MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 3 July 2003
         DOCKET NUMBER: AR2003084139

         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Ms. Kathleen A. Newman		Member
Mr. Patrick H. McGann		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: The vacation of a Record of Nonjudicial Punishment (NJP) dated 17 March 1999 and reinstatement to active duty or as an alternative, that he be granted retirement with 18 years of service.

APPLICANT STATES: That the imposing commander denied him his un-waived right to present evidence in extenuation and mitigation during the NJP proceedings, that the commander ignored the evidence presented, that the members of the administrative separation board failed to advise him of his rights under Article 31(b), Uniform Code of Military Justice (UCMJ) and that the board members considered evidence not admitted during a closed session of the hearing. In support of his application he submits numerous documents that are listed on his application to the Board.

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

He enlisted in Detroit, Michigan, on 21 January 1982, for a period of 3 years, training as an administrative specialist and assignment to Fort Jackson, South Carolina. He successfully completed his basic combat training at Fort Dix, New Jersey, and was transferred to Fort Jackson to complete his advanced individual training (AIT). He completed his AIT and remained assigned to Fort Jackson. He was advanced to the pay grade of E-4 on 1 May 1983.

He was transferred to Germany on 28 December 1983 and on 4 April 1985, while serving as an E-4 on the promotion standing list, NJP was imposed against him for the wrongful use of marijuana, as detected by a urinalysis. His punishment consisted of a reduction to the pay grade of E-3, a forfeiture of pay, extra duty and restriction.

He was again advanced to the pay grade of E-4 on 1 July 1985 and reenlisted on 30 September 1986, for a period of 3 years and assignment to Fort McClellan, Alabama.

While at Fort McClellan, he again attained promotion list standing, attended court reporter training, was reclassified to military occupational specialty (MOS) 71E and reenlisted on 18 October 1988, for a period of 4 years. He was promoted to the pay grade of E-5 on 1 January 1989 and was transferred to Germany on 21 January 1989.

He was promoted to the pay grade of E-6 on 1 July 1991 and served both in Germany and during a deployment to Southwest Asia for 4 months during Operation Desert Shield/Storm. He departed Germany on 7 January 1992 and was transferred to Fort Leonard Wood, Missouri, where he remained until he was transferred to Korea on 22 July 1995. He was promoted to the pay grade of E-7 in MOS 71D (legal specialist) on 1 April 1996 and departed Korea on 22 July 1996, for assignment to Fort Jackson.
On 9 March 1999, the applicant's commander notified him that he was considering whether he should be punished under Article 15, UCMJ, for his wrongful use of marijuana, on or about 19 January 1999.

After having been afforded the opportunity to consult with counsel, the applicant declined trial by court-martial and elected to have an open hearing with a person to speak in his behalf and to submit matters in defense, mitigation and extenuation.

On 17 March 1999, the commander imposed NJP against the applicant. His punishment consisted of a forfeiture of pay and the commander directed that the Record of NJP (DA Form 2627) be filed on the performance fiche of his Official Military Personnel File (OMPF).

The applicant submitted an appeal of the NJP on 4 April 1999 and the appropriate authority (a brigadier general) denied his appeal on 15 April 1999.

On 1 June 1999, the applicant's commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, paragraph 14-12c, for serious misconduct, based on his wrongful use of marijuana. The applicant acknowledged receipt of the notification, which outlined his rights, on the same day.

The applicant received a relief for cause noncommissioned officer (NCO) evaluation report (NCOER) on 15 June 1999, covering the period from November 1998 through May 1999, evaluating him as the only NCO in the Army responsible for training senior legal noncommissioned officers attending the advanced NCO course (ANCOC). The only negative ratings and comments on the report were related to his positive urinalysis results.

On 13 July 1999, the commander initiated action to separate him from the service and on 21 October 1999, the applicant appeared before an administrative separation board represented by counsel. The Board members and recorder were sworn in and the applicant acknowledged that he understood his rights.

Information obtained from the transcript of the hearing shows that the applicant's brother-in-law provided a statement, apparently to Criminal Investigation Division (CID) officials, that was entered into the proceedings and which he stated that he was at the applicant's house watching a football game and drinking moonshine and beer. He also stated that the applicant asked him for a cigarette and without thinking he gave him his pack of cigarettes, which contained blunted cigarettes that contained marijuana. It was not until he returned home that he realized that the applicant may have taken a couple of his marijuana laced cigarettes. The brother-in-law accepted responsibility for giving the applicant marijuana cigarettes without his knowledge. The brother-in-law was not present at the hearing.

The summarized transcript shows that the applicant's defense counsel initially objected to the admittance of the NJP dated in April 1985, in which the applicant was punished for the use of marijuana.

Testimony from the commander who imposed the NJP against the applicant and initiated separation proceedings, indicates that the applicant submitted a "Good Soldier Book" to the commander which contained an extensive collection of his achievements and characterization of service, to include a picture of his family, which the commander considered as matters of extenuation and mitigation. The commander testified that he was trying to ascertain the applicant's guilt or innocence in the matter, especially since he was claiming innocent ingestion and the only evidence submitted were statements from his wife and brother-in-law, which he found contained discrepancies. He talked to them to ascertain whether it was in fact innocent ingestion and then asked the applicant if any of the witnesses could add anything more to what they had said or what was in his good soldier book. The applicant responded with a negative response. The commander also indicated that he had been made aware that the applicant had previously received NJP for drug use and that he was serving as the unit drug and alcohol coordinator (UADC) and when he questioned the applicant whether he had made his chain of command aware of the NJP before he attended training, the applicant responded that he had intentionally not disclosed the information because he felt it would jeopardize his career. The commander
believed that his failure to do so was an integrity issue.

Testimony was also given by several senior noncommissioned officers, a major general (telephonically), a captain and a warrant officer, who all attested to the applicant's character and performance. All of them supported his retention on active duty and his assertion of innocence.

The applicant made an un-sworn statement in which he asserted that his brother-in-law had given him cigarettes, which he smoked and which unknowing to him, contained marijuana. He thanked the board members for the patience they displayed in reviewing the evidence and testimony and requested that they be fair in their decision. He also informed them that if they believed he should be separated, he could live with that decision; however, he requested that they characterize his service as honorable.

After considering the evidence and testimony presented, the board found that the preponderance of the evidence showed that the applicant willfully and wrongfully used marijuana. The board recommended that he be discharged for commission of a serious offense and that he be issued a General Discharge Certificate.

On 2 November 1999, the applicant's counsel submitted a memorandum to the commanding general requesting that he disapprove the board's findings and recommendations. He cited as the basis for his request, his assertion that the imposing commander (NJP) did not advise the applicant of his Article 31(b) rights and that he failed to permit several witnesses to testify regarding the applicant's service record. He also contended that the recorder failed to properly record the entire testimony rendered telephonically by the major general because he changed the tape while testimony was being given.

A legal review was conducted by the installation Staff Judge Advocate's (SJA) office on 3 November 1999, which opined, in effect, that the applicant's Article 31(b) rights were contained on the record of NJP (DA Form 2627) signed by the applicant, that a previous review by the SJA determined that the proceedings were conducted in accordance with law and regulations, that the purpose of recording a hearing is to assist in preparing summarized proceedings, that the members were present to hear the testimony, and that it did not jeopardize his rights.

On 5 November 1999, the appropriate authority (a brigadier general) approved the findings and recommendation of the board.

Accordingly, he was discharged under honorable conditions on 1 January 2000, under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct. He had served 17 years, 11 months and 11 days of total active service.

On 1 May 2001, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge contending that his discharge was unjustly based on one isolated incident and that he should have received an honorable discharge based on his overall record of service. The ADRB opined that the NJP from a previous period of honorable service could not be considered in determining the character of service for the period under review and voted to grant relief in the form of an upgrade of his service to fully honorable. However, the board found that his reason for discharge was proper and voted unanimously not to change it. Accordingly, his discharge was upgraded to reflect that he was honorably discharged by reason of misconduct.

A review of the video tape submitted by the applicant shows that in the course of less than 2 minutes, the applicant demonstrates the process he calls "blunting" a cigarette, whereby he removes the filter from a cigarette, explains that other substances can then be inserted and then the filter replaced, without the cigarette being altered to look as if it has been tampered with. He then replaces the filter and shows it compared to three other cigarettes, which he asserts have not been tampered with. He makes this demonstration to show the circumstances in which he contends he was caught up in and resulted in his discharge.

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 un-waived 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.

Army Regulation 635-200 serves as the authority for enlisted separations. Paragraph 14-12c (2) provides for the separation of enlisted soldiers for misconduct based on the abuse of illegal drugs. It states, in pertinent part, that abuse of illegal drugs is serious misconduct that may warrant separation action based on commission of a serious offense. In the event that there are mitigating factors, a single drug offense may be combined with one or more minor disciplinary infractions or incidents of misconduct and processed for separation. The commander makes the determination to process first-time drug offenders serving in the pay grades of E-1 to E-4 and both the immediate and intermediate commanders must make recommendations for separation or retention as well as characterization of service. For personnel serving in the pay grade of E-5 and above, separation processing is mandatory. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

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. The NJP was properly imposed against the applicant in accordance with applicable laws and regulations and the punishment imposed appears to be appropriate under the circumstances.
3. Likewise, the applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors, which would tend to jeopardize his rights. Notwithstanding the actions by the ADRB, the type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

4. The Board has noted the applicant's contentions that he was denied the right to present evidence in extenuation and mitigation and finds it to be without merit. The commander testified that the applicant submitted such matters to him in the form of a "Good Soldier Book", that he personally interviewed the two witnesses that could offer information regarding his assertion of innocent ingestion, and that he specifically asked the applicant if his other witnesses could add anything other than what he had already presented and he (the applicant) responded that they could not.

5. The Board has also noted the applicant's contention that he was not advised of his rights during the administrative board proceedings and that the transcript was not correct because testimony that was not taped is not reflected due to the recorder changing the tape during a telephonic interview/testimony and finds it to be without merit. Notwithstanding that the applicant was a legal NCO, the summarized transcript clearly indicates that the applicant acknowledged that he understood his rights. Additionally, the fact that a portion of testimony was not recorded, does not take away from the validity of the testimony that was heard by the members of the board who were present at the time and who rendered their decision without a transcript or tape, but simply on testimony and evidence submitted at the time.

6. At the time the applicant was notified that the commander was considering imposing NJP against him, he was provided with a copy of the Record of NJP (DA Form 2627) in order to consult with counsel. That form contained his rights under Article 31, UCMJ, and the applicant has failed to show through the evidence submitted or the evidence of record that his rights were denied or violated.

7. While the applicant has continued to assert his innocence, the Board notes that he had the right to demand trial by court-martial, whereas he could have asserted his innocence before a trial by his peers. However, he elected not to risk a felony conviction that could have resulted had he been convicted. He also was not successful in convincing either the commander imposing the NJP or the administrative separation board, who had the opportunity to interview the applicant and his witnesses as well as evidence that was fresh at the time. Likewise, he has failed to convince the Board that he unknowingly ingested an unlawful drug through no fault of his own.

8. 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

__kan___ __rvo ___ __pm____ DENY APPLICATION

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

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INDEX

CASE ID	AR2003084139
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/07/03
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 277	126.0000/njp
2. 192	110.0300/reinstate
3.
4.
5.
6.