MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           6 October 1999                   
	DOCKET NUMBER:   AR1999018600

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Van B. Cunningham		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:  Reconsideration of his request to set aside his Article 15, restore his rank accordingly, restore him to active duty and retroactively promote him to Staff Sergeant, E-6.  If the Board will not do that, he requests that his rank of Sergeant, E-5 be restored and, in effect, his reenlistment code be changed to permit his reenlistment.

APPLICANT STATES:  In effect, that the action taken by the previous Board obviously shows it did not understand that the act of agreeing to proceedings under Article 15 is not an admission of guilt; that it did not understand the requirements of proof for a violation of Article 111, Uniform Code of Military Justice (UCMJ); that it did not understand that he only had 5 days in which to appeal his punishment and that he did not have the documentation needed for an appeal until well after that time; and that it did not understand that the “fact” of his discharge due to reaching his retention control point (RCP), which in turn was due to his reduction in grade as a result of the Article 15, was irrelevant to the injustice of the imposition of the punishment in the first place.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 18 March 1998 (COPY ATTACHED).

The applicant provides as new evidence an August 1998 statement from Dixon and Sondheim GbR, which conducts certification classes for the Intoxilyzer 5000 provided to the U. S. Army military police in Germany.

In the 1994 edition of the Manual for Courts-Martial (MCM), United States 1984, Article 111 is titled “Drunken or reckless driving.”  This Article states that “Drunk” and “impaired” mean any intoxication which is sufficient sensibly to impair the rational and full exercise of the mental or physical faculties.

Army Regulation 27-10 prescribes policies and procedures pertaining to the administration of military justice and implements the MCM.  In discussing non-judicial punishment, paragraph 3.18J states that the imposing commander is not bound by the formal rules of evidence before courts-martial and may consider any matter the commander reasonably believes to be relevant to the offense.  Paragraph 3.18L states that punishment will be imposed when the commander is convinced beyond a reasonable doubt that the soldier committed the offense.  Paragraph 3.28 states that the basis for any set-aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice.  An example of "clear injustice" would be the discovery of new evidence unquestionably exculpating the soldier.  Paragraph 3.31 states that a soldier is not required to state reasons for his appeal.  For example, he may state that the punishment is excessive or that a certain punishment should be mitigated or suspended.
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 Board understands that agreeing to proceedings under Article 15 was not an admission of guilt by the applicant.  Guilt or innocence is determined in a court of law.  An Article 15 proceeding is a non-judicial action whereby the imposing commander is not bound by the formal rules of evidence.  He imposes punishment when he is convinced beyond a reasonable doubt that the soldier committed the offense.  Since the applicant submitted no matters in defense, the Board concludes the commander was “convinced beyond a reasonable doubt” that the applicant committed the offense.

2.  The offense was a violation of Article 111, UCMJ, drunken or reckless driving.  The MCM states that “drunk” and “impaired” mean any intoxication which is sufficient sensibly to impair the rational and full exercise of the mental or physical faculties.  The German policeman stopped the applicant and, whether justified or not, had him perform a field sobriety test which then showed he was intoxicated.  Although four different breath/blood tests came up with four different levels of blood alcohol, all four of them showed a level above the legal limits for intoxication.  As Article 15 proceedings are non-judicial, the commander was not bound by such “proof” as a court-martial action would have required.  The Board concludes that the commander was justified in accepting any one of the four blood alcohol findings (he used the 1.32 finding) in determining beyond a reasonable doubt the applicant was “impaired” within the meaning of Article 111.

3.  The Board understands there is a time limit in which an appeal may be submitted.  However, the applicant did not need to wait for documentation or even state a reason for his appeal to initiate one.  He could have appealed even if only to state that the punishment was excessive or should be suspended based upon his good record.  Yet, he took no action do so.

4.  The previous Board discussed the applicant’s discharge due to RCP only to reiterate that, since the Board found no error or injustice in denying his request to set aside his Article 15, his discharge was appropriate.  

5.  This Board notes that the applicant previously stated that “this case” (it is unclear if “this case” means his arrest case or a case against the arresting German police officer) was in German court.  He provides no evidence of what the outcome of that court case was.

6.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

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

__aao___  __vbc___  __rwa___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999018600	
SUFFIX		
RECON		
DATE BOARDED	19991006	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	126.00	
2.		
3.		
4.		
5.		
6.