MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 06 SEPTEMBER 2001
         DOCKET NUMBER: AR2001057866

         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
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Luther L. Santiful		Chairperson
Mr. Melvin H. Meyer		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: In effect, that the sentence imposed as a result of a special court-martial be mitigated, that his general discharge be revoked and he be reinstated on active duty and restored to his former rank of sergeant first class, that he be promoted to master sergeant, pay grade E-8, that all unfavorable information be expunged from his official military personnel files (OMPF), and that he receive all pay and allowances resulting from these corrections.

APPLICANT STATES: The applicant made no statement but deferred to counsel.

COUNSEL CONTENDS: That the applicant was improperly convicted [by a special court-martial] and improperly separated from the Army. Counsel provides a 17 page brief of the events that resulted in the applicant’s court-martial conviction.

Counsel states that upon receipt of information that a urinalysis test was to be conducted, the applicant received permission to go to his home to get his identification (ID) card, needed for verification of identity during the conduct of the test. On his way home he became violently ill, and had to pull over to the side of the road. After he arrived home, because of the effects of his illness, he fell asleep. Later that evening his wife took him to a local store to obtain medicine. He was ill throughout the evening, and the next morning he went on sick call.
A doctor gave him quarters for 24 hours. While at the hospital, he soiled his uniform, was too embarrassed to go to his unit, and instead went home. Still feeling very ill, he rested and fell asleep. Later that morning he received a telephone call from LTC “T,” his battalion commander, to report that afternoon for the urinalysis test. He acknowledged that order, rested because he had several hours to comply; however, he did not wake up until LTC “T” and SGM “P” arrived at his house. SGM “P” told him that Col “C,” the Brigade commander, wanted the applicant to report at the Brigade headquarters later that afternoon. The applicant acknowledged the order, but still felt ill and decided to rest. He did not go to the headquarters at the time prescribed because of his illness-induced sleep and because of the medication he was taking. His illness continued throughout the evening; however, he did report to work the next day and was administered a urinalysis test. The applicant learned that he was one of several members of his company to not participate in the urinalysis, but was the only one to undergo adverse action for not doing so.

The applicant was informed that he tested positive for cocaine, and was told to report to the CID, which he did. He was read his rights by a CID agent which he waived, and was thereafter interrogated. He categorically denied using cocaine; however, the agent continued to question him. He asked for a lawyer. The CID agent persisted in his questioning, and the applicant sarcastically told the agent that he used the drugs, only saying so because that is what the agent wanted to hear.

On 25 November 1997 the applicant was administered a urinalysis test and the results were negative.

Counsel states that the evidence presented at the trial and before the administrative elimination board failed to prove that the applicant willfully disobeyed his battalion and brigade commanders’ orders to report to his unit. Counsel states that the applicant was acquitted of an AWOL charge stemming from that same incident. Counsel states that the applicant’s illness prevented him from reporting to his unit in that he was physically unable to do so. He states that the applicant was placed on quarters, and as such was not to perform military duty until a medical officer indicated that he might perform such duty. He was not given clearance by a medical officer; therefore, he was simply following the doctor’s orders when he did not obey the orders of his battalion and brigade commanders. The applicant honestly and mistakenly believed that he was excused from complying with those orders. The applicant’s mistake of fact negated any culpability.

Counsel states that the evidence failed to prove that the applicant willfully disobeyed the orders of MSG “P,” the NCOIC (Noncommissioned Officer in Charge) of the Readiness Group, to report for testing on 17 November 1997, in that she never gave him an order to do so, but merely disseminated information to the applicant, and to two captains. During the trial, one of the captains described that MSG “P” had put out the information to the three of them as an announcement. Counsel again states that the applicant was violently ill and was physically unable to comply with the directive issued by MSG “P,” and therefore did not willfully disobey her order.

Counsel states that the evidence failed to prove that the applicant knowingly used cocaine. The applicant was not a drug user and the evidence clearly establishes that fact, as indicated by the testimony of senior NCOs and two officers. It was not within his character. The applicant’s wife testified that the applicant did not exhibit any signs of cocaine the night of 16 November 1997, the night the CID agent claimed that the applicant admitted using cocaine. Counsel states that the applicant was an excellent NCO who did not do drugs.

Counsel states that the result [from the laboratory at Fort Meade] was incorrect in that the laboratory had many past problems which called into question the validity of the positive test. Counsel states that there was instances of cross-contamination of samples that could have occurred because of employee negligence and poor internal procedures. The record of trial shows that numerous inspection reports showed a systematic problem concerning handling and testing of samples. Counsel states that the applicant’s sample was adulterated with negative urine that a witness stated was free of drugs; however, the witness failed to produce a certification of the clean urine. The applicant’s sample was preceded by a sample whose level was nine times that of the applicant’s. Cross contamination was very possible based on the laboratory’s track record. Additionally, the applicant was tested for a cocaine metabolite called BZE, which can be produced by the insertion of raw cocaine in the urine. The evidence failed to proved that the applicant’s urine sample was accurately tested. Further, while the applicant was at a bar on 16 November 1997, the evidence shows that he left his drink unattended and it was possible that someone might have placed cocaine in his drink. He states that the evidence does not show that the applicant actually knew he used cocaine during the stated period.

Counsel states that in too many commands once a report of a positive urinalysis was received, there was a presumption of guilt and that this Board had overturned just such a presumption of guilt in a case involving the counsel. Counsel states that the government’s case, both at trial and before the board, rested solely on the results of the urinalysis test. Counsel cites cases in which courts have held that the inference that one has wrongly used drugs based solely on a urinalysis test result was improper, and that other evidence must be shown to prove intentional use.

Counsel states that the government produced no evidence that the applicant knowingly and intentionally used drugs, but relied exclusively on the impermissible inference that the mere fact that he had a positive urinalysis meant that he intentionally ingested cocaine.

Counsel requests that the applicant’s entire record be reviewed. He stated that the evidence shows that the applicant was a soldier of impeccable credentials who did nothing wrong. He states that the applicant has been gainfully employed and was scheduled to receive his Bachelor of Arts degree.

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

On 28 July 1981 the applicant enlisted in the Army for 3 years and remained on continuous active duty until his discharge in 1998. The applicant attained the rank of sergeant first class and has served in numerous locations throughout the world, to include Fort Leonard Wood, Missouri, Fort Ord, California, Fort Polk, Louisiana, Fort Eustis, Virginia, three tours of duty in Germany, a tour of duty in Korea, service in Bosnia, and approximately 6 weeks in Somalia. He completed numerous military schools to include the Advanced NCO course (ANCOC). Among his awards are the Army Commendation Medal, three awards of the Army Achievement Medal, five awards of the Good Conduct Medal, the Joint Meritorious Unit Award, the NATO Medal, the Armed Forces Expeditionary Medal, the National Defense Service Medal, and the Armed Forces Service Medal.

DA Forms 4187 (Personnel Action) show that the applicant was AWOL from 1415 hours on 17 November 1997 to 0720 hours on 19 November 1997. He was counseled on 20 November 1997 for disobeying a lawful order on 17 November 1997 to participate in a unit urinalysis and for disobeying a lawful order on 18 November 1997 to report to his commanders.

On 2 December 1997 the applicant’s brigade commander was notified that the applicant had been tested and confirmed positive for illegal drugs.

A 3 December 1997 CID report shows that the applicant admitted that he possessed and used cocaine on 16 November 1997, that he related that he met a woman at a local bar, which he frequented two or three nights a week, that they went to her apartment where he snorted three or four lines of cocaine.

On 12 December 1997 charges were preferred against the applicant for AWOL; two counts of willfully disobeying a lawful command from his superior commissioned officers; for willfully disobeying a lawful order from an NCO; and for wrongfully using cocaine. On 18 December 1997 the charges were referred for trial to a special court-martial, empowered to adjudge a bad conduct discharge. The applicant pled not guilty to all charges and specifications.

The special court-martial found the applicant not guilty of the charge of AWOL, but guilty of the charges and specifications of willfully disobeying a lawful command from his superior commissioned officers, for willfully disobeying a lawful order from an NCO, and for wrongfully using cocaine. On 19 February 1998 the applicant was sentenced to be reduced to the grade of E-5 and to forfeit $1186 pay per month for six months.

On 20 February 1998 the applicant’s battalion commander notified the applicant that he was initiating action to separate him from the Army for misconduct under the provisions of Army Regulation 635-200, paragraph 14-12c. He stated that he was recommending that the applicant receive a general discharge.

The applicant consulted with counsel and stated that he had been advised of the basis for the contemplated action, its effects, the rights available to him, and the effect of any action taken by him in waiving his rights. He requested appearance at an administrative separation board. He declined to submit statements in his own behalf. He stated that he understood the nature and consequences of the general discharge that he might receive.

In a 25 February 1998 memorandum to the applicant’s brigade commander, the applicant’s defense counsel requested that officer reconsider separating the applicant for misconduct, and instead separate him because he reached his retention control point (RCP). He stated that there was no requirement that a commander has to wait 90 days before separating a soldier because he had reached his RCP. He stated that the court-martial panel purposely sentenced the applicant to a reduction in grade because they wanted to see him separated upon reaching his RCP. He stated that the military justice system had spoken, and requested their decision not be circumvented.

On 26 February 1998 the applicant’s commanding officer recommended to the separation authority that the applicant be separated for misconduct under the provisions of Army Regulation 635-200, paragraph 14-12c.

On 27 February 1998 a board was appointed to determine whether the applicant should be discharged from the Army. The report of proceedings of that board is not available. However, the findings and recommendations worksheet of the board revealed that the board found that the applicant disobeyed the order of an NCO, willfully disobeyed the orders of two superior commissioned officers, and unlawfully used a controlled substance. The board stated that the applicant
was not desirable for further retention in the military service and recommended that he be discharged with a general discharge.

On 24 March 1998 the applicant’s defense counsel requested to the separation authority that he not approve the separation board’s recommendation, and that the applicant be afforded the opportunity to separate as a result of reaching his RCP, as intended by the court-martial panel. He stated that he believed that the court-martial panel weighed the applicant’s credible and excellent military service against the offenses for which he was found guilty and decided as they did [e.g., that he not receive a harsher punishment – bad conduct discharge]. The defense counsel noted that if the separation authority did disapprove the board’s recommendation, the applicant still did not walk away unscathed in that he had to live with a federal conviction the rest of his life. Additionally, the applicant had lost the chance to retire from the military, losing the benefits associated with retirement. He requested that the separation authority consider the effect of his decision on the applicant’s wife and two daughters.

On 10 December 1997 (sic) a Judge Advocate General Corps officer stated that he had reviewed the board proceedings and they were legally sufficient.

In a 22 May 1998 memorandum to the Commander of the Army Training Center and Fort Jackson, the applicant’s defense counsel requested that the convening authority approve the finding of not guilty to the charge of AWOL and disapprove the court-martial findings of guilt as to the other charges and specifications. He stated that the evidence failed to prove the applicant’s guilt beyond a reasonable doubt as required by law, but in the event that he believed that the evidence was sufficient, he requested that he disapprove the findings based on the fact that the applicant had been recommended for administrative separation, and that if he did disapprove the findings, the applicant would still be separated because of the administrative board’s decision. The applicant’s defense counsel noted that the Staff Judge Advocate’s recommendation failed to note all of the applicant’s awards. The applicant’s defense counsel made the same arguments to the convening authority that the applicant’s civilian counsel is making to this Board.
On 29 May 1998 the convening authority approved the sentence of the court-martial panel.

On 29 May 1998 the separation authority approved the recommendation of the board and directed that the applicant be issued a General Discharge Certificate.
The applicant was discharged for misconduct on 2 June 1998. He had 16 years, 10 months, and 5 days of active service, and 11 months and 13 days of inactive service.

The maximum punishment authorized under the Manual for Courts-Martial (MCM) for willfully disobeying a superior commissioned officer or an NCO is a bad conduct discharge, 1 year confinement, and forfeiture of all pay and allowances; for wrongful use of cocaine is either a dishonorable or a bad conduct discharge, 5 years confinement, and forfeiture of all pay and allowances.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Paragraph 14-12c states that soldiers are subject to separation for commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the MCM.

Paragraph 14-3a states that a discharge under other than honorable conditions is normally appropriate for a soldier discharged for misconduct; however, when the sole basis for separation is a serious offense which resulted in a conviction by court-martial that did not impose a punitive discharge, the soldier’s service may not be characterized under other than honorable conditions unless approved by HQDA.

Army Regulation 601-280 outlines procedures for immediate reenlistment or extension of enlistment and paragraph 2-22 states that soldiers may reenlist or extend their current enlistment provided that action does not cause the soldier to extend the retention control point [13 years for pay grade E-5] by more than 29 days.

Title 10 U.S. Code states that as soon as possible before, but in no event later than 90 days before, the date of discharge or release from active duty of a member of the armed forces, the Secretary concerned shall provide for preseparation counseling of the member.

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. The applicant was tried and convicted by a special court-martial in accordance with the provisions of the UCMJ. The Board notes that the applicant could have received a sentence of a bad conduct discharge and five years confinement. There is no evidence, as the applicant’s defense counsel has implied, that the court-martial panel chose the grade of E-5 as the proper grade to reduce him so that he would reach his RCP. The intentions of the court-martial panel in passing sentence are unknown; however, the Board believes that the applicant’s past service and performance were considered in the passing of his sentence and thusly did not deign to impose a bad conduct discharge.

2. The applicant had reached his RCP immediately upon his reduction to pay grade E-5, and the applicant’s commander apparently could have allowed the applicant to be discharged [with an honorable characterization of service and separation pay] because he had reached his RCP; however, decided not to do so and instead initiated elimination proceedings against the applicant.

3. Absent evidence to the contrary, the discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant's overall record of military service, and in accordance with regulatory provisions.

4. The contentions of the applicant and his counsel have been noted by the Board. However, they are not supported by either evidence submitted with the application or the evidence of record. Neither the applicant nor counsel has submitted probative evidence or a convincing argument in support of his request.

5. Since there is no basis to grant the portion of his requests pertaining to his court-martial sentence and his discharge, there is likewise no basis to grant his remaining requests.

6. 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 that requirement.

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

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

__LLS __ __MHM__ __JTM __ DENY APPLICATION

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

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INDEX

CASE ID	AR2001057866
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20010906
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	105.01
2.	110.00
3.
4.
5.
6.