MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  23 February 2000
	DOCKET NUMBER:   AR1999026226

	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.  Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Elizabeth Buchanon		Member	
	Mr. Raymond J. Wagner		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 separation from the Army be overturned and he be returned to active duty; that his General Officer Memorandum of Reprimand (GOMOR) dated 28 July 1995 be expunged from his record; that all Qualitative Management Program (QMP) proceedings be expunged from his record; that he receive back pay and allowances from the date of his separation to the date of his reinstatement; and that he receive credit for time in grade for pay, promotion and retirement purposes from the date of his separation to the date of his reinstatement.

APPLICANT STATES:  In effect, that he was separated from the Army under the QMP program as a result of a 28 July 1995 GOMOR for being arrested for driving while under the influence of alcohol and refusing to take a breathalyzer test.  The applicant states that the charges for driving while under the influence of alcohol were dismissed by a civil court because the case was defective.  He also states that he did not refuse to take the breathalyzer test, that he did take the test twice registering .16 and .19 respectively, but refused to take a third test since he felt that the breathalyzer was not working properly because of the .03 difference between the two readings.  He contests that a breathalyzer should register the correct reading the first time if it is working properly.  He appealed his QMP Bar to Reenlistment to a DA Standby Advisory Board who denied his appeal.  He appealed his QMP selection to a DA Suitability Evaluation (DASEB)  who denied his appeal  The applicant contends that the GOMOR should be expunged from his record since his case of arrest for driving while under the influence of alcohol was defective and dismissed by a civil court and since he did not initially refuse to take the breathalyzer test but only did after he determined that the breathalyzer was not going to give an accurate reading.  And since the QMP was based on the GOMOR, he should be reinstated in the Army with restitution of all back pay and benefits.

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

That he enlisted in the Regular Army on 6 October 1982.  After basic infantry training, airborne training, and special forces training, he was assigned as a special forces infantryman at Fort Devens, Massachusetts, on 4 October 1983.  He was further qualified as a special forces engineer and reassigned to the specialty.  While at Fort Devens, he advanced to the rank and grade of Staff Sergeant E-6 on 21 December 1987.  On 11 July 1990, he was arrested by civil authority and charged with DWI, .20 percent, and with criminal possession of a weapon.  He pleaded guilty and was fined $350.  He received an Article 15 and a General Officer Letter of Reprimand (GOLOR) for driving while drunk.  He was reduced to E-5 and forfeited $500.  He was promoted again to E-6 on 
1 September 1991.  During this period, he also participated in Desert Storm.

On 28 May 1992, he was reassigned to Fort Bragg, North Carolina, as an instructor at the US Army JFK Special Warfare Center.  He was promoted to Sergeant First Class on 1 May 1994.

On 3 July 1995, the applicant was arrested by the Cumberland County Sheriff Department in Fayetteville, North Carolina, for driving while impaired.  He was asked by a Sheriff’s officer to take a breathalyzer test (copy attached).  The officer checked the calibration of the of the breathalyzer with a .08 calibration sample and the breathalyzer properly registered .08.  The .08 level is the legal limit for driving while intoxicated.  The applicant then provided two tests, the first at .16 and the second at .19, both of which are twice and more the legal limit.  
He refused a third test.  Due to the refusal, his license was revoked.  On 
14 November 1995, in the Court of Cumberland County, the state’s request for continuance of the case against the applicant was dismissed by the judge (copy attached).  The subject’s driver’s license was restored after he paid a $50.00 court fee.

On 23 July 1995, the applicant was issued a GOMOR for being arrested by the Cumberland County Sheriff Department for the criminal offense of driving while impaired and refusing to submit a lawfully requested breathalyzer test.  The applicant acknowledged receipt of the GOMOR on 15 August 1995.  He appealed the GOMOR to the issuing general officer.  After reviewing the applicant’s request, the general officer directed that the GOMOR be filed in the applicant’s performance portion of his Official Military Personnel File (OMPF) (copy attached).  On 10 December 1995, the applicant was reassigned to a special forces group at Fort Carson, Colorado.

On 24 March 1997, the applicant was informed by letter from US Army Enlisted Records and Evaluation Center (USAEREC), that the calendar year 1997 Master Sergeant Promotion Board, after a comprehensive review of the applicant’s OMPF, determined that he be barred from reenlistment under QMP (copy attached).  The reason for the QMP bar was cited as a GOLOR issued to the applicant on 28 December 1990 for driving while drunk, and a GOMOR issued to the applicant on 23 July 1995 for being arrested for driving while under the influence of alcohol and refusing to take a breathalyzer test.

On 12 June 1997, the applicant appealed to a DA Suitability Evaluation Board (DASEB) to remove the GOMOR from his OMPF.  On 11 September 1997, the DASEB denied his request (copy attached).

On 12 June 1997, the applicant also appealed his DA Bar to Reenlistment.  
His request was supported by his chain of command.  On 22 October 1997, the applicant was notified by USAEREC that his appeal was denied and that he must be discharged from the Army by 28 February 1998 (copy attached).  The applicant was so honorably discharged on 28 February 1998 by reason of reduction in force with 15 years, 4 months and 25 days active service.

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.  A check of Cumberland County court records shows that the applicant’s court case for driving while under the influence of alcohol was dismissed due to the judges decision not to grant continuance of the case.  This commonly happens when the arresting officer or other witness is not available for the court hearing.  The case was not dismissed because of any defect in the case or breathalyzer test as alleged by the applicant.

2.  The Intoxilyzer Alcohol Analyzer Model 5000 (breathalyzer) was not defective or malfunctioning as alleged by the applicant.  The breathalyzer tests were accurate.  The arrest breathalyzer test sheet shows that the analyzer registered the proper .08 alcohol content when is was tested against the calibration sample of know .08 alcohol content.  The variation in subject test samples, such as in the applicant’s case of .16 and .19, is not uncommon.  It is standard procedure to take as many samples as necessary until two readings are within .02 of each other.  At that point, the lower of the two readings is recorded as the intoxication level.  The variation in subject test readings can be caused by the subject’s level of compliance with the testing officer’s directions in giving the breath samples and by the physiology of the test subject such as belching before or during a test. The breathalyzer test does show that the applicant was in fact at least twice as drunk as the legal level for driving and was driving while under the influence regardless of the level.

3.  The applicant did refuse to submit a lawfully requested breathalyzer test.  The lawful request includes as many subject sample tests as are necessary to establish a consistent test result within the tolerance of .02 alcohol content level. Refusal on the part of the applicant to give a third or more breath test samples when requested by the law officer does constitute refusal to submit to a lawfully requested breathalyzer test.  Therefore, the statement on the GOMOR that the applicant refused to submit a lawfully requested breathalyzer test is accurate and correct.

4.  The GOMOR is accurate and correct in its statement that the applicant was arrested for the criminal offense of driving while impaired.  The arrest is fact and the arrest reason, driving while impaired, is supported by the arrest record and the breathalyzer test results.  Regardless of the later court decision to deny continuance of the case and dismiss the case, the GOMOR is correct in its charges.  A GOMOR can be given for civil or military arrest for offenses and particularly in the civil sector where such conduct of a soldier that results in arrest which would bring unfavorable public attention, would discredit the military in the eyes of the public, place citizenry at risk as a result of the actions of a soldier, and in this case of an noncommissioned officer, discredit him and the noncommissioned officer corps in the eyes of his subordinates and peers.  Of course, a general officer may decide not to issue or file a GOMOR if the arrest charges proved false.  However, in this case the charges were not proven false and the arrest evidence is sufficient to warrant the GOMOR.

5.  In light of his two GOMORs for driving while intoxicated, one in 1990 and one in 1995, the DA Bar and QMP separation are fair and equitable.  Only one such incident for a senior NCO is often sufficient for QMP separation.

6.  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

__RO___  __EB___  ___RW___  DENY APPLICATION

						Karl F. Schneider
				    Director, Army Review Boards Agency

INDEX

CASE ID	AR1999026226	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000223	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 110.03	Reinstatement	
2.		
3.		
4.		
5.		
6.