IN THE CASE OF:	  

		BOARD DATE:	  2 December 2010

		DOCKET NUMBER:  AR20100022109 


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 that an 11 October 2005 DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ), be purged from his record.

2.  The applicant states the above action was based on speculation that he was involved in a bar fight that resulted in injuries to a civilian.  He received the Article 15 because his commander found him guilty of being intoxicated at the club and said that if he had been sober he could have prevented some of the Soldiers in his battery from fighting.  His legal counsel told him to accept the punishment since it did not involve any loss of money or rank.  He was also told that he had to wait 5 years to have the Article 15 removed from his file.  He states that he did not do anything wrong, he had taken steps to comply with safe drinking practices by having a designated driver, and he did not know that other members of his battery were also going to the club.  He states eyewitness statements describing the person starting the fight do not match him and his injuries were the result of being hit by a bottle.

3.  The applicant provides copies of the DA Form 2627 and a 37-page DA Form 3974-4 (Military Police Report). 

CONSIDERATION OF EVIDENCE:

1.  The applicant, currently a staff sergeant (E-6), enlisted in the U. S. Army Reserve (USAR) on 16 November 1996 and he has continuously served in an active duty status since 9 January 1997.
2.  The record shows the applicant had two long tours in Germany prior to the incident in question and he deployed to Iraq on at least two occasions with a deployment ending shortly before the incident.  The exact dates of his deployments are not of record. 

3.  On 23 July 2005, the applicant, then a sergeant (SGT) E-5, was involved in an incident at a club.  He was initially investigated as the subject on a charge of aggravated assault and being drunk and disorderly.  

4.  The Military Police Report narrative summary provides the following:

* witnesses report that the applicant, F____, D____ T_____ (a German civilian), Specialist (SPC) F____, and an unknown individual were involved in a verbal argument on 23 July 2005
* the incident escalated to physical violence with the involvement of additional U.S. military personnel and German Nationals
* witnesses reported that the physical fight commenced when the applicant kicked D____ T_____ in the left knee
* six people rendered sworn written statements indicating the applicant was involved in the fight with D____ T_____ 
* the same 6 people plus 4 additional individuals indicated that SPC F____ was involved in the fight with D____ T_____.  
* the applicant and SPC F___ were given breathalyzer tests and found to have blood alcohol levels in of 1.22 and 1.36 mg/ml, respectively.  They were not read their rights at that time due to their level of intoxication
* at some point later on the 23rd the applicant and SPC F___ were advised of their legal rights which they waived rendering written sworn statements denying any involvement in the fight 
* the applicant, D____ T_____, and SGT B____ (who was reported as being hit with a beer bottle while attempting to stop the fight) were taken to the hospital for treatment of their injuries 
* the applicant was treated for cuts to the left eye and bottom lip and a bruised left knee
* SGT B____ had cuts on and above his left ear 
* D___ T____ had a severe brain concussion and abrasions and contusions to his face, behind his ears, on the left knee, and to the right side of his ribs
* on 12 September 2005, based on his review of the statements provided by witnesses, Captain Q____ opined that the charge of making a false official statement should be added

5.  Neither the incident report provided by the applicant nor the one contained in his military personnel file contains copies of the actual statements rendered by any of the parties involved in the incident.  

6.  On 11 October 2005, the applicant received nonjudicial punishment (NJP) under Article 15, UCMJ for three offenses -- making a false statement, assault, and being drunk and disorderly.  His punishment was 45 days of extra duty and restriction.  The NJP Proceedings were directed to be filed in the restricted portion of his record.

7.  The applicant's Noncommissioned Officer Evaluation Report (NCOER) for the period covering the July 2005 incident shows he was rated as "excellent" or "successful" in all areas.  His senior rater marked his overall performance in the successful second block and his senior rater evaluated his overall potential in the superior second block.  These ratings are consistent with earlier NCOER's and his subsequent ratings are all in the top block for overall performance and overall potential.

8.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures for filing of unfavorable information in a Soldiers Official Military Personnel File (OMPF).  It states that unfavorable information that should be filed in official personnel files includes evidence of substandard leadership ability, promotion potential, morals, and integrity.  These must be identified early and shown in those permanent official personnel records that are available to personnel managers and selection board members for use in making such personnel decisions.  

9.  The Manual for Courts-Martial states that voluntary intoxication not amounting to legal insanity, whether caused by alcohol or drugs, is not an excuse for an offense committed while in that condition.

DISCUSSION AND CONCLUSIONS:

1.  The investigator's report shows the applicant was involved in a verbal altercation with D___ T____.  This verbal altercation then led to the physical altercation that resulted in injuries to at least three people.

2.   The applicant was legally drunk at the time, having a 1.22 mg/ml blood alcohol level.  His "precaution" of having a designated driver does not mitigate the reported verbal and physical altercation or relieve him of responsibility in this incident.

3.  While there is insufficient evidence to show who initiated the incident and who started the physical assaults, the applicant was clearly involved as demonstrated by both the witness statements and the fact that he had to have medical treatment for three injuries.  

4.  The applicant has not provided and the record does not contain any evidence to support his contention that he was not involved in the incident that led to the physical assault and injuries on D____ T____.

5.  Although the relative leniency of the punishment suggests the applicant may have convinced his unit commander that there were some mitigating factors in the incident he clearly did not convince the commander that he was not involved or the commander would have dropped one or more of the charges.  

6.  Incidents such as this cannot and should not be condoned.  To purge the applicant's record of this NJP may give the impression that voluntary intoxication resulting in misconduct is condoned.  Therefore, it is not appropriate to purge the NJP from his record.

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)                                         AR20100022109



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ABCMR Record of Proceedings (cont)                                         AR20100022109



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