IN THE CASE OF:	  

		BOARD DATE:	  3 September 2013

		DOCKET NUMBER:  AR20130011104 


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, in effect, that a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) imposed on 10 October 2012 be set aside. 

2.  The applicant states:

	a.  he was called and told he was off work/duty for 3 consecutive days (no contingencies), then haphazardly he was called in on his third day off, only 17 minutes prior to formation.

	b.  he was given a breathalyzer test which resulted in a blood alcohol content (BAC) of 0.047, under the legal BAC limit of 0.05 per Army Regulation 600-85 (The Army Substance Abuse Program).  His command thought the BAC limit was lower than that, so they proceeded with the charges based on inaccurate information and incorrect knowledge of the Army regulation's legal BAC limit.

	c.  he didn't show any mental/physical signs sufficient of being impaired under the UCMJ, Article 112.

	d.  he has consulted with the Inspector General (IG), IG hotline, Congress, and military officials who all say this is "clear injustice" as well as an improper Article 15. 


	e.  he is a Soldier with 9 years of service, three deployments, and an unblemished record until now.  He has never received an Article 15 and he has a good counseling record.  He is a responsible adult and he exercises abstinence from alcohol when he knows he has to work.  He would never knowingly put himself in a position to jeopardize his ability to serve his country and to provide for his family who depends on him.  He practices safe drinking habits and is committed to the responsibilities that it carries. 

	f.  the evidence doesn't support a conclusion that he was intoxicated/impaired as defined by Army Regulation 600-85, nor by UCMJ, Article 112.  His Article 
15 packet doesn't state anywhere that he showed signs per Article 112 that were "sufficient to impair the rational and full exercise of the mental or physical faculties."  No tests were performed other than his breathalyzer test (which resulted in a below the legal BAC reading).  He went willingly to the military police station to have the test conducted.  He didn't act out or get upset.  He was 100% cooperative and did not cause any embarrassment to the U.S. Army.  He wasn't unstable/wobbling, his speech was not slurred, and his eyes were not red/blurry.  He is a good Soldier and loves serving his country.  He has sacrificed for his country, and that along with the evidence and his BAC result should count for something.  He is not guilty, nor was he drunk on duty.
  
	g.  his current expiration term of service date is 24 February 2014.  He would like to reenlist and continue to make a career of the Army.	

3.  The applicant provides 28 enclosures outlined on the Table of Contents page. 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 23 October 2003 and he has remained on active duty through continuous reenlistments.  He attained the rank of specialist/E-4 on 1 November 2006.  Records show he served in Iraq and Afghanistan.

2.  He provides a document, dated 28 September 2012, from the Alaska Department of Public Safety Datamaster which shows his breathalyzer results were 0.047.  He also provides a document, dated 28 September 2012, which states he was escorted to the Fort Wainwright Police Station to be placed on the Datamaster for suspected drunk on duty.  He was submitted to a Datamaster brand breath test resulting in a BAC of .074.   

3.  He provides a DA Form 4856 (Developmental Counseling Form), dated 
28 September 2012, which states:

* he was being counseled for being found drunk on duty
* on the morning of 28 September 2012, while standing in formation for a Battalion Class A inspection, a command sergeant major noticed he had the smell of alcohol on his breath
* he was escorted to the military police station where he initially blew a BAC of “0.54”
* once it was established that it was warranted to have him do another test on the automated machine another test was conducted
* he then blew a BAC of 0.047 which is considered over the legal limit of “0.004,” which is considered being drunk on duty 

4.  He provides a DA Form 8003 (Army Substance Abuse Program (ASAP) Enrollment), dated 1 October 2012, which shows he was referred to ASAP for being drunk on duty.  

5.  He provides a DA Form 4465 (Patient Intake/Screening Record), dated 
3 October 2013, which shows he was not enrolled in ASAP because he did not meet the diagnostic criteria for substance abuse.

6.  He provides a DA Form 2627, dated 10 October 2012, which shows he did not demand trial by court-martial and elected to proceed with the Article 15.  Nonjudicial punishment (NJP) was imposed against him for being drunk on duty on 28 September 2012.  His punishment consisted of a reduction to E-1, a forfeiture of $745.00, and extra duty for 45 days.  On 30 January 2013, the applicant appealed his NJP action.  His appeal was denied.

7.  He provides character reference letters from fellow Soldiers attesting to his good military performance.  He also provided printouts of his cell phone text screens, but not all of the texts and/or dates are legible.
 
8.  Army Regulation 27-10 (Military Justice) prescribes policies and procedures pertaining to the administration of military justice.  It states a commander will personally exercise discretion in the nonjudicial process, evaluate the case to determine whether proceedings under Article 15 should be initiated, and determine whether the Soldier committed the offense where Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial.  It states the authority to impose NJP charges a commander with the responsibility of exercising the commander’s authority in an absolutely fair and judicious manner.  It states the imposing commander is not bound by the formal rules of evidence before courts-martial.  

9.  Chapter 3 (Alcohol) of Army Regulation 600-85 states on-duty impairment due to alcohol consumption will not be tolerated.  Impairment of Soldiers is defined as having a BAC equal to or greater than .05 grams of alcohol per 100 milliliters of blood.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has provided documentation which shows his BAC was 0.047, .074, and 0.54 on 28 September 2012.  He also provided a document that indicated he was over the legal limit of 0.004.

2.  It is acknowledged that there were errors in entering his BAC – a reading of 0.54 is obviously way too high, indicating a near-death reading; and a reading of 0.004 is obviously way too low, indicating perhaps the use of mouthwash several hours previously.  It also appears that .074 is merely a transposition of .047.

3.  However, to read that 0.54 was meant to be 0.054 would be reasonable.  It would also be reasonable to believe that an initial reading of 0.054 at the military police station would be reduced to a reading of 0.047, as a natural result of the passage of time, by the time the automated machine test was conducted, making the 0.054 reading (over the legal limit) credible.

4.  His contentions that his BAC was under the legal BAC limit and that he was not drunk on duty on 28 September 2012, and that he had no reasonable expectation that he was supposed to be at a formation on 28 September 2012, relate to evidentiary and legal matters that could have been addressed and conclusively adjudicated in a court-martial appellate process.  However, he did not demand a trial by court-martial and voluntarily chose to accept NJP.  

5.  There is no evidence the DA Form 2627 was improperly imposed.  

6.  Based on the foregoing, there is insufficient evidence on which to grant the requested relief.

BOARD VOTE:

______  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the majority of the Board determined that relief should be granted.

2.  The majority of the Board believed two issues were involved.  One was the uncertainty as to whether the applicant was required to attend the subject formation; therefore, drinking should not have been an issue.  Two, the Article 15 appears to rely on a BAC reading of .05 or higher when the record only supports a BAC reading of .047.  Therefore, the majority of the Board concluded that the Article 15 should not have been given.

3.  Therefore, the majority of the Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the majority of the Board recommends that all Department of the Army records of the individual concerned be corrected by setting aside the Article 15 imposed on 10 October 2012 and all rights and privileges lost by him as a result of the Article 15 be restored.



      _______ _  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)                                         AR20130011104





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ABCMR Record of Proceedings (cont)                                         AR20130011104



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