APPLICANT REQUESTS: In effect, that the record of proceedings of nonjudicial punishment (NJP) imposed against him on 1 March 1993 be set aside and removed from his records and that all rights, privileges, and property taken from him be restored.
APPLICANT STATES: That NJP was unjustly imposed against him on 1 March 1993 for operating an automobile while drunk. He further states that his rights were not read to him at the time of his arrest and that not only was he not afforded 5 days to appeal his punishment, the appeal authority did not review all of the evidence and statements of witnesses before denying his appeal.
EVIDENCE OF RECORD: The applicant's military records show:
After serving 2 years and 10 months of prior service, the applicant again enlisted in the Regular Army on 23 May 1989 for a period of 6 years. He was promoted to the pay grade of E-4 on 1 July 1990.
While stationed at Fort Sam Houston, Texas, the applicant went AWOL from 7 January to 10 January 1991. On 29 January 1991, NJP was imposed against him for the aforementioned offense. His punishment consisted of a forfeiture of pay, extra duty, and restriction.
On 4 February 1993 (0100 hours), the applicant was stopped by the military police at Fort Sam Houston for speeding. Upon detecting an odor of alcohol on the applicants breath, he was administered a field sobriety test, which he failed. He was then apprehended for driving while intoxicated and being insubordinate to a military policeman. Upon arrival at the military police station, he refused to submit to a breathalyzer test. The applicants commander was contacted and permission was obtained to conduct a blood test. The blood tests was conducted at 0205 hours and revealed a blood alcohol concentration of 0.158. The applicants car was impounded and a bottle of cognac was found behind the passenger seat (within reach of the drivers seat).
The applicants commander notified him on 22 February 1993 that he was considering imposing NJP against him for driving a motor vehicle while drunk. After consulting with counsel, the applicant elected not to demand a trial by court-martial but to submit matters in his defense in person.
On 1 March 1993, NJP was imposed against the applicant for operating a passenger car on 4 February 1993, while drunk. His punishment consisted of a reduction to the pay grade of E-3, a forfeiture of $294.00, and extra duty and restriction for 14 days. The applicant elected to appeal the punishment and submit additional matters in his own behalf.
On 2 March 1993 the office of the judge advocate reviewed the appeal and determined that the proceedings were conducted in accordance with law and regulations and that the punishment imposed was not disproportionate to the offense committed.
The applicants battalion commander denied his appeal on 3 March 1993 and the applicant was informed of the action taken on his appeal the following day.
On 22 March 1993 the applicants commander initiated a recommendation to bar the applicant from reenlistment. He cited as the basis for his recommendation, the applicants record of NJP and four counseling statements indicating that the applicant was counseled regarding his failure to follow instructions of military police and drunk and disorderly conduct on 19 August 1991, failure of his physical fitness test on 9 September 1991, and failure to report to his place of duty on 1 January and 4 January 1993. The applicant elected not to submit matters in his own behalf.
The appropriate authority approved the bar to reenlistment on 29 March 1993. The bar to reenlistment was reviewed by the commander on 8 June 1993, at which time the commander determined that the bar should remain in effect.
On 10 September 1993 the applicant was honorably discharged under the provisions of Army Regulation 635-200, paragraph 16-8 and the Qualitative Retention Program (applicant exceeded the retention control point or maximum number of years of service allowed for his grade). He had served 7 years, 1 month, and 20 days of total active service and received $9,197.85 in separation pay at the time of his discharge.
Army Regulation 601-280 prescribes the criteria for the Total Army Retention Program. It states, in pertinent part, that the retention control point for soldiers serving in the pay grades of E-3 and below is a maximum of 3 years. Soldiers serving in the pay grades of E-4 and below who are beyond their retention control point are ineligible to reenlist or extend their enlistment and must separate not later than 29 days after reaching their retention control point regardless of current enlistment agreement.
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. The applicants contention that NJP was unjustly imposed against him and that he was denied his due process rights is without merit. The applicant was afforded the opportunity to consult with counsel and to demand a trial by court-martial, at which time he could have asserted his innocence.
2. The applicants contention that he was denied the opportunity to submit matters relevant to his appeal is also without merit. The applicant has provided no evidence to show that he was denied the opportunity to submit matters in his own behalf with his appeal. The fact that his appeal was denied before his 5 calendar days had elapsed is not
indicative that he was denied due process rights, but simply that he did not submit a complete appeal or request an extension of time in order to submit additional documents.
3. Consequently, as a result of his reduction to the pay grade of E-3, the applicant was properly discharged from the service because he exceeded the maximum number of years of service allowed (3 years) for personnel in his grade.
4. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy the aforementioned requirement.
5. In view of the foregoing, there is no basis for granting the applicants 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
DENY APPLICATION
David R. Kinneer
Executive Secretary
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