BOARD DATE:	  14 April 2011

		DOCKET NUMBER:  AR20100022632 


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 reversal of his reduction to the rank/grade of specialist (SPC)/E-4 by an Administrative Reduction Board.

2.  The applicant states the board members had clearly made up their mind to reduce him before any matters were submitted.  They specifically stated that there was one standard and that reduction was the standard.  They all agreed on the record that he was an outstanding noncommissioned officer (NCO) but because he had been convicted of driving under the influence (DUI) they had no choice but to reduce him.

3.  The applicant provides:

* a notification of intent for reduction in rank/grade packet
* a Summary of Reduction Board Proceedings
* an appeal to the recommendations of the Administrative Reduction Board

CONSIDERATION OF EVIDENCE:

1.  The applicant's last immediate reenlistment in the Regular Army was on
2 February 2007 in the rank/grade of sergeant (SGT)/E-5.  He had previously served 8 years, 4 months, and 1 day of active service.

2.  On 13 May 2010, he received a General Officer Memorandum of Reprimand (GOMOR) for operating a motor vehicle while under the influence of alcohol.  He 

struck a parked vehicle on 22 April 2010 and tested positive for a blood alcohol concentration (BAC) of .14 percent (%).  It is illegal to operate a motor vehicle in Oklahoma or on Fort Sill with a BAC of .08% or higher.  The GOMOR stated his behavior was inconsistent with that expected of an NCO and his action brought discredit on him, his unit, and the Army.  Professionalism encompasses, among other things, self-discipline and good judgment.  His conduct showed serious deficiencies in these areas and would not be tolerated.

3.  On 18 May 2010, the applicant acknowledged the receipt of the GOMOR.  He did not submit matters in his own behalf and he did not wish to consult with counsel.  The GOMOR was filed in his Official Military Personnel File (OMPF).

4.  Records concerning the applicant's Administrative Reduction Board convened by the 2nd Battalion, 4th Field Artillery Regiment, 214th Fires Brigade at Fort Sill, were not available in his OMPF.  The following information was taken from the evidence submitted by the applicant.

	a.  On 28 March 2010, the convening authority appointed a board to determine whether the applicant should be reduced in rank due to misconduct.

	b.  On 26 April 2010, the applicant was notified by his commander that he was recommending to the Reduction Authority his reduction in grade due to an alcohol-related offense on 22 April 2010 and subsequent civilian plea of guilty at sentencing on 23 April 2010.  He was informed:

* he may request/decline to appear before a board, or appear with or without counsel
* he may be appointed military counsel or retain civilian counsel at his own expense
* the board will be composed of unbiased Soldiers and at least one member will be appointed who is thoroughly familiar with his field of specialization
* he may request any reasonable available witnesses
* he may submit written affidavits and depositions of witnesses who do not appear
* he may elect to testify as a witness and submit to examination under oath, make or submit unsworn statement, or remain silent

	c.  Failure to exercise any of these rights is not a bar to the board's proceedings, findings, or recommendations.

	d.  He had 15 calendar days after receipt of the notification to request legal counsel.  Board action will convene within 30 days of notification receipt.  Failure to respond within 30 calendar days constitutes a waiver of the right to a reduction board.

	e.  On 12 May 2010, the convening authority appointed a second board to determine whether the applicant should be reduced in rank due to misconduct.  The board consisted of one first lieutenant and two sergeants first class (SFC).

	f.  On 13 May 2010, he retained counsel, who requested rescission of the notification of 26 April 2010 due to numerous substantial errors.

	g.  On 13 May 2010, a second memorandum of notification was sent to the applicant informing him of the recommendation for his reduction in grade and informed him of his rights.  He submitted two character reference statements, dated 14 and 21 May 2010.  According to these statements the applicant is an excellent teacher, coach, and mentor to both junior enlisted Soldiers and officers. His expertise was frequently sought out throughout the deployment by other units as well.  Aside from the incident that resulted in his reduction board, his military record speaks for itself and shows the desirable qualities he possesses as an NCO.

5.  The applicant submitted the Summary of Reduction Board Proceedings that was convened on 17 June 2010.  The board consisted of a captain (CPT), an SFC, and a staff sergeant (SSG).  After a closed session of deliberating the board unanimously voted to reduce the applicant one pay grade; from sergeant to specialist.  The summary contains the following considerations of the board:

* the SSG stated everybody must be held to the same standard 
* defense counsel objected to the foregone conclusion that a DUI off-post should result in a reduction board
* the board president stated that based on the regulation, the board is enforcing one standard in the interest of good order and discipline; the applicant had a horrible lapse in judgment and the board held him accountable
* the applicant asked the board president if this applied now or if the standard applied to incidents other people had some two years ago
* defense counsel asked the board president if his standard was the reduction of the applicant
* the board president stated the regulation was very clear about what the board should consider and what actions could be taken
* 
the SFC stated the board considered that the applicant had been an NCO since 2006 and that this was, therefore, a serious lapse in judgment on the part of the applicant and that he would bounce back; the SFC was glad the applicant only struck a mailbox and a vehicle as it could have been much worse

6.  On 25 June 2010, his defense counsel submitted a request to the convening authority that the recommendation of the Administrative Reduction Board be set aside in the interest of equity and allow the applicant to remain an NCO.  

	a.  She stated three officers and two NCO's spoke to what an outstanding NCO the applicant was and how he had already been punished enough.  They did not believe the DUI conviction would affect his ability to remain an NCO or his ability to keep the respect of his Soldiers and be an effective leader.  She stated the applicant had almost 12 years in service and if he was reduced to specialist he would be beyond the retention control point for specialist (10 years) and not promotable.  This would force him out of the Army.  She states that result is unjust and excessive.

	b.  She stated the applicant had already served 10 days in jail, paid close to $1,000.00 in fines, and received a GOMOR to be filed in his OMPF.  She stated if the reduction board recommendations are approved it would also result in his dismissal from the Army.  The military and the State of Oklahoma had already punished him enough.  She stated that in the interest of justice and equity, the recommendation of the reduction board should be set aside and the applicant should be allowed to retain his rank of sergeant.

7.  Final action taken by the convening authority is not available for review.  In a telephone conversation with a member of the ABCMR staff, the defense counsel stated they had received a verbal denial of her request from the convening authority and the applicant had been reduced in rank to specialist.

8.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), chapter 10, provides procedures for the reduction of enlisted personnel.

	a.  A Soldier convicted by a civil court (domestic or foreign) will be reduced or considered for reduction according to Table 10-2 (Rules for reduction for misconduct).  Table 10-2, Rule 3 states if a Soldier, serving in the grade of sergeant or above, is sentenced to confinement for less than 30 days and the reduction authority considers that reduction may be appropriate the matter must be referred to a reduction board to consider reduction of one or more grades.

	b.  The convening authority will ensure a reduction board consists of three voting members, both officer and enlisted, and that the board convenes within
30 duty days after the Solder is notified of the proposed action.

	c.  The president of the board will ensure that enough testimony is presented to enable the board members to:

* fully and impartially evaluate each case
* be objective in their deliberations
* arrive at a proper recommendation
* consider those abilities and qualities required and expected of a 	Soldier of that grade and experience who is expected to maintain 	high standards of conduct
* determine the best interests of the Army; consideration of prior years 	of faithful service, while commendable, will not be overriding

	d.  The convening authority may approve or disapprove any position of the recommendation of the board.  Approved reduction recommendations are effective immediately without regard for appeal procedures unless suspended by the convening authority.

	e.  Authorized appeals will be filed within 30 duty days of the date of reduction.  Final action on appeals will be taken by the next higher authority above the reduction authority for grades SSG and below.

DISCUSSION AND CONCLUSIONS:

1.  Testimony at the board and letters submitted to the board attest to the applicant's faithful service.  However, the regulation specifically states that consideration of prior years of faithful service will not be an overriding factor in the determination of the board. 

2.  In promoting him to sergeant, the Army reposed special trust and confidence in the patriotism, valor, fidelity, and professional excellence of the applicant.  As a sergeant, he was in a position of trust and responsibility, and he was responsible for the welfare of those assigned under him.  By committing a DUI offense, he violated this special trust and confidence.

3.  Evidence shows that the applicant was properly and equitably reduced in grade in accordance with Army Regulation 600-8-19.  His reduction was appropriate considering the seriousness of his misconduct and all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.
4.  In view of the foregoing, there is insufficient basis to reverse his reduction as a result of the recommendation of the Administrative Reduction Board.  

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)                                         AR20100022632



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ABCMR Record of Proceedings (cont)                                         AR20100022632



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