ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 7 August 2019 DOCKET NUMBER: AR20170017823 APPLICANT REQUESTS: an upgrade of his character of service from bad conduct discharge (BCD) to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for the Review of Discharge from the Armed Forces of the United States ) * Article on blood alcohol content (BAC) * Statement for applicant mother * Applicant medical records * Statement from SGT RC_D * Information on Caliper (brake) * Hourly Weather History and Observations FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states one of the blood samples used to determine his BAC at the time of the accident could not have possibly been his. The second blood sample shows that his BAC was below the legal level at the time of the accident. The vehicle driven in the accident had not been inspected after sitting in a field during 6 month training exercise. The road conditions on the night of the accident were inclement and likely contributed to the accident. The BAC calculation is a known science, BAC equation. There were significant confusion over P_E and my identity was present on the night of the accident. He have provided documentation showing what can happen when a single wheel locks up on a car and evidence of wet road conditions at time of accident. 3. The applicant provides: a. Information from Wikipedia.org refer BAC, also called blood alcohol concentration, blood ethanol concentration, or blood alcohol level, is most commonly used as a metric of alcohol intoxication for legal or medical purposes. Blood Alcohol Content is the legal name for BAC but Blood Alcohol Concentration is sometimes used for simpler description. (1). The applicant states per above, mean, min, and max rate of elimination of his BAC at the time of the accident based on the 0.03 mg/ml blood draw at 0400 when he work back to 0005 at the time of the accident we see 0.09 mean, 0.082 min, and 0.098 as a maximum BAC level. The level of charges was based on a 0.1 rounding up of the worst case possibility. b. The applicant’s mother states on 9 September 2003 the applicant was involved a serious accident in Tacoma, WA. She know we have his medical records but want us to understand how far he has come back. When she arrived at the hospital he was in a drug induced coma on a ventilator not breathing on his own with tubes coming out all over, his head was swollen to twice its size. When they let him wake up, he didn't know who she was. It was a couple of days before he could remember she was his mom and still didn't know her name, where he was or what had happened to him. He had a Traumatic Brain Injury (TBI) and Post Traumatic Stress Disorder (PTSD). She was told that was the way the brain protected itself. It took him a long time before he could make complete sentences and remember new things. He worked extremely hard to regain his memory. There were several discrepancies during the trial nothing was said about the vehicle being parked for 6 months while the unit was away training, and that the night of the accident it was the first rain they had in months. There was one skid mark that was over 100 feet longer than the other 3 which indicates that the left rear tire caught before the rest causing the front of the vehicle to pull left. The vehicle went into the pole sideways. Also the blood alcohol level they used at trial was 0.14 BAC, but the US Army Criminal Investigation Command (CID) drew blood 3 times at the hospital and it was .03 and 0, the blood alcohol doesn't drop that fast unless they have to replace blood which they didn't. He came back home and got a job worked while going to community college and then transferred to Michigan Tech where he earned his Master’s in Mechanical Engineering. He has worked hard to stay out of trouble. He is married with a 10 month old little girl. Thank you for any consideration you may give this. c. Applicant’s hospital records from the CID report (065503-CID016.30186). d. Statement from SGT RC_D, dated 9 September 2003, which states that on 9 September 2003, at approximately 0400, he was admitted into the Intensive Care Unit (ICU) of Madigan Hospital to observe the blood draw of S_K for suspicion of driving under the influence (DUI). He advised applicant of his legal rights on a DUI packet. He was unable to sign due to medical reasons. The nurse withdrew blood and injected the blood into a glass vials issued by Washington State Toxicology. He then transported the Washington State blood draw to the Ft Lewis Military Police (MP) station and released it to the Desk Sergeant on a DA Form 4137 (Evidence/Property Custody Document) e. Information from the internet, refer the caliper is part of the brake assembly which houses the brake pads and pistons. If you have a stuck caliper, the brake pad will not completely disengage from the surface of the brake rotor. This means you will be driving with the brakes applied slightly all of the time. Driving with a stuck caliper can create stress on the transmission, causing it to fail earlier. There are a lot problems that can accompany a stuck caliper. f. Information from the internet, refer the hourly weather report for the day of the accident. 4. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 11 August 2000. b. General Court Martial Order Number 35, dated 22 September 2004, he was convicted by a general court-martial of the charge (physically control a passenger car while drunk) and charge II, (culpable negligence, unlawfully killed PFC P.V.E.) found guilty, negligent homicide. Sentence was adjudged on 9 April 2004. The accused was sentenced to the following: reduction to the grade of private (E-1); forfeiture of all pay and allowances; confinement for fifteen (15) months; and a bad conduct discharge. The sentence is approved, and, except for that part of the sentence extending to a bad conduct discharge, will be executed. c. On 5 April 2005, U.S. Army Court of Criminal Appeals made the notice of court- martial order corrections as follows: (1) By deleting in Charge II after the Plea the word "Guilty" and substituting therefore the words and figures "Not Guilty, but Guilty of a violation of Article 134." (2) By adding in line three of the Specification of Charge II after the word "Homicide" the words "except 'in a reckless manner."' d. He was discharged on 3 March 2006 under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), Chapter 3 (Character of Service/Description of Separation). His DD Form 214 (Certificate of Release or Discharge from Active Duty), shows he completed 3 years, 7 months, and 28 days. It also shows in: * item 23 (Type of Separation), Discharge * item 24 (Character of Service), Bad Conduct * item 25 (Separation Authority), Army Regulation 635-200, Chapter 3 * item 26 (Separation Code), JJD (Courts Martial) * item 28 (Narrative Reason for Separation), Court Martial – Other 5. By regulation, AR 635-200, in effect at that time, a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court martial. The appellate review must be completed and the affirmed sentence ordered duly executed. Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate. 6. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense guidance for consideration of discharge upgrade requests to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board considered the applicant's statement, his record of service , the nature of the misconduct, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors, there was no evidence of the applicant expressing remorse, and the applicant did not provide character witness statements or evidence of post-service achievements for the Board to consider for a clemency determination. Based on a prepondernce of evidence and the serious and criminal nature of the misconduct which led to the applicant’s separation, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct and not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 9/3/2019 X CHAIRPERSON Signed by: I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 3. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel: a. Paragraph 3-11 provided that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. b. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. c. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 4. Court-martial convictions stand as adjudged or as modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 5. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds. The guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. //NOTHING FOLLOWS//