MEMORANDUM OF CONSIDERATION

   	IN THE CASE OF:      

	BOARD DATE:           5 November 2002                   
	DOCKET NUMBER:   AR2002077764

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. Melvin H. Meyer		Chairperson	
	Mr. Eric N. Andersen		Member	
	Mr. John T. Meixell		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS: That a General Officer Memorandum of Reprimand (GOMOR), dated 6 June 1995 be removed from his enlisted records.

APPLICANT STATES:  That the GOMOR has served its intended purpose.  He indicates he was not convicted and that all charges were dropped.  In support of his request, he provides a copy of the computerized printout of the court proceedings, a copy of a Personnel Security Clearance Facility memorandum, which grants the applicant a security clearance and the initial request, a copy of a memorandum for the president of the Department of the Army Suitability Evaluation Board (DASEB), dated 28 November 2001, which requests removal of the GOMOR, and a memorandum from the DASEB, which indicates the GOMOR will be moved to the restricted portion of the Official Military Personnel File (OMPF).

EVIDENCE OF RECORD: The applicant's available military records show:

On 25 February 1995, the applicant was cited by civil authorities for operating a motor vehicle while impaired.

On 6 June 1995, the applicant was issued a GOMOR by the Commander, 82nd Airborne Division for his refusal to take or failure to complete a lawfully requested test to measure alcohol or drug content of his blood, breath, or urine.

On 18 July 1995, a computerized printout of the court proceedings, with limited pertinent information, indicates he was found not guilty however his drivers license was revoked and his plea verdict included a $50.00 payment.

On 28 November 2001, the applicant petitioned the DASEB to withdraw the GOMOR.  It was denied.  It did approve a transfer from the performance portion of the OMPF to the restricted portion, based on intent served.  The transfer was not to be considered retroactive and does not constitute grounds for referral to a Standby Advisory Board for previous non-selection.

Army Regulation 190-5 (Motor Vehicle Traffic Supervision) provides that soldiers will be issued an administrative letter of reprimand for alcohol related driving incidents in the following circumstances: When there is a conviction for driving while intoxicated or driving under the influence of alcohol or drugs; a refusal to take a properly requested blood, urine or breath test; when the individual was driving or in physical control of a vehicle on post with a BAC of .10 or off post with a BAC in violation of State law, irrespective of other charges; or driving or in physical control of a vehicle when a lawfully requested test reflected the presence of other drugs.

Army Regulation 600-37 (Unfavorable Information) provides, in pertinent part, that administrative letters 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 letter 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.  Letters of reprimand may be filed in a soldier’s OMPF (Official Military Personnel File) only upon the order of a general officer level authority and are to be filed on the performance fiche.  The direction for filing is to be contained in an endorsement or addendum to the letter.  If the reprimand is to be filed in the OMPF, the reprimand and associated documents are permanent unless removed in accordance with chapter 7.  Letters of reprimand intended for filing in the Military Personnel Records Jacket (MPRJ) may be retained for no more than 3 years and must state the length of time they are to be retained.

Chapter 7 of the regulation provides that once filed in an OMPF a document is presumed to have been administratively correct.  Appeals to the Department of the Army Suitability Evaluation Board (DASEB) to relocate a reprimand, admonition or censure (normally for soldiers in pay grade E-6 and above) are based on proof that the intended purpose has been served and that transfer to a restricted fiche would be in the best interest of the Army.  The DASEB will return appeals unless 1 year has elapsed and at one nonacademic evaluation has been received since the letter was imposed.  If the appeal is denied the DASEB letter of denial will be filed on the performance fiche, the appeal itself and any associated documents will be filed on the restricted fiche.  Otherwise this Board may act in accordance with Army Regulation 15-185 and the soldier has the right under the Privacy Act in which the DASEB acts as the access and amendment authority under Army Regulations.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The GOMOR was issued for his refusal to take or failure to complete a lawfully requested test to measure alcohol or drug content of his blood, breath, or urine.  The GOMOR appears administratively correct and issued in accordance with pertinent regulations, and there is no reason to remove it from his records, and has not been shown to be in the best interest of the Army to do so.  He has not shown otherwise. 

2.  The fact that the court found him not guilty of DWI (driving while intoxicated) is not adequate to overturn his administrative reprimand. 

3.  The Board notes the GOMOR has been transferred to the restricted portion of the applicant’s OMPF, and need not be completely removed from the record.

4.  There is no error or injustice in the applicant’s records.

5.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
 
BOARD VOTE:

________  ________  ________ GRANT

________  ________  ________ GRANT FORMAL HEARING

_ENA___  _MHM__  _JTM____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2002077764	
SUFFIX		
RECON		
DATE BOARDED	20021105	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	123.07	
2.		
3.		
4.		
5.		
6.