RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            20 JUNE 2006
      DOCKET NUMBER:   AR20050010886


      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. Robert Duecaster              |     |Chairperson          |
|     |Ms. Carol Kornhoff                |     |Member               |
|     |Ms. Maureen Viall                 |     |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 the Record of Nonjudicial
Punishment (DA Form 2627), dated 28 February 2003, be set aside, with all
rights, privileges and property restored; that it be removed from his
Official Military Personnel File (OMPF); that the Officer Evaluation Report
(OER), dated 29 November 2002, be removed from his OMPF; that his
administrative separation be reversed and his records corrected to reflect
that he was honorably released from active duty (REFRAD) on 12 January
2004; that he be re-certified under Article 27(b) of the Uniform Code of
Military Justice (UCMJ); that he be reinstated to practice before courts-
martial and the Army Court of Criminal Appeals (ACCA); and that he be
reinstated to active duty and promoted with entitlement to all back pay and
allowances.

2.  The applicant states, in effect, that the nonjudicial punishment (NJP)
was unlawfully imposed based on a prior and undisclosed agreement to impose
punishment between the imposing authority and the delegating authority.  He
also states that the evidence submitted during the NJP proceedings did not
meet the government’s burden of proof beyond a reasonable doubt, but rather
indicated innocence.  He also notes that the Federal Government has now
abandoned its attempt to ban hemp seed oil.  He continues by stating that
the results of the Board of Inquiry are still insufficient and that all
subsequent actions that occurred were based on the erroneous NJP.
Additionally, the Army held him past his expiration of term of service
(ETS) in order to process him for administrative separation.

3.  The applicant provides an additional two-page explanation of his
application and a binder containing 36 tabbed supporting documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 17 August 1970.  He was commissioned as a
United States Army Reserve (USAR) second lieutenant upon graduation from
Virginia Military Institute (VMI) on 21 May 1993 and was granted an
education delay to attend law school.  He graduated from the University of
Virginia Law School in 1996 and was ordered to active duty in the rank of
first lieutenant, Judge Advocate General (JAG) Corps, on 13 January 1997.
He was promoted to the rank of captain on 1 August 1997.

2.  His first assignment after completing the JAG officer basic course was
White Sands Missile Range, New Mexico (WSMR).  He subsequently served at
Fort Lee, Virginia, as a procurement law instructor and was then
transferred to Korea for duty as a trial counsel.  He was subsequently
transferred to Fort Bragg, North Carolina, for duty as a trial defense
counsel on 1 July 2002.  His parent unit was the United States Army Legal
Services Agency (USALSA) in Arlington, Virginia.

3.  On 6 February 2003, the applicant’s parent unit commander (a brigadier
general) notified him that he was considering whether he (the applicant)
should be punished under Article 15, UCMJ, for the wrongful use of
marijuana on or between 4 August and 3 September 2002.

4.  On 13 February 2003, the applicant elected not to demand trial by
    court-martial.  He also requested a closed hearing, a person to speak
in his behalf, and indicated that matters in defense, mitigation, and/or
extenuation would be presented in person.

5.  On 28 February 2003, after considering all of the matters presented in
defense, mitigation and/or extenuation, the imposing commander imposed a
written reprimand and a forfeiture of $2,000.00 per month for 2 months
against the applicant.  The applicant elected to appeal and submit
additional matters, and his appeal was denied on 4 April 2003.

6.  The imposing commander gave the applicant a general officer memorandum
of reprimand (GOMOR), which indicates that the urine sample submitted by
the applicant on 3 September 2002 tested positive for traces of marijuana.
He reprimanded the applicant for his misconduct and indicated that the
reprimand was imposed as punishment under the UCMJ, Article 15.

7.  The applicant was reassigned to another unit on Fort Bragg for duty as
an administrative law attorney on 30 November 2002.  On 22 April 2003, he
received a change of rater OER covering the period from 26 March 2002 to
29 November 2002.  In Part Va, under Performance and Potential Evaluation,
his rater (a major) gave him a rating of “Unsatisfactory Performance – Do
Not Promote.”  His rater indicated that because of his lack of judgment in
illegally using marijuana and failing to disclose his use of the
prescription drug “Marinol” during a unit urinalysis, she had lost
confidence in his ability to continue as a defense counsel.

8.  In Part VII, his senior rater (SR), a lieutenant colonel, gave him a
“Do Not Promote” rating and placed him below center of mass on his SR
Profile.  He also indicated that due to the applicant’s use of marijuana,
which resulted in his testing positive for marijuana, he had lost faith in
the applicant’s ability to continue defending and representing Soldiers.
He indicated that the applicant should be retained to complete his active
duty obligation owed because he had accepted the conditional voluntary
indefinite (CVI) bonus money.  He further indicated that the applicant
should not be selected for voluntary indefinite (VI) status and should not
be allowed to serve in the Reserves after his active duty service
obligation was completed.  The OER was considered adverse and as such was
referred to the applicant.  The applicant did not respond and the report
was forwarded for inclusion in his OMPF.  There is no evidence to show that
he ever appealed the OER to the Officer Special Review Board (OSRB).

9.  He was transferred to Fort Lee on 22 April 2003 for duty as an
administrative law attorney.

10.  A board of inquiry (BOI) appointed by the General Officer Show Cause
Authority (GOSCA) heard the applicant’s case on 15 September 2003.  The
results of that board contained defects outlined in a memorandum by the
assistant legal advisor to the Army Review Boards Agency and so the case
was returned to the GOSCA to correct the deficiencies. The BOI reconvened
on
18 November 2003 and recommended that the applicant be separated from the
service under other than honorable conditions.

11.  On 1 December 2003, the applicant dispatched a 20-page memorandum to
the Chief, Army Standards of Conduct Office (SOCO) that was a response to a
SOCO Preliminary Screening Inquiry into his case.  In his memorandum, he
adamantly denied the use of marijuana and asserted that a possible
explanation for his testing positive was his prescription for a medication
called “Marinol”, a medicine that his civilian doctor told him at the time
he prescribed it contained a synthetic form of THC (tetrahydrocannabinol),
a chemical he (the applicant) recognized as the drug the Army looks for
when a urinalysis is performed.  He further asserted that the urinalysis
observers never asked whether he was taking any medications and it seemed
that it had been several days, or perhaps a week, since he had last taken
the medication.  He went on to state that when a second test was reported
positive for THCV, a metabolite found in marijuana but not in Marinol, he
knew that there had to be an explanation and after extensive research, he
discovered only one documented substance to explain the test results – Hemp
Seed Oil.  He went on to state that he had purchased three bottles of Hemp
Seed Oil in 1997, while stationed at WSMR, and his wife used the oil in
several dishes she prepared in late August and early September 2002.  He
also stated that when he purchased the oil, he was assured by the person he
purchased it from that the oil would not cause a positive result on a drug
test.  Additionally, he was aware that Soldiers were being convicted of
false positive results, and that alone was enough to keep him from
knowingly using the oil.  Also, he saw no reason to throw away the items he
already had, as he intended to leave the Army after completing his initial
obligation.  He continued by stating that the regulatory provisions of Army
Regulation 600-85, which forbids the consumption of hemp seed oil products,
is unlawful because it contradicts the clear Congressional intent that has
been in place since 1937 regarding non-psychoactive hemp products.

12.  He went on to state that his wife testified at the Article 15 hearing
that she had used the oil without consulting with him and evidence was
provided to document the purchase of the three bottles of oil for a total
of $7.98.  He also spent the majority of his explanation asserting that the
Army knowingly uses false testimony and hides evidence to unjustly convict
innocent Soldiers of drug offenses on a daily basis, based on a flawed drug
testing system and false positive urinalysis results.

13.  On 18 December 2003, the Department of the Army Board of Review for
Eliminations met and recommended that the applicant be eliminated from the
service based on misconduct, moral or professional dereliction, with a
General Discharge (Under Honorable Conditions).  The recommendation was
approved by the appropriate authority on 22 December 2003.

14.  On 12 January 2004, the applicant filed an Inspector General Action
Request in which he requested immediate release from active duty.  He
asserted that his ETS was 11 January 2004, and he had not yet received his
report of separation (DD Form 214) and pay, and had been informed that his
DD Form 214 would be dated to reflect that he had separated on 11 January
2004, which was not accurate.  There is no evidence in the available
records to show the outcome of that request.

15.  The DD Form 214 issued to the applicant shows that he was discharged
under honorable conditions on 11 January 2004, under the provisions of Army
Regulation 600-8-24, paragraph 4-2b, for unacceptable conduct.  He had
served 6 years, 11 months, and 29 days of total active service and he
refused to sign the DD Form 214.

16.  The applicant’s separation orders were published on 9 January 2004 and
directed him to report for a pre-processing briefing at the transition
point at 1000 hours on 9 January 2004 for separation on 11 January 2004,
his established expiration of service agreement date.  There are no
documents in the available records to show that he was held past his
expiration of service agreement date.

17.  On 2 September 2004, The Assistant Judge Advocate General dispatched a
letter to the applicant to inform him that he was withdrawing the
applicant’s certification as counsel under Article 27(b), UCMJ and was
suspending him from practice before Army courts-martial and the Army Court
of Criminal Appeals.  He further advised the applicant that he had 10 days
to submit matters in his own behalf before a final determination was made
regarding the filing of unfavorable information in his records.

18.  The applicant responded in an undated letter to The Assistant Judge
Advocate General (TAJAG) to the effect that he would not waste any more
time explaining how the evidence he had presented was unequivocal proof of
his innocence, because it was apparent that he (the TAJAG) had either not
read or chose to ignore his response to SOCO regarding the Army’s problem
with drug testing and the government’s use of false expert testimony to
obtain convictions or other favorable results.  He went on to state that as
a JAG officer and prosecutor, he was concerned by the discovery that hemp
food products would cause a false positive result for marijuana because he
was one of many who had taken hemp seed oil as a dietary supplement.  He
stated that he also was responsible during his tenure as trial counsel for
prosecuting Soldiers who were indicated by urinalysis as having used drugs,
one of whom claimed that his results were caused by hemp seed oil.  He
continued to assert that the drug testing industry was putting pressure on
the government and that the Department of Defense was inextricably linked
to that industry.  His response was five pages in length.

19.  A medical record consultation sheet provided by the applicant and
dated
17 September 2002, indicates that the applicant was evaluated by a medical
review officer (MRO) regarding a positive finding for marijuana.  It
reveals that the applicant informed the MRO that he received a prescription
for Marinol for headaches from his hometown family physician in Chesapeake,
Virginia.  The applicant was advised to place a copy of his civilian
medical treatments into his military health records in order to avoid
further confusion.  The MRO further explained that Marinol is a
prescription medication that is typically prescribed to combat nausea and
vomiting as well as to stimulate the appetite in medically ill patients.
Although not FDA approved for use as a headache medication, the medical
literature does document its successful use for this purpose.  The
medication is known to cause positive findings for marijuana on urinalysis.

20.  A sworn statement provided by the applicant from a friend indicates
that he recommended that the applicant try the drug Marinol for his
headaches because his mother takes it and it seemed to work.  The friend
indicated that he did not remember if he mentioned the type of chemicals it
contained to the applicant at the time.

21.  The applicant provided one of five pages of a Criminal Investigation
Command (CID) report.  The investigator interviewed the MRO and was
informed that the applicant had provided him a copy of a medical record
showing that a civilian physician treated the applicant for a lesion on the
inner right thigh on
18 May 2001.  The civilian physician also prescribed the applicant 10 five-
milligram tablets of Marinol for headaches with no refills.  The MRO
explained that Marinol is prescribed for AIDS and Cancer patients but may
have been unconventionally prescribed for headaches.  The MRO also stated
that he was unsure whether a Soldier must report medication prescribed by a
civilian doctor to the proper Troop Medical Clinic for entry into their
medical records.

22.  Army Regulation 600-85, Army Substance Abuse Program (ASAP), effective
1 October 2001, provides, in paragraph 1-35d, that products made from hemp
seed oil may contain varying levels of THC, an active ingredient of
marijuana, which is detectable under the Army Drug Testing Program.  In
order to ensure military readiness, the ingestion of hemp seed oil or
products made with hemp seed oil is prohibited and is a violation of
Article 92, UCMJ.

23.  Army Regulation 27-10, Military Justice, dated 20 August 1999,
provides, in pertinent part, that the decision whether to impose punishment
and the nature of the punishment are the sole decisions of the imposing
commander.  The imposing commander is not bound by the formal rules of
evidence used before a court-martial and may consider any matter, including
unsworn statements, the commander reasonably believes to be relevant to the
offense.  If after evaluating all pertinent matters, the imposing commander
determines that nonjudicial punishment is not warranted, the Soldier will
be notified that the proceedings have been terminated and all copies of the
proceedings (DA Form 2627) will be destroyed.

24.  Article 27(b), UCMJ, provides, in pertinent part, that trial counsel
and defense counsel detailed for a general court-martial must be certified
as competent to perform such duties by the Judge Advocate General of the
armed force of which he or she is a member.

25.  Army Regulation 635-10, Processing Personnel for Separation, provides,
in pertinent part, that all Soldiers will be separated on their scheduled
transition date, except those that elect to separate on the last workday
before a Saturday, Sunday or holiday.




DISCUSSION AND CONCLUSIONS:

1.  It appears that the NJP was imposed in compliance with applicable laws,
regulations, and policies by a commander empowered to do so.  The
punishment was not disproportionate to the offense and there is no evidence
of any violations of the applicant’s rights.

2.  The applicant’s contention that the NJP proceedings did not meet the
government’s burden of proof beyond a reasonable doubt has been noted and
appears to be without merit.  The imposing commander was not bound by the
formal rules of evidence applied to trial by court-martial and thus was
allowed to consider far more evidence during the proceedings.
Additionally, when the applicant decided not to demand a trial by court-
martial, he essentially decided to allow the commander to be the judge in
his case, rather than to demand a trial by jury or a judge.

3.  Not only was the applicant not able to rebut the prosecution’s case by
persuading the imposing commander that reasonable doubt existed to show
that he was not guilty of the charges against him, he also was unable to
convince the next higher commander on his appeal and the subsequent boards
that convened to review his case of this.

4.  While the applicant may believe that there is a reasonable doubt as to
whether he used marijuana, he failed to submit sufficient and relevant
evidence to convince the imposing commanders that such was the case.

5.  The applicant acknowledged that he requested that his civilian doctor
prescribe “Marinol” for his headaches and that the doctor explained to him
that it contained a form of THC.  He also states that he recognized the
fact that he could test positive for marijuana with that drug and yet he
made no attempt to notify military authorities that he was taking the drug,
until after he tested positive.   He received 10 tablets in May 2001 and
still had the prescription when he tested positive in September 2002.

6.  The applicant also admitted that he purchased Hemp Seed Oil to use for
making low-calorie type meals/dishes and that he was aware that using that
oil could also cause him to test positive for THC.  He also stated that he
had prosecuted Soldiers for drug offenses, to include one who claimed a
false positive urinalysis due to use of hemp seed products.  Additionally,
he stated that he saw no reason to get rid of the oil because he intended
to get out of the Army; oil that had cost less than $8.00 and was almost 5
years old at the time he tested positive.

7.  Although the applicant contends that his possession of the Hemp Seed
Oil and Marinol creates a reasonable doubt as to his use of marijuana and
the validity of the test results, it appears that his possession of both
substances, which he admits knowing cause positive findings of THC, also
represents a possibility that he had those items in his possession for use
in such a defense, should the need arise – insurance of sorts if you will.

8.  The applicant was a well educated and well seasoned defense attorney at
the time he tested positive for marijuana and it is simply not reasonable
to presume that such a person would have in their possession, knowingly
use, or cause themselves to be placed in a position in which they would
unknowingly use, a substance that could cause them to test positive on a
urinalysis.  It not only defies simple logic but common sense as well.  It
is also not reasonable to presume under those circumstances that the mere
possession of those items represents reasonable doubt, without sufficiently
convincing evidence to show actual consumption of the substance during the
relevant period.

9.  It is also noted that the applicant obtained his prescription for
Marinol from a family physician in his hometown and that he specifically
requested the drug, a drug that is not normally used for headaches and in
all likelihood a drug he would not have been given had he been treated
within the military health care system.  This tends to support the theory
of using/possessing the drug as defense element and further reduces the
reasonable doubt he purports his evidence represents.

10.  The applicant’s contentions and the majority of his appeal, which
assert that the drug testing system is flawed, and that the military covers
up and falsifies testimony in order to convict innocent Soldiers of drug
offenses, has been noted; however, it is not appropriate for this Board to
attempt to justify or refute those type of contentions/issues.  While it is
apparent from the amount of energy he has spent on that issue that it is a
major area of contention, it does not appear to have been so until such
time as he was on the receiving end of the issue.  Only then did he contend
that it was not the use of marijuana and instead the use of substances he
knowingly possessed and knew would cause a positive result for THC that
cause his false positive urinalysis.  Yet, in his specific case, the
available evidence does not prove this.

11.  The applicant has also failed to show through the evidence of record
or the evidence submitted in his case that his OER does not properly
reflect the considered opinion of his rating officials at the time
regarding his performance and potential.  Additionally, he did not appeal
the OER to the OSRB and there appears to be no basis to remove the report
from his OMPF.

12.  It also appears that he was properly discharged with a general
discharge, given the circumstances in his case.  Accordingly, there is no
basis to grant his request for an upgrade of his discharge.

13.  The applicant’s contention that he was held past his ETS for a day for
separation has been noted.  However, his orders directed him to report to
the transition point on 11 January 2004 and he has failed to show that he
did so but was turned away or the office was in fact closed.  The
applicable regulation provides that Soldiers will be separated on their
scheduled separation date unless they agree to be separated the last
working day prior to a Saturday, Sunday or holiday.  The applicant has
offered no explanation as to why he did not report to the transition center
on Sunday.  Accordingly, the transition point was authorized to discharge
him in absentia.  Therefore, lacking evidence to show that he was not
afforded the opportunity to be discharged on his separation date (Sunday)
or that he was held past his expiration of service obligation through no
fault of his own, there appears to be no basis to adjust his separation
date.

14.  Likewise, there also appears to be no basis to restore the applicant’s
privileges to practice before courts-martial or the Army Court of Criminal
Appeals.

15.  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

___RD __  ____CK _  ____MV _  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.





                                  _____Robert Duecaster______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050010886                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060620                                |
|TYPE OF DISCHARGE       |(GD)                                    |
|DATE OF DISCHARGE       |20040111                                |
|DISCHARGE AUTHORITY     |AR600-8-24 . . . . .                    |
|DISCHARGE REASON        |UNACCEPTABLE CONDUCT                    |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |277/NJP                                 |
|1.126.0000              |                                        |
| 2.131.0000             |310/PRM                                 |
| 3.110.0300             |192/REINST                              |
| 4.111.0005             |221/VOID OER                            |
| 5.                     |                                        |
| 6.                     |                                        |


-----------------------
[pic]