MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           25 July 2000
	DOCKET NUMBER:   AR2000037728

	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.Carl W. S. Chun		Director	
	Mr. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Ted S. Kanamine		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. John H. Kern 		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 earlier appeal to correct his records by expunging a letter of reprimand (LOR) and relief for cause noncommissioned officer efficiency report (NCOER), by overturning his separation from active duty under the qualitative management program, by authorizing retroactive pay and by permitting him to reenlist or retire.  He also requests that he be granted a personal appearance hearing.

APPLICANT STATES:  In effect, that the requested relief should be granted because the civilian judge approved the prosecutor’s motion to not prosecute the case (nolle prosegui).  He contends, in effect, that this is tantamount to being exonerated.  He avers his “stated position from the beginning [is] that a breathalyzer test was never offered and that he was not driving under the influence.”  He maintains that the NCOER is in error or unjust because it states “set bad example for soldiers by receiving DUI [driving under the influence].”  He contends that the Army did not follow its own regulation and that the burden of proof has been improperly shifted to him.  He cites numerous court cases and attaches copies of Board cases that he believes are pertinent to his arguments. 

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case on 15 December 1999 (COPY ATTACHED).

The applicant’s submissions are new evidence and argument that require Board consideration.

In his 16 May 1995 response to the LOR the applicant stated that he accepted full responsibility for his actions and the consequences of his actions.  He requested that the filing decision be postponed until after his case was adjudicated.  He also stated that “One of the primary grounds my attorney plans on challenging is the legality of the officer’s conduct when he stopped my vehicle, administered the field sobriety test to me, and requested that I take a blood alcohol test.”

His company commander recommended that the LOR be filed locally in the applicant’s Military Personnel Record Jacket (MPRJ).  In support of that  recommendation he wrote “I do not and will not excuse his actions on the night of April 19th of this year.  He was wrong and he felt the burden and humiliation  I sincerely believe that he will overcome his drinking problem and be a productive soldier in the Army of the future.”

A retired command sergeant major also supported the local filing recommendation.  He wrote “I am aware of his actions on the 19th of April, 1995 and am personally disappointed in him.”

On 22 June 1995 the applicant asked the commanding general to place the LOR in his MPRJ because the charges had been dropped.  He provided a copy of the court disposition form that indicated that the judge approved the prosecutor’s nolle prosegui motion.  

On 16 July 1995 the commanding general indicated that he had considered the applicant’s rebuttal (with enclosures) and directed that the LOR be filed in the applicant’s Official Military Personnel File (OMPF).

Army Regulation 190-5 provides that officers and NCO's will be issued an administrative LOR for alcohol related driving incidents in the following circumstances: When there is a conviction for driving while intoxicated or driving under the influence of alcohol or drugs; a refusal to take a properly requested blood, urine or breath test; when the individual was driving or in physical control of a vehicle on post with a Blood Alcohol Content (BAC) of .10 or off post with a BAC in violation of State law, irrespective of other charges; or driving or in physical control of a vehicle when a lawfully requested test reflected the presence of other drugs.

Army Regulation 600-37 (unfavorable information) provides in pertinent part, that administrative letters of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the soldier.  The letter must be referred to the recipient and the referral must include and list applicable portions of investigations, reports or other documents that serve as a basis for the reprimand.  Statements or other evidence furnished by the recipient must be reviewed and considered before filing determination is made.  Letters of reprimand may be filed in a soldier's OMPF only upon the order of a general officer level authority and are to be filed on the performance fiche.  The direction for filing is to be contained in an endorsement or addendum to the letter.  If the reprimand is to be filed in the OMPF then the recipient's submissions are to be attached.  Once filed in the OMPF the reprimand and associated documents are permanent unless removed in accordance with chapter 7.  Letters of reprimand intended for filing in the MPRJ may be retained for no more than 3 years and must state the length of time they are to be retained.  Chapter 7 of the regulation provides that once filed in an OMPF a document is presumed to have been administratively correct.  Appeals to  relocate a reprimand, admonition or censure (normally for soldiers in pay grade E-6 and above) may be made to the Department of the Army Suitability Evaluation Board (DASEB) .  They are to be based on proof that the intended purpose has been served and that transfer to a restricted fiche would be in the best interest of the Army.  The DASEB will return appeals unless 1 year has elapsed and at least one nonacademic evaluation has been received since the letter was imposed.  If the appeal is denied the DASEB letter of denial will be filed on the performance fiche, the appeal itself and any associated documents will be filed on the restricted fiche.  Otherwise this Board may act in accordance with Army Regulation 15-185 and the soldier has rights under the Privacy Act in which the DASEB acts as the access and amendment authority under Army regulation.

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.  This case is much about refusal to take a BAC test as it is about DUI.  The several previous reviews of this case have all been conducted with the knowledge that both charges were “nolle prossed”.  Considering that his original response to the LOR states that the arresting officer requested that he take a BAC test, his subsequent claim that none was offered is meaningless.  Furthermore, the applicant never revealed the basis for the nolle prosegui decision.  Rather he has consistently depended upon maintaining the court’s action absolved him of any wrongdoing.

2.  The LOR and the relief for cause NCOER were imposed and filed in accordance with the governing regulations.  The applicant presented the court’s decision to the commanding general and the filing decision on the LOR was made after the commanding general considered the outcome of the court-case.  The LOR and the NCOER were properly incorporated into his OMPF. 

3.  That the civil authority chose not to prosecute does not exonerate the applicant’s refusal to take the requested BAC test.  He has offered no evidence that goes to the merits of the case, nor to show why the case was nolle prossed.  However, the Board concludes that had the judge been convinced by the information presented to the court that the applicant was innocent the case would have been dismissed.  

4.  The applicant contends that the Army has improperly shifted the burden of proof to him.  However, the LOR and NCOER were properly conducted administrative actions that became final after the applicant was afforded due process.  The governing regulations properly shift the burden to him.  Furthermore, he has never presented a substantive appeal designed to demonstrate that the intent of the LOR had been served.

5.  That the NCOER states the applicant received a DUI is not a substantive error.  The phraseology is vague, but it is valid.  He did, in fact, set a bad example by putting himself in a position to have been arrested for an alcohol related offense. 

6.  The applicant and his supporters contend that he accepted responsibility for his actions but his commanding officer also reported that he had a drinking 
problem.  Yet there has been no evidence that the applicant has addressed this issue.  Indeed, he has never even commented.  In the absence of information that addresses this aspect of the case, any relief is unwarranted.

7.  Formal hearings are granted only when the Board determines that a case is so complex, or the records so incomplete that only sworn testimony can provide the necessary information.
 
8.  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.

9.  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

__TSK  _  __SK____  JHK_____  DENY APPLICATION

        Carl W. S. Chun
      Director, Army Board for Correction 
      of Military Records

INDEX

CASE ID	AR20000037728	
SUFFIX		
RECON		
DATE BOARDED	20000425	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	134.02	
2.		
3.		
4.		
5.		
6.