefore, the GOMOR was not justified in this instance. g. While the fact that all criminal charges were dropped in this case does not bind the Army from pursuing administrative action, the GOMOR must be for some misconduct. In this case, that misconduct was based solely on an arrest for driving while intoxicated, which was later determined to be unfounded and the case was dismissed. Therefore, if the source of the underlying misconduct has been proven to be false or at least lacks sufficient credibility to pursue any charges, he should not face adverse consequences in the military. h. There was insufficient time to present this information to the brigadier general prior to the GOMOR being filed. His rater and senior rater petitioned to have his NCOER corrected after the charges were dismissed. He has served honorably as a Soldier in the Army. i. To go through the process of the QMP Board and show resilience by submitting his letter to the board gave him new hope that these processes are effective if you have your supporting documents. His commander at the time of the incident told him there was no need to submit a rebuttal for the GOMOR because it would be placed in his local file and he was due to change station soon. His first sergeant was present when he was told that and provided a memorandum stating why he did not submit a rebuttal. He understands why the board did not rule in his favor for the first packet he submitted and he now submits this one with all the details and supporting documents. j. He has served with honor and distinction throughout his career. He wants nothing more than to continue to serve his country. He has been an exemplary Soldier and NCO and will remain a valuable asset to the Army if he is allowed to continue to serve. He has never had any issues or disciplinary actions in his military career before or after this incident. He has never received a negative counseling statement. After this event he still continued to serve as an outstanding leader receiving all excellent ratings. He received his second Army Commendation Medal and successfully completed the Senior Leader Course and Air Assault School. He is preparing to attend the January 2017 Master Gunner Course and finish pursuing his college degree. REFERENCES: 1. Army Regulation 623-3 (Evaluation Reporting System) states an evaluation report accepted for inclusion in the official record of a rated Soldier's OMPF is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation. The regulation also states the burden of proof rests with the applicant. Accordingly, to justify deletion or amendment of a report, the applicant will produce evidence that establishes clearly and convincingly that: (1) the presumption of regularity will not be applied to the report under consideration and (2) action is warranted to correct a material error, inaccuracy, or injustice. 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 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. 3. 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. a. The instructions state to file letters of reprimand, censure, or admonition in the performance folder unless directed otherwise by the DASEB. b. A DA Form 2166-8 will be filed in the performance and service folders of the OMPF. DISCUSSION: 1. The applicant, a staff sergeant, received a GOMOR in 2012 for: * being arrested on 8 September 2012 in Fayetteville, North Carolina, for driving while impaired after being stopped for the failure to maintain lane control * refusing to take a lawfully requested intoximeter test * failing to inform the arresting police officer that he had a privately owned handgun in the center console of his vehicle 2. The evidence of record shows his driving while impaired, failing to maintain lane control, and carrying a concealed weapon charges were dismissed in February 2013. 3. He contends the GOMOR should be removed from his OMPF because all charges were dismissed in civil court. However, per his admission that the arresting officer did not follow proper protocol, it appears his case was dismissed based on a procedural technicality. Since he refused to submit to a breathalyzer test, it cannot be determined that the charges were 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 2013, 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. Army Regulation 623-3 states that to justify deletion or amendment of a report, the applicant must produce evidence that establishes clearly and convincingly that: * the presumption of regularity will not be applied to the report under consideration * action is warranted to correct a material error, inaccuracy, or injustice 9. His contentions, the letters from his rater and senior rater, and the character-reference letters were carefully considered. However, there is no evidence of record and the applicant provided no evidence showing the information contained in the contested NCOER does not represent the considered opinion and objective judgment of the rating officials at the time of preparation. 10. Army Regulation 600-8-104 states NCOERs will be filed in the performance folder of the OMPF. The NCOER in question is properly filed in his military records in accordance with the governing regulation. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160009575 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160009575 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2