MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            27 March 2001                  
	DOCKET NUMBER:   AR2000050441

	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	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Roger W. Able		Chairperson	
	Ms. Gail J. Wire		Member	
	Mr. Allen J. Raub		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 a General Officer Memorandum of Reprimand be expunged from his Official Military Personnel File (OMPF).

APPLICANT STATES:  In effect, that the reprimand was issued after a court hearing determined that “no blood alcohol test was given.”  He notes he was accused of driving under the influence (DUI) of alcohol but “no test was given cause [sic] the soldier was not drinking.”  He states that the reprimand was not justified because there was no action taken “for a DUI.”  He states he has no record of a DUI on his driving record and submits a copy of the court proceeding from the Maryland Motor Vehicle Administration (MVA) which indicates “no action was taken due to no test.”  He also notes that his chain of command “stood by my word…after my court proceedings of not being guilty” and recommended the memorandum be filed locally and not in his OMPF.  In addition to the MVA document he also submits a copy of his Maryland driving record.

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

On 20 February 1999, at approximately 0137 hours, the applicant, who was serving in pay grade E-6 at Aberdeen Proving Ground, Maryland, was apprehended and charged with a variety of offenses, including DUI.  The handwritten statement of the arresting officer, which is contained in the restricted portion of the applicant’s OMPF, noted that the applicant had been driving erratically, almost causing an accident.  He noted the applicant crossed into another lane and when the arresting officer began pursuit the applicant did not stop, increased his speed and eventually lost control of his vehicle striking a guardrail.  When the officer approached the applicant he stated he detected a strong odor of alcohol, that the applicant’s eyes were blood shot and that his speech was slurred.  The applicant declined medical treatment and the applicant was asked to perform several field sobriety tests, including a preliminary breath test.  The preliminary breath test registered a BAC of 0.10 percent.  The officer noted the applicant also failed portions of other field sobriety tests.

The applicant’s OMPF also contained an “advice of rights” form authenticated by the applicant and the arresting officer indicating the applicant had been advised of his rights and refused to submit to an “alcohol concentration test.”  The form was signed at “0243 – AM.”

On 14 April 1999, according to a District Court of Maryland for Harford County “Defendant Trial Summary” the applicant pled not guilty to twelve different charges (negligent driving, failure to control vehicle speed on highway to avoid collision, attempt by driver to elude uniformed police by failing to stop vehicle, 

attempt by driver to elude police in official police vehicle by failing to stop, attempt to elude police in police vehicle by means other than failing to stop and fleeing on foot, driving while intoxicated, driving under the influence of alcohol, failure to drive right of center, and left turn from improper road position).  He was found guilty of negligent driving and fined $47.00.  A “Probation Before Judgment” was rendered on the charge of “attempt by driver to elude police in official police vehicle by failing to stop” and on the charge of “driving under the influence of alcohol.”  The applicant was placed on 12 months of supervised probation and fined $1500.00 of which $1400.00 was suspended.  Included, as part of the applicant’s probation, was a requirement to attend a Victim Impact Panel for Intoxicated Drivers.

On 28 May 1999, in a separate administrative action by the Maryland MVA regarding the suspension of his driving privileges, an administrative law judge concluded that the form the applicant authenticated to refuse the alcohol concentration test was defective in that it did not include information regarding the administrative sanctions (regarding his driving privileges) which could be imposed if the applicant had agreed to the test and failed.  As such she rendered a “no action” decision regarding the suspension of his driving privilege.

The Maryland Motor Vehicle Administration document submitted by the applicant in support of his request indicates he does not have a Maryland driver’s license and that there was no “record of violations for license number or name” for the applicant in the state of Maryland.  The applicant’s driver’s license was issued by the state of Mississippi.

On 14 June 1999 the applicant received a General Officer Memorandum of Reprimand.  The reprimand recounted the applicant’s actions on the night of 
20 February 1999 as outlined in the arresting officer’s statement, including his .10 percent preliminary BAC.  The reprimand also noted the applicant was “found guilty of driving under the influence of alcohol” and “sentenced to Probation Before Judgment….”

In his rebuttal the applicant noted that he had been charged with 12 offenses and “was found guilty of only one charge” and pled guilty to careless driving.  He indicated that the arresting officer who wrote the charges was “incompetent, negligent, and had no integrity as a public servant of the law.”  He stated that the “judge had no documentation of any alcohol tests that were conducted” and that he was “given a PBJ [Probation Before Judgment] with no record of a DWI or DUI on [his] driving record.”  In support of his rebuttal he noted that during “another court hearing” no action was taken “due to the negligence and incompetence of the officer” and that the judge noted “that the offender was never offered a breathalyzer or read his rights of taking one.”

The applicant’s chain of command recommended the issuing general officer file the reprimand in the applicant’s local file.  They all indicated the applicant was an excellent soldier who contributed to the mission of the Army and that filing the reprimand in his OMPF could damage an otherwise outstanding career.  His unit commander indicated that the “lenient sentence of Probation Before Judgement” indicated “the questionable credibility of the police officer and led to doubt about the validity of the DUI charge which is the basis for the Admininstrive Letter of Reprimand.”  He noted the applicant “maintains that he was not under the influence of alcohol at the time” and has “given me no reason to question his credibility.  The arresting police officer has.”

The issuing general officer, on 22 July 1999, after reviewing the “memorandum of reprimand, supporting documents, and any rebuttal information” determined the reprimand should be filed in the applicant’s OMPF.

In the summer of 2000 the applicant was promoted to pay grade E-7.  He has more than 15 years of military service, of which more than 12 have been in an active status.

In the preparation of this action the Department of the Army Suitability Evaluation Board (DASEB) provided an advisory opinion.  They noted that the applicant contends that the reprimand was unjustified and should be removed because he was never convicted of DUI and that the Maryland Motor Vehicle Court proceedings took no action to suspend his driving privileges.  The DASEB cited the applicant’s acceptance of the PBJ as the equivalent of a “plea bargain” as a less severe punishment which ensured that the DUI incident would not become part of his permanent driving record.  They noted that the fact the DUI is not part of his permanent record does not invalidate the reprimand.  They recommended his request to expunge the reprimand be denied.  The applicant was given an opportunity to comment on the advisory opinion but did not respond to the Board’s 8 February 2001 letter.

In the case of individuals charged with DUI or DWI, Probation Before Judgement enables offenders to avoid statutory sanctions that would otherwise be imposed upon arrest and/or conviction and a record of that conviction.  It means that the court feels there is enough evidence to convict the offender but will hold a verdict until the end of the probationary period.  The terms and conditions of consenting to Probation Before Judgment may also include, paying a fine, participating in an appropriate rehabilitation clinic or education program and performing community service.  PBJ is often used in traffic courts for first time offenders with otherwise exceptional work histories, characteristics, or clean driving records to preserve the individual’s records.

Army Regulation 27-10 states that commanding officers have the authority to give admonitions or reprimands either as an administrative measure or as nonjudicial punishment. 

Army Regulation 190-5 states that Army commanders will take appropriate action against intoxicated drivers.  These actions will include written general officer reprimands for active duty Army officers and noncommissioned officers convicted of intoxicated driving or driving under the influence of alcohol, those who refuse to take or fail to complete a lawfully requested test to measure alcohol content of the blood, breath, or urine, when there is reasonable belief of driving under the influence of alcohol, or when driving or being in physical control of a motor vehicle on post when the blood alcohol content is 0.10 percent or higher, or off post when the blood alcohol content is in violation of State laws.  (Maryland law provides that 0.10 percent BAC is considered legally intoxicated.)

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

2.  While the applicant maintains that his reprimand was not justified because there is no record that he was found guilty of DUI and that his driving record is clean, the Board notes that the District Court of Maryland for Harford County found there was sufficient evidence that he was driving under the influence and rendered a Probation Before Judgement ruling in order to preserve an otherwise clean record.  Had there been no evidence of guilt the court would have found him not guilty.

3.  The Board notes that the applicant’s contention that the arresting officer was incompetent is without foundation.  The available evidence merely indicates that the applicant’s driving privileges were not suspended because the form, which was utilized to refuse the BAC, was defective in that it did not contain certain required information associated with administrative sanctions regarding driving privileges.  The fact that his driving privileges were not suspended is not evidence that he was not driving under the influence.

4.  The evidence confirms the applicant failed a field BAC with a reading of 0.10 and then refused the BAC.  Either of these actions required, under the provisions of Army Regulation 190-5 that the applicant receive a written reprimand.  

5.  The applicant maintains that members of his chain of command recommended that the reprimand not be filed in his OMPF because they too concluded he had not been driving under the influence.  However, the Board notes that only the applicant’s unit commander made a statement regarding the applicant’s guilt or innocence, the remaining members of his chain of command merely stated the applicant was a good soldier and his official record should not be marred with a permanently filed reprimand.  It appears, based on the unit commander’s comments, that he may not have been aware of the implications of a Probation Before Judgement ruling.

6.  The applicant’s reprimand was issued in accordance with appropriate regulations with no indication of procedural errors which would tend to jeopardize his rights.  The fact that there is no record of “conviction” on his driving record is not evidence that it was issued in error or was unjust.

7.  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 that requirement.

8.  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

___rwa__  ___gjw__  ___ajr__  DENY APPLICATION

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

INDEX

CASE ID	AR2000050441	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010327	
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.	134.01	
2.		
3.		
4.		
5.		
6.