IN THE CASE OF:	  

		BOARD DATE:	       27 May 2009 

		DOCKET NUMBER:  AR20090001314 


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 correction of his military records by setting aside the results of his administrative reduction board, restoring his rank of sergeant, pay grade E-5 and paying him what he would have received had he not been improperly reduced. 

2.  The applicant states, in effect, that an administrative reduction board convened on 9 May 2008.  It was provided a packet of documents that included a general officer memorandum of reprimand that had already been placed in his official military personnel records and reports of offenses from the local sheriff's department that did not lead to any citations, or had lead to citations that were dismissed.  He contends that these reports were generated as a result of harassment by local law enforcement and therefore prejudiced the members of the administrative reduction board preventing an impartial consideration of his case.  The applicant also contends that one of the board members had previously served as the S-1(personnel officer) for his battalion at the time of his misconduct.  Army Regulation 600-8-19, paragraph 10-7(8) prohibits the appointing of members who have direct knowledge of the case.  As the S-1, this officer had direct knowledge of his case, a factor that caused a lack of impartiality.  

3.  The applicant provides, in support of his application, copies of two memorandums notifying him of the administrative reduction board, the memorandum announcing the appointment of individuals to the administrative reduction board, two memorandums from his attorney objecting to the inclusion of certain documents and the appointment of certain officer(s) who have direct knowledge of the case, two offense reports from the sheriff's department, circuit court "nolle prosequi" filing, arrest and booking detail pages from the sheriff's department, DA Form 8003 (Army Substance Abuse Program Enrollment), State of Missouri completion of the "ADA SATOP" Offender Education Program, the applicant's memorandum of appeal, the administrative law attorney's memorandum of legal review of the applicant's appeal and a four-page listing of personnel [does not include the applicant]. 

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was serving in the Regular Army as a specialist, pay grade E-4.

2.  On 17 June 2005, the Commanding General, United States Army Quartermaster Center and School, Fort Lee, Virginia, issued the applicant a general officer memorandum of reprimand (GOMOR) for his repeated misconduct.  It stated, in effect, that on 26 May 2005, he had been involved in a verbal altercation from which he had fled.  He was also found to have a loaded weapon concealed in the trunk of his vehicle.  The weapon was unregistered.  The general also stated that the applicant had been previously reprimanded for similar misconduct on 30 October 2004, when he had committed an aggravated assault upon a civilian and carried a concealed weapon.  The applicant had threatened the civilian with bodily harm and was carrying a concealed weapon.  The general described the applicant's conduct as being disgraceful and demonstrated a complete disregard for the law.  Despite his rank and experience, he had failed to follow Army values on several occasions.  He was informed that the general intended to file the GOMOR in his official military personnel file (OMPF).  The applicant acknowledged receipt of the GOMOR.  On 24 June 2005, the applicant wrote a memorandum in rebuttal.  He stated, in effect, that his involvement in the incident was for the purpose of diffusing a potentially serious incident between several other individuals.  He also contended that he had not been charged with any crime relating to the incident, to include the dropping of the charge for having an unregistered weapon concealed in his vehicle.  The applicant stated that it would be grossly unjust to impose a reprimand for an alleged crime for which he did not commit and was not charged.  

3.  An offense report from the sheriff's department, dated 2 August 2007, reported that the applicant was observed driving erratically, doing 15 mile per hour in a 45 mile per hour zone.  A field sobriety test was administered to the applicant.  He was subsequently arrested for driving while intoxicated (DWI).  A search of his vehicle found a loaded handgun under the front seat within reach of the driver's seat.  The applicant was transported to the police department where he was given a chemical test of his breath.  The results of this test showed that he had a blood alcohol content of .197 percent.  He was then transported to the county jail.   

4.  On 20 August 2007, the Commanding General, United States Army Maneuver Support Center and Fort Leonard Wood, Fort Leonard Wood, Missouri, issued the applicant a GOMOR for driving while intoxicated (DWI) on 2 August 2007.  A chemical test determined that the applicant's blood alcohol content was .197 grams per milliliter.  The general stated that he expected him to do better; to be a model of integrity; and to do what is right both on and off duty.  He was informed that the general intended to file the GOMOR in his official military personnel file (OMPF).  The applicant acknowledged receipt of the GOMOR.  On 3 October 2007, the applicant wrote a memorandum stating, in effect, that he had talked with family, legal counsel and his battalion sergeant major.  He decided not to submit a rebuttal.  Instead, he wanted to end this process and move on with his career and life as soon as possible. 

5.  DA Form 8003, dated 23 August 2007, shows that the applicant enrolled in the Army substance abuse program and that his performance efficiency and conduct was rated as excellent.

6.  An offense report from the sheriff's department, dated 5 October 2007, reported that the applicant was observed failing to maintain his vehicle in the right half of the roadway.  The applicant was stopped and required to produce his driver's license and proof of vehicle insurance and registration.  He provided a Missouri driver's license, an expired proof of financial responsibility and could not produce a current proof of registration.  A field sobriety test was administered to the applicant that he failed.  A search of his vehicle produced a fully loaded shotgun in the trunk.  Further investigation of the vehicle showed that the vehicle's license plates did not belong to the vehicle.  He was subsequently arrested for driving while intoxicated (DWI) and transported to the police department.  He was administered a breath test that resulted in a blood alcohol content of 0.55 percent.   The applicant was issued three uniform traffic tickets for failure to register a motor vehicle; failure to maintain financial responsibility; and for failure to maintain the right half of the roadway.

7.  An arrest and booking detail page from the sheriff's department shows that the applicant was incarcerated from 19 to 21 October 2007, a period of 2 days from Friday evening to Sunday evening.  





8.  On 17 November 2007, the applicant completed an alcohol and drug abuse program given by the Department of Health for the state of Missouri.

9.  On 24 January 2008, the Commanding General, United States Army Maneuver Support Center and Fort Leonard Wood, Fort Leonard Wood, Missouri, issued the applicant another GOMOR, this time for DWI on 
5 October 2007.  A chemical test determined that the applicant's blood alcohol content was .055 grams per milliliter.  The general stated that he expected him to do better; to be a model of integrity; and to do what is right both on and off duty.  He was informed that the general intended to file the GOMOR in his official military personnel file (OMPF).  The applicant acknowledged receipt of the GOMOR.  On 29 April 2008, the applicant wrote a memorandum stating, in effect, that he had not been cited for DWI but rather was cited for failure to provide proof of insurance and registration.  He accepted full responsibility for his actions and requested that the GOMOR be filed locally.  

10.  In a memorandum, dated 8 April 2008, the applicant was notified that he was to appear before an administrative reduction board on 1 May 2008.  

11.  In a memorandum, dated 15 April 2008, the applicant's battalion commander announced the appointment of the members for the administrative reduction board.  The membership included a sergeant major, pay grade E-9, as president; three primary voting members consisting of a captain, pay grade O-3; and two sergeants first class, pay grade E-7.  Also identified were three alternate members and a non-voting recorder. 

12.  In a subsequent notification, dated 1 May 2008, he was informed that the board date was moved to 9 May 2008 to allow ample time for him to confer with counsel and prepare his case.  The applicant acknowledged notification and indicated that he would seek legal counsel and appear before the board.

13.  On 2 May 2008, the applicant's company commander recommended that the GOMOR be filed in the OMPF because it was his second such reprimand and it was imperative that his actions be documented.  The battalion commander stated that although the civil court had dropped the charges due to a blood alcohol level under .08, the applicant was still driving under the influence of alcohol and had failed to show any responsibility for his actions.  The battalion commander recommended that the GOMOR be filed in the OMPF.




14.  On 9 May 2008, the applicant's legal counsel wrote a memorandum wherein he objected to the inclusion of documents from the applicant's personnel file that were unrelated to his civil conviction.  On this same day, his legal counsel also wrote a memorandum wherein he objected to the appointment of board members who had direct knowledge of the applicant's case.

15.  On 6 June 2008, the applicant wrote a memorandum appealing the actions of the administrative reduction board.  He stated, in effect, that the administrative reduction board was convened under the provisions of Army Regulation 
600-8-19, paragraph 10-3, and Table 10-2, rule 3, which authorized the board to consider a reduction for misconduct based only on a civilian conviction.  However, the board had been provided numerous documents that were completely unrelated to his guilty plea in civil court.  These documents included a GOMOR and offense reports from the sheriff's department that detailed incidents that had not led to any civilian conviction.  The availability of these documents to the board severely hampered its ability to render an impartial decision.  Additionally, the applicant stated that there were board members who had direct knowledge of his case prior to the board convening.  Army Regulation 600-8-19, paragraph 10-7(b)(8), prohibits the appointment of board members with "direct knowledge" of the case.  One of the board members was the S-1 for the battalion during the time frame that his civil conviction occurred and was processed.  As the S-1, that officer had personal and direct knowledge of his conviction.  Due to these regulatory violations, the applicant requested that his former rank be restored or that the board findings be set aside and the case referred to a new board consisting of entirely new and unbiased members.  

16.  On 14 July 2008, the Administrative Law Attorney, Office of the Staff Judge Advocate, Fort Leonard Wood, Missouri, reviewed the applicant's appeal.  He stated that the applicant correctly noted that his civilian conviction was the underlying basis for the convening of the administrative reduction board.  However, the board was not limited to consideration of just this misconduct.  Paragraph 10-8 of Army Regulation 600-8-19 provides that "The president of the board will ensure that enough testimony is presented to enable the board members to fully and impartially evaluate each case; to be objective in their deliberations; to arrive at a proper recommendation; to consider those abilities and qualities required and expected of a Soldier of that grade and experience; and to determine the best interests of the Army.  Consideration of prior years of faithful service, while commendable, will not be overriding.  The additional documents could reasonably be considered reflective of the applicant's abilities and adherence to high standards of conduct.  Likewise, the information could reasonably be considered informative as to whether reducing the applicant to a lower enlisted rank was in the best interest of the Army.  There is no indication that these considerations were overriding.  
17.  The administrative law attorney disagreed with the applicant's contention that the former S-1 was ineligible to be a member of the board due to having direct knowledge of the applicant's misconduct prior to the convening of the board.  Direct knowledge, as contemplated by the regulation, involves more than a mere awareness of the incident.   The S-1 had absolutely no involvement in the commission of the misconduct or the subsequent conviction that would amount to direct knowledge, as contemplated by the regulation.  Based on the above, the administrative law attorney recommended denial of the appeal.

18.  The proceedings of the administrative reduction board, to include the commander's approval, is not available for review.

19.  Documentation of the civil conviction is not available for review.

20.  In the processing of this case, ad advisory opinion was obtained from the Chief, Enlisted Promotions Branch, United States Army Human Resources Command, located in Alexandria, Virginia.  The opinion stated, in effect, that the applicant's administrative reduction board was conducted within the purview of the regulation and conformed to the spirit and intent therein.  The opinion agreed with the arguments provided by the administrative law attorney and recommended denial of the applicant's request for relief.

21.  On 23 February 2009, a copy of the advisory opinion was sent to the applicant for his information and opportunity to rebut.  No response was received.

22.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) provides in chapter 10, that a reduction board is required for Soldiers in the rank of sergeant, pay grade E-5 through sergeant major, pay grade E-9, for any reduction for misconduct.  A Soldier convicted by a civil court (domestic or foreign) will be reduced or considered for reduction according to table 10–2.  Table 10-2 further provides that the reduction authority may reduce the Soldier one grade without board action. Reduction of more than one grade must be referred to a reduction board.  Paragraph 10-8 provides that a Soldier who is to appear before the board will be given at least 15 duty days written notice before the date of the hearing. The Soldier or his or her counsel must have time to prepare the case.  If the Soldier requests counsel, the convening authority will determine if Military counsel is reasonably available and forward the Soldier's request to the local Trial Defense Service official for necessary action.  Notification of a board hearing date will be made only after counsel is available as requested by the Soldier.  The recorder will, on request of the individual or his or her counsel, arrange for the presence of any reasonably available witness or witnesses he or she desires to call on their behalf.  The president of the board will ensure that enough testimony is presented to enable the board members to fully and impartially evaluate each case; to be objective in their deliberations; to arrive at a proper recommendation; to consider those abilities and qualities required and expected of a Soldier of that grade and experience (An NCO is expected to maintain high standards of conduct.); and to determine the best interests of the Army. Consideration of prior years of faithful service, while commendable, will not be overriding.

23.  Under the UCMJ, the maximum punishment allowed for violation of Article111, for drunken driving is a punitive discharge and confinement for 
6 months; for violation of Article 128, for assault is a punitive discharge and confinement for 3 years; and for violation of Article 134, carrying a concealed weapon is a punitive discharge and confinement for 1 year.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that the results of his administrative reduction board should be set aside and his rank restored.  He contends that the board inappropriately received documents that were previously filed in his OMPF. He also states that a board member had previous direct knowledge of his case. 

2.  In the absence of evidence to the contrary, it is presumed that the applicant's administrative reduction was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  The applicant's contention that the board should not have received certain documents that were previously filed in his OMPF is without merit.  The president of the board had an obligation to provide to the board any and all available information so that it could render a full and impartial evaluation of his case.  

4.  Furthermore, the applicant's contention that the former S-1 was ineligible to be a member of the board due to having direct knowledge of the applicant's misconduct prior to the convening of the board is also without merit.    The S-1 had no more than a mere awareness of the incident and was not involved in the commission of the misconduct or the subsequent conviction.  Therefore, the intent of the governing regulation was met.

5.  The evidence shows that the applicant could have been court-martialed for his misconduct and sentenced to confinement and a punitive discharge.  Clearly, his reduction from sergeant to private first class was very lenient.    


6.  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 the aforementioned requirement.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

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 for correction of the records of the individual concerned.




      _______ _   X_______   ___
               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)                                         AR20090001314





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ABCMR Record of Proceedings (cont)                                         AR20090001314



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