IN THE CASE OF: BOARD DATE: 6 September 2016 DOCKET NUMBER: AR20160011999 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: 6 September 2016 DOCKET NUMBER: AR20160011999 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: 6 September 2016 DOCKET NUMBER: AR20160011999 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, the removal of a General Officer Memorandum of Record (GOMOR), dated 25 June 2015, and a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), imposed on 27 August 2015, from his Official Military Personnel File (OMPF). 2. The applicant states the GOMOR needs to be removed because the incident was unfounded/dropped in a court of law. The Article 15 was given to him with no basis whatsoever. He was told that this is the process, even though he informed his chain of command that the whole incident was being dropped. He lost his promotion status to sergeant first class (SFC) due to this whole ordeal. It took longer than expected to get the paperwork from the civilian side. 3. The applicant provides six character reference letters, a Register of Actions printout, and a Motion to Dismiss order, dated 2 December 2015. CONSIDERATION OF EVIDENCE: 1. The applicant currently serves on active duty in the Regular Army, in the rank/grade of staff sergeant (E-6). 2. On 25 June 2015, the applicant received a GOMOR for driving while intoxicated on 13 March 2015. The GOMOR stated in pertinent part: a. The applicant was apprehended by the El Paso police for driving while intoxicated after he was found asleep behind the wheel of his parked vehicle with the engine running. The odor of alcohol was detected emitting from him and he failed a standardized field sobriety test. He was administered a breathalyzer test that confirmed his consumption of alcohol and revealed his blood alcohol content to be .126%, in violation of the UCMJ and the Texas Penal Code. b. The imposing general officer indicated he was imposing the GOMOR as an administrative measure under the provisions of Army Regulation 600-37 (Unfavorable Information) and not as punishment under the UCMJ, and that he intended to direct the filing of the GOMOR in the applicant's Army Military Human Resource Record (AHMRR); however, he would not make a final filing determination until after reviewing matters submitted for consideration. 3. On 29 June 2015, the applicant elected not to submit a statement. 4. On 9 July 2015, the imposing commander directed the filing of the GOMOR in the applicant's AMHRR (which includes the OMPF). 5. A review of the applicant's OMPF reveals the GOMOR with allied documents is filed in the performance folder in his OMPF. 6. On 27 August 2015, the applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15, UCMJ, for physically controlling a vehicle while intoxicated in violation of Article 111, UCMJ. 7. The DA Form 2627 he received shows he elected not to demand trial by court-martial, he requested a closed hearing, and he elected not to present matters in his defense. After a closed hearing, he was found to be guilty of the specification, and the DA Form 2627 was directed to be filed in the restricted folder in his OMPF. He elected not to appeal the findings. 8. A review of his OMPF reveals the DA Form 2627 with allied documents is filed in the restricted folder in his OMPF. 9. The applicant provides: a. Six character reference letters attesting to his work ethic, character, and professionalism. b. A Register of Actions which lists his court hearings, programs, and disposition of his case. c. A Motion to Dismiss, issued by the State of Texas on 2 December 2015, which shows his case was dismissed due to successful completion of the Pre-Trial Diversion Program. REFERENCES: 1. Army Regulation 600-37 sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual OMPF's; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual OMPF'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 the OMPF. It states unfavorable information that should be filed in the OMPF includes indications of substandard leadership ability, promotion potential, morals, and integrity. a. A GOMOR 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 Army Regulation 600-37, chapter 7 (Appeals and Petitions). b. 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. c. Only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder of the OMPF. Normally, such appeals will be considered only from Soldiers in grades E-6 and above, officers, and warrant officers. 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 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial. It provides that a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ. Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate. NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial: a. Paragraph 3-37b(1)(a) states that for Soldiers in the ranks of SGT and above, the original will be sent to the appropriate custodian for filing in the AMHRR. b. Paragraph 3-43 contains guidance on the removal of DA Forms 2627 from the AMHRR. It states applications for removal of an Article 15 from the AMHRR based on an error or injustice will be made to the Army Board for Correction of Military Records (ABCMR). It further indicates there must be evidence that demonstrates error or injustice to a degree justifying removal. 3. 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. The OMPF is an administrative record as well as the official permanent record of military service belonging to a Soldier. a. Depending on the purpose, documents will be filed in the OMPF in one of three folders: performance, service, or restricted. It shows the DA Form 2627 is filed in either the performance or restricted folder of the OMPF as directed by the imposing commander in the DA Form 2627. b. Table B-1 states a memorandum of reprimand is filed in the performance folder of the OMPF unless directed otherwise by the Department of the Army Suitability Evaluation Board (DASEB). DISCUSSION: 1. The applicant's request for removal of a GOMOR and a DA Form 2627 from his OMPF has been carefully considered. 2. The applicant contends the charges were unfounded and the Article 15 he was issued was without basis. However, he had the opportunity to submit statements in his own behalf and to appeal the GOMOR and imposition of NJP or demand trial by court-martial in order to prove his innocence. 3. The evidence of record confirms the applicant was issued a GOMOR for operating a vehicle while intoxicated. The evidence also shows the GOMOR was properly referred to him prior to the filing decision. Subsequently, he accepted NJP in lieu of trial by court-martial for the offense stated in the GOMOR. The available evidence also confirms his NJP proceedings were conducted in accordance with law and regulation and the DA Form 2627 is properly filed in his OMPF. 4. Among the purposes of filing unfavorable information is the protection not just of the Soldier's interests but the Army's interests as well. In this case, the applicant committed a serious violation that clearly could have resulted in serious injuries or the loss of life. 5. The applicant provides several character reference letters and evidence that his case was dismissed by a civilian court after successful completion of a diversion program. However, this evidence does not amount to compelling evidence that justifies removal of either the GOMOR or the DA Form 2627 from his OMPF. 6. His desire to have the unfavorable information removed from his OMPF is understandable; however, the GOMOR was properly imposed as an administrative measure and filed in the OMPF after an objective decision by competent authority. Although his charges were ultimately dropped in a civilian court of law, he has not provided clear and convincing evidence that the GOMOR he received was untrue or that the NJP he received was unjust. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160011999 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160011999 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2