MEMORANDUM OF CONSIDERATION

IN THE CASE OF: 

	BOARD DATE:            16 December 1998
	DOCKET NUMBER:   AC98-11256

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest M. Willcher		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Ms. Carol Jo Suiter		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his discharge be corrected to a separation under the Voluntary Early Retirement Authority (VERA).

APPLICANT STATES:  That his selection for a Department of the Army bar to reenlistment under the Qualitative Management Program (QMP) was based solely on his failure to achieve course standards in a service school.  Although his Academic Evaluation Report (AER) stated his failure was based on a lack of motivation and disciplinary reasons, it also stated that he was apprehended for drunk driving.  The applicant states that when he was returning home from a going away event for another soldier at the NCO club, he was stopped by an MP and was apprehended for suspected intoxication.  He refused the breathalyzer test and requested a blood alcohol test, which he was denied until his commander directed that he be given that test.  The results of the blood test were lost.  Based on a lack of evidence, his commander terminated the nonjudicial punishment he had initiated against him.  However, he was relieved from the service school based on his apprehension for drunk driving even though he had a 98 percent academic average in the school and had scored extremely well on the Army Physical Fitness Test.  Subsequently he was notified that he had been selected for a QMP bar to reenlistment based solely on his academic failure in the service school.  He rebutted that bar based on the fact that the Army had lost his blood alcohol test results and, so, was never proven to be guilty of the charge.  He also claimed that his selection under the QMP was flawed due to the fact that the QMP board had not been given information that he had been awarded an Army Achievement Medal and a Bronze Star Medal, and that he had completed 95 hours of college credits.  

COUNSEL CONTENDS:  That the applicant was a model soldier, having a sterling military record.  Counsel then reiterates the applicant’s description of the sequence of events which transpired when he was arrested for driving while intoxicated and his selection for the QMP bar.  Counsel quotes the applicant’s commander’s, his battalion commander’s and his brigade commander’s recommendations to retain him.  Counsel then charges that the applicant’s selection for a QMP bar was in violation with Army regulations and with legal precedents in that the AER in which it was based included unverified derogatory information (driving while intoxicated).  Since the blood alcohol test was destroyed or lost, there was insufficient evidence to prove that the applicant had been driving while intoxicated.  Counsel also contends that legal precedent has maintained that the burden is on the Government to show that the omission of information is harmless, in this case in the QMP board not being furnished correct information concerning the applicant’s military awards and decorations and his civilian education.

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

While serving on active duty as a staff sergeant, pay grade E-6, the applicant was attending his Advanced Noncommissioned Officers Course (ANCOC).  At 1:03 AM, 12 September 1992, the applicant was arrested for drunken driving, speeding, failure to obey a traffic control device, and failure to submit to a blood alcohol test.  In the MP report of the incident it was stated that the applicant was pulled over for going 40 MPH in a 25 MPH zone and for failing to obey a traffic control device.  When the MP detected the odor of alcohol emanating from the applicant, the MP administered three field sobriety tests, all of which the applicant failed.  When the applicant refused a breathalyzer test he was transported to a military hospital for a command directed blood alcohol test.

On 5 October 1992 the applicant was released from ANCOC for “lack of motivation and disciplinary reasons.  [The applicant] was apprehended for drunk driving by the Military Police on 12 September 1992.  He also missed formations on 30 September and 2 October 1992.”

The applicant again attended ANCOC from June to September 1994 and successfully completed the school.

The applicant’s records do not contain a copy of his QMP bar to reenlistment.  However, he appealed a QMP bar in an undated memorandum.  In that appeal he made the same contentions that he and his counsel have presented to this Board.  He also cites examples of how his performance had improved since he was given the contested AER, and cites examples of accomplishments and honors he had achieved since that date.  Those included the award of another ARCOM, his completion of ANCOC, his acceptance of more challenging assignments, and his completion of the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).

As stated by the applicant’s counsel, all of the applicant’s commander’s recommended his retention except for his division commander.

On 19 March 1996 the applicant’s command was notified that the applicant’s appeal was reviewed by a DA Standby Advisory Board and was disapproved.

Accordingly, the applicant was honorably discharged due to reduction in force on 31 July 1996 with $17,753.19 in severance pay.  He had a total of 15 years, 2 months and 16 days of active service.

Army Regulation 623-205, paragraph 6-5, states that no reference will be made on enlisted evaluation reports to unverified derogatory information concerning the NCO; that reference to derogatory information may only be made when that information is verified through investigations.

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

1.  The applicant’s actions preceding his being pulled over by the MP’s, speeding and failure to obey a traffic control device, were indicative that he may have been physically impaired at that time.  The fact that he was coming from the NCO club in the early hours of the morning after a celebration, that he smelled of alcohol, that he failed three field sobriety tests, and that he refused a breathalyzer test, are all indicative that he was impaired or intoxicated at that time.  Those facts in of themselves probably would have been sufficient to convict the applicant in a court of law.  Breathalyzer and blood alcohol tests merely confirm the findings of impairment or intoxication made by the arresting officer by field sobriety tests.

2.  As such, the applicant’s counsel’s contention that unsubstantiated derogatory information was entered on the applicant’s AER is not accepted.  As aforementioned, the derogatory information was substantiated when the applicant failed the three field sobriety tests.  He had the opportunity to refute that finding by taking a breathalyzer test but refused.  As for his contention that he had requested a blood alcohol test in lieu of a breathalyzer test is not supported by the evidence of record.  The blood alcohol test was command directed.

3.  It is also noted that the applicant’s AER also stated that he had missed two formations.  While he may have been academically superior in his course work, missing formation on two occasions is not demonstrating the reliability and trustworthiness demanded of an NCO.

4.  Although the applicant’s QMP notification is not contained in his records, the Board accepts that his QMP was based solely on the AER.  While the applicant’s military record is commendable, in the era of downsizing an NCO who has failed ANCOC will no longer be able to compete with his or her peers.

5.  The missing documents from the applicant’s records may have been grounds to reconsider him for promotion, but not to nullify a QMP selection.  The QMP selection was, presumably, based on the applicant’s ANCOC failure.  Awards, decorations and civilian education would not negate that deficiency.

6.  Since there is no basis for voiding the applicant’s QMP, there is no basis for changing his discharge to a separation under the VERA.

7.  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

_EMW___  _LEM___  _CJS____  DENY APPLICATION

						Loren G. Harrell
						Director

CASE ID	AC98-11256	
SUFFIX		
RECON		
DATE BOARDED	1998 December 16	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1996July 31	
DISCHARGE AUTHORITY	AR .635-200, Chapter 16	
DISCHARGE REASON	Reduction in Force	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.03	
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