PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 28 October 1998
         DOCKET NUMBER: AC97-07398
AR1998014342

         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Mario Susinna		Acting Director
Mr. Michael L. Engle		Analyst

The following members, a quorum, were present:

Ms. JoAnn H. Langston		Chairperson
Mr. Calvin M. Fowler		Member
Mr. Curtis W. Barbee		Member

    Mr. Fred N. Eichorn                                Member
         Mr. Raymond V. O’Connor, Jr.                      Member

         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)
         Exhibit C - Case Summary
         Exhibit D - Live Testimony of applicant

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests that his reduction in grade which was executed on 27 October 1993 by the Summary Court-Martial Convening Authority be corrected so as to allow his promotion to sergeant first class retroactive to 1 June 1993.

3. The applicant states that he believes his commander acted in a biased and prejudicial manner before and after his court-martial. He alleges that the command tended to prosecute and administer punishment in a selective manner. He states that when he requested trial by court-martial in lieu of nonjudicial punishment, he was seeking justice under the law, but believes that he was discriminated against because of his race. Further, he states that he was proven not guilty in a court of law, and it was the court’s determination and the legal reviews and chain of command’s opinions that a reduction was not in order; nonetheless, the convening authority disregarded the recommendation from the summary court-martial officer to suspend the reduction and ordered the reduction executed, which resulted in his loss of two stripes. He feels this “circumstantial situation” cost him a stellar career and was not in the best interest of the Army.

4. In support of his application he has submitted numerous letters of support from commissioned officers and senior noncommissioned officers assigned to the command at that time.

5. The applicant’s military records show that he enlisted in the Army on 18 November 1981 for 3 years. He completed his initial training and served in a series of assignments both in the United States and overseas. He attained the rank of staff sergeant on 4 July 1987. He reenlisted several times with his latest expiration term of service (ETS) being 11 July 1995.

6. On 25 May 1993, while still a staff sergeant, the applicant was involved in an automobile accident. He lost control of his vehicle while traveling at an excessive rate of speed, colliding with a speed limit sign and coming to rest in a ditch. He totaled his car. He left the scene of the accident and was later apprehended at his living quarters. He was transported to the military police station and administered a test to determine his blood alcohol content (BAC). He had a BAC of .083 percent. He was subsequently charged with driving while drunk, reckless driving, making a false sworn statement, and violation of two general regulations.

7. On 1 June 1993 the applicant was promoted to the rank of sergeant first class. This promotion was revoked on 11 June 1993 because of the pending charges which made him ineligible for any favorable personnel action, to include promotion.
8. On 13 September 1993 the applicant was offered nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice. He refused NJP and demanded trial by court-martial.

9. On 12 October 1993 the applicant was convicted by a summary court-martial of reckless driving and violation of two general regulations, i.e, consuming alcohol within 6 hours of a vehicle accident and failing to immediately notify military or civilian police of an accident. He was found not guilty of operating a motor vehicle while drunk and making a false official statement under oath. The summary court-martial officer sentenced him to reduction to sergeant (E-5) and restriction for 30 days, with the recommendation that the reduction be suspended.

10. On 19 October 1993 the Assistant Division Commander, 1^st Armored Division, administered a general officer memorandum of reprimand (GOMOR) for driving while drunk. This GOMOR was an administrative action in accordance with Army Regulation 600-37 and was not as punishment under the Uniform Code of Military Justice. The GOMOR was withdrawn on 29 November 1993.

11. On 21 October 1993 the Administrative Law Attorney, 1^st Armored Division, reviewed the summary court-martial. He recommended that the charge of violating a general regulation, to wit, the consumption of alcoholic beverages within 6 hours of an accident, be dismissed and that the reduction in rank be suspended, as recommended by the court-marital officer. He further advised that it was up to the convening authority to decide if the applicant’s actions merited the punishment handed down by the summary court-martial, or if he had suffered enough and the remaining offenses did not merit summary court punishment. He stated that there would be no miscarriage of justice if the convening authority acted in either manner.

12. On 27 October 1993 the convening authority approved only so much of the sentence as provided for the applicant’s reduction to sergeant and directed its execution.

13. On 23 November 1993 the reviewing judge advocate concluded that the court-martial had jurisdiction over the applicant, and that the sentence was legal. He also reviewed the defense counsel’s allegations of legal error. First, that the charge of reckless driving should only be simple negligence. Second, that the consumption of alcohol within 6 hours of an accident (a general regulation) did not apply since this was a minor accident involving only property damage. Third, that the regulatory provision to “immediately” report an accident (a general regulation) was unconstitutionally vague. The reviewing judge advocate found all three arguments without merit.
14. On 5 April 1994 The Judge Advocate General reviewed the record of trial, the applicant’s letter and memorandum to the Secretary of the Army and all supporting letters, documents, medals and photographs. He found that the applicant had not established a proper and sufficient basis for relief and denied his application for relief under Article 69b, UCMJ.

15. On 30 November 1994 the applicant was honorably discharged from the Army under the provisions of the early release program, and received a special separation benefit (SSB) of $26,474.95. He completed 13 years and 13 days of creditable active duty.

16. At the formal hearing of this case before the Board, the applicant presented testimony and photographs of his vehicle purportedly to show the Board that his vehicle was not totaled as alleged. He testified that he definitely wanted to return to active duty status. He also stated that he had received a relief for cause NCO evaluation report for the period September 1993 through November 1993.

17. The Manual for Courts-Martial, Rules for Courts-Martial, Rule 1108(b), provides that the convening authority may, after approving the sentence, suspend the execution of all or any part of the sentence of a court-martial, except for a sentence of death.

CONCLUSIONS:

1. The applicant’s conviction by summary court-martial was accomplished in compliance with applicable law and regulation, as was the convening authority’s action in executing that portion of the court-martial sentence adjudging a reduction in grade.

2. However, the Board is of the opinion, considering the applicant’s overall record of service and achievement, as well as the recommendation/advice of the court-martial officer and the administrative law attorney to suspend the applicant’s reduction, that the execution of the reduction was too harsh.

3. Also, the execution of the reduction in rank resulted in the applicant actually losing two ranks (from E-7 to E-5). Furthermore, the reduction to E-5 forced the applicant to leave the Army after more than 13 years of exemplary service due to the retention control point standards.
4. After considering all of the facts and circumstances of the case, the Board is of the opinion that the applicant was unjustly treated, and that the interests of justice would best be served be setting aside his reduction to E-5 and by returning him to active duty in pay grade E-7, with a date of rank of 1 June 1993.

5. The Board further concludes that the applicant’s relief for cause NCO evaluation report and the record of his court-martial should be moved to the Restricted section of his Official Military Personnel File (OMPF) to preclude any future adverse personnel actions.

6. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected:

a. by setting aside the reduction in rank to pay grade E-5 of the individual concerned resulting from the approved sentence adjudged by a summary court-martial on 27 October 1993;

b. by reinstating the individual’s promotion to sergeant first class (E-7), effective and with date of rank of 1 June 1993;

c. by moving the record of the above-mentioned summary court-martial from the Performance section to the Restricted section of his OMPF;

d. by moving the relief for cause NCO evaluation report for the period September 1993 through November 1993 from the Performance section to the Restricted section of his OMPF; and

e. by voiding the discharge of the individual concerned on 30 November 1994 and by showing that he continued to serve on active duty until 11 July 1995 (his scheduled ETS date), and that he reenlisted on 12 July 1995 for a 4 year term, establishing a new ETS date of 11 July 1999.

2. That following administrative implementation of the foregoing, his corrected records be referred to the appropriate standby advisory boards (STAB’s) for promotion consideration to master sergeant (E-8) for all promotion zones on or after his first eligibility date. If selected for promotion to pay grade E-8, he be integrated into the appropriate centralized selection board list and promoted accordingly, provided he is otherwise qualified, with the appropriate date of rank and entitlement to all back pay and allowances due him.




                  ________SIGNED________
                  CHAIRPERSON

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SFMR-RBR                                                               S: 22 March 1999

                                                                        15 January 1999

MEMORANDUM FOR COMMANDER TOTAL ARMY PERSONNEL COMMAND

SUBJECT:


Having approved the findings, conclusions and recommendation of the Army Board for Correction of Military Records, and under the provisions of Title 10, United states Code, section 1552, it is directed:

1. That all of the Department of the Army records related to this case be corrected:

         a. by setting aside the reduction in rank to pay grade E-5 of the individual concerned resulting from the approved sentence adjudged by a summary court-martial on 27 October 1993;

         b. by reinstating the individual’s promotion to sergeant first class (E-7), effective and with date of rank of 1June 1993;

         c. by moving the record of the above-mentioned summary court-martial from the Performance section to the Restricted section of his OMPF;

         d. by moving the relief for cause NCO evaluation report for the period September 1993 through November 1993 from the Performance section to the Restricted section of his OMPF; and

         e. by voiding the discharge of the individual concerned on 30 November 1994 and by showing that he continued to serve on active duty until 11 July 1995 (his scheduled ETS date), and that he reenlisted on 12 July 1995 for a 4 year term, establishing a new ETS date of 11 July 1999; and

         f. by permitting the individual concerned to reenlist in the Army on or before 12 July 1999 provided he is morally and medically qualified to do so.

2. That following administrative implementation of the foregoing, his corrected records be referred to the appropriate standby advisory boards (STAB’s) for promotion consideration to master sergeant (E-8) for all promotion zones on or after his first eligibility date. If selected for promotion to pay grade E-8, he be integrated into the appropriate centralized selection board list and promoted accordingly, provided he is otherwise qualified, with the appropriate date of rank and entitlement to all back pay and allowances due him.

Karl F. Schneider
Deputy Assistant Secretary
(Army Review Boards)