ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 September 2019 DOCKET NUMBER: AR20170017263 APPLICANT REQUESTS: * removal of two general officer memorandums of reprimand (GOMORs), dated 8 April 2014 and 3 September 2014, from his Army Military Human Resource Record (AMHRR) * a personal appearance hearing before the Board 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) * Self-Authored Letter undated * U.S. District Court (Live Area), Middle District, Criminal Docket for Case Number, filed 27 February 2014 * U.S. District Court (Live Area), Middle District, Criminal Docket for Case Number: , filed 27 August 2014 * Memorandum for Record (MFR), dated 28 September 2017, subject: Character Reference for (Applicant) * MFR, dated 3 November 2017, subject: Character Statement for (Applicant) * MFR, dated 28 September 2017, dated 13 November 2017, subject: Character Statement for (Applicant) 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: a. The GOMORs were based on two incidents of driving under the influence (DUI) of alcohol that were dismissed by the United States of America. b. Justice was ignored in the application of the GOMORs. The rebuttal to the first GOMOR was never submitted. c. The military police (MP) tried to browbeat him into submission. d. He accepts full responsibility for his actions. He was dealing with issues in his personal life that caused him to drink excessively. He should have sought help from the Army. e. The GOMORs were based on two violations of DUI of alcohol that were dismissed in preliminary hearings prior to going to trial. f. The second incident was dismissed for procedural reasons. The MP officer should not have released him after he was stopped, follow him to where he parked, tell him his driving rights were suspended, arrest him, and then tell him he had to take a field sobriety test when he was at the MP station. g. He passed the field sobriety tests, which is why the GOMORs stated he was DUI (alcohol) instead of driving drunk. Since the DUIs were dismissed by the U.S. District Court of Georgia (Columbus), the GOMORs need to be removed from his military records. h. In retrospect, he would have tried to make better decisions. i. He is employed as a field service engineer and is going to school to become a mechanical engineer so he can show his son how to learn from mistakes made in life and become a productive citizen. 3. His records contain a DA Form 3975 (MP Report), dated 20 December 2013, showing he was the subject of investigation for DUI (alcohol), leaving the scene of an accident, causing a traffic accident without injuries/damage to private property, making a false official statement, failing to obey order or regulation (failing to register firearm), failing to obey order or regulation (improperly transporting a firearm), and reckless driving on Fort Benning, GA. 4. On 10 February 2014, his company commander initiated an adverse action flag (suspension of favorable personnel actions) against him for alcohol abuse. His Fort Benning on-post driving privileges were suspended for a period not to exceed 1 year. 5. The U.S. District Court, Middle District , Criminal Docket for Case Number: dated 27 February 2014, shows the two charges for drunken driving were dismissed and he was found guilty of reckless driving and failure to notify. His sentence included 12 months of probation for each offense, to be served concurrently, and he was fined $1,000.00. 6. On 8 April 2014, he was issued a written reprimand by the Commanding General, Headquarters, U.S. Army Maneuver Center of Excellence, Fort Benning, for being apprehended by the Fort Benning MP for operating a motor vehicle while under the influence of alcohol on 19 December 2013. The Commanding General stated the officer responded to a traffic accident involving the applicant's vehicle and noticed the smell of alcohol. The applicant was administered standardized field sobriety tests, which he failed. A breathalyzer test resulting in a reading of 0.134 grams per 210 liters breath-alcohol content, exceeded the legal limit of .08 grams per 210 liters. He was charged with DUI of alcohol. He was given 7 days to submit matters in rebuttal before the final filing decision. 7. On 9 April 2014, the applicant acknowledged receipt of the GOMOR and indicated he wanted to submit written matters for consideration. 8. The MFR from a paralegal, Headquarters, 3rd Armored Brigade Combat Team, 3rd Infantry Division, Fort Benning, dated 17 April 2014, states the applicant did not submit any rebuttal matters as of 16 April 2014. 9. On 21 May 2014, the Acting Commander, Headquarters, U.S. Army Maneuver Center of Excellence, Fort Benning, directed permanently filing the GOMOR in the applicant's AMHRR. 10. His records contain a DA Form 3975, dated 13 July 2014, showing the applicant was the subject of an investigation for DUI (alcohol) for driving without headlights and in a zigzag manner. The Centralized Operations Police Suite system revealed the applicant was driving while his post driving privileges were suspended and his vehicle had defective/no headlights. The applicant was apprehended, searched, and transported to the MP station. He was administered a standardized field sobriety test, which he failed. He refused to submit a breath sample to measure his alcohol content. He was charged with driving in a zigzag manner, driving without headlights, DUI of alcohol (refusal), and driving under suspension of on post driving privileges (12 months). 11. On 15 August 2014, his company commander notified him in writing that he was initiating action to separate him for commission of a serious offense under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c. The reasons for the proposed action were: he was arrested for DUI of alcohol on two occasions, possession of a loaded unregistered weapon on post, violating a protective order, and driving on post while his on-post driving privileges were suspended. 12. On 15 August 2014, he acknowledged receipt of the separation notice and of the rights available to him. 13. The U.S. District Court, Middle District , Criminal Docket for Case Number: , dated 27 August 2014, shows the charges for drunken driving and defective taillight were dismissed and he was found guilty of laying drag (driving in a circular or zigzag course). His sentence of probation was extended through 10 February 2016. 14. On 3 September 2014, he was issued a written reprimand by the Commanding General, Headquarters, U.S. Army Maneuver Center of Excellence, Fort Benning, for being apprehended by the Fort Benning MP for being apprehended by a Fort Benning MP for operating a motor vehicle while under the influence of alcohol on 13 July 2014, driving without headlights, and driving in a zigzag manner. He was given 7 days to submit matters in rebuttal before the final filing decision. 15. On 3 September 2014, he acknowledged receipt of the GOMOR and indicated he wanted to submit written matters for consideration. 16. On 9 September 2014, he submitted a rebuttal to the separation process and requested consideration for completing his service obligation. He stated the initial DUI charge was dismissed in court. Regarding possession of a privately owned weapon unregistered on post, he had to remove it from storage before new tenants moved in. The weapon was in his vehicle prior to the second DUI offense. He accepted responsibility for driving on post while his privileges were suspended. The latest DUI charge is in the process of dismissal and he was awaiting a favorable disposition. 17. The MFR from a paralegal, Headquarters, 3rd Armored Brigade Combat Team, 3rd Infantry Division, Fort Benning, dated 12 September 2014, states the applicant did not submit any rebuttal matters as of 10 September 2014. 18. On 12 September 2014, his company commander recommended his separation prior to the expiration of his current term of service for commission of a serious offense under the provisions of Army Regulation 635-200, paragraph 14-12c. He cited the applicant's arrest for DUI of alcohol on two occasions, possession of a loaded unregistered weapon on post, violation of a protective order, and driving on post while his on-post driving privileges were suspended as the specific reason for this action. 19. On 12 September 2014, his battalion commander recommended approval of his separation for commission of a serious offense under the provisions of Army Regulation 635-200, paragraph 14-12c, with characterization of his service as general under honorable conditions. 20. On 17 September 2014, the Office of the Staff Judge Advocate, Headquarters, 3rd Armored Brigade Combat Team, 3rd Infantry Division, Fort Benning, reviewed the proposed separation action and found it legally sufficient to support his separation in accordance with Army Regulation 635-200, paragraph 14-12c. 21. On 27 September 2014, his brigade commander directed his separation under the provisions of Army Regulation 635-200, paragraph 14-12c, with characterization of his service as general under honorable conditions. 22. On 8 October 2014, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c. He completed 5 years and 1 day of active service during this period. His service was characterized as under honorable conditions (general). 23. The applicant provided three character-reference MFRs, dated 28 September 2017 through 13 November 2017. a. Sergeant M stated the applicant was an outstanding Soldier before he was wrongly accused and punished for crimes of which he was not convicted. He seemed to be a victim of poor senior leadership. He possessed and demonstrated an abundance of leadership and character traits, such as resiliency, professionalism, and maturity. b. Sergeant First Class B stated the applicant adhered to the Army Values. He used his experiences – good and bad – to teach, coach, and mentor his peers and Soldiers on the impact of making sound decisions. c. Mr. W stated the applicant was a very influential Soldier, leader, and mentor. He immediately demonstrated his ability to operate with minimal mentoring while achieving great results. He was a great maintainer and teacher, which assisted greatly in the success of their section. 24. On 2 May 2019, the Army Discharge Review Board denied his request to upgrade his discharge to honorable. The board determined he was properly and equitably discharged. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board found insufficient evidence to determine that, by a preponderance of evidence, the GOMORs he received were in error or unjust, in whole or in part, nor did the Board find evidence of error or injustice in the decision to file the GOMORs permanently in his record. The Board did not find the dismissal of a DUI charge to be relevant in this case insofar as court records indicate the dismissal was part of a plea bargain. Neither did the Board find evidence of a failure of due process related to the second incident that resulted in a GOMOR. The preponderance of evidence showed the applicant was twice detained for DUI. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING BS: MM: TP: 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. 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. 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 AMHRR 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 AMHRR, the recipient's submissions are to be attached. Once filed in the AMHRR, 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 AMHRR, 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 AMHRR. c. Only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted folder of the AMHRR. 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 AMHRR. Table B-1 states a memorandum of reprimand is filed in the performance folder of the AMHRR unless directed otherwise by the Department of the Army Suitability Evaluation Board or the ABCMR. 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. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires.