AR 190-5 (Motor Vehicle Traffic Supervision) para 2-7 covers when GOMORs will be issued for DUI offenses.
If the Soldier refused a Breathalyzer then paragraph 2-7a(2) applies. If they tested over .08 or violated the local state law for DUI then para 2-7a(3) dictates a GOMOR. The reason I state this is some states, you can have less than .08 but get a DUI if you were pulled over for speeding, weaving, or any other traffic infraction and you had any amount of alcohol detected by a Breathalyzer.
So, even though the Soldier was not cited by local police for DUI, the Soldier may still be in line for a GOMOR.
Now, if a Soldier gets in trouble downtown and the local authorities decide not to pursue charges, then the commander can use the local police report to substantiate an Article 15 proceedings. I have seen this happen many times and it is not unusual. However, normally, the servicing legal office will confirm with the local prosecutor they are not going to pursue charges in civilian court before UCMJ action is pursued.
Now, the NCO can counsel the Soldier on the misconduct, but must be careful not to ask questions without reading the Soldier their rights first. The NCO can do a one-sided counseling, not asking any questions, just stating the facts and they would be fine. If they do ask questions before reading the Soldier his rights, any information obtained may not be used in Article 15 or Courts-Martial. I would strongly suggest the NCO speak to his 1SG/Cdr and get guidance on what their intention is in dealing with this misconduct before counseling the Soldier. They may have all the information they need if there is a civilian police report.
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These cases are tricky and all too often, well meaning NCOs and officers, question the Soldier during a counseling session and ruin any opportunity for UCMJ.
The unit needs to speak with their servicing legal office before speaking with the Soldier to get guidance. Only by having the full story can a legal plan be accurately identified.
Separately, I have seen this scenario previously:
Soldier gets arrested for DUI and is under the age of 21. The local authorities charge DUI but not the underage drinking…
The Soldier faces the civilian court for the DUI and the local unit give an Article 15 for the underage drinking. This is not common, but it is legal.
Many units do not like the thought of not being able to punish a Soldier for misconduct, especially offenses as serious as a DUI. So this is one way that I have seen a Soldier receive civilian punishment and UCMJ for the same incident, but different offenses. All too often though, units over look the ability to administratively reduce a Soldier for a DUI. They are reducing him for unprofessional conduct of getting a DUI, not for the DUI itself.
Comments
April McKee
Long story short, husband (e6) received a DUI while pushing an non operatoring motorcycle. (Still in court) his lawyer told him if the same officer (civilian) pulled him over again, refuse a breathalyzer, demand bodily fluids test. It happened, he did (sober) now the army is giving him a GOMAR With attempt to chapter. How can they do this?!
Mark Gerecht
He should speak with his JAG. I don’t believe they can take action until the court case is complete. It sounds like there could be an issue between the police officer and your husband. Is this a possibility. If so it needs to be brought up to the JAG. Finally the downside is a GOMAR and a chapter action are administrative in nature and they could be implemented. I still believe they would have to wait until the court case is over. If the court case is found in his favor then I am not sure the GOMAR or chapter would be appropriate. This were his attornery and JAG come in to play. Also keep in mind in rare cases a chapter action can be suspended much like punishment under an Article 15.
See AR 635-200 see page 7 paragraph 1-18
Suspension of execution of approved separation