IN THE CASE OF:	  

		BOARD DATE:	       9 December 2008

		DOCKET NUMBER:  AR20080015663


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests:

	a.  reconsideration of his earlier request for reinstatement on the decentralized promotion standing list to sergeant (SGT)/E-5; and

   b.  restoration of all pay and allowances as a result of the Board's earlier decision to reinstate his rank to corporal (CPL)/E-4.

2.  The applicant states, in effect, that:

	a.  on 19 April 2007, he was issued a citation by civilian police for throwing beer cans from inside of his vehicle and driving 31 miles per hour (MPH) in a 20 MPH zone.  He was pulled over and administered and failed three field sobriety tests.  Based on these factors, he was administered a Breathalyzer test that resulted in a .075 percent Blood Alcohol Content (BAC).  He was arrested and charged with speeding and operating a motor vehicle under the influence (DUI) of alcohol.  Upon his return to his unit, he was administratively reduced from CPL/E-4 to private first class (PFC)/E-3 on 23 April 2007.

	b.  he appealed to the Army Board for Correction of Military Records (ABCMR) and was granted relief in the form of reinstatement to his previous rank/grade of CPL/E-4.  However, he has not been paid the difference in pay from the time he was reduced to the time the ABCMR reinstated his rank; and

	c.  at the time of the incident, he was on the SGT/E-5 centralized promotion standing list.  However, despite contacting his last unit, he is unable to find his promotion packet and he was told it must have been misplaced.  Nevertheless, his Enlisted Record Brief (ERB), dated 3 March 2007, shows that he was promotable at the time of his incident.  The unfair reduction to PFC/E-3 denied him the opportunity to add more promotion points that would have allowed him to be promoted to SGT/E-5 earlier.

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  copies of his Leave and Earnings Statements (LES) for January, February, March, April, and May 2008.

	b.  ERBs, dated 4 March 2007, 21 February 2007, 16 March 2008, and 5 June 2008.

	c.  electronic mail (e-mail) exchanges, dated 16 April 2008 and 5 September 2007, between the applicant and his former unit.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20070016260, dated 4 March 2008.

2.  The applicant submitted copies of his ERBs, LESs, and e-mail exchanges which were not previously reviewed by the ABCMR; therefore, they are considered new evidence and as such warrant consideration by the Board.

3.  An e-mail, dated 15 October 2008, from the Defense Finance and Accounting Service confirms that the applicant was paid on 5 September 2008 back pay in the amount of $567.53 as a result of the ABCMR decision to reinstate his rank to CPL/E-4.  Therefore, this portion of the applicant's request will not be discussed further in the Record of Proceedings.  

4.  The applicant's records show he enlisted in the Regular Army for a period of 4 years on 4 February 2004.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 68W (Health Care Specialist).  He was subsequently assigned to Headquarters and Headquarters Company, 2d Battalion, 327th Infantry, 101st Airborne Division, Fort Campbell, Kentucky.  He was promoted to PFC/E-3 on 1 November 2004 and CPL/E-4 on 1 October 2005.

5.  On 19 April 2007, the applicant was issued a citation by the Commonwealth of Kentucky for throwing beer cans from inside of his vehicle and driving 31 MPH in a 20 MPH zone.  He was also administered and failed three field sobriety tests and a Breathalyzer test that resulted in a .075 percent BAC.  He was subsequently arrested and charged with speeding and DUI.

6.  On 23 April 2007, the applicant was administratively reduced to PFC/E-3, due to his performance.

7.  On 1 May 2007, the applicant appeared in the County traffic court where the DUI, speeding charges, and any alcohol-related counseling were dismissed; he was ultimately charged with reckless driving and paid the $347.00 fine the same day.

8.  On 4 March 2008, the ABCMR granted the applicant partial relief in the form of reinstatement of his rank to CPL/E-4 effective 23 April 2007.  However, the Board denied his request for reinstatement on the decentralized promotion standing list to SGT/E-5.

9.  The applicant's promotion packet is not available for review with this case.  However, the applicant submitted a copy of his ERB, dated 4 March 2007, that shows he was on the promotion standing list to SGT with 428 promotion points as of September 2006.

10.  The applicant's records show that the applicant was reassigned to the 65th Military Police Battalion, Fort Bragg, North Carolina, in July 2007 and that he appeared before that battalion's promotion board in February 2008 and was ultimately promoted to SGT/E-5 on 1 June 2008.

11.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the enlisted promotions and reductions function of the military personnel system. 
Paragraph 3-26 of this regulation states that Soldiers will be immediately removed from a recommended list for a number of reasons including when adverse action exists, indicated by a suspension of favorable personnel actions. 

12.  Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions - Flags) prescribes policies, operating tasks, and steps governing the suspension of favorable personnel actions as a function.  It states, in pertinent part, that a flag will be initiated immediately when a Soldier’s status changes from favorable to unfavorable and will be removed immediately when a Soldier’s status changes from unfavorable to favorable.  And adverse action that includes charges, restraint, or investigation, requires a non-transferable flag.  This flag is removed when the Soldier is released without charges, charges are dropped, or punishment is completed.  Additionally, an administrative reduction also requires a non-transferable flag that is removed the day the reduction takes place.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of his promotion packet that shows he appeared before the SGT/E-5 promotion board and was recommended by the promotion authority for promotion to SGT/E-5.  However, the applicant's ERB, dated 4 March 2007, shows that as of September 2006, he was on the SGT/E-5 promotion standing list with 428 administrative points toward promotion.

2.  The applicant's civil offense led his chain of command to administratively reduce him to PFC/E-3.  However, the ABCMR considered the facts and circumstances surrounding the incident and determined that applicable regulations state that a Soldier may not be reduced for inefficiency due to a single act of misconduct.  Accordingly, the ABCMR granted the applicant partial relief in the form of reinstatement to the rank of CPL/E-4 with a date of rank of 1 October 2005.

3.  On 1 May 2007, the court dismissed prosecution of his case and fined him $347.00.  Notwithstanding dismissal of the charges, the fact remains that he did something wrong – a .075 percent BAC, subsequent arrest, speeding charge, and DUI that were later dropped in favor of a reckless driving charge.  The applicant's adverse action should have triggered his commander to initiate a DA Form 268 (Suspension of Favorable Personnel Action).

4.  Although the applicant's record is void of the DA Form 268, the fact that he was pending an adverse action that may have included charges, restraint, or investigation required a non-transferable flag at the time.  An adverse action, indicated by a flag, requires the Soldier to be removed from the promotion standing list.  Therefore, the applicant would have lost his promotable status as soon as a flag was initiated.  In view of the foregoing, the applicant is not entitled to relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X____  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 to amend the decision of the ABCMR set forth in Docket Number AR AR20070016260, dated 4 March 2008.


															XXX
      _________________________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080015663



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ABCMR Record of Proceedings (cont)                                         AR20080015663



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