BOARD DATE: 27 July 2017 DOCKET NUMBER: AR20150017636 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: 27 July 2017 DOCKET NUMBER: AR20150017636 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: 27 July 2017 DOCKET NUMBER: AR20150017636 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 transfer of the DA Form 67-9 (Officer Evaluation Report (OER)) for the period 16 June 2012 through 9 November 2012 to the restricted folder of his Official Military Personnel File (OMPF). 2. The applicant states: a. The Officer Special Review Board (OSRB) denied his appeal on 26 March 2016. The ASRB analyst's opinions were faulty or were inaccurate. For example, paragraph 3b of the Analyst's Discussion and Recommendations section of the OSRB Record of Proceedings states, "The appellant's charges were not dropped nor was he absolved of the DUI [driving under the influence charge]. His case was adjudicated; he was allowed to enter a plea agreement through a diversion program....the court reduced the charge to careless operation and dismissed the DWI [driving while intoxicated] charge once the appellant met the requirements of the diversion program." The DWI charge was dismissed prior to entry into the diversion program. b. He requests consideration of the Department of the Army Suitability Evaluation Board's (DASEB) vote and affirmation to transfer the general officer memorandum of reprimand (GOMOR) to the restricted folder of his OMPF. It is unjust and unfair for an OER that discusses the GOMOR to remain in the active performance folder of his OMPF. He has attached three OERs he has received since the date of the GOMOR and three memoranda supporting transfer of the GOMOR. He further requests consideration of these documents, the transfer of the GOMOR to the restricted folder of his file, his early removal from active duty, and his transfer to the U.S. Army Reserve (USAR). It is unjust to be punished in the USAR by likely failing to be selected for promotion in the future. c. The "intent" of Army Regulation 623-3 (Evaluation Reporting System), paragraph 3-20 (Prohibited Comments), should have been applied when the GOMOR was moved to the restricted folder. d. He has since been placed in company command. He requests consideration of the loss of his active duty career. He is truly grateful for the opportunity to continue to serve in the USAR and would like the opportunity to continue to serve his country. 3. The applicant provides: * GOMOR, dated 28 August 2012, with associated documents * letter from the Office of the District Attorney, 30th Judicial District, State of Louisiana, Parish of Vernon, dated 6 February 2013 * 30th Judicial District, State of Louisiana, Parish of Vernon, Order to Seal Court Record, dated 19 March 2013, with attachments * 30th Judicial District, State of Louisiana, Parish of Vernon, Notice of Expungement, dated 20 March 2013, with attachments * U.S. Army Human Resources Command (HRC) memorandum, subject: Application for USAR Appointment, dated 3 February 2015 * DASEB memorandum, dated 23 March 2015, subject: Resolution of Unfavorable Information for (Applicant)], with attached Record of Proceedings, dated 19 February 2015 * HRC memorandum, dated 26 March 2015, subject: Evaluation Report Appeal 20120616-20121109 with attached OSRB Record of Proceedings, dated 12 February 2015 CONSIDERATION OF EVIDENCE: 1. On 19 May 2012 while serving in the rank of captain, the applicant was involved in an automobile accident wherein he caused his vehicle to rollover and crash into a ditch. A blood sample taken at the hospital following the accident showed a blood alcohol content (BAC) of 0.17 percent. He was arrested for DWI on 24 August 2012. (The accident report and hospital BAC findings are not of record. The BAC findings are noted in the GOMOR and in the DWI arrest court order, dated 20 March 2013.) 2. On 28 August 2012, he received a GOMOR for DWI. Brigadier General C____ K. K. C____, Commander, Headquarters, Joint Readiness Training Center and Fort Polk, noted the applicant's BAC of 0.17 and stated the applicant's decision to drive after he had been drinking demonstrated a lack of maturity and judgment. He risked not only his own life, but also the lives of innocent travelers. His misconduct cast doubt on his ability to perform his duties or to be placed in any position of responsibility. 3. In his request to have the GOMOR filed locally, the applicant offered his stress over his sister's diagnosis of glaucoma, his father's two heart attacks, and his mother's stage III colon cancer as mitigating factors. He stated he had voluntarily enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) and was attending Alcoholics Anonymous (AA) meetings. He provided copies of his OERs, Bronze Star Medal Certificate, and Army Achievement Medal Certificate with his request to have the GOMOR filed locally. After considering the applicant's submissions, the imposing authority directed filing the GOMOR in the performance folder of his OMPF. 4. The applicant's OER for the period 16 June 2012 through 9 November 2012 is a referred report and shows in: a. Part IVa (Army Values), all blocks are marked "Yes" except block 7 (Duty); b. Part IVb1-3 (Leader Attributes/Skills/Actions), all blocks are marked "Yes"; c. Part V (Performance and Potential Evaluation), is marked as "Satisfactory Performance, Promote" with the comments: [Applicant] performed capably in his duties as the senior analyst OCT [Observer/Coach/Trainer] and his additional duties as S1 for the Task Force. [Applicant] assisted in the production of three battalion task force After Action Reviews. Additionally, [Applicant] effectively managed S1 duties by preparing Officer evaluations, awards, and other S1 administrative duties. Finally, he assisted in the transition of a new Task Force Senior Officer, the re-organization of the tactical analysis feedback facility and updated operational systems. [Applicant] received a General Officer Memorandum of Reprimand for arrest for driving under the influence during this rating period. The rated officer has initiated an Army Multi-Source Assessment and Feedback/360 as required by AR [Army Regulation] 350-1. He should be considered for promotion due to his past record of service to the Army. d. Part VII (Senior Rater), is marked "Do Not Promote" with the following comments: [Applicant] received a General Officer Memorandum of Reprimand for arrest for driving under the influence during this rating period. He effectively performed his duties as the task force senior analyst OCT and his additional duty of S1 for the task force. 5. The Vernon Parish, LA, District Attorney's letter, dated 6 February 2013, states the applicant had met the requirements of the District Attorney's Pre-Trial Intervention (PTI) Program for first-time DWI offenders. 6. On 19 March 2013, the 30th Judicial District Court, Parish of Vernon, State of Louisiana, ordered the records related to the applicant's arrest for careless operation and DWI be sealed due to dismissal due to refusal by the District Attorney to prosecute. 7. On 20 March 2013, the 30th Judicial District Court, Parish of Vernon, LA, ordered expunction of the records related to the applicant's arrest for careless operation and DWI due to the District Attorney's refusal to prosecute. The court noted the applicant had been arrested by the Louisiana State Police on or about 19 May 2012 for careless operation and charged with DWI (1st offense) on 24 August 2012. The Vernon Parish District Attorney had accepted the applicant into a PTI Program and dismissed the DWI charge. 8. On 19 June 2014, HRC notified the applicant that he had been selected for involuntary separation under the provisions of Title 10, U.S. Code, section 638a, with a separation date of 1 April 2015. 9. The applicant's request for appointment in the USAR, dated 19 November 2014, was initially denied; however, the earlier denial was rescinded on 3 February 2015 and the applicant was appointed as a commissioned officer in the USAR. 10. On 12 February 2015, the OSRB determined the evidence presented did not establish clearly and convincingly that the presumption of regularity should not be applied to the OER under consideration or that action was warranted to correct a material error, inaccuracy, or injustice. 11. On 23 March 2015, the DASEB approved the applicant's request to transfer the GOMOR to the restricted folder of his OMPF. 12. In a memorandum, dated 26 March 2015, HRC advised the applicant that the OSRB had determined the evidence he submitted did not justify altering or withdrawing his OER for the period ending 9 November 2012. 13. On 1 April 2015, the applicant was released from active duty and transferred to a USAR troop program unit in Tulsa, OK. REFERENCES: 1. The Louisiana Department of Public Safety Office of Motor Vehicles website provides the following information: a. A driver can be arrested for DWI, sometimes called a DUI or operating while intoxicated, if he or she drives with a BAC of 0.08% or higher, regardless of whether his or her driving ability was actually impaired. A DWI arrest is considered a felony conviction if the driver's BAC is much higher than the legal limit or if there is personal injury or death. b. Pretrial Diversion Intervention Program: (1) Definition. A pretrial diversion intervention program is designed to give a first-time offender a second chance at having a clean record. The program keeps the violation off an offender's record without having to go to trial if he or she enrolls and fulfills all of the requirements of the program. This type of program is also known as pretrial intervention (PTI), good behavior, or deferred prosecution. (2) Description. PTI Programs vary greatly from parish to parish but require strict compliance with the requirements and usually include payment of program fees to participate, counselling, mandatory class attendance, community service, probation, and may also require additional drug and alcohol testing and any other requirements set by the individual jurisdictional programs. (3) Assuming that the individual does not have a felony record, he or she could be eligible for pretrial diversion if he or she were arrested for relatively minor charges, such as shoplifting, embezzlement, simple assault, theft, forgery, trespassing, burglary, DWI, and simple possession of marijuana. Participation in the program is voluntary, but if he or she qualifies, it is usually in his or her best interest to participate rather than to go to court. (4) If the District Attorney decides the offender is eligible to participate in the PTI Program, the offender will then enter a conditional no contest or guilty plea under the specified criminal code article in Louisiana known as an article 893 or 894 plea, depending on whether the charge is a misdemeanor or a felony. The plea will be held in abeyance while the offender fulfills certain obligations. The obligations usually include taking an educational class, paying a fine, and staying out of trouble for 1 year for a felony charge and 6 months for a misdemeanor charge. Depending on the probationary sentence, there might be other requirements which can include performing community service, drug or alcohol testing, and counseling for anger management or alcohol abuse. After the first-time offender successfully fulfills these obligations, the District Attorney will dismiss the matter. This will allow the offender to state on employment applications and similar documents that he or she has never been convicted of a felony or misdemeanor. (5) It is important to note that while there will be no conviction on the individual's record, he or she would still have the arrest on his or her record. It is necessary to take another step – hiring an attorney to file a motion to expunge the record of the arrest itself. Just because the District Attorney did not prosecute the matter and the matter was dismissed, does not mean he or she does not have an arrest record. It is beneficial to have the full matter expunged so that any potential employer or landlord, etc., will not see anything on his or her record. 2. Army Regulation 623-3 (Evaluation Reporting System) prescribes the policy for completing the DA Form 67-9, associated DA Form 67-9-1 (OER Support Form), and DA Form 67-9-1a (OER Developmental Support Form), that are the basis for the Army's Evaluation Reporting System. a. Paragraph 3-19 states any mention of unproven derogatory information in an evaluation report can become an appealable matter if later the derogatory information is unfounded. No reference will be made to an incomplete investigation (formal or informal) concerning a Soldier. References will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting an evaluation report to Headquarters, Department of the Army. b. Paragraph 3-19c states the restriction is intended to prevent unverified derogatory information from being included in evaluation reports. It will also prevent unjustly prejudicial information from being permanently included in a Soldier's OMPF, such as charges that are later dropped and charges or incidents of which the rated Soldier may later be absolved. c. Paragraph 3-20 states each report will be an independent evaluation of the rated Soldier for a specific rating period. It will not refer to prior or subsequent reports. It will not remark on performance or incidents occurring before or after the period covered. The determination of whether an incident occurred during the period covered will be based on the date of the actual incident or performance; it will not be based on the date of any subsequent acts, such as the date of its discovery, a confession, or finding of guilt, or the completion of an investigation. d. Paragraph 4-1 states the Evaluation Report Redress Program consists of several elements at various command levels. The program is both preventive and corrective in that it is based upon principles structured to prevent, and provide a remedy for, alleged injustices or regulatory violations, as well as to correct them once they have occurred. e. Paragraph 4-2 states an OER may have administrative errors or may not accurately record the rated Soldier's potential or the manner in which he or she performed his or her duties. The Redress Program protects the Army's interests and ensures fairness to the evaluated officer. At the same time, it avoids impugning the integrity or judgment of the rating officials without sufficient cause. A commander's inquiry (Cl) and an evaluation report appeal are separate and distinct actions. Rated Soldiers may seek an initial means of redress through a Cl; however, a Cl is not a prerequisite for the submission of an appeal. f. Paragraph 4-11 states evaluation reports accepted for inclusion in the Soldier's official record are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation. To justify deletion or amendment of a report, the appellant must produce evidence establishing 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. Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. The burden of proof rests with the appellant. g. Paragraph 4-11 states evidence will be material and relevant to the appellant's claim. In this regard, note that support forms (or equivalent) or academic counseling forms may be used to facilitate writing an evaluation. However, these are not controlling documents in terms of what is entered on the evaluation report form. Therefore, no appeal may be filed solely because the information on a support form (or equivalent) or counseling form was omitted from an evaluation, or because the comments of rating officials on the evaluation report form are not identical to those in the applicable support form or counseling form. DISCUSSION: 1. The applicant was driving under the influence with a BAC of 0.17 percent, more than twice the legal limit. Under Louisiana law this constitutes a felony offense. 2. The Vernon Parish District Attorney offered and the applicant accepted a pretrial plea agreement to participate in the State's PTI for first-time DWI offenders. The program allows drivers to reduce their DWI charge to a careless operation charge and, upon compliance of all of the program's stipulations, allows for dismissal of the DWI charge. 3. The fact that the applicant participated in the PTI Program – and had his DWI charge dismissed, had the DWI arrest record expunged, and had the record sealed – neither negates nor mitigates the fact that he was DWI and properly received the GOMOR. 4. While the accident occurred prior to the beginning of the rating period, the DWI charge was not initiated until 24 August 2012 according to the court order, dated 20 March 2013. 5. Further, the action in question is the issuance of the GOMOR, which was issued 2 months after the beginning of the rating period. 6. The GOMOR was filed in the performance (unrestricted) folder at the time the OER was prepared. Had the GOMOR been transferred to the restricted folder of his OMPF, it still would have been of record during the period covered by the OER. 7. The GOMOR was not based on how the civilian court handled the civilian DWI charge, but rather on the fact that the applicant was DWI at the time of the accident. 8. The applicant's contention that the DWI charge was dismissed prior to entering the PTI Program is specious. He had to enter a conditional guilty plea in order to enter the PTI Program and the charge was dismissed only after fully participating in the PTI Program. 9. The LA State PTI Program is an administrative process used by the State for first-time DWI offenders to reduce the negative repercussions of a DWI conviction on the individual's civilian record. The expungement of the arrest and sealing of the arrest record just masks the drunk driving offense but cannot eliminate the fact that the DWI charge and arrest occurred. The applicant would have to admit to this fact when asked if he had ever been arrested for or convicted of a felony. 10. In order to warrant a correction of the OER or movement to the restricted folder of his OMPF, the applicant must show the OER was inaccurate, unjust, or otherwise flawed. He has not provided and the record does not contain sufficient evidence to support a finding of an error in the OER preparation or reason for its transfer to the restricted folder of his OMPF. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017636 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017636 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2