RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           11 August 2005
      DOCKET NUMBER:  AR20040008938


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Ms. Deborah Jacobs                |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 a 14 June 1999 Nonjudicial
Punishment (NJP) action imposed on him under the provisions of Article 15
of the Uniform Code of Military Justice (UCMJ) be set-aside.

2.  The applicant states, in effect, he did not knowingly use cocaine.

3.  The applicant provides the following documents in support of his
application:  Administrative Separation Board (ASB) Summary of Proceedings
and Legal Counsel Memorandum.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 31 December 2000.  The application submitted in this case
is dated 12 October 2004.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  On 1 July 1998, while serving as a sergeant first class (SFC) in
Germany, the applicant accepted NJP under the provisions of Article 15 of
the UCMJ, for driving while impaired.  His punishment for this offense was
a forfeiture of $1149.00 pay per month for two months (one month suspended)
and 14 days extra duty.  He elected not to appeal the NJP action.

4.  On 2 April 1999, a Department of the Army (DA) memorandum notified the
applicant that the Calendar Year 1999 (CY99) Master Sergeant (MSG)
Promotion Selection Board (PSB) determined he should be barred from
reenlistment under the provisions of the Qualitative Management Program
(QMP) based on his 1 July 1998 Article 15.

5.  On 1 June 1999, while he was serving as a SFC at Fort Lewis,
Washington, the applicant was notified that his battalion commander was
considering whether he should be punished under Article 15 of the UCMJ for
wrongfully using cocaine between on or about 23 March and 22 April 1999.
6.  On 8 June 1999, the applicant elected not to demand a trial by court-
martial, and instead chose for the matter to be handled by his battalion
commander at a closed hearing.

7.  On 14 June 1999, the applicant’s battalion commander, after having
considered all matters presented in defense, mitigation and/or extenuation
at a closed hearing, imposed the following punishment on the applicant:
forfeiture of $1,224.00 per month for 2 months and extra duty for 45 days
(suspended).

8.  On 14 June 1999, the applicant appealed the punishment imposed.  The
appeal document and/or evidence submitted by the applicant is not on file
in the applicant’s Official Military Personnel File (OMPF), and was not
provided by the applicant with his application.

9.  On 16 June 1999, a Judge Advocate General (JAG) representative reviewed
the applicant’s appeal and opined that the Article 15 proceedings were
conducted in accordance with the applicable law and regulations.  He
further stipulated that the punishment imposed was not disproportionate to
the offenses committed.

10.  On 22 June 1999, the applicant’s brigade commander, the appellate
authority, considered all matters presented and denied the applicant’s
appeal.

11.  On 31 December 2000, the applicant was honorably released from active
duty (REFRAD) for the purpose of retirement.  The DD Form 214 he was issued
confirms he held the rank of SFC and that he had completed a total of 20
years and 2 days of active military service.

12.  In support of his application, the applicant provided a copy of the
ASB proceedings completed on him in 1999, and a copy of a legal counsel
memorandum requesting the Article 15 in question be set-aide.  The summary
shows the ASB found the allegation that the applicant wrongfully used
cocaine was not supported by a preponderance of the evidence, and as a
result, his separation for abuse of illegal drugs was not warranted.  The
ASB recommended the applicant be retained in the Army and receive a
rehabilitative transfer.

13.  The 15 January 2000 set-aside request submitted to the commander I
Corps and Fort Lewis by legal counsel, on behalf of the applicant, stated,
in effect, there was insufficient evidence to form the basis of the 14 June
1999 Article 15 imposed on the applicant, and it failed to show the
applicant’s guilt beyond a reasonable doubt.

14.  Counsel further indicated the set-aside request was based on new
evidence gleaned on 3 December 1999, during the applicant’s ASB
proceedings.  This new evidence was primarily the testimony of a
toxicologist from Tripler Army Medical Center (TAMC) that, in effect,
indicated the applicant’s innocent ingestion of cocaine could not be ruled
out by the urinalysis.  Further, witness testimony established the
applicant had ingested Inca Tea containing cocaine prior to giving his
urine sample.

15.  In the set-aside request, counsel also cited case law he claimed, in
effect, prohibited the use of a positive urinalysis as the sole basis for
establishing the wrongful use of a controlled substance.  He finally
indicated the battalion commander did not fulfill a commitment to not
proceed with Article 15 action if an Inca Tea bag tested positive for
cocaine, as it was forwarded through the JAG.  The applicant provided no
documents related to legal reviews conducted on this request, or in regard
to the final decision taken on the matter and there is no documentation on
this request on file in his OMPF.

16.  Army Regulation 27-10 (Military Justice) prescribes the policies and
procedures pertaining to the administration of military justice.  Chapter 3
implements and amplifies Article 15, UCMJ.  Paragraph 3-18 contains
guidance on notification procedures and explanation of rights.  It states,
in pertinent part, that the imposing commander will ensure the Soldier is
notified of the commander's intention to dispose of the matter under the
provisions of Article 15. It further stipulates the Soldier will be
informed of the following:  the right to remain silent, that he/she is not
required to make any statement regarding the offense or offenses of which
he/she is suspected, and that any statement made may be used against the
Soldier in the Article 15 proceedings or in any other proceedings,
including a trial by court-martial.

17.  Paragraph 3-18 further states the Soldier will be informed of the
right to counsel, to demand trial by court-martial, to fully present
his/her case in the presence of the imposing commander, to call witnesses,
to present evidence, to request to be accompanied by a spokesperson, to an
open hearing, and to examine available evidence.

18.  Paragraph 3-28 of the military justice regulation provides guidance on
setting aside punishment and restoration of rights, privileges, or property
affected by the portion of the punishment set aside.  It states, in
pertinent part, that the basis for any set aside action is a determination
that, under all the circumstances of the case, the punishment has resulted
in a clear injustice.  "Clear injustice" means there exists an unwaived
legal or factual error that 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.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the Article 15 imposed on him should be
set-aside because he did not knowingly ingest cocaine, and the supporting
documents he submitted were carefully considered.  However, there is
insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant’s Article 15 processing
was accomplished in accordance with the governing law and regulation, and
that the applicant’s rights were fully protected throughout the process.
The applicant was notified of the battalion commander’s intent to handle
the offense in question under the provisions of Article 15.  After being
afforded the opportunity to consult with legal counsel, the applicant
elected not to demand a trial by court-martial and elected to have his case
disposed of through Article 15 proceedings at a closed hearing with his
battalion commander.

3.  The evidence clearly shows the applicant was aware he had the right to
fully present his case in the presence of the imposing commander, to call
witnesses, to present evidence, to request to be accompanied by a
spokesperson, to an open hearing, and to examine available evidence at the
time he made these elections.

4.  The record further shows that subsequent to the Article 15 hearing, at
which the applicant presented matters of defense, mitigation, and/or
extenuation, NJP action was imposed for the applicant’s wrongful use of
cocaine.  The applicant appealed the NJP action and again had the
opportunity to present his case to appellate authorities.  Subsequent to a
legal review, which determined the NJP action was legally sufficient, the
appellate authority denied this appeal.

5.  By regulation, the basis for any set aside action is a determination
that, under all the circumstances of the case, the punishment resulted in a
clear injustice. "Clear injustice" (i/e discovery of new evidence
unquestionably exculpating the Soldier), means there exists an unwaived
legal or factual error that clearly and affirmatively injured the
substantial rights of the Soldier.

6.  The ASB findings and recommendations and the witness testimony
presented by the applicant provide circumstantial evidence that his
ingestion of cocaine could have possibly been from the innocent ingestion
of BZE through the use of Inca Tea.  However, the same evidence was
available to and/or considered by the battalion commander at the time of
the applicant’s Article 15 hearing, and during the Article 15 appellate
process.  As a result, it provides no new argument or evidence that was not
available at the time, and does not unquestionably exculpate the applicant.

7.  The evidence of record and the independent evidence provided by the
applicant, while providing a viable argument, do not appear to show there
was a fatal legal or factual error made in the Article 15 process that
would support setting aside the NJP action imposed.  Therefore, the “Clear
Injustice” regulatory standard necessary to set-aside an Article 15 has not
been satisfied in this case.

8.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JNS__  ___DJ __  __MJF__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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

2.  The Board further determined there is no evidence provided which shows
it would be in the interest of justice to excuse the applicant's failure to
timely file this application within the 3-year statute of limitations
prescribed by law.  Therefore, there is insufficient basis to waive the
statute of limitations for timely filing or for correction of the records
of the individual concerned.




            ____John N. Slone______
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040008938                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/08/11                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2000/12/31                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Retirement                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  267  |123.0700                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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