RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 October 2006
      DOCKET NUMBER:  AR20060001295


      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. James B. Gunlicks             |     |Chairperson          |
|     |Mr. Michael J. Flynn              |     |Member               |
|     |Mr. Scott W. Faught               |     |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 that his Reserve Officers’ Training Corp (ROTC)
debt be cancelled.

2.  The applicant states that he was accused, along with a couple of other
cadets, of smoking marijuana.  He agreed to take a urinalysis and passed.
The allegations against him were blatant lies.  He thought his life would
be back to normal.  However, for some reason, the verbal defamation of
[his] character was more believable than a scientific test.  The cadet who
made the false accusations was executing some predetermined malicious
thought.  It was a classic case of jealousy.

3.  The applicant states that he told “them” he wanted to appeal the
decision [to disenroll him].  Captain E___ acted as his counsel.  Captain
E___ asked him a few questions, he answered, and that was that.  He was
told he would hear an answer over the summer.  He finally had to call them.
 They needed him to put together a written appeal.  He complied and put
together his appeal.  He phoned Colonel L___ before his departure to hand
deliver the appeal packet.  Colonel L___ said he would be waiting for it.
He was on time, but nobody was in Colonel L___’s office.  He simply slid
the packet under the door, as he had a hundred times before, and he went on
his way.  The end of summer rolled around and he heard nothing.  Then he
got word that no one received the packet.  The University’s interim
president tracked down the packet, but by then it was too late.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant’s ROTC debt be cancelled.

2.  Counsel states that Cadet V___ and his roommate, Cadet A___ alleged
that the applicant and four other cadets used marijuana just prior to the
Military Ball.  Neither Cadet V___ nor Cadet A__ had personal knowledge of
the incident.  Their information was based solely on the fact that Cadet
Mo___ went into their room smelling of marijuana and reportedly told them
that he (Cadet Mo___) and four others (to include the applicant) had just
smoked marijuana.  On 30 April 2003, Colonel L___ ordered the applicant to
submit to a urinalysis test.  The test sample was taken on 1 May 2003.
That same day, Colonel L___ commenced disenrollment proceedings against the
applicant.

3.  Counsel states that an investigative proceeding was conducted on 6 May
2003.  Section III, paragraph 2 of the DA Form 1574 (Report of Proceedings
by Investigating Officer/Board of Officers) indicates that statements of
witnesses were not provided, and documents were not authenticated.  Colonel
L___ did not even wait for the results of the urinalysis test.  Colonel
L___, in a 6 May 2003 Cadet Action Request, recommended the applicant be
disenrolled “due to the alleged use of an illegal substance, specifically,
marijuana.  The action occurred on 26 Apr 03 on the campus.”  On 16 May
2003, the urinalysis results came back, and they were negative.  On 19 May
2003, Colonel L___ indicated that his investigation had been concluded.  No
reference whatsoever was ever made to the negative urinalysis test results.


4.  Counsel states that the applicant appealed his disenrollment, but his
appeal packet was lost.  The applicant finally received a disenrollment
memorandum in September 2004, but the memorandum does not make clear if his
appeal packet was ever considered.  He was finally ordered discharged on 5
April 2005.

5.  Counsel provides 26 exhibits:

      Exhibit -1.  the applicant’s personal statement;

      Exhibit-2.  a U. S. Army ROTC Cadet Command, Saint Bonaventure
University memorandum dated 30 April 2003;

      Exhibit-3.  an Army ROTC Battalion, Saint Bonaventure University
memorandum dated 1 May 2003;

      Exhibit-4.  an Army ROTC Battalion, Saint Bonaventure University
memorandum dated 2 May 2003, subject:  Notification of Cadet to an
Investigating Officer/Board;

      Exhibit-5.  an Army ROTC Battalion, Saint Bonaventure University
memorandum dated 2 May 2003, subject:  Appointment of a Formal Board of
Officers to Determine Suitability for Retention in the Army ROTC Program
and Amount and Validity of Scholarship Debt;

      Exhibit-6.  an Army ROTC Battalion, Saint Bonaventure University
memorandum for record (MFR) dated 5 May 2003 with 6 enclosures (minus
enclosure 5, which was obtained from the U. S. Army Cadet Command) as noted
on the MFR;

      Exhibit-7.  an Army ROTC Battalion, Saint Bonaventure University MFR
dated 6 May 2003;

      Exhibit-8.  a DA Form 1574;

      Exhibit-9.  an ROTC Cadet Command Form 131-R (Cadet Action Request)
dated 6 May 2003;

      Exhibit-10.  an Army ROTC Battalion, Saint Bonaventure University MFR
dated 15 May 2003;

      Exhibit-11.  an Army ROTC Battalion, Saint Bonaventure University
memorandum dated 15 May 2003;

      Exhibit-12.  drug testing results dated 16 May 2003;

      Exhibit-13.  an Army ROTC Battalion, Saint Bonaventure University
memorandum dated 19 May 2003;

      Exhibit-14.  an MFR from the applicant dated 6 June 2003, subject,
Rebuttal of Disenrollment, with 5 enclosures;

      Exhibit-15.  four photographs;

      Exhibit-16.  a Headquarters, U. S. Army Cadet Command memorandum
dated 20 September 2004;

      Exhibit-17.  discharge orders dated 5 April 2005;

      Exhibit-18.  a fax cover sheet dated 14 October 2004;

      Exhibit-19.  a letter from Trautman and Associates, LLC, dated 24
January 2005;

      Exhibit-20.  a letter from The McDonald Group, LLP, dated 17 October
2005;

      Exhibit-21.  a letter from The McDonald Group, LLP, dated 18 October
2005;

      Exhibit-22.  a letter from Headquarters, U. S. Army Cadet Command
dated 2 November 2005;

      Exhibit-23.  a letter from The McDonald Group, LLP, dated 14 November
2005;

      Exhibit-24.  a letter from The McDonald Group, LLP, dated 19 December
2005;

      Exhibit-25.  a letter from Headquarters, U. S. Army Cadet Command
dated 15 December 2005; and

      Exhibit-26.  a letter from the Defense Finance and Accounting Service
dated 6 June 2005.

CONSIDERATION OF EVIDENCE:

1.  On 27 August 2001, the applicant signed a DA Form 597-3 (Army Senior
ROTC Scholarship Cadet Contract).  Paragraph 7 stated that if the cadet
were disenrolled from the ROTC Program for misconduct or other
disenrollment criteria, the Secretary of the Army could order him to
reimburse the United States through repayment of an amount of money, plus
interest, equal to the entire amount of financial assistance paid by the
United States for his advanced education from the commencement of the
contractual agreement to the date of his disenrollment or refusal to accept
a commission.  Or, the cadet could be ordered to active duty for not more
than four years.

2.  By memorandum dated 30 April 2003, the applicant’s Professor of
Military Science (PMS) requested approval to conduct urinalysis testing on
the applicant and three other cadets.

3.  By memorandum dated 1 May 2003, the applicant’s PMS notified the
applicant that disenrollment from the ROTC program was being initiated due
to allegations the applicant used marijuana on or about 26 April 2003 (a
Saturday).  The applicant was placed on a leave of absence.  He elected to
request a board of officers or investigating officer so he could personally
appear and respond to the disenrollment proceedings.

4.  An Assistant PMS prepared an MFR, dated 5 May 2003, in which he
summarized witness statements concerning use by the applicant and the three
other cadets of marijuana.  The four witness statements listed as
enclosures to the MFR were enclosed.  None of the witness statements were
signed.  They may have been prepared in typewritten form from signed,
handwritten statements.  The Assistant PMS also noted that the four cadets
who were drug tested, and three other cadets, made threats to Cadets V___
and A___.  He also noted that three of the cadets, to include the
applicant, made threats on Instant Messaging.  The applicant’s message on
Instant Messaging (it cannot be determined to whom the message was sent)
was, “whoever brought me and my compadres to this….YOU BETTER RUN…”

5.  In his statement, Cadet V___ stated that Cadet Mo___ came into his room
smelling very distinctly of marijuana.  Cadet Mo___ assured Cadet V___ that
he did not have any marijuana on him but that he, the applicant, and three
other cadets had just smoked marijuana.  Cadet V___ shortly thereafter left
for the military ball.  When he arrived there, he stated, “it was very
noticeable that the guys on his list of smokers were all wearing sunglasses
(to protect their bloodshot eyes) and they all smelled of pot.  Any parent
or student there will assure you these 5 people were acting very foolishly,
and embarrassing toward the program outside in the receiving line.  Some
parents even asked, ‘How high are these kids?’”

6.  Cadet V___ also stated that, on 29 April 2003, Cadet Z___ came into his
room very upset about being told he and the other cadets were to take a
urinalysis test.  Cadet V stated, “…and he used my phone to call (the
applicant).  Right in front of me, while talking with (the applicant), he
said things along the lines of ‘We are screwed.  They are on to us.
Someone leaked.’”  Cadet V___ also mentioned that several cadets had
threatened him and his roommate.  The applicant’s name was not mentioned.

7.  In his statement, Cadet A___ stated, “On the day of [the] military
ball…[Cadet Mo___] came down from Alfred State…and I allowed him to keep
his uniforms in our room…About an hour before departure for the military
ball…were preparing for the ball when [Cadet] Mo___ came down to change as
well…He told us that he had just smoked pot.  He also told us who was
present, who supplied and where it was done.  He said (the applicant) [and
three other cadets] were also present.  He said [Cadet] Z___ supplied and
that it took place in [Cadet] Z___’s room….”

8.  In Cadet Ma___’s statement (who was a Military Science IV cadet in whom
Cadet V___ confided the details of the incident), the applicant’s name was
not mentioned.  He noted that several cadets threatened Cadets V___ and
A___.  The applicant’s name was not mentioned in regard to the threats.

9.  Enclosure 6 to the 5 May 2003 MFR was an email from another Assistant
PMS.  It was a NO CONTACT order to the applicant and six other cadets.
They were to have no contact with Cadets C___ and A___.

10.  A formal board of officers (consisting of the board president only)
convened on 6 May 2003.
11.  A verbatim transcript of the board hearing apparently was not made.
The board president later summarized the applicant’s testimony in an MFR
dated    15 May 2003.  The applicant denied using illegal drugs on 26 April
2003; denied knowing that any other cadet used illegal drugs on 26 April
2003 or at any time in the past year; denied knowing what Cadet Z___ meant
when Cadet Z___ stated, “We are screwed.  They are on to us.  Someone
leaked”; and denied threatening either Cadet V___ or Cadet A___.  He stated
the message, “You better run” was his “away message.”

12.  One of the findings of the board was that the applicant “exhibited the
following behavior that constitutes misconduct – use of an illegal
substance (marijuana).”  The finding noted that the applicant had been
adamant during the board proceedings about his not using an illegal
substance but the board believed the applicant was not being truthful.  It
was noted that, during the official board for one of the other cadets, that
other cadet stated that the applicant had not smoked marijuana on 26 April
2003 “but he has smoked it a lot before then.”  The board also noted that
it was learned the applicant had been arrested for underage possession of
alcohol while the rest of the battalion was conducting its Fall Field
Training Exercise at Fort Drum, NY.  The applicant was belligerent with the
police officer and was frisked.  A marijuana pipe with traces of residue
was found on the applicant’s person.  He was not charged with possession of
paraphernalia but was “cut a break.”  The board findings noted, “This
evidence does not speak favorably for (the applicant) and I do not believe
he was truthful in his statements of never using an illegal substance.”

13.  The board did not find that the applicant threatened any one.

14.  The board recommended the applicant be disenrolled from ROTC, not be
ordered to active duty in an enlisted status, and be ordered to repay his
valid debt to the Government comprised of advanced educational assistance
received in the form of scholarship benefits.

15.  An ROTC Cadet Command Form 131-R (unsigned and undated by the
applicant’s PMS; signed by the applicant on 6 May 2003) indicated the
applicant was being recommended for disenrollment from ROTC due to
undesirable character in accordance with Army Regulation 145-1, paragraph 3-
43(14).  The PMS Certification and Recommendation section indicated the
applicant was being recommended for disenrollment due to alleged use of
marijuana on         26 April 2003.
16.  On 13 May 2003, the applicant’s urinalysis sample, taken on 1 May
2003, came back with a negative result.

17.  By memorandum dated 15 May 2003, the applicant’s PMS notified him that
the board found he was in violation of Army Regulation 145-1, paragraph
      3-43(14), undesirable character.  He was given 15 days to submit a
rebuttal statement.

18.  By memorandum dated 19 May 2003, the applicant’s PMS notified him that
his disenrollment from ROTC was being initiated due to the applicant’s
suspected use of marijuana.  He was given 30 days to submit a rebuttal.
The applicant signed the notification on 28 May 2003, indicated he did not
receive the memorandum until 22 May 2003, and indicated he would make a
rebuttal to the findings and recommendation.

19.  The applicant’s rebuttal was dated 6 June 2003.  He contended he did
not use marijuana on 26 April 2003 and did not know why the other cadet
would have alleged that the applicant did use it.  He did not know why the
cadet who alleged the applicant had used marijuana in the past would say
so, as he and that cadet did not hang out together outside of ROTC
functions.  He stated that attached photographs taken of him at the
military ball show that he was not wearing sunglasses, that he was not
acting foolishly (as verified by one picture showing he introduced his
parents and girlfriend to the chain of command), and that he was in fact a
part of the saber arch team that evening.  He admitted that he did have a
marijuana pipe in his pocket at the time a police officer stopped him one
evening [the previous] fall; however, as two witness statements he also
attached would attest, somebody asked him to hold onto that pipe and a few
other belongings, and the pipe was not his.  None of the witness statements
were signed.  They may have been prepared in typewritten form from signed,
handwritten statements.

20.  The applicant’s rebuttal apparently did not reach the appropriate
office.  By memorandum dated 20 September 2004, the applicant was notified
that he was disenrolled from the ROTC program for use of an illegal
substance.  He was informed that he would have to repay the cost of his
advanced education assistance in the amount of $34,456.00.

21.  The applicant was discharged from the U. S. Army Reserve (ROTC Control
Group) effective 1 April 2005.
22.  In the processing of this case, an advisory opinion was obtained from
the   U. S. Army Cadet Command.  That Command noted that the applicant was
accused of abusing an illegal substance on 26 April 2003; however, it was
not until 16 May 2003 that a sample was collected to determine the content
of the drug in his system.  His breach of the terms of his ROTC contract
was the cause of his disenrollment, which was supported by the Commanding
General, Cadet Command.  That Command recommended that the applicant’s
voluntary actions not reduce the amount that he is required to reimburse
the United States for his advanced educational assistance.

23.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  Counsel for the applicant responded by noting that
the advisory opinion merely concluded that the applicant “breached the
terms of this ROTC contract: because that “finding” was ”supported by the
Commanding General, Cadet Command.”  The advisory opinion failed to address
the underlying substantive issue of whether there was any reasonable basis
for finding that the applicant “breached the terms of his ROTC contact….”
The advisory opinion contained a factually wrong statement when it stated,
”…however, it was not until 16 May 03 that a sample was collected to
determine the content of the drug in his system.”  That statement implies
that the applicant somehow delayed the taking of the sample.  The record
unambiguously shows that the applicant provided the sample one day after he
was ordered to give it.  The negative results were just ignored.

24.  Counsel for the applicant provided copies of exhibits 2, 3, 11, and
12.

25.  Army Regulation 145-1 prescribes policies and general procedures for
administering the Army’s Senior ROTC Program.  Paragraph 3-43a(14) states a
cadet may be disenrolled for undesirable character demonstrated by cheating
on examinations; stealing; unlawful possession, use, distribution,
manufacture, sale (including attempts) of any controlled substances;
discreditable incidents with civil or university authorities; or similar
acts characterized as misconduct.

26.  Title 10, U. S. Code, section 2005(a) states that the Secretary
concerned may require, as a condition to the Secretary providing advanced
education assistance to any person, that such person enter into a written
agreement under the terms of which such person shall agree:  (1) to
complete the educational requirements specified in the agreement and to
serve on active duty for a period specified in the agreement; and (2) that
if such person fails to complete the education requirements specified in
the agreement, such person will serve on active duty for a period specified
in the agreement.

27.  Title 10, U. S. Code, section 2005(f) states that the Secretary
concerned shall require, as a condition to the Secretary providing
financial assistance under section…2107a (financial assistance program for
specially selected members:  Army Reserve and Army National Guard; i.e.,
ROTC) of this title to any person, that such person enter into an agreement
described in subsection (a).  In addition to the requirements of clauses
(1) through (4) of such subsection, any agreement
required by this subsection shall provide (1) that if such person fails to
complete the education requirements…the Secretary shall have the option to
order such person to reimburse the United States (emphasis added) in the
manner provided for…without the Secretary first ordering such person to
active duty as provided for under clause (2) of such subsection.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions, his counsel’s contentions, and the
findings of the disenrollment board have been carefully considered.

2.  The applicant was alleged to have used marijuana on 26 April 2003; on
     30 April 2003, the applicant’s PMS requested approval to conduct
urinalysis testing on the applicant; on 1 May 2003, the applicant provided
a urinalysis sample; and also on 1 May 2003, the applicant’s PMS notified
the applicant that disenrollment from the ROTC program was being initiated
due to his alleged marijuana use on or about 26 April 2003.  The
disenrollment notification did not mention any other charges (such as prior
marijuana use or making threats).

3.  Disenrollment action on the applicant was initiated based on third-hand
information (the applicant’s chain of command learned from Cadet V___ that
Cadet Mo___ told Cadet V___ that the applicant smoked marijuana on 26 April
2003).  The applicant was also evidently implicated in that alleged 26
April 2003 marijuana use based on Cadet V___’s mention of a phone call from
Cadet Z___ to the applicant, wherein Cadet Z___ evidently told the
applicant, “We are screwed.  They are on to us.  Someone leaked.”  There
is, however, no corroborating evidence to show that the applicant was one
of the “us” referred to by Cadet Z___.

4.  Disenrollment action on the applicant evidently was also based on Cadet
V___’s statement that, “it was very noticeable [at the military ball that
day] that the guys on his list of smokers were all wearing sunglasses (to
protect their bloodshot eyes) and they all smelled of pot.  Any parent or
student there will assure you these 5 people (to include the applicant)
were acting very foolishly, and embarrassing toward the program outside in
the receiving line.  Some parents even asked, ‘How high are these kids?’”

5.  Presumably (and not just based on the applicant’s statement that he
introduced his parents and his girlfriend to his chain of command), the
applicant’s chain of command was at this military ball.  Nevertheless, the
disenrollment board failed to address how it was, if the applicant’s
smelling of pot and acting very foolishly to the point that some parents
were asking how high he and several other cadets were, that his chain of
command failed to notice that same behavior or smell of pot.  Presumably,
had his chain of command noticed that same behavior they would have acted
promptly (even that same night), and not waited until another cadet
informed them the following Tuesday that the applicant had been high on
marijuana at the ball.

6.  The disenrollment board noted that, during the official board for one
of the other cadets, that the other cadet stated the applicant had not
smoked marijuana on 26 April 2003 but also stated that the applicant smoked
it a lot before then.  The disenrollment board evidently used the discovery
that the applicant had been arrested for underage possession of alcohol the
previous fall and, when frisked, a marijuana pipe with traces of residue
was found (even though no charges were filed) to determine the applicant
was not truthful in his statements of never using an illegal substance.

7.  All of the above actions (from the alleged use of marijuana to the date
the disenrollment board made its findings) occurred from 26 April 2003 to 6
May 2003.  In its rush to judgment, the applicant’s command denied the
applicant due process by failing to ensure the disenrollment board had all
the pertinent facts in the case.

8.  The results of the applicant’s urinalysis sample were returned on 13
May 2003, and the results were negative.  If the disenrollment board had
been postponed until after the results of the urinalysis sample had come
back (a mere week after the board was held and little more than two weeks
after the alleged incident), the board could just as readily have
determined that the test results corroborated the applicant’s statement
that the marijuana pipe found on him the previous fall did belong to
another person and that he was truthful in his statements of never using an
illegal substance.

9.  While disenrollment action on the applicant could have been initiated
due to misconduct for the incident the previous fall (either alleging
unlawful possession of a controlled substance or discreditable incidents
with civil authorities) or for making threats, those allegations were not
mentioned in the notification memorandum.  Therefore, they could not have
been used to justify his disenrollment for misconduct, either, as he had
not been afforded due process regarding those allegations.
BOARD VOTE:

__jbg___  __mjf___  __swf___  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
showing:

     a.  that the recommendation to disenroll him from ROTC for misconduct,
under the provisions of Army Regulation 145-1, paragraph 3-43(14) was
disapproved;

     b.  that he was disenrolled, as an exception to policy, for the
convenience of the Government; and

     c.  that the Secretary of the Army determined that he did not have to
repay his ROTC scholarship monies.




                                  __James B. Gunlicks___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060001295                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061005                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Shatzer                             |
|ISSUES         1.       |128.10                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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