MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           31 August 2000
	DOCKET NUMBER:   AR2000041586

	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. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Ms. Barbara Ellis		Member	
	Mr. Joe R. Schroeder		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 Official Military Personnel File (OMPF) be corrected by removing the "erroneously" issued General Officer Memorandum of Reprimand (GOMOR) and the record of nonjudicial punishment (NJP) given under Article 15, Uniform Code of Military Justice.

APPLICANT STATES:  In effect, that retention of the NJP in his OMPF is "no longer in the best interest of the Army" and points to his "exceptional duty performance" as justification for its removal.  He also states that the GOMOR falsely accuses him of not submitting to a Blood-Alcohol Content (BAC) test when, in fact, he voluntarily obtained one immediately upon his release from military police custody to the custody of his commander.  He states that the results of that test revealed a BAC of .081.  He adds, in effect, that he did not refuse a BAC test, he only refused the "less accurate Breathalyzer test" offered by the Fort Bragg Military Police (MP).  Finally, he states that he attempted to have the documents removed by the Department of the Army Suitability Evaluation Board (DASEB) on two occasions, but they always "lost" his paperwork.

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

He is a staff sergeant with more than 15 years of creditable active federal service.  On 5 February 1995, he was apprehended by Fort Bragg MPs for running through a red light.  Upon stopping the applicant's vehicle, the MPs suspected him of driving under the influence of alcohol and asked him to take a BAC test.  The applicant refused and was taken to the MP Station, processed as a drunk driver, and released to his unit commander.

After being released, the applicant apparently went to the hospital and had blood drawn for a BAC test.  By the applicant's own admission, this test revealed a BAC level of .081 percent.  In the state of North Carolina, a driver is legally drunk with a BAC level of .080 percent.

On 14 February 1995, the applicant received a GOMOR for driving while impaired and failing to submit to a BAC test.  He rebutted the GOMOR by saying that he did not refuse all BAC tests, just the common test given by law enforcement--a Breathalyzer test--which determines BAC levels through analysis of breath.  He added, "I accept full responsibility for the incident.  I have always been cautious and responsible on the rare occasions that I use alcohol."  His company and battalion commanders recommended filing the GOMOR in the applicant's local personnel file; the brigade commander recommended filing in the applicant's OMPF.

On 10 March 1995, the applicant accepted a field grade NJP for driving while impaired.  He was given a suspended reduction to sergeant (E-5), forfeiture of $777.00 per month for 2 months ($500 per month suspended), and 45 days of extra duty.

Army Regulation 190-5 establishes policy, responsibilities, and procedures for motor vehicle traffic supervision on military installations in the continental United States (CONUS) and overseas areas.  It states, in pertinent parts, that persons accepting installation driving privileges shall be deemed to have given their consent to evidential tests for alcohol or other drug content of their blood, breath, and/or urine if lawfully stopped, apprehended, or cited for any offense allegedly committed while driving or in physical control of a motor vehicle on the installation while under the influence of intoxicants. 

The regulation further provides that administrative revocation of driving privileges and other enforcement measures will be applied uniformly to offenders driving under the influence of alcohol or drugs.  When a person is tested [for blood-alcohol content level], the results of the test will be evaluated as follows:  (1) If the percentage of alcohol in the person's blood is less than 0.05 percent, presume the person is not under the influence of alcohol; (2) If the percentage is 0.05 but less than 0.10, presume the person is impaired.  This standard may be considered with other competent evidence in determining whether the person was under the influence of alcohol; (3) If the percentage is 0.10 or more, or if tests reflect the presence of illegal drugs, the person was driving while intoxicated.  The above percentages are percent of weight by volume of alcohol in the blood based on grams of alcohol per 100 milliliters of blood.  The standards may be modified locally to agree with those established by the State or host nation [the State of North Carolina has established a limit of .080].  The law enforcement official relying on implied consent will warn the person that driving privileges will be revoked if the person fails to voluntarily submit to or complete a requested chemical test.  The person does not have the right to have an attorney present before stating whether he or she will submit to a test, or during the actual test.  Installation commanders will prescribe the type or types of chemical tests to be used.  The results of chemical tests conducted under the implied consent provisions of this regulation may be used as evidence in courts-martial, nonjudicial proceedings under Article 15 of the UCMJ, administrative actions, and civilian courts. 

The regulation adds that Army commanders will take appropriate action against intoxicated drivers.  These actions will include the following:  A written general officer reprimand, administrative in nature, will be issued to active duty Army officers, commissioned and warrant, and noncommissioned officers, to include soldiers in the grade of E-4 appointed on official orders to corporal, in the following cases:  (1) Conviction of intoxicated driving or driving under the influence of alcohol or other drugs either on or off the installation; (2) Refusal to take or failure to complete a lawfully requested test to measure alcohol or drug content of the blood, breath, or urine, either on or off the installation, when there is reasonable belief of driving under the influence of alcohol or drugs; (3) Driving or being in physical control of a motor vehicle on post when the blood alcohol content is 0.10 percent or higher, irrespective of other charges, or off post when the blood alcohol content is in violation of State laws, irrespective of other charges; (4) Driving or being in physical control of a motor vehicle, either on or off the installation, when lawfully requested chemical tests reflect the presence of illegal drugs.

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.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  The applicant ran through a red traffic light and was stopped by MPs.  As a suspected drunk driver, he was offered a BAC test and refused.  Army regulations state that refusal to take a BAC test is a violation of the implied consent laws and constitutes drunk driving.  The regulation does not permit the suspected drunk driver to specify the type of test he or she will take.

3.  The applicant, at a later time, had blood drawn for a BAC test.  This test revealed that he was a drunk driver under North Carolina State law.

4.  The applicant has a history of serious traffic and alcohol-related offenses.  In May 1985, he was arrested for speeding and drunk driving and had his driver's license revoked and paid a $289.00 fine.  In February 1986, he was arrested for failing to obey a stop sign and fined $38.00.  In March 1987, he was arrested for speeding and in July for public intoxication.

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

__sac___  __be____  __jrs ____  DENY APPLICATION

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

INDEX

CASE ID	AR2000041586	
SUFFIX		
RECON		
DATE BOARDED	20000831	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	126.0400	
2.	134.0400	
3.		
4.		
5.		
6.