MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            3 December 1998
	DOCKET NUMBER:   AC98-10464

	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. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Edward Williamson		Member	
	Mr. Roger W. Able		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 rank, taken away by an Article 15 punishment, be restored and that he be reinstated on active duty.

APPLICANT STATES:  That he believes he received a punishment much harsher than the other soldiers received in this incident which is an injustice.  He believes that he should have received equal punishment.  He received reduction from E-5 to E-4 while an E-4 involved in the incident received only 7 days restriction and extra duties and another E-5 received much that same punishment.  He had 9 years in the Army with no other Article 15 or disciplinary action.  This was his first Article 15 and, considering the foregoing, his punishment was too harsh.  He was accused of wrongfully appropriating a military vehicle to go and eat a meal off post in Grafenwoehr, Germany, while on medical air evacuation DUSTOFF duty.  He understood that such use of military vehicles was authorized.  As a driver of the vehicle, he admits to having consumed an alcoholic beverage in what he considered an "off duty" status since they were on a crew rest period.  Nine months later, he was discharged from the Army because he was an E-4 with over 9 years of service which required his separation from active service.  It was unjust to punish him twice with an Article 15 reduction and then a separation because he was then an E-4 with too many years on active duty.

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

That while stationed in Grafenwoehr, Germany, on or about 15 August 1994, as an E-5 medical NCO member of a medical air evacuation crew, he was the driver of a military vehicle, a VW Van, that was ticketed by Military Police (MP) while parked at a civilian food establishment off post.  On reporting to the MP station as instructed on the ticket, the MPs noticed alcohol on his breath.  The applicant was administered a breathalyzer test on his consent.  He was found to have .034% blood alcohol.  He was charged by the MPs with wrongful appropriation of a government vehicle and drunk on duty.  Another E-5, who was the crew chief, and an E-4 crew member who had ridden with the applicant to the food establishment, were also charged with wrongful appropriation of a government vehicle.

On 9 September 1994, the applicant was given a field grade Article 15 nonjudicial punishment for the violation of drunk on duty and wrongful appropriation of a government vehicle.  The applicant accepted the Article 15 and did not request a trial by court-martial.  The punishment given was reduction from E-5 to E-4 and a suspended forfeiture of $644 for 2 months.  The applicant appealed the punishment.  The appeal was denied.  The Article 15 was reviewed by a legal officer who stated that, "The proceedings were conducted in accordance with law and regulation and the punishments imposed were not unjust or disproportionate to the offenses committed."  The applicant was reduced to E-4 effective 9 September 1994.  He was not repromoted to E-5.

On 16 June 1995, the applicant was honorably discharged from the Army at the completion of his required active service with a separation program designator code of "JBK", AR 635-200, chapter 4, completion of required active service for a Regular Army soldier ineligible for, barred from, or otherwise denied reenlistment who is separated on completion of enlistment.  He was discharged as an E-4 with 9 years 5 months 9 days of active service.  This number of years exceeded the retention control point of 8 years maximum for an E-4 to remain on active duty according the AR 601-280, table 3-1, Retention Control Points, thus he was not authorized to be retained in or reenlist in the Regular Army.  Discharge under these circumstances affords the individual separation pay which the applicant received in the amount of $14, 943.12.  Upon discharge, he was transferred to an Army Reserve unit in the United States.  He is currently in the active Army Reserves.

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 applicant has provided no evidence to prove that the Article 15 charges were in error or unjust.  He has provided no evidence to show that his use of the government vehicle for travel to an off post food establishment was authorized.  He admitted to consumption of alcohol while being the driver of a government vehicle and while in a flight crew readiness standby status.  By accepting the Article 15, he admitted to his guilt of the charges.  He had the option to request a court-martial and plead not guilty but chose to accept the Article 15 instead.

2.  The punishment of reduction from E-5 to E-4 is not too harsh for an NCO charged with being drunk on duty and wrongfully appropriating a government vehicle of which he was the driver after having consumed alcohol.  The other two soldiers were not charged with being drunk on duty nor were they the drivers of the government vehicle and so their punishment would be different and not comparable to the applicant's punishment.

3.  The applicant was allowed 9 months from the date of his reduction to E-4 to be repromoted to E-5 and thus be eligible for retention on active duty and reenlistment.  He was not selected for repromotion to E-5 and was consequently correctly discharged for being an E-4 with over 8 years maximum active duty time.  This is according to regulation and does not constitute an error or an injustice.

4.  The record does not contain any evidence nor has the applicant submitted any evidence to prove his contention of error or injustice.  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

_JNS___  _EW_____  _RWA    _  DENY APPLICATION

                                                         Paul A. Petty                    

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-10464	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	1998 December 3	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.A94.05		
2.A95.00		
3.A0100		
4.		
5.		
6.