ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

		BOARD DATE:  26 April 2019

		DOCKET NUMBER:  AR20170004118


APPLICANT REQUESTS:  in effect, removal of a general officer memorandum of reprimand (GOMOR) from her Official Military Personnel File (OMPF).

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

* DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552)
* DA Form 3975 (Military Police Report), dated 14 November 2010
* DA Form 1920 (Alcohol Incident Report)
* Intoxilyzer 5000 Instrument Report, dated 14 November 2010
* DA Form 4856 (Developmental Counseling Form), dated 6 December 2010
* DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ), dated 10 January 2011

FACTS:

1.  The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file.

2.  The applicant states:

* she has evidence that she was not drunk while operating a motor vehicle
* she has a breathalyzer report indicating she was not drunk
* the breathalyzer report indicates a breath/blood alcohol content (BAC) level of 0.076, 0.079, and 0.076
* she has an Alcohol Incident Report indicating her BAC level as 0.076
* she believes she was wrongfully convicted in this situation
* she has been trying to fix this situation for over 6 years

3.  At the time of the incident that resulted in issuance of the GOMOR, the applicant was serving as a specialist in the Regular Army, attending the Warrior Leadership Course at Fort Bliss, TX.

4.  The Alcohol Incident Report notes the applicant appeared to be drunk.  She was administered a standardized field sobriety test.

5.  The Military Police Report, dated 14 November 2010, states the applicant drove up to the security check point to enter Fort Bliss on 14 November 2010 at 0040 and was detained for possible driving while intoxicated.  She failed a standardized field sobriety test at 0052.  She was apprehended for drunken operation of a vehicle on post and transported to the Military Police Station.  A breath sample submitted at the Military Police Station using a breathalyzer recorded a BAC of 0.076.

6.  On 10 January 2011, nonjudicial punishment (NJP) was imposed against her for physically controlling a vehicle while drunk on or about 14 November 2010.  Her punishment included reduction in rank to private first class/E-3, forfeiture of pay, extra duty, and restriction to the limits of the company area.  She did not appeal the findings.  The DA Form 2627 is not filed in her OMPF.

7.  On 11 February 2011, the Commanding General, Headquarters, Fort Bliss, issued the applicant a GOMOR for driving while intoxicated on 14 November 2010.  The commanding general noted the applicant failed a standardized field sobriety test and a breathalyzer test confirmed the presence of alcohol.
	a.  The GOMOR-imposing authority stated the applicant's actions were prejudicial to good order and discipline and tended to bring discredit upon the Armed Forces.  He further stated she knowingly made a decision that endangered the lives of others.  Her conduct raised serious questions about her maturity, judgment, self-discipline, and fitness for continued service.
	b.  She was informed the GOMOR was imposed as an administrative measure and not as punishment under the provisions of Article 15 of the UCMJ and advised the GOMOR-imposing authority intended to direct filing the GOMOR in her OMPF.
	c.  She was further advised she had the right to submit matters in her own behalf within 5 days of receipt of the memorandum.
8.  She acknowledged receipt of the GOMOR on 7 March 2010, having read and understood the unfavorable information presented against her, and elected not to submit a statement in her own behalf.
9.  On 18 March 2011 after reviewing the case file, the filing recommendations of the applicant's chain of command, and any supporting documentation, the GOMOR-imposing authority directed permanently filing the GOMOR in the applicant's OMPF.
10.  The GOMOR is currently filed in the restricted folder of her OMPF.

11.  She was honorably discharged on 18 February 2016.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she completed 11 years, 2 months, and 12 days of total active service.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined that relief was not warranted.  One potential outcome discussed was to grant the requested relief based upon the applicant’s prior 11 years of honorable service and the DUI incident appearing to be an isolated incident of misconduct.  However, the majority of the Board concluded that based upon all the facts within the documentary evidence presented or found within the military service record, the General Officer Memorandum of Reprimand (GOMOR) accurately depicts the misconduct of the applicant.  Additionally, the Board noted that the GOMOR was filed in the applicant’s restricted file of her Official Military Personnel File (OMPF), so clemency had already been demonstrated by the command when making the filing determination.  Therefore, the Board found no error or injustice which would warrant removing the GOMOR from the applicant’s military service record.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

: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.

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.




REFERENCES:

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 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.

2.  Army Regulation 600-37 (Unfavorable Information) provides that an administrative memorandum 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 memorandum 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 a filing determination is made.
	a.  A memorandum of reprimand may be filed in a Soldier's OMPF only upon the order of a general officer-level authority and is to be filed in the performance folder.  The direction for filing is to be contained in an endorsement or addendum to the memorandum.  If the reprimand is to be filed in the OMPF, the recipient's submissions are to be attached.  Once filed in the OMPF, the reprimand and associated documents are permanent unless removed in accordance with chapter 7.
	b.  Paragraph 7-2 provides that 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.
	c.  Only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder of the OMPF.  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.  The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met.
3.  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.  Table B-1 states a memorandum of reprimand is filed in the performance folder of the OMPF unless directed otherwise by an appropriate authority (Department of the Army Suitability Evaluation Board or the ABCMR).

ABCMR Record of Proceedings (cont)	 AR20170004118
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