MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 6 August 2002
         DOCKET NUMBER: AR2002070848

         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. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Luther L. Santiful		Chairperson
Ms. Paula Mokulis		Member
Mr. Donald P. Hupman, Jr.		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)

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APPLICANT REQUESTS: That he be reinstated.

APPLICANT STATES: That he was unjustly discharged. After his first driving under the influence (DUI) incident, he requested reclassification into the infantry but his request was disapproved. He never received any punishment from the Army but on both occasions he was punished by the civilian courts. He feels that being discharged from the military after already being punished under civilian law is a violation of the double jeopardy law. He provides no supporting evidence.

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

He enlisted in the Regular Army on 12 June 1998. He completed basic training and advanced individual training and was awarded military occupational specialty 95B (Military Police). He was promoted to Specialist, E-4 on 1 September 2000.

On 21 September 2000, the applicant was charged with driving 81 miles per hour in a 65 miles per hour zone and with DUI with a blood alcohol content per breath sample of 0.193 percent. He was counseled by his squad leader concerning the possible consequences of his actions but also counseled that he was a good soldier and his squad leader would stand by him otherwise. Apparently, he was enrolled in the Alcohol and Drug Prevention and Control Program (ADAPCP) at this time. His on-post driving privileges were revoked for six months and, in the event he was convicted of DUI, they would be revoked for one year. Apparently, no further military disciplinary action was taken. He apparently was convicted by a civilian court of DUI.

On 12 July 2001, the applicant was charged with driving 73 miles per hour in a 45 miles per hour zone. He was tested and found to have a blood alcohol content of 0.201 percent. He was counseled that he would be recommended for an Article 15 and separation. Apparently no Article 15 action was taken.

On 2 August 2001, the applicant underwent a mental status evaluation. The evaluation revealed that he was psychiatrically cleared for any administrative action deemed necessary.

On an unknown date, the applicant’s commander recommended the applicant be separated under the provisions of Army Regulation 635-200, paragraph 14-12b for misconduct – patterns of misconduct. The reasons cited by the commander were the applicant’s two instances of DUI in September 2000 and July 2001.

On 17 September 2001, the applicant was advised by consulting counsel of the basis for the contemplated separation action. He elected to submit a statement on his behalf. He stated that he requested retention and reclassification into the infantry. He stated he was sorry for his two DUI incidents and suffered many

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consequences for his poor decisions but did not want to suffer the consequence of losing his status as a soldier. He has a problem with alcohol. He was command referred into ADAPCP but he was eager to learn. He personally extended his time in the program. He performed well during his assignment to Korea and while on a 6-month deployment to Kosovo. He believed he could continue to soldier if he was transferred to the infantry.

The appropriate authority approved the separation and directed the applicant receive a general discharge.

On 16 November 2001, the applicant was discharged, with a general discharge, in pay grade E-4 under the provisions of Army Regulation 635-200, paragraph 14-12b for misconduct. He had completed 3 years, 5 months, and 5 days of creditable active service and had no lost time.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed and an unfit medical condition is not the direct or substantial contributing cause of his misconduct. Paragraph 14-12b provides for separation for a pattern of misconduct. A pattern of misconduct consists of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline, which includes conduct violative of the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army regulations, the civil law, and time-honored customs and traditions of the Army. A discharge under other than honorable conditions is normally appropriate for a soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the soldier’s overall record.

The Manual for Courts-Martial United States, 2000 edition, part II, rule 907(b)(2)(C) states that grounds for dismissal (waivable) includes that the accused has previously been tried by court-martial or federal civilian court for the same offense. Part V, paragraph 1f(1) states that when nonjudicial punishment has been imposed for an offense, punishment may not again be imposed for the same offense under Article 15.

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. The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. He never explained and it is not apparent to the Board how his reclassification into the infantry would have resolved his problems with alcohol. It appears he was given several opportunities to modify his conduct (by enrolling him in ADAPCP and not giving him an Article 15) and he failed to do so, thereby becoming discreditably involved with civilian authorities and subject to separation for misconduct. His contention that he was placed in double jeopardy because he was discharged based upon two incidents of DUI after he had been punished in civilian court for those offenses is groundless. This did not constitute double jeopardy and is specifically authorized by the applicable regulation.

3. 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

___LLS__ __PM___ __DPH__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002070848
SUFFIX
RECON
DATE BOARDED	2002/08/06
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	2001/11/16
DISCHARGE AUTHORITY	AR 635-200, ch 14. . . . .
DISCHARGE REASON	A64.00
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.03
2.
3.
4.
5.
6.