RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         06 JANUARY 2005
      DOCKET NUMBER:  AR2004106846


      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             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Richard Dunbar                |     |Member               |
|     |Ms. Yolanda Maldonado             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that documents associated with her
October 2002 nonjudicial punishment be expunged from her OMPF (Official
Military Personnel File) and from records screened for security purposes,
which she refers to a her “Security Dossier.”  She asks that if the Board
does not expunge the information that the record of proceedings be changed
to show violation of Article 92 vice Article 112a.

2.  The applicant states, in effect, that the “context” of her UCMJ
(Uniform Code of Military Justice) action is erroneous.  She notes that the
UCMJ action states that she violated Article 112a, wrongful use of
marijuana, a schedule I controlled substance, when her letter of reprimand
and polygraph test results clearly show that she did not use a controlled
substance, but rather, exercised poor judgment by using a dietary
supplement, hemp seed.  She states that such an act is punishable under
Article 92 of the UCMJ.

3.  She states that the supplements were purchased in Germany and there are
no United States regulatory guidelines for the THC concentration in hemp
seed products.  She states that hemp seed products do not cause a “high”
feeling.

4.  The applicant also states, in effect, that if she truly violated
Article 112a, under the “zero tolerance” rule her UCMJ action would not
have been filed in her restricted fiche and all of her punishment would not
be suspended.  She notes that her immediate chain of command supported her
and believed her during the time she received her punishment and that she
continues to work for the same agency.  She states that a separation board
determined that she should remain in the military and that the officer
imposing punishment did not have contact or knowledge of her character
prior to imposing punishment.  She also states that she has been promoted
since the incident.

5.  The applicant provides a copy of her polygraph test, a copy of her UCMJ
action, letter of reprimand and rebuttal statement, a copy of her retention
decision and letters of support from her chain command utilized as part of
her separation action, extracts from medical journals regarding hemp
products, and a copy of the hemp seed product bottle.  She also includes a
copy of her performance evaluation report following the incident and an
extract from Army Regulation 600-85, which notes the ingestion of hemp seed
oil, or products with hemp seed oil, is a violation of Article 92.



CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate that the applicant entered
active duty on 1 September 1994 and has served continuously through a
series of reenlistment actions.  She was promoted to pay grade E-5 in
August 2000.  Her performance evaluation reports are consistently
complimentary and she has been awarded several decorations including
several Army Achievement Medals, an Army Commendation Medal, and a
Meritorious Service Medal.

2.  On 24 September 2002 the applicant submitted a urine specimen as part
of a urinalysis test.  A 1 October 2002 report noted that her urine
specimen tested positive for THC.

3.  On 4 October 2002 the applicant was counseled concerning her positive
urinalysis test.  She was informed that she had tested positive for THC,
that her records would be flagged pending possible UCMJ action, that she
would be considered for elimination action, and referred for counseling.
The applicant acknowledged the counseling, marked the block “agree” with
the information above, and made no comment.

4.  On 8 October 2002 the applicant underwent a polygraph test administered
by the owner of Virginia Polygraph Service, a civilian company.  The tester
concluded that the applicant was being truthful when she answered questions
concerning the use of hemp seed oil supplements and that she did not
deliberately ingest anything containing THC.

5.  The applicant was notified on 29 October 2002 that her unit commander
was considering punishment under Article 15 of the UCMJ for violation of
Article 112a, wrongful use of marijuana, a Schedule I controlled substance.
 The applicant indicated that she did not demand trial by court-martial,
that she requested a closed hearing and would ask a person to speak on her
behalf.

6.  On 4 November 2002 the applicant was punished.  Her punishment included
a written reprimand, a suspended reduction to pay grade E-4, and a
suspended forfeiture of pay.  The applicant did not appeal.

7.  On 7 January 2003 the applicant received her letter of reprimand.  The
reprimand noted that she had tested positive for use of marijuana and that
during her Article 15 hearing she presented the commander “with a bottle of
pills that you indicated you took for a number of medical reasons.”  He
noted that the writing on the label was in German but that it clearly
showed two green marijuana plants on the bottle.  He stated that this
“would indicate to a reasonable person that this product most likely
contained THC, the active ingredient in marijuana.”

8.  In her rebuttal to the letter of reprimand, the applicant acknowledged
her poor professional judgment in taking the supplement for weight loss and
energy building, but there was no willful misconduct and she did not
knowingly ingest THC.  She stated that she had been using the supplement
since 1999 and that her recent weight loss of 10 pounds, more than she had
ever previously lost, could explain the high enough concentration of THC to
result in a positive test when she had not previously tested positive.  She
cited her polygraph administered by an impartial Virginia licensed examiner
and noted that she had agreed to take a CID (Criminal Investigation
Division) polygraph test as well, which “came out inconclusive.”

9.  The UCMJ action, letter of reprimand, and the applicant’s rebuttal are
all filed in the restricted portion of her OMPF.

10.  In an undated memorandum, the acting garrison commander at Fort
Belvoir, Virginia, noted that he had reviewed the findings and
recommendations of the administrative separation board and directed that
the applicant would be retained in the service on active duty.  The
statements of support, included with the applicant’s petition to this
Board, were apparently utilized to support her retention on active duty
during her elimination action.  The statements are highly complimentary of
the applicant’s character and duty performance, although none of them
mention use of the hemp seed supplements.

11.  In September 2003 the applicant was promoted to pay grade E-6.

12.  Army Regulation 27-10, which establishes the policies and provisions
pertaining to the administration of military justice, states, in pertinent
part, that nonjudicial punishment is imposed to correct misconduct in
violation of the UCMJ.  Such conduct may result from intentional disregard
of, or failure to comply with, prescribed standards of military conduct.
Article 15 proceedings are not adversarial in nature and the commander is
not bound by the formal rules of evidence before courts-martial.  As an
example, the formal rules of evidence before a court-martial preclude
certain hearsay testimony, whereas a commander imposing nonjudicial
punishment may consider any matter, including unsworn statements that he
reasonably believes to be relevant to the offense in question.  It also
provides that the officer imposing NJP determines whether the report of NJP
is to be filed on the individual’s restricted or performance fiche.


13.  The regulation notes, in effect, that prior to imposing nonjudicial
punishment the imposing commander should investigate the matter promptly
and adequately. The investigation should provide the commander with
sufficient information to make an appropriate disposition of the incident.
The investigation should cover whether an offense was committed, whether
the Soldier was involved, and the character and military record of the
Soldier.  Usually the preliminary investigation is informal and consists of
interviews with witnesses and/or review of police or other informative
reports.  If, after the preliminary inquiry, the commander determines,
“based on the evidence currently available, that the Soldier probably has
committed an offense and that a nonjudicial punishment procedure is
appropriate” he should take action as set forth in the regulation.
Included in those actions is the Soldier’s right to demand a trial.  The
demand for trial may be made at any time prior to imposition of punishment.


14.  However, the regulation also states that a commander should not impose
punishment unless he is convinced “beyond a reasonable doubt” that the
Soldier committed the offense.

15.  Black’s Law Dictionary defines “beyond a reasonable doubt” as, “fully
satisfied, entirely convinced, satisfied to a moral certainty….”
Reasonable doubt is defined as, “such a doubt as would cause prudent men to
hesitate before acting in matters of importance to themselves.”

16.  Army Regulations, which establish the responsibilities, policies, and
procedures for maintaining and controlling the OMPF, state that the
restricted fiche is the OMPF section for historical date that may normally
be improper for viewing by selection boards or career managers.  The
restricted fiche ensures that an unbroken, historical record of a member’s
service, conduct, duty performance, evaluation periods, and corrections to
other parts of the OMPF is maintained.  It is intended to protect the
interest of the member and the Army.

DISCUSSION AND CONCLUSIONS:

1.  The evidence available to the Board indicates that when initially
counseled regarding her positive urinalysis test the applicant indicated
that she agreed with the information contained in the counseling statement
and did not raise the issue regarding the possibility that her hemp seed
oil supplements were the source of the positive result.  She produced the
supplement bottle during her UCMJ hearing and yet did not demand a trial by
court-martial or argue then that she



should more appropriately be punished for violation of Article 92 vice
Article 112a.  She also did not make that argument in her rebuttal to the
letter of reprimand and her use of that argument now is not sufficiently
compelling to conclude that corrective action is necessary or that any
error or injustice has occurred.

2.  Notwithstanding the applicant’s arguments, there is no evidence that
her UCMJ action was handle inappropriately or unjustly.  The fact that the
record of proceedings was filed in her restricted fiche, that part of the
punishment was suspended, or that an administrative separation board
determined that she should be retained on active duty, is not evidence that
punishment for violation of Article 112a was erroneous, or that anyone
believed the applicant’s claim that her supplements were the source of her
positive urinalysis.  Rather the filing determination, suspended
punishment, and retention action, were likely a reflection that the
individuals involved in her case recognized that she was a strong Soldier
who had performed well and received several awards in recognition of her
meritorious service and that her career should not be entirely destroyed by
this single incident.

3.  The record of NJP contained in her restricted fiche, the letter of
reprimand, and her rebuttal to it, provides sufficient information to
anyone who might have access to that information in the future.  Those
document enable such individuals to see the applicant’s argument along with
a record of her chain of command’s actions.  The action is filed
appropriately and in accordance with applicable rules and regulations.

4.  In order to justify correction of a military record the applicant must
show, 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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__FE  ___  ___RD __  ___YM__  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.





                                  ______Fred Eichorn_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004106846                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050106                                |
|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.       |126.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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