IN THE CASE OF: BOARD DATE: 24 May 2016 DOCKET NUMBER: AR20160003886 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: 24 May 2016 DOCKET NUMBER: AR20160003886 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: 24 May 2016 DOCKET NUMBER: AR20160003886 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 25 March 2015, from his Official Military Personnel File (OMPF). 2. The applicant states: a. His board file was submitted to the Fiscal Year 2015 Captain's Officer Separation Board, which contained a GOMOR that he feels was added to his file unjustly. b. In accordance with Army Regulation 600-37 (Unfavorable Information), he requests removal of the GOMOR from his military records. The regulation allows such removal if the individual concerned can 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. He is aware that the Board doesn't deal with placement of GOMORs, but the negative paper added to his board file and led to his separation from active duty service. c. He fought the allegation in a court of law and was found not guilty. He did not have enough time to clear his name because he had to prove in civilian and military judicial courts that he was innocent of the allegation. The military hearing convened after the Officer Selection Board, which made it difficult to provide the suitability board with enough evidence supporting the GOMOR should be removed. 3. The applicant provides: * letter from his civilian attorney, dated 4 August 2015 * memorandum to the Board, dated 1 November 2015 * court disposition * GOMOR * memorandum, dated 1 November 2015 * two letters of support * character-reference letter CONSIDERATION OF EVIDENCE: 1. Having prior inactive enlisted service in the U.S. Army Reserve, the applicant was appointed as a second lieutenant in the Regular Army on 2 April 2009. He was promoted to captain on 1 November 2012. 2. On 25 March 2015, he received a GOMOR for his arrest for driving under the influence of alcohol after being pulled over for driving 62 miles per hour in a 45-mile per hour zone. He was administered an Intoximeter (breath alcohol analyzer) that determined his blood alcohol content to be .09. 3. He submitted a rebuttal to the GOMOR on 14 April 2015. In summary, he stated: a. On 19 February 2015, he met college friends and hung out. He consumed three beers, took a 2-hour nap, and felt sober to drive. He left his friend's house between midnight and 1:30 a.m. Because he was unfamiliar with the roads and the area, he used his global positioning system to get back home in Raleigh. b. When he was pulled over by the Fayetteville police officer, he had no idea why he was pulling him over. The police informed him that he had been speeding. He was completely shocked, mortified, and embarrassed by his blood alcohol content of .09. c. Although he did not intentionally drink and drive, he fully accepted responsibility for his actions and apologized for any inconvenience his actions caused. d. This is the first incident of misconduct in his 10-year career. e. He has received numerous awards and served two deployments in Korea and Iraq. f. He is fully aware of the severity of this incident. He takes his military career very seriously. He is a dedicated Soldier and would like to continue to serve his country honorably. He learned from this mistake and is asking to be found not guilty so he can show he learned from this mistake. 4. On 18 May 2015 after considering all matters in rebuttal, the commanding general directed permanently filing the GOMOR in the applicant's OMPF. 5. On 10 June 2015, he submitted a request to the Department of the Army Suitability Evaluation Board (DASEB) to remove the GOMOR from his OMPF. In summary, he stated: a. This request is based on relevant evidence, which is clear and convincing, and was not considered at the time the unit's disciplinary decision was rendered. b. The fact-finding body of the State, and the State courts were still considering the facts most relevant to his case. c. After all evidence was heard and considered, the State and its fact finder's found him not guilty. d. The ruling by the State court was given no consideration by his unit leadership in their decision to proceed with the administrative action. e. The basis for placing the GOMOR in his permanent file was rooted in the same accusations levied by the State, for which he was ultimately found not guilty. 6. He provided a letter from his attorney, dated 4 August 2015, who states: * his firm represented the applicant in Cumberland County District Court on charges of driving while impaired * they entered a plea of not guilty and the bench trial was held on 21 May 2015 * the arresting police officer testified that he paced the applicant at approximately 60 miles per hour in a 45-mile per hour speed zone * he testified he did not utilize a radar or any other device to make a determination as to the applicant's speed on 20 February 2015 * he testified the applicant did well on the field sobriety test – he maintained a calm demeanor and did not demonstrated visible signs of impairment * the presiding judge found the applicant not guilty of driving while impaired * his firm filed a petition for expunction of the charges * at the conclusion of the expungement process, the applicant would be allowed under North Carolina law to state that he was never charged with the offense * throughout this process, the applicant has conducted himself in the most professional manner * he is credit to his unit and the military 7. He provided a self-authored memorandum to the Board, dated 1 November 2015, wherein he stated the same contentions provided in his DASEB request to remove the GOMOR from his OMPF. 8. He provided a character reference letter from his executive officer, dated 9 December 2015, who states: * he unequivocally supports the applicant's request to remove the GOMOR from his file * the applicant has served as his battalion S4 for over 6 months * he epitomizes leadership qualities most wanted within the Officer Corps and Logistics Department * he is one of the most talented, competent, and trustworthy professionals within the logistics community * he is a recognized professional who assures absolute positive impacts in all that he endeavors to accomplish * his demonstrated professionalism, adaptability, and initiative has contributed to an overall superb performance 9. On 14 January 2016, the DASEB voted to deny his request. The DASEB determined the evidence presented did not clearly and convincingly establish that the GOMOR was untrue or unjust. The DASEB therefore determined the overall merits of his case did not warrant the requested relief. 10. He provided a letter of support from his commanding officer, dated 15 January 2016, who states: * without reservation, he recommends the applicant's file be expunged to permanently remove the GOMOR * he came to the unit on a rehabilitative transfer due to charges he was later found innocent of * since his arrival, he has profoundly embodied all the charter, competence, and commitment attributes that are so needed by military leaders * he rates the applicant number one of six staff officers * the applicant has his full confidence as a leader * he plans to endorse the applicant to compete for a command within the brigade, to include the most challenging Headquarters and Headquarters Company usually reserved for a second command * he is a talented leader and one of the best in enforcing standards since his arrival in the battalion 11. He also provided a letter of support from his commanding officer, dated 1 February 2016, who states: * he recommends the GOMOR be permanently removed * the applicant was assigned to the 82nd Airborne Division Sustainment Brigade's Special Troops Battalion as a rehabilitation transfer for an alcohol-related incident * he has served as the battalion S4 where his technical abilities, work ethic, and professionalism has epitomized attributes the Army must have in its company grade officers * he is categorized as innocent of the alcohol-related incident by the State of North Carolina 12. A review of the performance folder of his OMPF in the integrated Personnel Electronic Records Management System (iPERMS) revealed a copy of the GOMOR in question. REFERENCES: 1. 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. It states the purpose of the OMPF is to preserve permanent documents pertaining to enlistment, appointment, duty stations, assignments, training, qualifications, performance, awards, medals, disciplinary actions, insurance, emergency data, separation, retirement, casualty, administrative remarks, and any other personnel actions. 2. Army Regulation 600-8-104, appendix B (Documents Authorized for Filing in the Army Military Human Resource Record and/or iPERMS), and the U.S. Army Human Resources Command website provide a listing of documents authorized for filing in iPERMS. These sources state to file letters of reprimand, censure, or admonition in the performance folder unless directed otherwise by the DASEB. 3. Army Regulation 600-37 states 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. DISCUSSION: 1. The applicant, a captain, received a GOMOR for his arrest for driving under the influence of alcohol with a blood alcohol content of .09 after being pulled over for driving 62 miles per hour in a 45-mile per hour zone in March 2015. 2. The evidence of record shows he was found not guilty of his civilian driving while impaired charge in May 2015. 3. He contends the GOMOR should be removed from his OMPF because he was found not guilty of the allegation in a court of law. However, at the time the GOMOR was imposed, he indicated he had been drinking earlier in the evening, but he felt competent to drive due to the passage of time. 4. The governing regulation states administrative letters of reprimand will be filed in the performance folder of the OMPF unless directed otherwise by the DASEB. 5. In 2016, the DASEB voted to deny his request to remove the GOMOR from his OMPF. 6. There is no evidence the GOMOR was improperly imposed. 7. The GOMOR is properly filed in the performance 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) AR20160003886 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003886 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2