MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            31 July 2001
	DOCKET NUMBER:   AR2001056084

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. John T. Meixell		Member	
	Mr. Arthur A. Omartian		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:  In effect, that his records be corrected to show that he separated from the service in the pay grade of E-4.

APPLICANT STATES:  In effect, that the reduction in grade he received from the nonjudicial punishment imposed against him for driving under the influence (DUI) of alcohol was much too harsh.  He goes on to state that at the time he was experiencing a lot of stress due to the separation caused by his wife attending college and he began abusing alcohol.  Consequently he was charged with a  DUI offense and was reduced from the pay grade of E-4 to the pay grade of E-1. Despite receiving nonjudicial punishment, he kept working hard to prove he was a good soldier.  However, he did not have enough time to get his rank back and was forced to separate from the service.  He continues by stating that he has gotten his career back on track, has been going to college, and overall was a good soldier with a promising future.  However, one mistake cause him to be depicted as something other than a good soldier and he believes that if his rank is restored the record will show that he was a good soldier.  In support of his application he submits a copy of his resume’, his acceptance into an honor society, a copy of a job description and a character reference from an employer.

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

He enlisted in the Regular Army on 28 July 1988 for training as a personnel administration specialist.  He was advanced to the pay grade of E-4 on 28 September 1990 and remained on active duty through a series of continuous reenlistments.

On 16 February 1994, while serving in Germany, nonjudicial punishment was imposed against him for DUI and causing an accident while under the influence of alcohol (violations of Articles 111 and 134 Uniformed Code of Military Justice (UCMJ)).  He had a blood alcohol content (BAC) of 1.14 MG/ML.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay (suspended) and extra duty.

On 10 March 1994, the applicant’s commander initiated action to bar him from reenlistment based on his nonjudicial punishment.  The applicant acknowledged notification of the commander’s intent and elected not to submit a statement in his own behalf.

The appropriate authority approved the bar to reenlistment on 11 March 1994 and the applicant elected not to appeal.

On 4 October 1994 the applicant was honorably released from active duty under the provisions of Army Regulation 635-200, paragraph 16-8, due to reduction in force.  He had served 6 years, 2 months and 7 days of total active service and was given one-half separation pay.  The applicant’s reduction in grade had caused him to exceed the maximum retention control point (RCP) for his grade  (5 years).

Army Regulation 27-10 provides the policies and procedures for the administration of military justice within the Army.  It states, in pertinent part, that the imposing commander will ensure that the soldier is notified of the maximum punishment which could be imposed and provided a copy of the Record of Proceedings (DA Form 2627) in order to consult with counsel.  Soldiers offered punishment under Article 15 of the UCMJ, who are not stationed or embarked on a vessel, may demand trial by court-martial.  The maximum punishment for the applicant’s offenses was a dishonorable discharge, forfeiture of all pay and allowances and 18 months confinement. 

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.  Nonjudicial punishment was appropriate for the offenses committed by the applicant and the punishment does not appear to have been too harsh under the circumstances.  In any event, the applicant has failed to show either through the evidence of record or the evidence submitted with his application that the punishment was too harsh for the offenses committed.

3.  While the applicant may now not agree with the punishment he received, he had the opportunity to demand trial by court-martial, whereas he could have asserted that a lesser punishment was appropriate.  He also had the same right to present matters in his own behalf at the time NJP was imposed, if he chose to do so.  Accordingly, the Board finds that his punishment was imposed with no violations of any of his rights and the Board will not at this time attempt to second guess the imposing commander’s decision of whether a reduction in grade was appropriate at the time under the circumstances.

4.  The Board commends the applicant for his post-service success; however, they do not serve to change his separation grade, which was correct at the time of separation. 

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

__wtm___  ___jm___  __ao____  DENY APPLICATION

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

INDEX

CASE ID	AR2001056084	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/07/31	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  322	133.0000/reduction	
2.		
3.		
4.		
5.		
6.