BOARD DATE: 21 November 2017 DOCKET NUMBER: AR20170009540 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: 21 November 2017 DOCKET NUMBER: AR20170009540 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: 21 November 2017 DOCKET NUMBER: AR20170009540 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, in effect, overturning the Secretary of the Army's decision for his removal from the Fiscal Year 2017 (FY 17) Captain (CPT) Army Medical Specialist Corps (MSC) Promotion List. 2. The applicant states: a.  He was evaluated by a promotion review board (PRB) and he was removed from the FY 17 CPT Army MSC Promotion List. b.  He was accused of driving under the influence (DUI) and the charges were dropped. He has documentation stating such, but he was unable to submit this information to the PRB. 3. The applicant provides: * letter from the U.S. District Court, Eastern District of North Carolina, dated 15 August 2002 * AOC-CR-339 Form (State of North Carolina, Hoke County, Prosecutor's Dismissal and Explanation Notice) (Implied-Consent Offense or Driving While License Revoked for an Impaired Driven License Revocation), dated 2 March 2017 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the U.S. Army Reserve on 16 July 1996. 2. On 29 July 1999, he enlisted in the U.S. Army Reserve Delayed Enlistment Program for enlistment in the Regular Army on 20 October 1999. 3. On 29 September 1999, he enlisted in the Regular Army. 4. Military Police Report 02XXX-2002-MPCXXX, dated 24 March 2002, shows, in part: a.  At 0245 hours on 24 March 2002, the applicant, while in the rank of private first class, was observed traveling on Fort Bragg, NC, at 88 miles per hour in a 45 miles per hour zone. A military police officer detected a strong odor of an alcoholic beverage emitting from the applicant. A field sobriety test was conducted which warranted further action. b.  The applicant was apprehended, transported to the Provost Marshal's Office, and administered an Intoxilyzer 5000 test which registered .14-percent blood alcohol content. He was advised of his mandatory court appearance, further processed, issued a suspension of post driving privileges letter, and released to his unit, and his vehicle was towed. c.  The report also shows he was charged with careless and reckless driving, driving while impaired, and drunken driving. 5. On 10 April 2002, he received a general officer memorandum of reprimand (GOMOR) for driving while impaired on Fort Bragg, NC, on 24 March 2002. He was advised of the imposing official's intent of filing the GOMOR in his Official Military Personnel File (OMPF). He was provided 7 days to submit a response. 6. On 26 April 2002, he submitted a statement in his own behalf and appealed the decision of filing the GOMOR in his OMPF. He requested local filing of the GOMOR. 7. On 30 April 2002, his company and battalion commanders recommended local filing of the GOMOR. 8. On 6 May 2002, his brigade commander recommended filing the GOMOR in his OMPF. 9. On 22 July 2002 after considering all evidence, the imposing official directed filing the GOMOR in the applicant's OMPF. The GOMOR is currently filed in the restricted folder of his OMPF. 10. On 29 January 2015, he was honorably released from active duty for training to accept a commission in the Regular Army. 11. On 30 January 2015, he was appointed as a first lieutenant in the Regular Army in the MSC. 12. He provided a State of North Carolina, Hoke County, Prosecutor's Dismissal and Explanation (Implied-Consent Offense or Driving While License Revoked for an Impaired Driving License Revocation) Notice, dated 2 March 2017, which shows his charge of driving while under the influence was dismissed. The reverse of the notice contained additional information. The applicant did not provide the reverse of the form. 13. On 15 March 2017, the Secretary of the Army directed the applicant's immediate removal from the FY 17 CPT Army MSC Promotion List. The complete facts and circumstances relating to his removal from the promotion list are not available. 14. On 21 March 2017, the applicant was notified, in part, of his removal from the promotion list and the filing of the Acting Secretary of the Army's decision in the restricted folder of his OMPF. 15. U.S. Army Installation Management Command and Headquarters, U.S. Army Garrison, Fort Bragg, Orders BG-125-0627, dated 5 May 2017, deployed him in a temporary change of station status in support of Operation Freedom's Sentinel, Afghanistan, for a period not to exceed 280 days effective 4 July 2017. 16. U.S. Army Installation Management Command and Headquarters, U.S. Army Garrison, Fort Bragg, Orders BG-125-0627 (A1), dated 25 August 2017, amended Orders BG-125-0627, dated 5 May 2017, same headquarters, to show his effective date as 25 August 2017 instead of 4 July 2017. 17. On 28 August 2017, the Chief, Officer Promotions, Special Actions, U.S. Army Human Resources Command, provided an advisory opinion in which he stated his office could only conclude the Secretary of the Army elected to remove the applicant from the FY 17 Army CPT MSC Promotion List (FY 17 Army CPT MSC Promotion List) based on his review of the applicant's case file. a.  Department of Defense policy requires the Army to certify that all officers submitted for promotion meet the exemplary conduct provisions of Title 10, U.S. Code, section 3582, and Army Directive 2016-26 (Screening Requirements for Adverse and Reportable Information for Promotion and Federal Recognition to Colonel and Below). b.  In order for the Secretary of the Army or his designated representative to certify exemplary conduct, he or she must be apprised of any adverse information contained in the official files maintained by the U.S. Army Criminal Investigation Command, the Department of the Inspector General, and the Army Military Human Resource Record. b.  The document provided by the applicant stamped "DISMISSED" bears no date(s) or signature(s) and does not affirm absence of a crime or charge, nor does it state the applicant was clearly "exonerated" of the accusation(s) or free from guilt or blame. He further stated that if and when his office received an official directive to reinstate and promote the applicant, his office would do so (unless proven otherwise ineligible). Any associated back pay or allowances would only occur upon a favorable directive. 18. On 31 August 2017, a copy of the advisory opinion was provided to the applicant for review and an opportunity to provide a response or additional evidence. 19. On 17 September 2017, he provided a response with four enclosures. He stated: a.  He was accused of driving under the influence while returning home to his barracks on Fort Bragg, NC. While the matter was dismissed on 22 August 2002, the GOMOR remained in his OMPF. The AOC-CR-339 Form, dated 2 March 2017, is the record of dismissal. This is the only record of dismissal he has and he has kept it for years as proof of the dismissal. b.  The advisory opinion addresses the signature and date of the AOC-CR-339 Form; however, this is the only document he has and the tracking of documents in 2002 was not what is like today. He is prepared to search for other documents, but the document he provided is genuine and remains in his possession. c.  Law Enforcement Report – Final Number 04XXX-2015-MPCXXX-XXXXXX-XXX XX, dated January 2016, refers to an incident in which he was accused of driving under the influence in December 2015. (He did not provide a copy of the law enforcement report.) The charge was dismissed and he indicated he provided a copy (AOC-CR-339). However, this document was not available to him or to the PRB until March 2017, which was 3 months (December 2016) after the deadline for rebuttal submission, and the PRB had already decided his case. He was not allowed to submit the dismissal for review. d.  He understands the AOC-CR-339 Form, dated 2017, does not specifically say he was "free from guilt or blame"; the case was dismissed by the prosecution before a trial. There was never any evidence brought against him. e.  With the exception of the aforementioned documents, he has an exemplary record of military service. He was promoted from grade E-1 to E-7 ahead of peers, he was selected to become a Green Beret, a physician assistant, and a first lieutenant through Officer Candidate School. He was awarded for valor on the battlefield and competence in a garrison environment. f.  He enjoys the confidence of his chain of command and the respect of his senior medical officers. A review of his OMPF will demonstrate that he has consistently sought out the Army's hardest assignments, schools, and qualifications, and he excelled at every turn. g.  Despite the promotion board recommendation, he remains his unit's medical provider and a competent medical professional. He continues to train and mentor Soldiers just as he was. With 18 years of military medical experience, he wants to continue to pass this knowledge to junior medics and other Soldiers. He believes this will save lives on and off the battlefield. 20. He provided the following enclosures with his response, dated 15 September 2017: a.  Enclosure 1 – U.S. District Court, Eastern District of North Carolina, Office of the Clerk, letter, dated 15 August 2002, advised him that criminal charges had been filed against him in Federal Court for violations of Federal law which occurred on Fort Bragg or Pope Air Force Base, NC, and he was to appear in court on 11 September 2002. The letter is stamped "DISMISSED." The letter does not contain a signature, date, or explanation for the dismissal; b.  Enclosure 2 – A memorandum from the Commander, Headquarters, 82d Airborne Division, dated 27 March 2002, subject: Paratrooper of the Month Selection, he was selected as the Distinguished Paratrooper of the 82d Airborne Division for March 2002; c.  Enclosure 3 – AOC-CR-339 Form, dated 2017; and d.  Enclosure 4 – A Bronze Star Medal Certificate for exceptionally valorous conduct in the face of the enemy on 1 February 2007 and his Meritorious Service Medal Certificate for the period 24 June 2008 to 1 June 2012 for meritorious service. REFERENCES: 1. Army Regulation 600-8-29 (Officer Promotions) prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the active duty list. a.  Headquarters, Department of the Army (HQDA), will continuously review promotion lists to ensure that no officer is promoted where there is cause to believe that he or she is mentally, physically, morally, or professionally unqualified to perform the duties of the higher grade. b.  An officer may be referred to a PRB, in part, for a memorandum of reprimand placed in the OMPF, adverse documentation filed in the OMPF, or other derogatory information received by HQDA but not filed in the OMPF, if the referral authority finds that the information is substantiated, relevant, and might reasonably and materially affect a promotion recommendation. c.  HQDA will prepare a DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) upon referral of a case to a PRB by HQDA. The failure to prepare a DA Form 268, however, does not invalidate referral of the action to a PRB or subsequent action relating to the PRB (including removal from a promotion list). HQDA will remove the suspension of favorable personnel action (if not earlier removed by the Secretary of the Army or the Secretary's designee) when the President or the President's designee decides whether the officer should be removed from the promotion list. d.  Before the PRB convenes, the officer under review will be informed by memorandum of the reason for the action and provided a copy of any information that will be considered by the board. The officer will be afforded a reasonable opportunity to submit comments on that information to the PRB and the officials reviewing the recommendation. e.  The PRB's recommendation is only advisory to the Secretary of the Army. In cases involving promotion to the grade of colonel or below, the board's report will be forwarded to the Secretary of the Army who, on behalf of the President, may remove from the promotion list the name of the officer in a grade above second lieutenant; retain the officer on the promotion list; return the report to the Deputy Chief of Staff of the Army, G-1; or direct other appropriate action. f.  Officers considered by a PRB will be informed of the results in writing through their chain of command. Notice will be sent after the appropriate authority takes final action on the PRB's recommendation. g.  An officer whose name is removed from a promotion list continues to be eligible for consideration for promotion under Title 10, U.S. Code, section  629(c) and section 579(c). The next regular selection board convened to consider officers for promotion to that grade and competitive category will consider the officer (if otherwise eligible), provided this removal action does not constitute the officer's second non-selection for separation purposes. If the next board does not recommend promotion, this will constitute the officer's second non-selection. If the next board recommends promotion, the officer may petition the Secretary of the Army to be granted the same date of rank and position on the active duty list officer would have had if the officer's name had not been removed from the promotion list. 2.  Army Directive 2016-26, dated 18 July 2016, prescribes procedures for screening and reviewing adverse and reportable information for promotion and Federal recognition to the grades of colonel and below to ensure that the Army complies with governing law and policy, as outlined in Title 10, U.S. Code, section 3583. 3. 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. a.  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. b.  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. c.  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. d.  Only memoranda of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder. Normally, such appeals will be considered only from Soldiers in grades E-6 and above, officers, and warrant officers. The above 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. e.  If a status change from enlisted to commissioned or warrant officer was approved on or after 16 December 1980, letters of reprimand, admonition, or censure received while in an enlisted status which are filed in the performance section of the OMPF will be moved to the restricted folder of the OMPF. 4. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. 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 evidence of record shows the applicant received a GOMOR in 2002 for driving while impaired while he was in an enlisted status. Although he provided a letter from the U.S. District Court, Eastern District of North Carolina, with a "DISMISSED" stamp, this letter does not bear a signature or date of dismissal and does not prove his GOMOR was issued in error. This GOMOR is properly filed in the restricted folder of his OMPF in accordance with the governing regulation. 2. He was commissioned as a first lieutenant in 2015 and he was subsequently selected for promotion by the FY 17 CPT Army MSC Promotion Board. 3. Although not available for review, he provided evidence showing there was a police report, dated January 2016, in which he was accused of driving under the influence. He contends the charge was dismissed and evidence of this is shown in his AOC-CR-339 Form, dated 2 March 2017. Further, he contends the form was not made available to him until after the decision for his removal from the promotion list. 4. He provided page 1 of the AOC-CR-339 Form that shows his offense of driving while under the influence was dismissed and other additional information was on the reverse of the form. However, he did not provide the reverse of the form. 5. On 15 March 2017, the Secretary of the Army removed him from the FY 17 CPT Army MSC Promotion List. He contends he should not have been removed from the promotion list because his charge was dismissed. 6. Although the complete facts and circumstances surrounding his removal from the promotion list are not available, the fact that he had a charge pending against him was sufficient evidence for consideration by a PRB. 7. 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. He has not provided evidence showing the PRB was improperly conducted, his rights were violated, or the decision of the Secretary of the Army was in error. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) XX 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170009540 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2