PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:            19 October 2000                  
	DOCKET NUMBER:   AR1999024298

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

	Mr. Carl W. S. Chun		Director	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Ernest W. Lutz		Chairperson	
	Christopher J. Prosser		Member	
	Tracey L. Pinson		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that a 1994 Record of Proceeding Under Article 15 of the Uniform Code of Military Justice (UCMJ), a 1994 punitive reprimand, and an adverse Officer Evaluation Report (OER) for the period 
26 June 1993 through 8 April 1994 be expunged from his Official Military Personnel File (OMPF). 

3.  The applicant states, in effect, that the adverse documents are unjust because they all stemmed from a single incident before the civilian court case was resolved and before all of the facts were known.  He notes that “upon discovery of the facts of the case the civilian charges were dropped because they stemmed from an illegal arrest, an illegal field sobriety test, and an illegal blood alcohol breath test.”  The applicant indicated that the field sobriety test was not administered on a level surface which was contrary to Arizona law and that the he “was required to blow approximately 10 times, but only 3 select analyzer sheets were submitted on the report at the selection” of the deputy sheriff.  He stated that according to Arizona law a “duplicate breathalyzer test must be within 0.02 alcohol concentration of each other or a verification by the operator that the person completing the test was observed for 20 minutes immediately preceding the administration of any particular test.”  He noted that “neither of these conditions was met in [his] case.”  He states that because of all the irregularities in his arrest, the field sobriety test and the blood alcohol test, “the judge in Arizona dismissed all charges.”  The applicant notes that “except for this one incident, which was the result of an overzealous and unscrupulous deputy sheriff, and not any wrongdoing on [his] part” he has had an exemplary career.  In support of his request he submits extracts of the Arizona transportation code, a copy of the court’s dismissal document, and several letters of support.

4.  The applicant was commissioned as a U.S. Army Reserve (USAR) officer in 1987 and subsequently entered active duty.  In March 1988 he accepted a Regular Army commission and in May 1992 was promoted to the grade of captain.

5.  According to a statement by a Pima Arizona County Sheriff, contained in the restricted portion of the applicant’s OMPF, the applicant was stopped at approximately 0217 hours on 24 March 1994 after the applicant “went through a red light at approximately 40 MPH, nearly striking [the deputy sheriff’s] patrol car.”  The deputy sheriff then stated the applicant exited his car “and used the door for support, swaying and then using the vehicle to support himself as he stood next to it.”  When questioned about drinking the applicant initially indicated that he had not been drinking but subsequently stated that he had “well, maybe one beer.”  He was administered a field sobriety test, which the officer noted the applicant failed and was subsequently transported to the “San Xavier substation” 

where a breathalyzer test was administered.  The deputy sheriff stated the first test resulted in a .165 reading (.10 is considered legally drunk) but two subsequent tests were administered because the officer noted that the applicant “did not take one continuous breath, instead, using three or four short breaths….” The officer indicated that two subsequent readings produced results of .186 and .179.  The applicant was ultimately “booked” for driving under the influence (DUI), driving with a “BAC” over .10 and failure to stop for a red light.

6.  On 12 April 1994 the applicant’s rater signed an OER relieving the applicant for cause.  The evaluation reported noted that “during the rating period he [the applicant] occasionally failed to display sound judgement in his leadership” and “do to an incident during the rating period his ability to set and enforce high standards was questioned.”  The rater noted that “unfortunately [the applicant] made mistakes that will not allow me to leave him in Battery Command.  His recent personal conduct while on a counternarcotics drug mission in Tucson, Arizona caused me to lose complete faith and confidence in his ability to command and thus mandated my decision to relieve him for cause.”  In a 
13 June 1994 statement, rendered as part of a subsequent UCMJ action, the applicant’s rater indicated, in effect, that the applicant had been less than honest regarding the DUI incident and about his whereabouts the morning following the incident when his unit was preparing for redeployment.  The rater also stated to officials from the Office of the Deputy Chief of Staff for Personnel, Officer Special Review Board (OSRB) that the DUI was not the “specific reason” he relieved the applicant rather, he noted, that it was “based on [the applicant’s] lying about the circumstances relating to his arrest and that based on [the applicant’s] action he lost trust and confidence in him.”

7.  In acknowledging receipt of the Relief for Cause evaluation report the applicant noted that the report did “not comply with the regulation as it lacks any specificity, fails to give the undersigned notice of the reasons, and prevents any opportunity for a fair response by the undersigned.”  In July 1998 the applicant initiated an appeal of the OER to the OSRB noting that he “was completely exonerated of all wrongdoing relating to this incident.”  His appeal was returned without action because “there was insufficient evidence to support [his] appeal.”

8.  As a result of the DUI incident, on 16 May 1994 the applicant was punished under Article 15 of the UCMJ.  The proceedings indicated the applicant was being punished for operating a military vehicle (rental car) while drunk and exceeding the BAC standard, for failing to properly secure his military weapon (which was found, unloaded, in the glove compartment of the rental car), and for making false official statements, with intent to deceive, regarding his 

whereabouts the morning of the incident when his unit was preparing for redeployment.  His punishment included forfeiture of $750.00 per month for two months and a written reprimand.

9.  The applicant appealed the proceedings and on 29 August 1994 the Commanding General of TRADOC (Training and Doctrine Command) concluded that the evidence supported the offense of drunk driving but not conduct unbecoming an officer and a gentleman.  That portion of the proceedings pertaining to the unsecured weapon and false official statements was lined through on the record of proceedings and the written reprimand was “redacted to reflect this finding.”  The information concerning the unsecured weapon and false official statements, although lined through and initialed by the TRADOC commander, is still readable on both the Article 15 record of proceedings and the reprimand contained in the applicant’s OMPF.

10.  On 2 September 1994 the civilian charges against the applicant were dismissed “with prejudice” by the Pima County Consolidated Justice Court in Tucson, Arizona.

11.  There is no evidence the applicant ever appealed the letter of reprimand or the UCMJ action beyond the local level.  However, in the processing of this case an advisory opinion (COPY ATTACHED) was provided by the Department of the Army Suitability Evaluation Board (DASEB) who would have acted on an appeal from the applicant had one been submitted.  The DASEB recommended that the applicant’s petition regarding the UCMJ action and reprimand be denied.  They opined that “the applicant lacks any remorse and is in denial of his misconduct…that his denial was obtained through relief in a civil court ruling on technicalities.”  The DASEB further concluded that the “fact still exists that he was driving a government-rented vehicle while on TDY with his unit, and when stopped, registered over a .10% BAC…[and] that he lied about the incident to the battalion commander….”  Additionally, the DASEB opined that “granting relief for this offense, considering his position of authority (commander) at the time and the subsequent evolution of events of how he handled his misconduct with his chain of command would place the applicant on the same level playing field as his contemporaries whose careers have not been marred by such an incident of misconduct.”  When given an opportunity to comment on the advisory opinion the applicant did not respond.

12.  Army Regulation 623-105 states that an evaluation report is required when an officer is relieved for cause regardless of the rating period involved.  Relief for cause is defined as an early release of an officer from a specific duty or assignment directed by superior authority and based on a decision that the officer has failed in his or her performance of duty.  In this regard duty performance consists of the completion of assigned tasks in a competent manner and compliance at all times with the accepted professional officer standards.  These standards apply to conduct both on and off duty.  Any verified derogatory information may be entered on an OER.  This is true whether the officer is under investigation, flagged, or awaiting trial.  While the fact that an officer is under investigation or trial may not be mentioned in an OER until the investigation or trial is completed this does not preclude the rating chain’s use of verified derogatory information.

13.  Army Regulation 623-105 also states that an evaluation report accepted by Headquarters Department of the Army and included in the official record of an officer is presumed to be administratively correct, prepared by the proper rating officials, and represent the considered opinions and objective judgment of the rating officials at the time of preparation.  Requests that an accepted report be altered, withdrawn, or replaced with another report will not be honored unless information that was unknown or unverified when the report was prepared is brought to light or verified and this information is so significant that it would have resulted in a higher or lower evaluation had it been known or verified when the report was prepared.

14.  Army Regulation 27-10 states that the authority to impose nonjudicial punishment charges a commander with the responsibility of exercising the commander’s authority in an absolutely fair and judicious manner.  It notes that after a preliminary inquiry, if the commander determines, based on the evidence currently available, that the soldier probably has committed an offense and that a nonjudicial punishment procedure is appropriate, the commander should take action.  Admonitions or reprimands imposed on commissioned or warrant officers must be in writing and when imposed as a punitive measure under Article 15 will be in memorandum format. 

CONCLUSIONS:

1.  Although the applicant’s civilian charges may have been dismissed, that dismissal, by the applicant’s own admission, was based solely on improperly administered field sobriety and breathalyzer tests.  The applicant does not contend, and has provided no evidence, that he was not driving under the influence.  The Board notes that in spite of the fact that the breathalyzer tests may not have been administered in accordance with Arizona laws, and as such served as a basis for dismissal by the civilian court, they did indicate that his BAC exceeded the legal limit.  

2.  The evidence also indicates that the applicant’s actions, in spite of the subsequent civilian dismissal, were questionable and resulted in his rater’s decision to relieve him from his command position and issue the Relief for Cause 

evaluation report.  The OER in question was prepared, referred and filed in accordance with applicable procedures with no indication of procedural errors which would tend to jeopardize his rights.

3.  The applicant has not shown that the contested report contains any serious administrative deficiencies or was not prepared in compliance with applicable regulations and policy.

4.  The Board also notes that the applicant’s punishment under Article 15 of the UCMJ for DUI and punitive reprimand was appropriate and administered properly.  The dismissal of charges is not a basis to conclude that the applicant’s commander was wrong when he determined, based on evidence available at the time, that the applicant “probably” committed the offense for which he was punished.  As its name indicates, nonjudicial punishment is different from a trial by court-martial.  A nonjudicial punishment hearing is a more informal proceeding where the rules of evidence need not be strictly applied.  Before he elected to accept nonjudicial punishment the applicant was made aware of these differences and of his right to demand court-martial where he would receive the protection of the rules of evidence.  Instead he chose to have the matter settled at nonjudicial punishment.

5.  However, the Board does note that information on the record of proceedings and punitive reprimand concerning the unsecured weapon and false official statement are still clearly readable on both documents filed in the applicant’s OMPF.  While the TRADOC commander, in his review, concluded that the evidence did not support those two actions, and stated that the reprimand was “redacted” accordingly, the continued readability of that information on the two documents could be interpreted as prejudicial and not in keeping with the TRADOC commander’s intention.  As such the Board concludes that an injustice is created by the continued presence of that information on the two documents and in fact could be perceived as excess punishment.  

6.  In order to rectify that injustice the Board concludes it would be appropriate to truly redact the information in question on the record of proceedings and punitive reprimand in such a way that the information concerning the unsecured weapon and false official statement are no longer readable.

7.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by completely obliterating the information concerning the unsecured weapon and false official statement on the record of proceedings and punitive reprimand in such a way that it is no longer readable.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__cjp___  ____tlp_  ___ewl__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999024298	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001019	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	Grant	
REVIEW AUTHORITY		
ISSUES         1.	111.00	
2.	126.00	
3.		
4.		
5.		
6.