MEMORANDUM OF CONSIDERATION

IN THE CASE OF:  

BOARD DATE:          5 January 2000
DOCKET NUMBER:  AR1999022340

	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.

	 		Director	
	Mr. Gerald E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Ms. Erin J. Olmes		Chairperson	
	Mr. John D. Miller		Member	
	Mr. James M. Alward		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 previous application to correct his records by purging his records of a nonjudicial punishment (NJP), dated 18 March 1993, a Letter of Reprimand (LOR) and the associated documents.  In effect, he also requests that his discharge under the Quality Management Program (QMP) be reviewed and that he be reinstated to active duty.  

APPLICANT STATES:  In effect, through his counsel, that there were errors in the information used by the Board in its prior review.  These errors resulted in the impression that the applicant’s accident was much more serious than it actually was and that the applicant had been referred to alcohol counseling prior to the accident making this a repeat alcohol related incident.

COUNSEL STATES: In effect, that a blood alcohol level of 0.095 is not considered to be drunk in many jurisdictions and that the accident would have occurred even if the applicant had had no alcohol at all.  Counsel contends that the intent of the LOR and NJP have been served.  He notes that the applicant is currently working as a civilian LPN for the Army and desires to return to active duty.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's 13 August 1997 Proceedings which expunged a 1974 and 1976 NJP, but denied removal of the 1993 NJP and LOR (COPY ATTACHED).

The applicant submits a statement from the other occupant of his vehicle describing the accident and severity of injury and property damage.  This document and the contention of intent served were not available or considered at the time of the prior Board action.

The Board’s Proceedings did contain an inadvertent error in noting that the applicant had two alcohol-related accidents in January of 1993 and that the NJP punishment included a return to the alcohol rehabilitation program.  The applicant’s record shows that, while in Germany, he was involved in an auto accident on 13 January 1993.  The actual German police report, the US Military Police Report and the Breathalyzer test results are not of record.  However, a legal statement from the German officials indicates that there was no damage to the other vehicle, minor damage to the applicant’s vehicle and minor injury to the occupants of the other car.  The NJP document notes the date of the incident as 9 January 1993.  The LOR indicates blood alcohol levels of 0.91 and 0.95.  These should read 0.091 and 0.095.

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 had been drinking prior to the accident that did cause personal injury and property damage regardless of the amount or severity.  The applicant’s blood alcohol level exceeded the legal limit in the jurisdiction in which he was driving and closely approached the 0.10 that is proscribed by almost every jurisdiction in the world that does not adhere to a lesser number.

2.  In the Board’s opinion, the inadvertent errors in the prior Proceedings did not create an injustice.  The NJP was warranted by the facts of the case and the LOR was required by regulation.  The applicant’s separation under the QMP was a foreseeable consequence of his choice to drive while under the influence of alcohol.

3.  The applicant’s prior service, his efforts to remain in the Army and his desire to resume his Army career are noted by the Board.  They do not, however, demonstrate that the potential consequence of selective retention of such individuals as have demonstrated strength of character by overcoming their own actions are preferable to retaining equally qualified individuals whose records, by comparison, are without blemish.  In other words, this Board will not override the QMP process on a case by case basis unless material error or injustice has occurred.

4.  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.

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

___ejo__  ___jdm__  __jma____  DENY APPLICATION

	Karl F. Schneider
	Director, Army Review Boards Agency

INDEX

CASE ID	AR1999022340	
SUFFIX		
RECON	 	
DATE BOARDED	20000105 	
TYPE OF DISCHARGE	 	
DATE OF DISCHARGE	 	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	134.01	
2.	126.03	
3.	123.04	
4.		
5.		
6.