AR20160002455

BOARD DATE: 26 April 2016

DOCKET NUMBER: AR20160002455

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 the General Officer Memorandum of Reprimand (GOMOR), dated 24 October 2012 from his Army Military Human Resource Record (AMHRR)
* modification of the Noncommissioned Officer Evaluation Report (NCOER) covering the rating period of 27 October 2011 to 13 September 2012
* a personal appearance before the Board

2. In the alternative, he requests the contested GOMOR be transferred to the restricted folder of his Official Military Personnel File (OMPF).

3. The applicant states:

a. The above-mentioned GOMOR was issued as a result of an arrest for driving under the influence (DUI). He accepted responsibility for making the mistake of driving after drinking alcohol. Upon extensive civilian investigation, it was determined that the evidence used against him did not meet the burden of proof to suspend his driver license in an administrative court or to charge him with DUI in criminal court. The imposing authority subsequently reviewed all the documentation and determined that had he known of the evidence errors, he would not have filed the GOMOR. The Department of the Army Suitability Evaluation Board (DASEB) agreed with the imposing authority but had their recommendation for removal rejected by the Deputy Assistant Secretary of the Army Review Boards (DASA (RB)). The imposing authority’s successor again reviewed his case and asked for the removal of the GOMOR, but the DASEB rejected the second appeal. In a self-authored statement he argues:

* he wants the contested GOMOR removed because he believes it to be untrue and unjust; if the Board does not remove it, he wants it transferred to the restricted portion of his OMPF
* the imposing officer requested its removal after an independent review of the evidence and the DASEB agreed but the DASA (RB) rejected this recommendation
* although he accepted responsibility for his poor decision to drive after drinking alcohol, he had no knowledge of the blood alcohol content (BAC) as the breath test failed to provide a readable BAC
* he accepted responsibility for his poor decision and error in judgment to drive after drinking alcohol but he never admitted guilt to the alleged crime of DUI
* after receiving the DASEB denial letter, he approached his chain of command and requested a formal inquiry
* the General Court-Martial Convening Authority (GCMCA) conducted an independent review and recommended the removal of the contested GOMOR
* the GCMCA accepted the dismissal of the administrative case and the failure to prefer criminal charges against him and, although he was not bound by the civilian proceedings, the GCMCA accepted his attorney’s expert opinion as evidence of injustice or error in the filing of the GOMOR
* he has learned a valuable lesson and has improved himself personally and professionally; the GOMOR has essentially served its intended purpose

b. In a related injustice, the NCOER he received after the DUI arrest claimed he had violated civilian traffic law and been charged with DUI. As he was never charged by the district attorney, he asserts that this amounts to false derogatory information now filed in his AMHRR. He is asking the Board to correct these injustices in his AMHRR. He argues that:

* although he was arrested on suspicion of DUI, he was not charged and thus the bullet that he “violated civilian traffic law, charged with DUI” is untrue
* while he admits that the reference to the arrest or the GOMOR could have been made, the comment that was made is untrue and should be redacted together with the “Needs Improvement” rating
* the senior rater’s portion that reads “infractions committed during this rating period not consistent with previous or current duty position” should be redacted
* the senior rater’s overall performance and potential blocks should be redacted so that the information on the NCOER could be evaluated at face value
* two separate authorities reviewed the evidence used against him and determined the contested GOMOR should be removed
* he has learned from his mistakes and his performance has been superb and consistent with his previous overall performance
* his other NCOERs clearly show his level of professionalism and speak highly of his performance and potential
* he has adopted and maintained a continuous alcohol-free lifestyle since August 2012 and has effectively changed his lifestyle
* the incident led to separation and divorce from his wife and he now leads a healthy lifestyle; he has remarried and he has 3 children
* he has improved his civilian and military education, has received multiple awards and decorations, has reenlisted, and has been placed in key positions

4. The applicant provides:

* DASEB decision, dated 25 November 2014
* Qualitative Management Program (QMP) Notification Memorandum
* 19 statements of support addressed to the QMP board
* Child custody orders

COUNSEL’S REQUEST, STATEMENT AND EVIDENCE:

1. Counsel requests the removal of the GOMOR from the applicant’s AMHRR.

2. Counsel states the applicant had twice appealed to the DASEB claiming the reprimand is untrue and unjust. In the first appeal, the members voted unanimously to grant relief. Contrary to the analyst’s recommendation, however, the DASA (RB) rejected the decision and ordered the GOMOR retained. Because the DASA (RB) has already rendered a decision, the Board’s final decision should be referred to the Secretary of the Army (SA) for a decision by a decision maker who has never before considered the merits of this case. Counsel also believes the file warrants elevation to the SA if not unanimously resolved favorably by the ABCMR because of the unique issues it raises: the criminal charges upon which the reprimand was based were dismissed as was the civil suspension of the applicant’s driver’s license; the initiating authority and the successive GCMCA both recommended the reprimand be removed; and the DASEB unanimously voted to grant relief.

3. Counsel does not provide any additional evidence.

CONSIDERATION OF EVIDENCE:

1. The applicant enlisted in the Regular Army on 23 October 2001 and he holds military occupational specialty 97E/35M (Human Intelligence Collector). He served through multiple extensions or reenlistments in a variety of stateside or overseas assignments, including Afghanistan.

2. On 21 July 2010, the U.S. Army Human Resources Command published Orders 202-13 promoting him to the rank/grade of sergeant first class (SFC)/E-7 effective 1 August 2010.

3. At the time of his incident, he was assigned to Headquarters and Headquarters Company, Defense Language Institute (DLI) Foreign Language Center, Presidio of Monterey, CA.

4. On 26 August 2012, he was arrested by the Monterey Police for driving under the influence of alcohol with a BAC of .17 percent. He was observed by the police officer having an argument with his wife in his car. The officer pulled him over to ensure the safety of the passenger and detected a strong odor of alcohol.

5. On 24 October 2012, the applicant was reprimanded by the Commander, DLI, for his conduct on 26 August 2012. (The Commander, DLI, is designated by the SA as a GCMCA.) The GOMOR states:

a. He was observed by the Monterey Police Department having an argument with his wife. The officer pulled him over to ensure the safety of the passenger. The officer detected a strong odor of alcohol on his breath and he then failed the field sobriety tests. He was taken to a hospital to determine the alcohol content of his blood. His blood alcohol content was 0.17 percent, more than double the legal limit of CA Law and in violation of Article 111 of the Uniform Code of Military Justice (UCMJ).

b. As an NCO, he was expected to conduct himself both on and off duty by exemplifying the Army Values. Instead, he engaged in conduct that compromised his character and honor. His highly irresponsible behavior constituted a serious threat to himself and to the health and welfare of both the military and civilian communities.

6. On 31 October 2012, the applicant acknowledged receipt and submitted a rebuttal wherein he:

* requested the GOMOR be filed in his local file
* stated he made a conscious decision to drink and operate a motor vehicle
* acknowledged his poor judgment and failure to meet his responsibilities as an NCO
* accepted responsibility for his action and the consequences of his action
* highlighted his military service, achievements, deployments, and training
* highlighted the impact the incident had on him from a personal, professional, legal, and financial standpoint

7. On 16 November 2012, after carefully considering the reprimand, the circumstances surrounding the incident, the chain of command recommendations (the chain of command recommended filing the GOMOR in the OMPF), and all matters submitted by the applicant in defense extenuating or mitigating, the imposing officer ordered the GOMOR be placed permanently in the applicant’s OMPF.

8. During September 2012, he received a Change of Rater NCOER covering 9 months of rated time (with unrated code) from 27 October 2011 to 13 September 2012 for his duties as a platoon sergeant in charge of 80 initial entry trainees (IET) while assigned to A Company, 229th Military Intelligence Battalion, Monterey, CA. His rater was First Sergeant (1SG) DAY, the unit 1SG; his senior rater was Captain AVK, the company commander; and his reviewer was Lieutenant Colonel (LTC) FAS, the battalion commander. This NCOER shows:

a. In PartIVa (Army Values), the rater placed an “X” in “Yes” blocks for all values.

b. In Parts IVb (Competence), IVd (Leadership), and IVe (Training), the rater placed an “X” in the “Excellence” blocks and entered corresponding bullet comments.

c. In Parts IVc (Physical Fitness and Military Bearing), the rater placed an “X” in the “Success” block and corresponding bullet comments.

d. In Part IVf (Responsibility and Accountability) the rater placed an “X” in the “Needs Improvement (Some)” block and entered the bullet comment “violated civilian traffic law; charged with driving under the influence.”

e. In PartVa (Rater Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), the rater placed an “X” in the “Fully Capable” block.

f. In PartVc (Senior Rater Overall Performance), the senior rater assigned him a 3-1 rating. He placed an “X” in the “Successful/3” block and in PartVd (Senior Rater Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), the senior rater placed an “X” in the “Superior/1” block.

g. In PartVe (Senior Rater Bullet Comments) the senior rater entered the following bullet comments:

* promote to [master sergeant (MSG)] when eligible; infractions committed during this rating period not consistent with previous or current duty performance
* send to Battle Staff Course and assigned as Battle Operations NCO
* outstanding performance; already performs at the MSG level
* unlimited potential for future positions of trust and responsibility

9. The NCOER shows the rater and senior rater digitally signed the NCOER on 13 November 2012 and the reviewer concurred with the rater and senior rater and authenticated this form by placing his digital signature in the appropriate place on 14 November 2012. The applicant also digitally signed this report on 4December 2012.

10. On 27 September 2013, he appealed the contested NCOER to the Enlisted Special Review Board (ESRB) (Docket Number AR20130018821). He contended that some of the bullets needed to be amended or removed, the rating in Part IVf should be changed to “Success” and his overall rating should be “Among the Best.” He claimed that the CA Department of Motor Vehicles had set aside his civil case due to lack of evidence. Additionally, the Monterey County District Attorney allowed the statute of limitations to expire and therefore could not bring charges against him. This made the derogatory information unfounded and unjustly influenced the rater and senior rater in their evaluations. With his appeal, he submitted:

a. An Order of Set Aside or Reinstatement, issued by the Department of Motor Vehicles, State of CA, on 29 November 2012, indicating that after a review of the information on file, including any evidence presented, the action(s) effective 25 September 2012 is set aside. He may retain any valid license in his possession or apply for a no-fee duplicate license.

b. A statement from his attorney stating that the Monterey District Attorney did not file charges after 1 year for the case after being presented the evidence. Because they had declined to file within a year, the statute of limitations had run out for any misdemeanor offense (which a DUI is). In terms of non-military he is free of a conviction and this issue is behind him.

11. On 19 December 2013, the ESRB unanimously voted to deny him relief as the evidence presented did not establish clearly and convincingly that a material error, injustice, or inaccuracy existed. The ESRB denied his appeal.

12. In May 2014, the applicant wrote to the officer who reprimanded him and requested he direct the removal of the GOMOR he previously directed be filed in his OMPF. He stated that the dismissal of all civilian cases against him revealed several problems with the evidence in the investigation relied upon in his reprimand filing decision:

* the arresting officer’s report did not accurately record the facts of the case the officer could not provide a consistent story about the actions, the officer’s sworn statement indicated that he (the applicant) refused a chemical test but other parts of the investigation accurately showed that he cooperated and signed a consent form for a blood test, and another portion of the officer’s report stated that the police forced him to take a blood draw.
* the blood test was not reliable; the chain of custody of his sample was so poorly handled that his specimen did not meet the minimum evidentiary standards necessary to administratively revoke his driver license; the sample almost certainly would not have been admitted at trial on his criminal case
* the arresting officer was unqualified for his duties; the evidence indicates he was not trained or certified to execute a DUI investigation
* the narrative statement and other evidence are all so inconsistent that it is not clear what actually happened the night he was arrested

13. On 6 June 2014, he petitioned the DASEB (Docket Number AR20140013467) for the removal of the contested GOMOR. He provided a statement from the officer who imposed the GOMOR. The officer stated:

a. He requested the removal of the GOMOR which he imposed in October 2012 and directed for permanent filing in the OMPF. As the GCMCA who directed the administrative letter of reprimand to be filed in the OMPF, he is also authorized under Army Regulation (AR) 600-37 (Unfavorable Information), paragraph 7-2(f), to request removal from his OMPF.

b. The applicant had presented him with clear and convincing evidence that the reprimand issued to him was unjust and untrue, warranting its removal from his OMPF. He reprimanded the applicant for a violation of Article Ill of the UCMJ based on an examination of his blood sample that determined he had a blood alcohol content of .17 percent. At the time, he believed this evidence to be accurate and to merit filing a GOMOR in his OMPF. He also believed that the evidence met the AR 600-37, paragraph 3-2b, standards of accuracy and completeness.

c. He has subsequently learned through further investigation that the blood sample drawn from the applicant was unreliable and even failed to meet the minimum evidentiary standards required to revoke his driver’s license. It also came to his attention that the arresting officer was not qualified to conduct an impaired driver investigation. After carefully reweighing all available evidence, he is convinced filing a reprimand in the applicant’s OMPF was unjust and based upon untrue information. Moreover, he believes the information included in the GOMOR failed to meet the Privacy Act requirements of accuracy and completeness as required in AR 600-37, paragraph 3-2b.

14. In June 2014, the DASEB analyst indicated that, in weighing all aspects and circumstances of the available evidence, the applicant’s rank and position at the time, and the nature of his misconduct, there was insufficient substantial evidence to support removal of the GOMOR or that it would be in the Army best interest to do so. However, notwithstanding the analysts recommendation, the DASEB determined, by majority vote, that the evidence presented established clearly and convincingly that the document under consideration was true (sic) and unjust and warranted the relief requested. As a result, the DASEB determined the GOMOR, dated 24 October 2012, should be removed; the Report of Proceedings would not be filed; and all allied documents would be removed from the appellants AMHRR. This action was not considered retroactive and did not constitute grounds for promotion reconsideration if previously non-selected.

15. On 25 November 2014, the DASA (RB) decided to reject the DASEB’s unanimous vote to remove the contested GOMOR and ordered its retention in the OMPF. The DASA (RB) judged that the applicant’s behavior violated Army regulations, policies, and protocols, and he had not shown by clear and convincing evidence that the GOMOR was untrue or unjust.

16. On 3 December 2014, he appealed the contested NCOER to the ESRB (Docket Number AR20140020574). He requested amendments to certain portions of the NCOER.

17. On 20 February 2015, he petitioned the DASEB (Docket Number AR20150004368) for reconsideration of his earlier request for the removal of the contested GOMOR. He contended that:

* the imposing officer requested its removal after his independent review of the new evidence and determination that it was unjust and untrue
* although he accepted responsibility for his poor judgment, he had no knowledge of his BAC at the time and he never admitted guilt
* he no longer drinks alcohol and urges his fellow Soldiers not to drive if they have been drinking
* he received an NCOER that stated he violated civilian traffic law and was charged with DUI, but the misconduct was not referenced again
* charges were never filed against him in civilian court or military court and the imposing officer personally investigated the evidence and recommended the removal
* he provided multiple supporting statements from his chain of command with a favorable recommendation
* his performance had been stellar and he had since demonstrated excellent performance and potential

18. On 2 March 2015, the ESRB denied his appeal that pertained to the contested NCOER and stated that the evidence presented did not establish clearly and convincingly that the presumption of regularity should not be applied or that an error/injustice had occurred in his case.

19. On 14 May 2015, the DASEB determined that the evidence presented did not provide substantial evidence that the GOMOR was untrue or unjust, that it had served its purpose, or that its transfer to the restricted section of the OMPF was in the best interests of the Army. The DASEB unanimously voted to deny relief.

20. On 8 December 2015, by letter, HRC notified the applicant that the QMP Selection Board would convene on 1 March 2016 to consider him for separation as a result of information received for permanent filing in his AMHRR. He was advised he could submit matters of mitigation or extenuation to the president of the QMP no later than 5 February 2016. He acknowledged receipt and indicated that he would submit matters to the QMP president.

21. He provides a child custody order as well as copies of 19 statements of support from various Army and other services’ senior and junior commissioned officers, noncommissioned officers, warrant officers, and DA civilians addressed to the QMP board in an effort to convince that board to retain him. The authors in those statements:
* describe and/or comment on the applicant’s adherence to the Army Values, professionalism, commitment to excellence, leadership, and technical and tactical proficiency
* chronicle his contributions to the unit or the Army, his achievements, and leadership ability
* provide strong endorsement to retain him in the Army and describe him as an asset to any organization
* write their opinions in a testament of his outstanding character and military performance
* express support and a desire to retain the applicant after having observed his leadership abilities first-hand and interacted with him

22. AR 600-37 sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files. The intent of this regulation is to ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and, to ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.

a. Chapter 1 stipulates that the objectives of this regulation are to apply fair and just standards to all Soldiers; protect the rights of individual Soldiers and, at the same time, permit the Army to consider all available relevant information when choosing Soldiers for positions of leadership, trust, and responsibility; to prevent adverse personnel action based on unsubstantiated derogatory information or mistaken identity; to provide a means of correcting injustices if they occur; and, to ensure that Soldiers of poor moral character are not continued in Service or advanced to positions of leadership, trust, and responsibility. 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 GCM 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.

b. Chapter 3 states that unfavorable information that should be filed in official personnel files includes indications of substandard leadership ability, promotion potential, morals, and integrity. These must be identified early and shown in those permanent official personnel records that are available to personnel managers and selection board members for use in making such personnel decisions that may result in selecting Soldiers for positions of public trust and responsibility, or vesting such persons with authority over others. Other unfavorable character traits of a permanent nature should be similarly recorded.

c. Chapter 7 states a memorandum of reprimand may be filed in a Soldier’s AMHRR only upon the order of a general officer-level authority (GCMCA) and is to be filed in the performance section. 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 chapter7 of AR 600-37. Paragraph 7-2 (Policies and standards) 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 the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.

23. AR 600-8-104 (AMHRR Management) governs the composition of the AMHRR and states that the performance section is used for filing performance, commendatory, and disciplinary data. Once placed in the AMHRR, the document becomes a permanent part of that file. The document will not be removed from or moved to another part of the AMHRR unless directed by certain agencies, to include this Board. Table B-1 covers authorized documents. Army Personnel Records Division (APRD), will update the list of authorized documents for filing in the AMHRR quarterly. The new list of authorized documents will supersede the list in Table B-1, Appendix B of AR 600-8-104. The latest update, dated 15 December 2015, states:

* File only Letters of Reprimand designated for filing in the OMPF
* Letters not designated for filing in the OMPF will not be filed in iPERMS; these documents will be filed locally

24. AR 623-3 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.

a. Paragraph 1-11 (Commander’s Inquiry) states that when it is brought to the attention of a commander that a report rendered by a subordinate or a subordinate command may be illegal, unjust, or otherwise in violation of this regulation, that commander will conduct an inquiry into the matter. The Commander’s Inquiry will be confined to matters related to the clarity of the evaluation report, the facts contained in the report, the compliance of the evaluation with policy and procedures established by Headquarters, Department of the Army (HQDA), and the conduct of the rated Soldier and members of the rating chain. The official does not have the authority to direct that an evaluation report be changed; command influence may not be used to alter the honest evaluation of a rated Soldier by a rating official.

b. Paragraph 3-2 (Evaluation Report Requirements) states rating officials have a responsibility to balance their obligations to the rated individual with their obligations to the Army. Rating officials will make honest and fair evaluations of Soldiers under their supervision. On the one hand, this evaluation will give full credit to the rated individual for his or her achievements and potential. On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, selection boards, and career managers can make intelligent decisions.

c. Paragraph 3-23 (Unproven Derogatory Information) states that no reference will be made to an incomplete investigation (formal or informal) concerning a Soldier. References will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting the evaluation to HQDA. If the rated individual is absolved, comments about the incident will not be included in the evaluation.

d. Paragraph 3-39 (Modification to Previously Submitted Reports) states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, have been prepared by the proper rating officials, and represent the considered opinion and objective judgment of the rating officials at the time of preparation. To justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. The burden of proof rests with the appellant.

25. AR 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record; recommend a hearing when appropriate in the interest of justice; or deny applications when the alleged error or injustice is not adequately supported by the evidence and when a hearing is not deemed proper. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. 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.
26. Various Military Personnel (MILPER) Messages provide guidance and procedures in support of the QMP. The purpose of this board is to identify selected NCOs for possible involuntary separation, specifically those with a GOMOR, conviction by a court-martial or Article 15, relief for cause NCOER, a “No” in the Army Values on an NCOER, a senior rating of “4” on an NCOER, and NCO Education System failures.

* Soldiers selected by the QMP for denial of retention must exercise an option (appeal, accept, retire, etc.)
* Soldiers may appeal on the basis of a material error in their records when reviewed by the board; the chain of command, all the way to a general officer, must recommend approval or disapproval
* Soldiers who elect to appeal but fail to submit their appeal within 30 days or without compelling justification will continue to process for discharge; the Director of Military Personnel Management is the final authority for disposition of appeal

DISCUSSION AND CONCLUSIONS:

1. There are three issues raised by the applicant: the GOMOR (removal or transfer), the contested NCOER (amend), and the personal hearing.

2. With respect to the GOMOR:

a. The applicant was arrested for driving under the influence of alcohol with a BAC of .17 percent. Accordingly, he received a GOMOR. He was afforded the opportunity to review all of the evidence against him and to submit matters in his own behalf prior to a final filing decision. His chain of command provided their recommendations, and after carefully considering the circumstances surrounding the incident and all matters submitted by the applicant, along with the recommendations of subordinate commanders, the GCMCA ordered the GOMOR be placed permanently in the applicant’s AMHRR.

b. The GOMOR is an administrative tool used by the imposing officer to train and rehabilitate. Once the GOMOR was filed on his OMPF, it became a permanent record and will not be removed from or moved to another part of the AMHRR unless directed by certain agencies, to include this Board. The GOMOR was properly administered in accordance with applicable regulations and properly filed in the performance section of his OMPF. There is no evidence of any violation of any of the applicants rights. He has provided insufficient evidence or argument to form a basis for removing or moving it to the restricted portion of his OMPF

c. The applicant, as a senior NCO and a platoon sergeant in charge of IET students in an academic environment, was arrested by the Monterey Police for driving under the influence of alcohol with a BAC of .17 percent. As an NCO and platoon sergeant, he was charged with leading Soldiers and because of his leadership ability, the SA reposed special trust and confidence in him and promoted him to SFC. As an NCO, he was expected to conduct himself on and off duty by exemplifying the Army values.

d. The applicant contends that the GOMOR is untrue and unjust and based on an investigation that contained multiple inaccuracies, ultimately leading to the dismissal of the civilian case against him. Contrary to his belief, the DASEB did not find the GOMOR untrue as he contends, the DASEB found it unjust. He submitted a letter from his counsel summarizing the Department of Motor Vehicles Case and the California State Court Criminal Case findings. The civil case was dismissed due to the preponderance of evidence provided, the DUI was set aside, and his driving privileges were reinstated. The criminal case was dismissed based on a legal technicality; therefore, it did not determine guilt or innocence, nor did it negate the fact that he operated a motor vehicle after drinking alcohol. In fact, he acknowledged so himself.

e. When considering all aspects and circumstances of the available evidence, there appears to be insufficient substantial evidence to support removal or transfer of the contested GOMOR. The applicant has not provided evidence of a clear and convincing nature to substantiate his contention that the GOMOR was unjust or untrue.

f. The Army has an interest in maintaining the accuracy of its records. The information in those records must reflect the conditions and circumstances that existed at the time the records were created. As required by the applicable regulation, the GOMOR is properly filed in the performance section of his OMPF. The GOMOR is an important entry that must serve to protect the integrity of the noncommissioned officer promotion system. Removing or transferring this document would give him an unwarranted and unfair advantage over thousands of other NCOs who have served faithfully and without the blemish of a GOMOR.

3. With respect to the NCOER, following his August 2012 misconduct, the applicant received a change of rater NCOER covering 9 months of rated time from 27 October 2011 through 13September 2012.

a. This NCOER contains a rating of “Needs Improvement (Some)” by his rater in the Responsibility and Accountability portion with a bullet comment that reads “violated civilian traffic laws, charged with driving under the influence.” This is a true statement, the applicant did in fact violate the civilian traffic law and he was charged with driving under the influence. The fact that the charge was dismissed does not mean it never happened.

b. This NCOER also contains a rating of 3-1 by his senior rater with the bullet comment “promote to MSG when eligible; infractions committed during this rating period not consistent with previous or current performance.” Again, this is a true statement for a verified event that occurred during the rating period. Again, the fact that his attorney was able to dismiss the charges or that the State did not file charges does not mean the incident did not happen.

c. An NCOER is an assessment of a Soldier’s performance and potential during a period of time. During the period covered by the NCOER, he was arrested and he was charged. This makes both entries on the contested NCOER verified information. His contention to redact this information and change his rating to “Success” or “Among the Best” is not justified. The NCOER reflects the objective judgment of the rating officials during a given rating period. This Board does not substitute its own evaluation of the applicant to that rendered by his rating officials as the Board is not an evaluating Board.

d. There is insufficient evidence to show the contested NCOER contains any administrative or substantive deficiencies or that it was not prepared in compliance with applicable regulations and policies. Furthermore, the applicant has not shown evaluations rendered by the rating officials represented anything other than their objective judgment and considered opinions at the time they prepared the NCOER or that they exercised faulty judgment in evaluating him as they did.

4. With respect to the personal hearing, the applicant’s request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

BOARD VOTE:

________ ________ ________ GRANT FULL RELIEF

________ ________ ________ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

__X______ __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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

_________C______________
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.

ABCMR Record of Proceedings (cont) AR20160002455

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ABCMR Record of Proceedings (cont) AR20160002455

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