PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 16 May 2002
         DOCKET NUMBER: AR2002067370


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

Mr. Carl W. S. Chun		Director
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Roger W. Able		Member
Ms. Paula Mokulis		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

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

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, that he be reinstated to the Sergeant First Class (SFC) and Advanced Noncommissioned Officer Course (ANCOC) Selection List and promoted effective 1 April 2000.

3. The applicant states, in effect, that he was selected for promotion to the rank of SFC; however, his command unjustly barred him from reenlistment and he was subsequently removed from the promotion selection list. In support of his application he submits copies of the actions taken to bar him from reenlistment and to remove him from the SFC Selection List.

4. The applicant’s military records show that he enlisted on 11 June 1985, for a period of 3 years and training as a field artillery cannon crewman. He successfully completed his training and has remained on active duty through a series of continuous reenlistments. He was promoted to the pay grade of E-6 on 10 January 1994, and his last reenlistment was on 9 April 1998, for a period of 6 years.

5. On 2 February 1999, while assigned to Fort Bragg, North Carolina, the applicant tested positive for THC (tetrahydrocannabinol), during unit urinalysis testing. He was counseled by his commander on 23 February 1999 and the counseling was recorded on a General Counseling Form (DA Form 4856).

6. On 11 March 1999, the commander initiated action to bar him from reenlistment based on the DA Form 4856 dated 23 February 1999. The applicant elected not to submit a statement in his own behalf and the bar was approved on 5 May 1999. The applicant elected to appeal the bar on 7 May 1999.

7. On 10 May 1999, the applicant’s counsel submitted an appeal of the bar to reenlistment through the chain of command to the Total Army Personnel Command (PERSCOM). He asserted that the command could not impose nonjudicial punishment against the applicant because he had asserted his innocence and had demanded trial by court-martial. Inasmuch as the command had determined that the collection process for the urinalysis was flawed and could not be used reliably, the command improperly initiated a bar to reenlistment against him.

8. The applicant’s chain of command recommended that his appeal be denied and asserted that the bar to reenlistment was imposed because of the applicant’s bad judgment in frequenting a night club where drugs were actually or potentially present, which resulted in the positive urinalysis.

9. On 28 September 1999, the PERSCOM, Enlisted Promotions Branch dispatched a memorandum to the applicant informing him that he was considered and selected for promotion by the September 1999 SFC/ANCOC Selection Board; however, because he had been barred from reenlistment prior to the convening of the board, he was administratively removed from the list.

10. On 28 September 2000, the applicant’s counsel filed a Complaint of Wrong under the provisions of Article 138, Uniform Code of Military Justice (UCMJ). She asserted that the applicant had been denied due process because the chain of command had failed to forward the applicant’s appeal of the bar to reenlistment to the commanding general before the bar was approved. She also asserted that the bar was illegally initiated because of a flawed urinalysis and was done so, only after the chain of command realized that they could not impose punishment against him. She further pointed out that the basis for the bar was the urinalysis and that the chain of command later explained that it was imposed for bad judgment on the applicant’s part. Accordingly, since the applicable regulation prohibits imposing a bar to reenlistment in lieu of punishment or other administrative action and because the applicant’s appeal was not forwarded to the approval authority prior to action being taken, he had been wronged by the commanders in his chain of command.

11. On 12 October 2000, the Assistant Division Commander for Operations responded to the defense counsel’s Complaint of Wrong. He indicated that although the proper agency in which to seek redress, was the PERSCOM, he had conducted a preliminary commander’s inquiry based on her allegations and found that the bar to reenlistment was improperly imposed, that the applicant’s appeal had not been forwarded by the command, and that he was recommending approval of the applicant’s request for reinstatement of the SFC Promotion List.

12. The applicant submitted an appeal to the PERSCOM to remove the bar to reenlistment, which was denied on 23 March 2001. The official denying the appeal indicated that the applicant’s bar to reenlistment was based on his poor judgment in frequenting an establishment where there was known or suspected drug use that led to him being identified on a positive urinalysis.

13. A review of the applicant’s records fails to show that he has ever been punished for drug use. Although the applicant is currently serving in Germany, his last evaluation report from Fort Bragg was an excellent report that recommends he be promoted ahead of his peers.

14. Army Regulation 601-280 provides the criteria for bars to reenlistment. It provides, in pertinent part, that a bar to reenlistment will not be used instead of trial by court-martial, nonjudicial punishment or other administrative actions. A bar to reenlistment should not be based on generalities, approximate dates, vague times or places. It should be based on specific incidents substantiated by official remarks made at the time of each occurrence.

CONCLUSIONS:

1. At the time the chain of command initiated and imposed a bar to reenlistment against the applicant, the sole documented basis for the bar was a DA Form 4856 dated 23 February 1999, which indicated that the applicant had tested positive on a 2 February 1999 urinalysis. However, the test procedures (chain of custody) was flawed to the point that the test results could not be used to punish the applicant for illegal drug use. Accordingly, the Board finds that the chain of command had no evidence in which to base any administrative or disciplinary actions.

2. While the chain of command came on line after the bar to reenlistment was approved and contended that the bar to reenlistment was imposed because the applicant had used bad judgment in frequenting an establishment where drugs were potentially being used, their argument is without merit. The bar to reenlistment certificate makes no mention of any such intent and specifically references his positive urinalysis, an element that the command could not prove was true.

3. The chain of command had an obligation under the applicable regulation to notify the applicant of the specific reasons the bar to reenlistment was being imposed against him so that he could submit an appeal on the matters in his own behalf. While his appeal was not properly forwarded, it is apparent that the commander’s explanation of the real reason for the bar was the basis for his appeal being denied, an element for which he was denied the opportunity to address. In short, the applicant submitted his appeal based on the stated reasons for the bar and once the chain of command realized that it had erred, it fabricated another reason. The applicant was not afforded the opportunity to address that issue as it had already been forwarded and denied. Accordingly, he was denied due process.

4. While there is no evidence that the applicant had a history of or did use drugs, justice demands that it is contingent on the Department to prove that he did. By virtue of the fact that the chain of command could not produce evidence to substantiate its case, it must be presumed that the chain of command failed to properly administer the urinalysis and attempted to punish the applicant for an offense that it presumed he was guilty of. Accordingly, the Board finds that he was unjustly barred from reenlistment and that he was unjustly removed from the SFC Promotion Standing List. Accordingly, he should be reinstated to that list and promoted retroactively on the date he would have originally been promoted, under the same conditions, had he not been removed from the list. Likewise, he should be entitled to all back pay and allowances that he would have received from that date.

5. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION: That all of the Department of the Army records related to this case be corrected by removing the bar to reenlistment against the applicant and reinstating him to the 1999 SFC/ANCOC Promotion Selection List from which he was removed, by promoting him effective the date he would have originally been promoted, under the same conditions he would have been promoted, with entitlement to all back pay and allowances.

BOARD VOTE:

__fe ____ ___pm __ ___ra ___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ____Fred N. Eichorn_____
                  CHAIRPERSON

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INDEX

CASE ID	AR2002067370
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/05/16
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 310	131.0000/promotion
2.
3.
4.
5.
6.