RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 January 2008
	DOCKET NUMBER:  AR20070011015 


	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.  


Ms. Catherine C. Mitrano

Director

Mrs. Nancy L. Amos

Analyst


The following members, a quorum, were present:


Mr. Frank C. Jones

Chairperson

Ms. Laverne M. Douglas

Member

Mr. Michael J. Flynn

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 that the general officer memorandum of reprimand (GOMOR) dated 25 October 2004 be removed from his records; that his promotion to Sergeant Major (SGM), E-9 be reinstated; that he be reinstated as a student at the U. S. Army Sergeants Major Academy (USASMA); and, in effect, that he be reinstated on active duty.

2.  The applicant states his chain of command would not do anything for him after he received the GOMOR.  He was led to believe that he was going to report to the Commanding General and the installation Sergeant Major, but he did not get to see them.  He believes that if they would have known that he was promoted conditionally it might have made a difference in their decision.  There were so many flaws in his case.  Any good leader would have given him the benefit of the doubt.  The installation Sergeant Major based his decision and recommendation on his (the applicant’s) time in service and rank.  He was never arrested, or read his rights, and he did not lose his drivers license.  The chain of command was only concerned about what the civilians off post had to say.  He believes he was not given a fair deal because he was not “in the click” at the Academy.  He retired because of this injustice, and he was ostracized and embarrassed to the extreme at the Academy.

3.  In a letter, dated 11 August 2005, which he provided with his original application (which was administratively closed), the applicant stated that he was involved in a motor vehicle accident on 28 July 2004.  After being taken to William Beaumont Army Medical Center and while unconscious, the El Paso, TX police, without his consent or knowledge, obtained a blood sample from him.  Primarily based on the State’s blood alcohol test and results (0.20), he was subsequently charged with driving under the influence of alcohol (DUI).  He obtained private legal counsel but, due to the blood test and result, he opted to process through the State’s Pre-Trial Diversion Program.  

4.  The applicant stated that no one questioned the blood test results; no one questioned the chain of custody on the blood sample; no one questioned the legality of taking the blood in the first instance, and no one questioned how the results related back to the time of his driving.  The State of Texas pursued a license suspension against him.  The judge, after hearing all the evidence, determined that the State had not shown by a preponderance of the evidence that sufficient facts existed to suspend his license based on the blood test.  The judge stated, “No probable cause of intoxication.  The only evidence introduced were conclusory statements…” and “Also, there is no evidence that the blood was legally obtained.  And there is insufficient evidence to show that the results relate back to the time of the driving.”  The State of Texas could not meet a “preponderance of evidence” standard, let alone “guilty beyond a reasonable doubt.”  Based solely on the inappropriate blood test and its results, he mistakenly believed the State could prevail in the criminal case.  In hindsight, he should not have opted to attend the Pre-Trial Diversion Program.  

5.  The applicant stated that other factors were not even considered.  On the night in question, he had taken S.S.S. Tonic, a high-potency Iron/B-Vitamin supplement, which contains 12 percent ethyl alcohol.  Also, he was slightly ill and had taken Vicks Nyquil, containing alcohol, and two or three 325 mg. aspirin.  At the same time, the date of the accident coincided with the anniversary of his son’s death.  He may not have been totally focused on the highway.  The Army never sought the help of forensic toxicologists to determine if he was really under the influence of alcohol.  

6.  The applicant provides the documents related to the GOMOR; an Administrative Hearing in the case of Texas Department of Public Safety vs. (the applicant); an article on S.S.S. Tonic; a letter, dated 24 May 2004, from his attorney; and a No Records on File notice, dated 26 June 2007, from the El Paso Police Department.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 16 July 1980.

2.  On 29 March 1988, while a Staff Sergeant, E-6, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for disobeying a lawful order, for being drunk and disorderly, and for orally communicating certain indecent language.

3.  On 1 March 1999, the applicant was promoted to Master Sergeant, E-8.  He was apparently laterally appointed to First Sergeant, E-8 at a later date.  Around June/July 2002, he was assigned to USASMA as an instructor (as a Master Sergeant).  

4.  Orders dated 10 June 2004 promoted the applicant to Sergeant Major, E-9 effective 1 July 2004.  The promotion was conditional upon his completing the    USASMA course. 

5.  On 13 October 2004, the Commanding General, U. S. Army Air Defense Artillery Center and Fort Bliss issued a GOMOR to the applicant.  The GOMOR noted that, on 25 (sic) July 2004, the El Paso police apprehended the applicant for driving while intoxicated after he was involved in a motorcycle accident.  A blood alcohol test revealed that his blood alcohol content was .20, in violation of the UCMJ and the Texas Penal Code.  

6.  On 21 October 2004, the Commandant, USASMA recommended the GOMOR be placed in the applicant’s local personnel file.  He noted that the incident happened on the anniversary of the death of the applicant’s son.  The applicant needed assistance on getting past his son’s death.  His previous chain of command did nothing for him.  Although the Commandant did not excuse the applicant’s actions, he felt there were mitigating circumstances that bore out his recommendation.

7.  On 25 October 2004, the applicant’s company commander recommended the GOMOR be placed in the applicant’s local personnel file.  She made her recommendation based on the failure of his previous command to take care of the applicant and his family following the death of his son.  She stated that the  28 July 2004 incident, which coincided with the anniversary of the death of his son, could have been prevented had he and his family been treated with compassion, concern, and respect regarding their loss.  He and his family deserved to receive command intervention, services, and assistance for their loss.  Given his denial, he could not provide himself or his family enough insight to actively seek professional services.

8.  On 27 October 2004, the applicant submitted a letter for consideration.  He stated that, in mid-July 2002, during the first day of his travel from Fort Benning, GA to Fort Bliss, TX, he was notified that his son (a 19-year old firefighter) was killed in the line of duty in California.  He contacted his gaining unit at USASMA and expressed his desire to attend his son’s funeral.  Two days after his son’s funeral he continued on to Fort Bliss.  Upon arriving, he inprocessed and immediately began working in his new position.

9.  The applicant stated that, as serious as the incident was, it was absolutely not within his nature to drink and drive, break the law, and disobey a lawful order.  On the day of the accident, he was extremely depressed regarding the upcoming second anniversary of his son’s tragic death.  The depression he experienced was so overwhelming that he regrettably made an exceedingly poor decision that put his life and the lives of others at risk, for which he was truly apologetic.  Since the accident, he voluntarily attended Mental Health Services for assistance in coping with the death of his son and successfully completed the Army Substance Abuse Program.  Additionally, he volunteered his time and services to organizations such as Mother’s Against Drunk Drivers and the Family Advocacy Program.  He requested an opportunity to overcome the incident by not having the GOMOR placed in his Official Military Personnel File (OMPF).

10.  On 3 November (2004), the installation Command Sergeant Major recommended the GOMOR be filed in the applicant’s OMPF.  He based his recommendation on the applicant’s rank and time in service.

11.  On 5 November 2004, the Commanding General, U. S. Army Air Defense Artillery Center and Fort Bliss directed that a copy of the GOMOR be filed in the applicant’s OMPF.

12.  Orders dated 14 December 2004 revoked the applicant’s promotion to Sergeant major, E-9.

13.  On 19 April 2005, the Texas State Office of Administrative Hearings found, in the case of Texas Department of Public Safety vs. the applicant, that there was no probable cause of intoxication.  The Administrative Law Judge stated the only evidence introduced were conclusory statements through the Peace Officer’s Sworn Report, which stated that the officer “observed defendant (i.e., the applicant) to be intoxicated of an unknown alcohol beverage.  The officer also observed him to smell heavily of alcohol.”  The Administrative Law Judge found that that was not sufficient given the fact that the officer did not conduct (an) interview with the applicant to develop probable cause.  Also, there was no evidence that the applicant’s blood was legally obtained and there was insufficient evidence to show that the results related back to the time of the driving.  Based on these findings, the Texas Department of Public Safety was not authorized to suspend or deny the applicant’s license.

14.  On 31 October 2005, the applicant was released from active duty for the purpose of retirement.

15.  By memorandum dated 1 November 2005, the Department of the Army Suitability Evaluation Board (DASEB) informed the applicant that it voted to deny his request to remove the GOMOR from his OMPF.  

16.  By memorandum dated 16 February 2006, the DASEB informed the applicant that it voted to deny his request to transfer the GOMOR to the restricted portion of his OMPF.  

17.  Army Regulation 600-37 sets forth policy and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely or inaccurate is not filed in an individual’s official personnel files; and ensure that the best interest of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.  In pertinent part, it states a letter to be included in a Soldier’s OMPF will be referred to the recipient concerned for comment.  A letter may be filed in the OMPF only upon the order of a general officer or by direction of an officer having general court-martial jurisdiction over the individual. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contended that any good leader would have given him the benefit of the doubt.  He contended that the installation Sergeant Major based his decision and recommendation on his (the applicant’s) time in service and rank, but he was never arrested, or read his rights, and he did not lose his driver’s license.  He contended that no one questioned the blood test results; no one questioned the chain of custody on the blood sample; no one questioned the legality of taking the blood in the first instance, and no one questioned how the results related back to the time of his driving.  

2.  However, the applicant was a senior noncommissioned officer with a civilian attorney.  He or his attorney could have questioned the blood test results.  He or his attorney could have questioned the chain of custody on the blood sample.  He or his attorney could have questioned the legality of taking the blood in the first instance.  The applicant could have raised any one or all of these issues in his 27 October 2004 letter for consideration.

3.  The applicant contended that the State of Texas pursued a license suspension against him and the judge, after hearing all the evidence, determined that the State had not shown by a preponderance of the evidence that sufficient facts existed to suspend his license based on the blood test.  

4.  It is noted that the Administrative Law Judge stated that there was no probable cause of intoxication, that the only evidence introduced were conclusory statements through the Peace Officer’s Sworn Report, that there was no evidence that the blood was legally obtained, and that there was insufficient evidence to show that the results relate back to the time of the driving. 

5.  However, it is also noted that in his 27 October letter for consideration the applicant did not deny that he was drinking and driving.  The fact that the Administrative Law Judge found that there was insufficient evidence to pursue suspension of his driver’s license or to pursue any other legal action is not proof that the applicant did not drink and drive.  He stated that he regretted making an exceedingly poor decision.  It appears that it was reasonable for the Commanding General to have read that statement as an admission that he was drinking and driving.  

6.  The applicant contended that he had taken S.S.S. Tonic, which contains      12 percent ethyl alcohol, and had taken Vicks Nyquil, also containing alcohol, plus he took aspirin.  Most medications warn against driving or operating machinery while taking the medications and the applicant was combining his medications.  Even if the applicant was not drinking, which he did not contest, but only took the two medications, the effects of alcohol is the same whether it is consumed with a drink or with medication.

7.  The applicant contended, in his 27 October 2007 letter for consideration, that it was “absolutely not within his nature to drink and drive, break the law, and disobey a lawful order.”  However, it is noted that while he was a noncommissioned officer (albeit many years previously) he accepted nonjudicial punishment under Article 15, UCMJ for offenses that included disobeying a lawful order and for being drunk and disorderly.  Therefore, another drinking incident would not have been totally out of character.

8.  The death of the applicant’s son was truly sad and unfortunate; however, there is insufficient evidence that would warrant granting the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__fcj___  __lmd___  __mjf___  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.




__Frank C. Jones______
          CHAIRPERSON




INDEX

CASE ID
AR20070011015
SUFFIX

RECON

DATE BOARDED
20080108
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
110.03
2.
131.00
3.
134.04
4.

5.

6.