IN THE CASE OF: BOARD DATE: 17 April 2012 DOCKET NUMBER: AR20110019427 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 27 January 2006, for a driving under the influence (DUI) offense, including any and all records and documentation leading up to, included with, and resulting from this incident, from his military personnel records jacket (MPRJ) and official military personnel file (OMPF), to include the restricted section. 2. The applicant states: * this is in error because he was never convicted of a DUI offense in that case * Disposition of that case was 20060124 which is before the issuance of this letter of reprimand 20060127 and subsequent to receipt of LOR, dated 7 February 2006, which is in violation of applicable regulations” 3. He provides: * Marietta Municipal Court information on traffic case and docket entry sheet on traffic case * GOMOR, dated 27 January 2006 * GOMOR acknowledgment and filing memoranda CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant's military records show he enlisted in the Regular Army (RA) in pay grade E-2 on 25 February 1988 with prior Reserve and Army National Guard (ARNG) enlisted service. He completed training and was awarded military occupational specialty 63B (light wheel vehicle mechanic). 3. On 7 January 1997, he received a GOMOR for DUI of intoxicating liquor on 8 December 1996. On the same day, he acknowledged receipt of the GOMOR and elected not to submit matters on his behalf. The imposing general officer directed that the GOMOR be filed in the applicant's OMPF. 4. On 18 February 1997, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for operating a vehicle while drunk on 8 December 1996. He appealed his punishment, but his appeal was denied on 20 February 1997. The imposing official directed that the Article 15 be filed in the performance section of the applicant's OMPF. 5. He was discharged from active duty on 4 September 1997 and enlisted in the California ARNG. He again enlisted in the RA on 25 November 2001. He was promoted to pay grade E-7 on 1 October 2004. 6. On 25 November 2005, he was apprehended by civilian authorities in Columbus, GA, for a DUI offense. He provides two Marietta Municipal Court documents which show he refused a DUI test and he was found guilty of speeding and disregarding safety on 25 November 2005. 7. On 5 January 2006, he accepted NJP under Article 15, UCMJ, for wrongfully operating a government-owned vehicle without a valid State driver's license between 1 and 14 December 2005. After consideration of all matters presented at the closed hearing, the imposing commander determined the applicant had committed the offense beyond a reasonable doubt and directed that the Article 15 be filed in the performance section of the applicant's OMPF. 8. The applicant provided a Marietta Municipal Court document that shows he pled no contest and was found guilty on 24 January 2006 of the violation, on 25 November 2005, of driving 88 miles per hour in a 55 miles per hour speed zone. It also noted he had refused a DUI test. 9. On 27 January 2006, he received a GOMOR (contested reprimand) for drunk driving on 25 November 2005. The GOMOR noted that he had been stopped by a police officer for operating his vehicle 88 miles per hour in a 55 miles per hour speed zone. A portable breath test revealed a blood alcohol content which exceeded the state legal limit and, he refused to take a blood alcohol content master test at the local jail. He acknowledged receipt of the GOMOR on 7 February 2006 and submitted a statement on 8 February 2006 wherein he requested the GOMOR be filed in the restricted section of his OMPF. He stated: a. He had been in the Army for over 18 years, 14 years of which were served on active duty and 4 years in the Reserve. He would like to be considered for promotion to master sergeant/pay grade E-8 by the next promotion board. He knew that having that adverse administrative action placed in the performance section would greatly decrease his chances of being selected for promotion. b. Although he was initially stopped for speeding, the officer decided to administer a portable breathalyzer test to him. It was not and could not be proven that the results were correct. Immediately after the test was given, he asked to see the results. The officer did not give them to him because he had immediately cleared the meter and did not show him the results. The tube he blew into was not presented to him in a sealed package. For those reasons, he did not submit to another test 2 hours later at the jail. He also requested a personal appearance before his commander in regard to the matter. 10. On 8 February 2006, the applicant's brigade commander recommended filing the GOMOR in the applicant's OMPF. He stated the applicant, a senior noncommissioned officer (NCO), chose not to allow law enforcement to readminister the blood alcohol content test and failed to notify his chain of command. 11. On 12 February 2006, he was arrested for drunk driving near Fort Dix, NJ, where he worked at the NCO Academy. 12. On 22 March 2006, the imposing general officer directed that the January 2006 GOMOR be filed in the performance section of the applicant's OMPF. 13. On 14 February 2007, he received a GOMOR for his 12 February 2006 arrest for a DUI offense. He acknowledged receipt of the GOMOR on 5 March 2007 and submitted a statement on 7 March 2007 wherein he stated: a. He had already received NJP for his actions. He had 20 years of military service (15 years active/5 years Reserve) and it was an isolated incident. Prior to this incident he had never received a GOMOR or UCMJ punishment. b. Since being assigned to the Fort Dix NCO Academy nearly 1 year ago he had done well and made significant improvements to the overall maintenance program. During the recent unannounced Command Maintenance Discipline Program inspection, the majority of the areas were "satisfactory" and he was commended for getting most of the new equipment into Unit Level Logistics System-Ground and for the overall improvement of the unit's maintenance readiness. c. He was responsible for over $500,000.00 worth of equipment and he maintained 100-percent accountability of all of the equipment. As a result of his dedication to safety and maintenance there had been no accidents which had resulted in injuries to any students or Soldiers assigned to the NCO Academy. His most recent NCO evaluation report from the academy evaluated him as "fully capable," "1" for overall performance potential, and his senior rater recommended he be promoted with his peers. d. He remained dedicated to his duties as an NCO and respectfully requested that his recent accomplishments and service record be taken into consideration and that the GOMOR be placed in the restriction section of his OMPF. 14. On 12 March 2007, the imposing GO directed the February 2007 GOMOR be filed in the performance section of the applicant's OMPF. 15. On 16 August 2007, he was issued a Notification of Eligibility for Retired Pay at Age 60 letter. 16. On 28 January 2008, he was convicted by a civilian court of the 12 February 2006 drunk driving offense. 17. On 15 March 2008, he received a GOMOR for refusing to take or failing to complete a lawfully-requested test on 26 January 2008 to measure alcohol or drug content when there was reasonable belief of a DUI of alcohol or drugs. He acknowledged receipt of the GOMOR on 19 April 2008, and submitted a statement on 6 May 2008 wherein he requested the GOMOR be locally filed in his MPRJ and not in his OMPF. He also stated: a. He deeply regretted his decision to drink alcohol and then operate a motor vehicle on 26 January 2008. This was an irresponsible error in judgment on his part and he failed to meet his responsibilities as a NCO in the U.S. Army. He considered himself a professional Soldier and NCO; as such, he accepted sole responsibility as well as consequences for the incident. He deeply regretted the adverse attention the incident brought upon the Army and his unit. b. Prior to 26 January 2008, he had the distinct honor of serving his country through the Army for over 20 years, 16 of which were in an active duty status. He first entered the Army on 17 July 1986 as a light wheel vehicle mechanic. He then listed his duty assignments, positions held, military accomplishments, and ratings. c. Since the incident, he had demonstrated his rehabilitative potential. He had not consumed any alcohol since the incident and voluntarily completed the Army Substance Abuse Education Program requirements. Although he completed the program requirements, he elected to stay in the program longer in order to ensure that he stayed the course. In addition, he was currently receiving counseling from the Life Skills Clinic as well as from the chaplain and the Alcohol Substance Abuse Program (ASAP) counselor. He understood the gravity of the situation and was taking his recovery very seriously. d. He had already received punishment as a result of his irresponsibility and listed his punishment. The most serious consequence was the negative effect the incident had on his professional reputation and the intense sense of guilt he brought upon himself. Serving his country was something that was very important to him and he took pride in being a Soldier. His ability to serve his country in any official capacity and his potential would be limited if the GOMOR were placed in his OMPF. Regardless of how it was filed, he would continue to execute his duties honorably. He knew it was his second alcohol-related incident. However, at the time of the first incident, he did not accept that he had a problem and therefore did not seek help from professionals as he was not doing successfully. e. He did not condone his actions on 26 January 2008. However, he did not believe the incident was an accurate depiction of his character, his more than 20-year career in the Army, or his future potential. If the GOMOR was placed in his OMPF, it would be viewed in that manner. 18. A Progress Report, dated 12 May 2008, stated: a. The applicant was screened by the Fort Dix ASAP on 30 January 2008 and enrolled on 31 January 2008 with the following treatment plan: weekly counseling, education, total abstinence from all mind or mood-altering substances, random drug testing and breathalyzer, as well as a medical evaluation. b. To date, the applicant had been compliant with his treatment plan. He attended sessions regularly and worked within the sessions. He also chose to continue education classes, despite already satisfying the Army standard of 12 hours. He was given one drug test on 16 April 2008 and the result was negative. 19. On 19 July 2008, the applicant's senior commander, a brigadier general, stated, "after review of the nature of the misconduct as well as the applicant's status as a senior NCO with over 20 years of total military service," he directed filing the following documents in the applicant's OMPF: * GOMOR, dated 15 March 2008 * receipt of GOMOR acknowledgment, dated 19 April 2008 * applicant's rebuttal statement, dated 6 May 2008 20. On 20 July 2008, the applicant’s unit commander initiated action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation), paragraph 14-5 (Conviction by a Civil Court). On 15 August 2008, the applicant acknowledged receipt of the proposed action. 21. On 5 September 2008, he requested a conditional waiver of his separation. 22. On 6 December 2008, the separation authority accepted the applicant's waiver and directed the applicant’s separation with a general discharge. Accordingly, he was discharged in pay grade E-7 on 19 April 2009. 23. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 14, section II, for misconduct (civil conviction). He was credited with completing a total of 17 years, 4 months, and 26 days of net active service with no lost time. He was also credited with 5 years, 4 months, and 7 days of prior inactive service. 24. Army Regulation 600-37 (Unfavorable Information) provides the policy for authorized placement of unfavorable information in individual official personnel files. It provides that: a. Unfavorable information will not be filed in an official personnel file unless the individual has been given the chance to review the documentation that serves as the basis for the proposed filing and make a written statement, if desired, that rebuts the unfavorable information. The referral to the recipient will include reference to the intended filing of the letter and include documents that serve as the basis for the letter. b. A GOMOR, regardless of issuing authority, may be filed in the OMPF only upon the order of a general officer. Statements and other evidence will be reviewed and considered by the officer authorized to direct filing. 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. Only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted section. 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. 25. Army Regulation 600-8-104 (Military Personnel Information Management/ Records) prescribes the policies governing the OMPF, MPRJ, Career Management Individual File, and Army Personnel Qualification Record. It also prescribes the composition of the OMPF. Paragraph 2-4 states that once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation. DISCUSSION AND CONCLUSIONS: 1. The evidence of record shows the applicant twice accepted NJP for driving while drunk and operating a vehicle without a valid driver's license. He was also issued the following: * GOMOR on 7 January 1997 for a DUI offense * GOMOR on 27 January 2006 for drunk driving * GOMOR on 14 February 2007 for his DUI arrest * GOMOR on 15 March 2008 for refusing take or failing to complete a lawfully-requested test 2. In each instance he submittal a rebuttal to the reprimands. After review of his statements, the imposing commanders directed the reprimands be filed in the performance section of the applicant's OMPF. 3. On 12 February 2006, he was arrested for drunk driving near his post. He was subsequently convicted of this offense in a civilian court on 28 January 2008. On 20 July 2008, his commander initiated action to separate him for misconduct-civil conviction. The separation authority approved the recommendation and he was issued a general discharge on 19 April 2009. 4. He contends that his 27 January 2006 GOMOR and all relevant documents should be removed from his records because he was never convicted of a DUI offense in that case. However, because he refused a blood alcohol content test 2 hours later at the jail (which if anything would have revealed a lower blood alcohol content than the test administered by the arresting officer) he cannot prove he had not been driving while intoxicated. Just because he was not convicted of a DUI does not mean that he was not driving while drunk. It appears his chain of command felt his actions sufficiently indicated that he was driving while drunk and could not be allowed to go unpunished. 5. Notwithstanding his contentions pertaining to the 27 January 2006 GOMOR, the evidence shows he had a long career which was punctuated with several DUI offenses. These acts resulted in one of the actions he now wants removed from his records. He was subsequently discharged for a civilian conviction for DUI. 6. He has not provided clear and convincing evidence that the 27 January 2006 GOMOR and associated documents were untrue or unjust, in whole or in part to support his request for their total removal from his MPRJ and OMPF. The evidence shows each of these documents was properly administered in accordance with applicable regulations and was properly filed in the performance section of his OMPF. There is no evidence of an error or an injustice. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___X____ ___X ___ ____X___ DENY APPLICATION 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. ABCMR Record of Proceedings (cont) AR20110019427 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110019427 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1