BOARD DATE: 25 June 2015
DOCKET NUMBER: AR20140018613
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 his narrative reason for separation be removed from his DD Form 214 (Certificate of Release or Discharge from Active Duty).
2. The applicant states the state dismissed the charges of driving under the influence (DUI). Since the accusation of unacceptable conduct was based on the civilian charge of DUI, there is no legal precedent and consequently no justification to sustain the accusation of unacceptable conduct. The term unacceptable conduct on his DD Form 214 has resulted in employment difficulties and financial hardship in his civilian life.
3. The applicant provides copies of the court dismissal order and his DD Form 214.
CONSIDERATION OF EVIDENCE:
1. The applicant was commissioned a second lieutenant on 27 June 2013.
2. On 28 September 2013, he was arrested for driving under the influence (DUI). The civilian police report shows he failed three field sobriety tests, he had a breath analyzer reading of .128 percent, and a blood alcohol reading of .124 percent.
3. On 28 September 2013, the applicant's on-post driving privileges were suspended due to the DUI.
4. On 30 September 2013, a Report to Suspend Favorable Personnel Actions (FLAG) was initiated due to the DUI.
5. The applicant was command referred to the Army Substance Abuse Program for assessment following the DUI. On 2 October 2013, he was screened but not enrolled in the program. The evaluation team did recommend he attend alcohol education during October and November of 2013.
6. On 14 November 2013, he received a General Officer Memorandum of Reprimand (GOMOR) for the DUI.
7. In his 21 November 2013 statement, the applicant admitted to having operated a motor vehicle while under the influence of alcohol. He stated he regretted his actions and accepted the consequences.
8. In concert with the GOMOR, his entire chain of command recommended that elimination action be initiated. The Brigade Commander signed the recommendation on 4 December 2013.
9. On 6 December 2013, the commanding general directed the GOMOR be place in the applicant's Official Military Personnel File.
10. On 14 February 2014, the Cochise County Justice Court for the State of Arizona dismissed the case without prejudice. The reason listed for the granting of the dismissal was "issues with basis for stop."
11. There is no documentation related to the elimination action after the Brigade Commander's recommendation for elimination of 4 December 2013.
12. The applicant was honorably discharged on 10 July 2014 under paragraphs 4-2b and 4-24a(1), Army Regulation 600-8-24 (Officer Transfers and Discharges). He received a separation program designator of BNC (resignation for unacceptable conduct). The narrative reason for separation is shown as unacceptable conduct.
13. Army Regulation 600-8-24, chapter 4 provides for the elimination of officers. It states at
* paragraph 4-2b that elimination action may be or will be initiated for an officer for misconduct
* paragraph 4-24 (Rules for processing an option that an officer elects while elimination action is pending)
* subparagraph a states an officer identified for elimination may, at any time during or prior to the final action in the elimination case, elect one of the following options (as appropriate):
* Submit a resignation in lieu of elimination
* Request discharge in lieu of elimination
* Apply for retirement in lieu of elimination, if otherwise eligible
14. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)), states the ABCMR begins its consideration of each case with the presumption of administrative regularity. It will decide cases on the evidence of record and it is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:
1. The applicant admitted to and is clearly shown to have been driving under the influence of alcohol on 28 September 2013. He did not contest or appeal the GOMOR for this DUI charge or other administrative actions that led to his discharge; in fact he admitted to operating a motor vehicle while under the influence of alcohol.
2. The fact that the State of Arizona decided to dismiss the DUI charge does not indicate that he was not guilty of DUI. It just indicates the state elected to not prosecute him for this action.
3. In the absence of evidence to the contrary the discharge proceedings are presumed to have been conducted in accordance with law and regulations applicable at the time. The narrative reason for his discharge is commensurate with the offense that resulted in his discharge.
4. 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 this requirement.
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) AR20140018613
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