MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 27 November 2001
         DOCKET NUMBER: AR2001053822

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Carolyn G. Wade		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Lester Echols		Member
Mr. John T. Meixell		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: Through counsel, that her name be removed from the subject block of Criminal Investigation Division (CID) Report of Investigation (ROI) #0012-00-CID-142-50897-5L2, dated 29 February 2000.

APPLICANT STATES: In effect, that she did not knowingly use marijuana.

COUNSEL CONTENDS: In effect, that the applicant's titling in the subject CIDROI is absurd, as is Army Regulation (AR) 195-2. The applicant vehemently denies using marijuana. The CID titled the applicant based solely upon her testing positive for marijuana use during a random drug test; however, the legal standard under Article 112a, Uniform Code of Military Justice (UCMJ) requires the "knowing and willful" use of the drug. The CID drew permissive inference that the applicant's use was "knowing and willful" based on the trace presence of the drug's metabolite in the applicant's urine. In US v. Campbell, 50 M.J. 154.160 (C.A.A.F 1999), the United States Court of Appeals for the Armed Forces said, "[T]he prosecution cannot rely solely on the presence in the body of the drug or its constituent elements. The cases which have permitted the inference of wrongfulness strictly require that the prosecution also . . . explain the significance of the results of the test of the accused's sample." That is "That the cutoff level and reported concentration are high enough to reasonably discount the possibility of unknowing ingestion and to indicate a reasonable likelihood that the user at some time would have 'experienced the physical and psychological effects of the drug.'"

EVIDENCE OF RECORD: The applicant's military records show:

She is a captain/O-3 serving on active duty at Fort Dix, New Jersey. On 9 January 2000, she participated in a command-directed, random urinalysis test. On 1 February 2000, the applicant's commander was notified that the applicant's urine specimen tested positive for the presence of tetrahydrocannabinol (THC), a metabolite of marijuana.

On 1 February 2000, the applicant's commander verbally informed her that her urine specimen had tested positive for a controlled substance. The applicant was informed of her rights. She was also informed that she was not required to make a statement. She elected to make a written statement in which she denied using marijuana or any other illegal drug. She stated that she did not know how her urine specimen could have tested positive for THC because she did not knowingly use marijuana or any other illegal substance. She offered that her sample may have become contaminated after she turned it over to test administrators, or during the shipping process to the laboratory at Fort Meade, Maryland. She did not request legal representation. She submitted a second urine specimen to be tested. The results of this specimen is not a matter or record. The counseling session was documented in writing.

On 9 February 2000, the applicant's Executive Officer informed the CID, Fort Monmouth, New Jersey of the applicant's positive test result. The subject CIDROI was opened on 9 February 2000 and copies of the applicant's DA Form 3881 (Rights Warning Procedure/Waiver Certificate), DA Form 4856 (General Counseling Form), DA Form 2823 (Sworn Statement), and the DD Form 2624 (Specimen Custody Document - Drug Testing) were obtained, as well as statements from the two unit personnel who administered the 9 January 2000 test. Additionally, the CID advised the applicant of her rights and initiated a second DA Form 3881.

The investigation revealed that the applicant's urine sample was properly obtained and forwarded to the Forensic Toxicology Drug Testing Laboratory at Fort Meade. The sample was tested on 12 January 2000 and retested on 20 January 2000 and found to contain THC, a metabolite of marijuana. On 11 February 2000, the investigation was coordinated with the Assistant Staff Judge Advocate, 78^th Division, who opined that there was probable cause to believe that the applicant had committed the offense of wrongful use of a controlled substance (marijuana), and sufficient admissible evidence to prosecute her for the offense.

The subject CIDROI was completed and forwarded to the applicant's commander for appropriate action. On 31 Jul 2000, the Executive Officer, 2^nd Battalion, 309^th Regiment, Fort Dix informed the CID that the applicant received a General Officer Letter of Reprimand (GOLOR) from the Commanding General, First US Army, Fort Meade. The GOLOR is not available in the applicant's records.

On 19 June 2000, the applicant, through counsel, submitted a request to the Commander, US Army Criminal Investigation (Division) Command, Fort Belvoir, Virginia seeking to have the applicant's name removed from the title block of the subject CIDROI. The request was denied on 6 September 2000.

Army Regulation 195-2 prescribes Department of the Army policy on criminal investigation activities, including the utilization, control, and investigative authority and responsibilities of all personnel assigned to CID elements. This regulation constitutes the basic authority for the conduct of criminal investigations, crime prevention surveys, protective service missions, and the collection, retention, and dissemination of criminal information. It states, in pertinent part, that requests to amend CIDROI will be granted only if the requester submits new, relevant, and material facts that would warrant such a revision. When the requested amendment is to delete a person from the title block of an ROI, the request will be granted only if it "can be conclusively established that the wrong person's name has been entered as a result of mistaken identity." In previous cases, this Board has directed removal only when necessary to correct an error or injustice. To prove an error, the applicant must show that there was no information, considering its source, nature, and the totality of the circumstances that would have caused a reasonable investigator to pursue further facts to determine whether a criminal act may have occurred. To remove an injustice, the applicant must demonstrate that the titling decision, which has later been determined to be unfounded, has created harm. When the applicant has established that she has been harmed, the Board first looks at whether it can rectify the injustice by correcting the records related to the outcome of the titling, instead of reversing the titling decision.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. 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.

2. Counsel's argument that under US v. Campbell the CID had no right to title the applicant for wrongful use of a controlled substance is without merit. The decision to list a person's name in the title block of a CIDROI is purely an investigative determination based upon the existence of credible information that the individual so listed may have committed a criminal offense. In this case, the applicant's positive urinalysis specimen provided sufficient credible reason to title her for wrongful use of a controlled substance (marijuana). This decision was supported by a legal review of the investigative facts conducted by the Assistant Staff Judge Advocate of the 78^th Division.

3. The Board found no evidence that indicates the CID, or anyone in the applicant’s chain of command, denied her due process. Since the applicant's drug use was handled administratively with a GOLOR, there was no prosecution of the applicant in a trial by court-martial.

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

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DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__AAO__ __LE ___ __JTM __ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001053822
SUFFIX
RECON
DATE BOARDED	20011127
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	DENY
REVIEW AUTHORITY	DASA
ISSUES 1.	134.0000
2.
3.
4.
5.
6.