RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            26 May 2005
      DOCKET NUMBER:   AR20040006791


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Ms. Seema E. Salter               |     |Member               |
|     |Ms. Susan A. Powers               |     |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 requested that his Article 15 dated 18 April 2003 be
removed from the restricted fiche of his Official Military Personnel File
(OMPF).  On         20 May 2005, he amended his application to request the
Article 15 be set aside and that all rights and privileges be restored.

2.  The applicant states that the urinalysis and collection procedures were
not administered in accordance with Army Regulation 600-85.

3.  The applicant provides his separation packet; a memorandum for record
dated 29 January 2003; the U. S. Army Criminal Investigation Command (CID)
report; three sworn statements (from himself, the Unit Prevention Leader
(UPL), and the observer); two emails from his Trial Defense Service
counsels; an email dated 4 August 2004 from his first sergeant; a blank
Staff Assistance Visit Issuing Agent Responsibilities Checklist (in
reference to ration control); an extract from Army Regulation 600-85; a
letter of appeal; 14 DA Forms 2823 (Sworn Statement), apparently obtained
by the applicant; his Enlisted Record Brief, and the DA Form 2627 (Record
of Proceedings under Article 15, UCMJ).

CONSIDERATION OF EVIDENCE:

1.  After having had prior service, the applicant enlisted in the Regular
Army on 16 February 1993.  He was promoted to Staff Sergeant, E-6 on 1 July
2000.  He was assigned to Service Battery, 2d Battalion, 17th Field
Artillery, Division Artillery, Korea on or about 19 December 2002.

2.  On 26 December 2002, the applicant's unit conducted a urinalysis.  The
applicant's specimen tested positive for marijuana.

3.  On 29 January 2003, the applicant, in a memorandum for record, stated
that during the urinalysis the observer carried the bottle into the latrine
and handed it to him (the applicant) who then filled it.  He gave it back
to the observer and they both went to the desk were the Unit Alcohol and
Drug Coordinator (currently known as the UPL) was sitting.  Already at the
table were other Soldiers waiting for their bottle to be processed.  The
observer told him to keep an eye on his bottle and the observer put it on
the desk in front of the UPL along with two other bottles that were on the
table at the time.  The applicant stated he was told to keep his eyes on
his bottle.  He was having idle conversation with other people in the room
and he failed to keep his eyes on his bottle.  Too many Soldiers and
observers were at the table at one time and that caused some distractions
for the UPL.

4.  In a sworn statement for the CID investigation, the UPL explained the
procedures followed during a urinalysis.  He stated that, after the Soldier
has given his sample, the Soldier hands the specimen cup to the observer.
From that time on, the observer then retained control of the urine cup.
The observer carried the urine sample from the urinal and set the specimen
cup on the UPL's desk.  When asked how many urine samples were on the table
at any one given time, he replied, "No more than two urine samples were on
the table at a time."  When asked if the urinalysis was conducted in
accordance with the governing regulation, he replied, "Absolutely."

5.  In a sworn statement for the CID investigation, the observer explained
the procedures followed during a urinalysis.  He stated that, after the
Soldier gave his specimen, the Soldier would hand him the specimen cup.  He
would then carry the urine sample and escort the Soldier back to the desk
where the UPL was seated.  If the UPL had someone else at the desk, the
observer either held the urine sample or placed the sample on the opposite
side of the desk from where the UPL was working.  If he placed the cup
down, he placed his finger on the cup and had the Soldier remain with him
to ensure there was no confusion with the samples.  When asked how many
urine samples were on the table at any one given time, he replied, "Never
more than two.  One that was being processed and one that I may have been
holding."  When asked if the urinalysis was conducted in accordance with
the governing regulation, he replied, "Yes."

6.  On 18 April 2003, the applicant accepted nonjudicial punishment under
Article 15, Uniform Code of Military Justice (UCMJ) for, between on or
about 26 October 2002 and 26 December 2002, wrongfully using marijuana.
His punishment was a reduction to Sergeant, E-5, a forfeiture of $1,100 for
2 months (suspended), and extra duty for 45 days.  The imposing commander
directed the Article 15 be filed in the restricted fiche of his OMPF.  The
applicant appealed the punishment.

7.  In his appeal, the applicant stated that he had dedicated almost 19
years to the Army.  He wanted to say that he did not do drugs.  He stated
that the CID did not do a thorough job of investigating the matter because
they did not question either the Soldier in front of the applicant or
behind him [at the urinalysis], nor did they question any of the other
Soldiers [at the urinalysis].  The only two Soldiers questioned were the
UPL and the observer.  The UPL was first read his rights for dereliction of
duty and obstruction of justice.  The UPL was essentially asked whether he
was derelict or obstructed justice and he said, "no."  The UPL and the
observer had a personal interest in stating that the urinalysis was
conducted flawlessly.  However, they did not follow the regulatory
procedures.  The
applicant requested the commander look at all the material and ask himself
if a mistake could have been made.

8.  On 30 April 2003, the applicant's appeal was denied.

9.  On 18 July 2003, separation action was initiated on the applicant for
misconduct, commission of a serious offense.  The applicant requested
consideration of his case by an administrative separation board and
requested personal appearance before an administrative separation board.
Apparently, his battalion and regimental commanders recommended disapproval
of the separation action and the action went no further.

10.  The applicant was promoted to Staff Sergeant, E-6 on 1 January 2004.

11.  Army Regulation 600-85 (Army Substance Abuse Program (ASAP)), dated  1
October 2001, Appendix E provides standing operating procedures for
urinalysis collection, processing, and shipping.  Paragraph E-5 states that
the Soldier will ensure that the observer has full view of the bottle at
all times until the UPL takes custody of the specimen.  At no time will the
observer take custody of the urine specimen.  After the collection is
taken, the Soldier will hand the bottle containing his/her specimen to the
UPL.  Both the Soldier and observer will continue to keep the bottle in
sight at all times until the UPL places the specimen in the collection box.
 The UPL will take the bottle, verify that the cap is secure, and inspect
the specimen for possible adulteration.  The UPL will then place tamper-
evident tape across the bottle cap, initial the bottle label, and place the
specimen in the collection box.

12.  Army Regulation 27-10 prescribes policies and procedures pertaining to
the administration of military justice.  Paragraph 3.4 states that a
commander will personally exercise discretion in the nonjudicial process,
evaluate the case to determine whether proceedings under Article 15 should
be initiated and determine whether the Soldier committed the offense where
Article 15 proceedings are initiated and the Soldier does not demand trial
by court-martial.  Paragraph 3.13 states that the authority to impose
nonjudicial punishment charges a commander with the responsibility of
exercising the commander’s authority in an absolutely fair and judicious
manner.  Paragraph 3.14 states that the commander of the alleged offender
must ensure that the matter is investigated promptly and adequately.
Paragraph 3.18L states that punishment will not be imposed unless the
commander is convinced beyond a reasonable doubt that the Soldier committed
the offense.

13.  Department of the Army Pamphlet 27-9, Military Judges’ Benchbook,
paragraph 2-29 states that by “reasonable doubt” is intended not a fanciful
or ingenious doubt or conjecture, but an honest, conscientious doubt
suggested by the material evidence or lack of it in the case.  It is an
honest misgiving generated by insufficiency of proof of guilt.  Proof
beyond a reasonable doubt means proof to an evidentiary certainty although
not necessarily to an absolute or mathematical certainty.  The proof must
be such as to exclude not every hypothesis or possibility of innocence, but
every fair and rational hypothesis except that of guilt.  If, on the whole
evidence, (the jury) is satisfied beyond a reasonable doubt of the truth of
each and every element, then (the jury) should find the accused guilty.

DISCUSSION AND CONCLUSIONS:

1.  Aside from proclaiming his innocence of the drug offense, the
applicant's primary contention is that the urinalysis and collection
procedures were not administered in accordance with Army Regulation 600-85.


2.  The applicant is absolutely correct in his contention.  Despite the
statements of the UPL and observer swearing that the urinalysis was
conducted in accordance with the governing regulation, which had been in
effect for over one year, the evidence of record shows that the guidance
was violated.  The guidance is that at no time will the observer take
custody of the urine specimen.  After the collection is taken, the Soldier
will hand the bottle containing his/her specimen to the UPL.

3.  At the applicant's urinalysis, after the applicant gave his sample, he
handed the specimen cup to the observer.  From that time on, the observer
retained control of the urine cup and the observer carried the urine sample
from the urinal and set the specimen cup on the UPL's desk.  Even if he had
been told to "keep his eye on the bottle," the applicant clearly had little
or no control over his specimen contrary to regulatory guidance.

4.  While it appears the applicant's commander investigated the incident
promptly, there is a question as to whether the incident was investigated
adequately.  Even a cursory review of the regulation to compare urinalysis
collection guidance against the sworn statements of the UPL and the
observer would have revealed the guidance was flagrantly violated.

5.  Such flagrant violations of the regulation raise reasonable doubts in
the mind of the Board that the applicant committed the offense.  It would
therefore be
equitable to set aside the Article 15 and restore to the applicant all
rights and privileges he lost when the punishment from that Article 15 was
imposed.

BOARD VOTE:

__mhm___  __ses___  __sap___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by
setting aside the Article 15 dated 18 April 2003 and restoring to him all
rights and privileges he lost when the punishment from that Article 15 was
imposed.




            __Melvin H. Meyer_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040006791                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050526                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |126.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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