IN THE CASE OF: BOARD DATE: 20 October 2016 DOCKET NUMBER: AR20150019232 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ___x____ ___x____ ___x____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 20 October 2016 DOCKET NUMBER: AR20150019232 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by transferring the General Officer Memorandum of Record, dated 9 September 2014, and all allied documents to the restricted section of his Official Military Personnel File (OMPF). 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to removal of the GOMOR from his OMPF, reinstatement to the Fiscal Year 2013 (FY13) Active Guard/ Reserve, Major, Army Promotion List, a Special Selection Board for FY13 and FY14. _____________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: 20 October 2016 DOCKET NUMBER: AR20150019232 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 9 September 2013 from his official military personnel file (OMPF) and reinstatement to the Fiscal Year 2013 (FY13) Active Guard/Reserve (AGR) Major (MAJ) Army Promotion List (APL). In the alternative, he requests reconsideration by a Special Selection Board (SSB) for FY13 and FY14. 2. He states, in effect, the GOMOR he received for driving under the influence (DUI) has served its intended purpose because he was removed from the FY13 MAJ APL and he lost his board selected Satellite Intermediate Level Education (ILE) seat. However, with the issuing authority’s (IA) support to remove the GOMOR from his OMPF, he was recently selected for MAJ (Above the Zone, Sequence Number 1) by the FY15 MAJ APL. His records are now subject to a Promotion Review Board because his arrest is on record with the Criminal Investigation Division, Crime Records Center. 3. He provides: * awards and decorations * numerous letters of support * Traffic Citation and Expungement Order * DA Forms 67-9 (Officer Evaluation Report (OER)) * DA Forms 67-10-1 (Company Grade Plate) (01-03; W01-CW2) OER * two Department of the Army Suitability Evaluation Board (DASEB) decisions with allied documents * Forensic Toxicology Report, dated 21 February 2014 * Hobbs Law, Professional Limited Liability Company (PLLC), memorandum, dated 21 August 2015 CONSIDERATION OF EVIDENCE: 1. The applicant is currently serving in the grade of MAJ/O-4 in the AGR program. 2. The subject GOMOR, dated 9 September 2013, was issued to the applicant when he was in the grade of captain (CPT/O-3). The GOMOR states, in part: a. The reprimand was the result of being cited for speeding and DUI on 24 August 2013. His flagrant and dangerous actions endangered his life, the lives of innocent motorists, and pedestrians bringing into question his judgement and potential for future service. b. The GOMOR was imposed as an administrative measure and not as nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ). The General Court-Martial Convening Authority (GCMCA), Major General (MG) M----, stated that he would consider any matters the applicant provided before making a decision to permanently file the GOMOR in his OMPF. 3. In a memorandum, subject: Rebuttal to General Officer Memorandum of Reprimand, dated 13 September 2013, the applicant apologized for the negative attention brought to the organization and acknowledged his mistake. He contended that at no point before, during, or after the drive did he feel inebriated, tired or unable to operate a motor vehicle. He felt the reason for his blood alcohol content (BAC) of .093 was due to losing 25 pounds over the last 4 months after completing Master Fitness Training and undergoing shoulder surgery. 4. Orders B-09-306285, dated 21 September 2013, issued by the U.S. Army Human Resources Command (HRC), directed the applicant’s promotion to MAJ/O-4, effective 1 October 2013. 5. On 24 September 2013, after careful consideration of the case to include the applicant’s rebuttal, the GCMCA directed the GOMOR be permanently filed in the applicant’s OMPF. His promotion order to MAJ/O-4 was revoked on the same date. 6. HRC notified the applicant on 1 October 2013 that as a result of the GOMOR his records would be considered by a Promotion Review Board. 7. On 24 April 2014, the Secretary of the Army directed the removal of the applicant’s name from the FY13, MAJ, AGR, APL. 8. A review of his OMPF shows the GOMOR is filed in the performance section. His records are void of any type of NJP or other adverse actions. 9. The DASEB denied his requests to remove or transfer the GOMOR on 26 February 2014 and again on 2 October 2014. 10. The applicant was selected for promotion to MAJ by the FY15, MAJ, AGR, APL. His records were again subject to a Promotion Review Board and on 18 July 2016, the Secretary of the Army directed the applicant be retained on the promotion list. 11. He provides: a. A recommendation from the GOMOR IA, dated 2 May 2014. The IA stated that the civilian court proceedings were dismissed and would be expunged on 28 May 2014. Since the filing of the GOMOR, the applicant’s exemplary performance continued, the GOMOR did not adversely affect his duty performance in any manner, and he continued to excel in all areas. The applicant had clearly learned from this incident, and any misconduct on his part would simply not happen again. Because of his substantial contributions to HRC’s mission accomplishments, the U.S. Army would be best served by removing the GOMOR from his OMPF. b. A self-authored memorandum wherein he explains that he accepts responsibility for his actions and is extremely remorseful. He has been honest and forthcoming since the day of the incident. He argues that the DASEB’s review of his applicant was in essence flawed and his integrity was called into question. The DASEB incorrectly used scientific evidence to dispute how the use of his inhaler (albuterol) altered the BAC reading; however, he never made this claim. Further, the DASEB questioned the expert toxicology report stating it was based on the amount of alcohol the applicant reported and his potential use of albuterol shortly before the traffic stop. All charges were ultimately dismissed due to repeated delays by the prosecution and the unavailability of the arresting officer. c. Numerous letters of support from his current and previous leadership along with exceptional evaluation reports. d. A letter from his attorney, the traffic citation, the expert forensic toxicology report, and court documents. The traffic citation indicates the applicant’s BAC results as 0.093 and that he stepped off on 3 and executed an improper turn during the walk and turn field test. Further, he used his arms for balance and did not raise his foot 6 inches off the ground as instructed. REFERENCES: 1. Army Regulation 600-8-104 (Army Military Human Resources Records Management (AMHRR)), in effect at the time, provides policies, operating tasks, and steps governing the AMHRR. This regulation states that only those documents listed in Appendix B are authorized for filing in the AMHRR and/or in the Interactive Personnel Electronic Records Management System. a. Depending on the purpose, documents will be filed in one of three sections: performance, service, or restricted. b. Table 3-1 (OMPF folders in the AMHRR) states the performance folder contains performance related information to include evaluations, commendatory documents, specific disciplinary information, and training/education documents. The restricted folder contains documents that may normally be considered improper for viewing by selection boards or career managers. 2. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. a. Chapter 7 (Appeals and Petitions) provides the policies and procedures for appeals and petitions for removal of unfavorable information from the OMPF. b. Paragraph 7-2 (Policies and Standards), subparagraph b (Appeals for Transfers of OMPF Entries), contains guidance on transfers of OMPF entries. It states only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted section of the OMPF. (1) Appeals will normally be returned without action unless at least 1 year has elapsed since imposition of the letter or memorandum and at least one evaluation report, other than academic, has been received in the interim. It also shows that appeals approved under this provision will result in transfer of the document from the performance section to the restricted section of the OMPF. (2) GOMOR's may be transferred upon proof that their intended purpose has been served or that their transfer would be in the best interest of the Army. The burden of proof rests with the Soldier concerned to provide substantial evidence that these conditions have been met. 3. Army Regulation 600-8-29 (Officer Promotions) states: a. An SSB will be convened under Title 10, U.S. Code (USC), section 628 to consider or reconsider commissioned or warrant officers based on erroneous non-consideration or material administrative error. b. Material error is one or more errors of such a nature that in the judgment of the reviewing official (or body) it caused an individual's non-selection by a promotion board and that had such error(s) been corrected at the time the individual was considered for promotion, a reasonable chance would have resulted that the individual would have been recommended for promotion. c. An officer will not be considered or reconsidered for promotion by an SSB for immaterial administrative errors. 4. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant contends the GOMOR filed in the performance folder of his OMPF should be removed because it has served its intended purpose. Further, he requests reinstatement to the FY13 AGR MAJ APL or in the alternative, reconsideration by an SSB under the FY13 and FY14 criteria. 2. The evidence of record shows the GOMOR and allied documents are properly filed in the performance folder of the applicant's OMPF. 3. By regulation, if at least 1 year has elapsed since imposition, an appeal related to a GOMOR can be approved based on proof the GOMOR has served its intended purpose and that the transfer would be in the best interest of the Army. The evidence shows the basis for the GOMOR was an isolated incident that occurred more than 3 years ago. Although the GOMOR resulted in his removal from a promotion list, he was subsequently selected again and, after another review, retained on the promotion list. He has since been promoted to MAJ. 4. His senior leaders offer their endorsement attesting to his personal character and Army professionalism, to his worth and potential as an Army officer and advocate his continued service in the U.S. Army in positions of increasing responsibility. In addition, they all strongly recommend removal of the GOMOR from the performance folder of the applicant's OMPF. 5. On 2 May 2014, the general officer who issued the GOMOR recommended removal of the GOMOR from the applicant’s OMPF concluding that it has served its intended purpose and it would be in the best interest of the Army. 6. The evidence presented does not establish that the GOMOR under consideration was issued in error. Although his civilian case was dismissed and his record expunged, ultimately there was no court decision finding him not guilty of DUI. Dismissal of charges does not necessarily mean the accused is innocent. The applicant notes the charges were ultimately dismissed due to repeated delays by the prosecution and the unavailability of the arresting officer. This is not equivalent to a finding of not guilty. 7. The presence of the GOMOR having resulted in his removal from a promotion list would not be a material error warranting an SSB unless the GOMOR was found to have been untrue or to have incorrectly cited the facts of his case. That does not appear to be the case here. 8. The Board may recommend transfer of the GOMOR 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) AR20150019232 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150019232 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2