RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           29 November 2005
      DOCKET NUMBER:   AR20050002473


      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. Carl W. S. Chun               |     |Director             |
|     |Mr. Jessie B. Strickland          |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Mr. Melvin H. Meyer               |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that a record of nonjudicial
punishment (DA Form 2627) be overturned as invalid, removed from his
records and that all rights and privileges be restored to him, to include
back pay.

2.  The applicant states, in effect, that nonjudicial punishment (NJP) was
imposed against him in February 2002 as a result of an alcohol related
incident.  He was subsequently diagnosed as being alcohol dependent and was
not given any substantive treatment for his disease.  Instead, he was given
a direct order to abstain from alcohol; however, he was not given treatment
for his disease that would have allowed him to follow the order.  He
further states that he believes that the order was not a lawful order if he
could not comply by reason of not receiving treatment for his alcoholism
because you cannot order an alcoholic not to drink.  He continues by
stating that the NJP severely hampered his career and his problems
eventually ended it.

3.  The applicant provides a self-authored three-page explanation of his
contentions, a copy of the DA Form 2627 dated 25 April 2002, a copy of a
counseling statement dated 15 April 2002, a copy of a letter from his
commander requesting the suspension of NJP action against the applicant
pending in-patient treatment, a memorandum for record from a licensed
social worker regarding his knowledge of the applicant’s case, a memorandum
from a clinical director regarding his knowledge surrounding the NJP
imposed against the applicant, a memorandum to the applicant’s commander
from a clinical director dated 1 May 2003, a memorandum from a clinical
director to the applicant’s commander dated 30 April 2003, three letters of
support to reinstate his security clearance from his chain of command, and
copies of commendatory documents from his records.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 16 December 1966 and enlisted in the Regular
Army in the pay grade of E-4 on 3 October 2000 for a period of 5 years,
training as an interrogator in military occupational specialty (MOS) 97E10,
enrollment in the Student Loan Repayment Program and a cash enlistment
bonus of $15,000.

2.  He successfully completed his training and was transferred to a
military intelligence company in Wurzburg, Germany, on 13 November 2001.

3.  Although the records are not complete, it appears that on 19 February
2002, he was found to be incapacitated for the performance of his duties
and as a result, received company grade NJP that resulted in a reduction to
the pay grade of E-3, an oral reprimand which included an order for him to
abstain from the use of alcohol, a forfeiture of pay, and restriction.  He
appealed the punishment to the battalion commander and his appeal was
denied.

4.  He was also referred to the Community Counseling Center and was advised
on 22 February 2002 that he was enrolled in the Alcohol Drug Abuse
Prevention Control Program (ADAPCP) and that a condition of the program was
total abstinence from the use of alcohol.

5.  On 11 April 2002, he was found drunk in his barracks room by his
commander and was transported to the Military Police station where an
INTOXILYZER administered to him registered 0.376 Blood Alcohol Content
(BAC).  He was then transported to the hospital for inpatient care.

6.  On 23 April 2002, the applicant’s trial defense counsel submitted a
memorandum through the applicant’s chain of command requesting that the
imposition of NJP be suspended until the applicant had the opportunity to
attend in-patient treatment for alcoholism at Landstuhl Regional Medical
Center (LRMC).  She further indicated that the applicant had not received
the support necessary for him to comply with the order to abstain from the
use of alcohol and it was imperative that he receive treatment at LRMC.

7.  On 25 April 2002, NJP was imposed against the applicant for disobeying
a lawful order from his commander to abstain from alcohol.  His punishment
consisted of a reduction to the pay grade of E-2, a forfeiture of pay,
extra duty and restriction.  The applicant did not demand trial by court-
martial.  He requested a closed hearing with persons to speak in his behalf
and to present matters in person before the imposing officer.  The
applicant did not appeal the punishment.

8.  He was enrolled in the Addiction Treatment Facility for in-patient
treatment at LRMC and completed the program on 28 June 2002, with after
care treatment in the Army Substance Abuse Program (ASAP).

9.  It appears that the applicant’s security clearance was revoked by the
Central Personnel Security Clearance Facility while the applicant was
deployed to Kosovo because his company and battalion commander as well as
the battalion S-3 all submitted letters on his behalf requesting that his
clearance be reinstated. He served in Kosovo from 1 November 2002 to 28
July 2003.  It appears that he was reassigned to another military
intelligence unit in Darmstadt, Germany in December 2003.

10.  On 13 January 2004, the applicant was found drunk on duty in his
barracks room and registered a .363 BAC on a Breathalyzer test administered
at the local military police station.  On 27 January 2004, the applicant’s
commander formally enrolled him in the ASAP again and reassigned him for
duties in the supply room. The commander also flagged him, suspended his
access to classified material and recommended that his clearance be
revoked.

11.  On 19 February 2004, NJP was imposed against the applicant for failure
to obey a lawful order from a superior noncommissioned officer.  His
punishment consisted of a reduction to the pay grade of E-3, a forfeiture
of pay, extra duty, restriction and an oral reprimand.  The applicant
appealed his punishment and the appellate authority suspended his reduction
to the pay grade of E-3 until 4 August 2004, unless sooner vacated.

12.  On 16 March 2004, the applicant notified his first sergeant that he
was going on sick call.  However, he went absent without leave (AWOL)
instead and remained absent until he was found in a local hotel on 22 March
2004.  Further inquiry revealed he had spent his entire time in his hotel
room drinking alcohol.  He was deemed an alcohol rehabilitation failure by
the ASAP counselors and the suspended reduction to the pay grade of E-3 was
vacated on 5 April 2004.

13.  Meanwhile, on 30 March 2004, he underwent a mental status evaluation
and was found to be mentally responsible for his actions, able to
distinguish right from wrong and to adhere to the right.  He was
psychiatrically cleared for any administrative action the commander deemed
appropriate.

14.  On 5 April 2004, NJP was imposed against him for being AWOL from
16 March to 22 March 2004 and for making a false official statement to his
first sergeant.  His punishment consisted of a reduction to the pay grade
of E-2 (suspended until 5 October 2004) and restriction for 60 days.  He
did not appeal the punishment.

15.  On 19 April 2004, the applicant’s commander initiated action to
separate him from the service under the provisions of Army Regulation 635-
200, chapter 9, for alcohol rehabilitation failure.  He cited as the basis
for his recommendation that the applicant was found in an extreme state of
intoxification after failing to report for duty on 13 January 2004, was
enrolled in the ASAP, went AWOL from 16 to 22 March 2004 and was drinking
alcohol while he was AWOL.  The commander also cited his disciplinary
record and alcohol-related misconduct, and his failure to respond to
repeated counseling sessions regarding his inability to be at work on time.
 He also informed the applicant that he was recommending that he receive a
general discharge.

16.  On 27 April 2004, after consulting with counsel, the applicant
acknowledged that he understood his rights and elected to submit a
statement in his own behalf wherein he requested, in effect, that the
commander consider his disease and at the same time consider the
accomplishments he had made, his contributions to the Army, and the effect
a less than fully honorable discharge would have on him in civilian life.
He requested that the commander give him an honorable discharge so that he
could receive unemployment benefits and veterans assistance upon his
discharge.

17.  The appropriate authority approved the recommendation for discharge
and directed that he be furnished a General Discharge Certificate.

18.  Accordingly, he was discharged under honorable conditions on 1 May
2004 under the provisions of Army Regulation 635-200, chapter 9, for
alcohol rehabilitation failure.  He had served 3 years, 6 months and 29
days of total active service.

19.  A review of the applicant’s Official Military Personnel File (OMPF)
fails to show the presence of the contested DA Form 2627 and the copy
provided by the applicant with his application had the filing decision
(Line 5.) lined through with no filing decision made.

20.  AR 27-10 prescribes the guidelines for the filing of NJP.  It states,
in pertinent part, that the decision to file the original DA Form 2627 on
the performance or restricted fiche of the OMPF will be determined by the
imposing commander at the time punishment is imposed.  Personnel serving in
the pay grade of E-4 or below, with less than 3 years of service will have
the Record of NJP (DA Form 2627) filed in the local unit military justice
files.  Personnel serving in the pay grade of E-4 with 3 or more years of
service will have the DA Form 2627 filed in the OMPF.  The filing decision
of the imposing commander is final and will be indicated in item 5, DA Form
2627.

21.  That regulation also provides, in effect, that if an imposing
commander determines that summarized proceedings are appropriate, the
Soldier will be personally notified of the commander’s intent to initiate
proceedings under Article 15, Uniform Code of Military Justice (UCMJ), the
fact that the commander intends to use summarized proceedings and the
maximum punishment imposable under those proceedings, the Soldier’s right
to remain silent, the offenses being charged and the Article(s) of the UCMJ
violated, the right to demand trial by court-martial, the right to confront
witnesses, examine evidence and submit matters in defense, extenuation
and/or mitigation, the right to appeal and the right to consult with
counsel.

DISCUSSION AND CONCLUSIONS:

1.  It appears that the NJP in question was imposed in compliance with
applicable laws, regulations, and policies by a commander empowered to do
so.  It also appears that the record of NJP (DA Form 2627) was not filed in
the applicant’s OMPF.  Accordingly, there is no basis to remove it as
requested.

2.  The applicant’s contention that he should not have received NJP for
failure to obey an order to abstain from alcohol because he had not
received the treatment necessary to be able to obey such an order has been
noted and found to be without merit.

3.  There is no evidence to suggest that the applicant was not mentally
responsible or able to distinguish right from wrong during the period in
question.  Furthermore, the applicant continued to display the same type of
misconduct even after receiving both in-patient and out-patient treatment.

4.  It is also noted that the applicant had the option at the time to
demand trial by court-martial whereas he could have asserted his innocence
and submitted mitigating circumstances before a jury of his peers and yet
he chose not to do so. The available evidence suggests that there were no
violations of any of the applicant’s rights and that the commander’s
decision at the time was proper given the chain of events that occurred
both before and after the NJP was imposed.

5.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__sk____  __mhm___  __lmd___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




                 Stanley Kelley
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050002473                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051129                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |281/Exp rcd                             |
|1.126.0400              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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