PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 30 July 2002
         DOCKET NUMBER: AR2002067911


         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. Arthur A. Omartian		Chairperson
Ms. Karen A. Heinz		Member
Mr. Thomas Lanyi		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 the nonjudicial punishment (NJP) imposed against him on 17 July 2000, be set aside, and that all rights and privileges be restored to him.

3. The applicant states, in effect, that he came up positive during a urinalysis for cocaine just prior to his separating from the service at Fort Huachuca, Arizona. Although he insisted to Criminal Investigation Division (CID) and his commander, that he did not use drugs and attempted to determine if another medication could have caused a false positive, his commander did not believe him and gave him NJP that resulted in a forfeiture of pay and rank. He further states that at the same time, another soldier came up positive and he and the other soldier had been to a social function at the same time. The other soldier discovered that someone had spiked the bottle of liquor that he and the other soldier had been drinking from and was able to present sufficient convincing evidence to show that cocaine was not knowingly used and the commander did not punish him. Unfortunately, by this time he had already separated from the service and no attempt was made to make him aware of this at the time. He goes on to state that he is a firefighter and that is all he wants to do is be a good firefighter. However, his career as a firefighter at Fort Huachuca is in jeopardy because of the NJP. In support of his application he submits a memorandum from the Sergeant Major of the unit at the time and a letter from the other individual who also tested positive at the time.

4. The applicant’s military records show that on 29 August 1996, he enlisted in Phoenix, Arizona for a period of 4 years and training as a medical specialist. He successfully completed his training and was transferred to Korea, where he served for 1 year, before being transferred to Fort Huachuca. He was advanced to the pay grade of E-4 on 1 September 1998. His expiration of term of service (ETS) was 28 August 2000.

5. On 17 July 2000, NJP was imposed against the applicant for the wrongful use of cocaine between 3 May and 9 May 2000, as determined by a command directed urinalysis. His punishment consisted of a reduction to the pay grade of E-3 and a forfeiture of $321.00. The applicant did not appeal the punishment.

6. On 28 August 2000, he was honorably released from active duty in the pay grade of E-3, due to his ETS. He had served 4 years of total active service and was awarded the Army Achievement Medal, the Army Good Conduct Medal, the Army Service Ribbon, the Overseas Service Ribbon and the Driver and Mechanic Badges with Driver-W Bar. His record contains no information of a derogatory nature (other than the NJP).


7. The supporting memorandum from the sergeant major (SGM) of the applicant’s unit indicates that the applicant was a consistent top performer while he was assigned to the unit and when he tested positive for cocaine, he adamantly denied having used cocaine. However, he could produce no evidence to the contrary and was given NJP. He further states that another individual came up positive at the same time and was able to produce evidence from the Forensic Toxicology Drug Testing Lab in Hawaii that indicated that there was a great probability that the individual had consumed it from a spiked drink. Because of the question of guilt submitted in his defense, the commander dismissed the action. The command also discovered that the applicant had attended the same party; however, he had already separated from the service and there was nothing that could be done. The SGM opined that had the information been known at the time the applicant was being considered for punishment, his case would have been dismissed as well. He recommends relief in the applicant’s case.

8. The supporting letter from the other individual (a sergeant) who tested positive, indicates that he was the applicant’s supervisor at the time they tested positive and that they were socializing as families when the incident occurred. When he (the sergeant) tested positive, he was shocked because he did not use drugs and attempted to find out how it could happen. During the weeks preceding his hearing, he received several phone calls indicating that his drinks had been spiked with cocaine by another soldier. After discovering this information, he presented this to his commander, who contacted the drug lab in Hawaii. The officials at that agency informed his commander that based on his urinalysis (level of concentration), it was very probable that he had consumed it without his knowledge and that there were other documented cases of this nature. He goes on to state that the commander dismissed the charges against him and expressed his regret at having given the applicant NJP. Upon leaving the commander’s office, he and his commander approached the SGM to find out what could be done for the applicant and the SGM indicated that it would be looked into; however, nothing was ever done to correct the injustice. He also states that he has always felt guilty about the incident because he invited the applicant and his wife to the affair and allowed some uninvited company to remain, which injured a good soldier and his family.

9. Army Regulation 27-10 provides the policies and procedures for the administration of military justice within the Army. It provides, in pertinent part, that nonjudicial punishment may be set aside and all rights and privileges restored. This is an action whereby the punishment or any part of the punishment is set aside and any rights, privileges or property affected by the punishment is restored to the individual concerned. NJP is “wholly set aside” when the commander who imposed the punishment. A successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under Article 15. The basis for any set aside action is a determination that, under all of the circumstances of the case, the punishment has resulted in a clear injustice. Clear injustice means there exists an unwaived legal or factual error, which clearly and affirmatively injured the substantial rights of the soldier. An example of clear injustice would be the discovery of new evidence unquestionably exculpating the soldier.

CONCLUSIONS:

1. Although the Board does not take such matters lightly, it appears, based on the evidence submitted by the applicant and a review of his otherwise excellent record of service, that new evidence became available after the applicant had separated from the service, which would have resulted in the charges against him being dismissed.

2. While the evidence submitted does not establish his innocence in the matter, the Board finds that there exists a reasonable doubt that the applicant knowingly and wrongfully used cocaine, as the NJP he received implies. Accordingly, the Board finds that there was reasonable doubt that the applicant knew he was ingesting cocaine and therefore, should be given the benefit of any doubt in this matter.

3. The Board also finds the supporting statement from the SGM at the time is very telling in regards to the command’s intentions at the time and given the doubts expressed, the Board finds that the NJP should be set aside, and that all rights privileges and property be restored to the applicant.

4. Additionally, the applicant’s records should be corrected to show that he was honorably released from active duty in the pay grade of E-4 and that the CID Command be informed of the corrected final action of his case so that their records may reflect that no punishment was imposed.

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:

a. by setting aside the NJP imposed against the individual concerned on 17 July 2000, and restoring all rights and property withheld from him.

b. by showing that the individual concerned was honorably released from active duty on 28 August 2000 in the pay grade of E-4; and

c. by notifying the CID Command of the final actions taken in this case so that their records may be updated accordingly.

BOARD VOTE:

___kah__ __ao____ ___tl____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ____Arthur A. Omartian_____
                  CHAIRPERSON

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INDEX

CASE ID	AR2002067911
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/07/30
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 277	126.0000/NJP
2.
3.
4.
5.
6.