APPLICANT REQUESTS That a Letter of Reprimand (LOR) be

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					ABCMR Memorandum of                           AC96-08474
Consideration (cont)

APPLICANT REQUESTS: That a Letter of Reprimand (LOR) be transferred
from the performance portion of his Official Military Personnel File
(OMPF) to his restricted fiche.

APPLICANT STATES: He was given a LOR in June 1995 for “intoxicated
driving” prior to a decision by the civilian court on the charge.
 The applicant states he “had [his] day in the civilian court, and
the judge found [him] not guilty of the DUI charge because there
was insufficient evidence.” He states the judge “dropped the DUI
charge for insufficient evidence” after he informed him that he had
passed three field sobriety tests. He notes the LOR should be moved
to his restricted fiche and indicates “if the evidence was
insufficient for a civilian conviction, then it should also be
insufficient to issue a Letter of Reprimand.” In support of his
request he submits several letters attesting to his outstanding
performance as a soldier.

COUNSEL CONTENDS: The civilian court dismissed the charge of DUI
and accepted a “nolo contendere” plea to the charge of reckless
driving. He explains the meaning of “nolo contendere” and states
the applicant “had apparently fallen asleep after pulling the
automobile which he was driving to the furthest right hand lane,
having been awake for an extensive period of time.” He also indicates
the applicant did take a breath test, in spite of “inaccurate,
confusing and misleading implied consent warnings by the arresting
officer.” The attorney states the machine malfunctioned but the
applicant “passed the only valid field sobriety test given and
cooperated in every respect with the police.”

EVIDENCE OF RECORD:    The applicant's military records show:

The applicant entered active duty in pay grade E-3 on 6 May 1987.
 He was promoted to pay grade E-5 in 1990 and to E-6 in 1992. His
initial performance evaluation reports generally indicate he was
a successful NCO. Since August 1992 his raters have rated his overall
potential was among



the   best while his senior raters have placed him in the top block
for   both overall performance and potential. He met the requirements
for   graduation from the Primary Leadership Development Course and
was   honor graduate in 1991 from his Advanced NCO course.


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ABCMR Memorandum of                          AC96-08474
Consideration (cont)


On 29 April 1995, while attending drill sergeant training, he was
apprehended by civilian police for DUI. The citation, included with
his application, indicates he refused a blood and breath test.

The applicant was issued a LOR on 13 June 1995 which indicated he
refused to complete a lawfully requested breathalyzer test.
Although is unit commander recommended the LOR be filed in his local
file, his battalion commander and the commandant of the Army’s
chemical school recommended filing in his OMPF. His battalion
commander noted in her recommendation that “an open container of
alcohol in his vehicle indicates that his judgment was significantly
impaired on this occasion.”

In his rebuttal to the LOR the applicant asked that a filing decision
be delayed until after the civilian court proceedings were completed
and that he expected to be completely exonerated. The applicant
indicated he passed three field sobriety tests and that he tried
to take a breathalyzer test but “after blowing into the machine
several times, the police only got one reading, which is not, I have
been told by my attorney, valid in Georgia.” He concludes his
rebuttal by stating he was not asking for the matter to be dropped
but rather only delayed until he had an opportunity to “resolve the
legal issues.”

The issuing general officer considered the applicant’s rebuttal and
on 25 July 1995 directed that the LOR be filed in the applicant’s
OMPF.




The traffic citation notes on 17 August 1995 the applicant pled “nolo
cont’d” to the charge of DUI and that the charge was changed to
reckless driving with a notation “insufficient sample.” The
applicant was fined $498.00 plus $127.00 for court costs.
In March 1996 the applicant’s appeal to the Army Suitability
Evaluation Board for transfer of the LOR to his restricted fiche
was denied.

Army Regulation 600-37 (unfavorable information) provides in
pertinent part, that administrative letters of reprimand may be


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ABCMR Memorandum of                           AC96-08474
Consideration (cont)

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 letter 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
filing determination is made. Letters of reprimand may be filed
in a soldier's OMPF only upon the order of a general officer level
authority and are to be filed on the performance fiche. The direction
for filing is to be contained in an endorsement or addendum to the
letter. If the reprimand is to be filed in the OMPF then 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.

Army Regulation 600-8-104 provides, in pertinent part, that a
properly prepared administrative letter of reprimand is to be filed
on the performance fiche of the individual's OMPF along with any
referral correspondence and the member's reply. All other
associated documents are to be filed on the restricted fiche.

Army Regulation 190-5 (vehicle traffic safety) provides that officers
and NCO's will be issued an administrative LOR for



alcohol related driving incidents in the following circumstances:
 When there is a conviction for driving while intoxicated or driving
under the influence of alcohol or drugs; a refusal to take a properly
requested blood, urine or breath test; when the individual was driving
or in physical control of a vehicle on post with a BAC of .10 or
off post with a BAC in violation of State law, irrespective of other
charges or actions; or driving or in physical control of a vehicle
when a lawfully requested test reflected the presence of other drugs.

DISCUSSION: Considering all the evidence, allegations, and
information presented by the applicant, together with the evidence
of record, applicable law and regulations, it is concluded:

1. The LOR was issued for his refusal to take a blood or breath
test. Under such circumstances the traffic safety regulation
required that a reprimand be issued.


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ABCMR Memorandum of                         AC96-08474
Consideration (cont)


2. The issue is not whether the applicant was found guilty of the
DUI but rather his refusal of the tests. While the applicant
maintains he did not refuse such tests he provides no substantiating
evidence to support that contention.

3. While the Board notes that the applicant has had a successful
career the LOR was issued in accordance with applicable records with
no evidence of error or injustice.

4. In order to justify correction of a military record the applicant
must show to the satisfaction of the Board, or it must otherwise
satisfactorily appear, that the record is in error or unjust. The
applicant has failed to submit evidence that would satisfy the
aforementioned requirement.

5. In view of the foregoing, there is no basis for granting the
applicant's request.




DETERMINATION: The applicant has failed to submit sufficient
relevant evidence to demonstrate the existence of probable error
or injustice.

BOARD VOTE:

                        GRANT

                        GRANT FORMAL HEARING

                        DENY APPLICATION


                                Karl F. Schneider
                                Acting Director




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