RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 November 2007
	DOCKET NUMBER:  AR20070003272 


	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.  




Director



Analyst


The following members, a quorum, were present:




Chairperson



Member



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, restoration of her rank to sergeant pay grade E-5, with a date of rank of 1 October 2005, back pay due to the reduction in rank, reimbursement of $500.00 pay due the forfeiture of pay and that her record be cleared.

2.  The applicant states, in effect, that her record is in error or unjust because she did not use an illegal substance.  She was given a urine analysis which came back positive for cocaine.  She had a hair sample test analysis done at Carl R. Darnall Army Medical Center, Fort Hood Texas which came back negative; she used the same laboratory that performed the urine analysis, Carl R. Darnall Army Medical Center.     

3.  The applicant provides the following documents in support of her application:  A self – authored letter, four letters of support, two Toxicology Reports, dated 
20 September 2006 and 21 November 2006; and Promotion Orders, dated 
15 September 2005.  

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that she initially entered active duty on 
1 August 2002.  She was trained in awarded and is serving in military occupational specialty (MOS) 92A (Automated Logistical Specialist).  On 
1 October 2005, the applicant was promoted to sergeant pay grade E-5. 

2. On 1 November 2006, the applicant was counseled for having a positive urinalysis during the company’s 100% testing that was held on 13 September 2006.  The applicant was advised of her rights and after the information had been complied with and reviewed by her Chain of Command it was determined that the applicant was in violation of Article 112A (wrongful use of a controlled substance).  On 2 November 2006, the applicant elected not to demand a trial by court-martial, and instead chose for the matter to be handled by her battalion commander at a closed hearing.  During the closed session, the applicant agreed to be command referred to the Army Substance Abuse Program and to receive nonjudicial punishment (NJP) for the offense.   

3.  On 21 November 2006, the applicant through the advice of an attorney submitted a hair sample for drug testing.  The Quest Diagnostic Laboratories results were negative for Amphetamines, Cocaine, Marijuana, Opiates and Phencyclidine (PCP).

4.  On 12 December 2006, 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 for wrongfully using cocaine between 12 August 2006 and 13 September 2006:  Her imposed punishment was a reduction to pay grade E-4, a forfeiture of $500.00 pay and 
30 days of extra duty.  On 21 December 2006, the applicant’s urine sample was retested and the urine sample again tested positive for cocaine.

5.  On 11 January 2007, the applicant appealed the punishment.  On 18 January 2007, the Judge Advocate (JA) representative, after considering the appeal, opined that the proceedings were conducted in accordance with law and regulation and the punishment imposed was not unjust or disproportionate to the offense committed.  

6.  The applicant provides two laboratory reports, dated 20 September 2006 and 
21 November 2006.  She also provides five supporting letters.  These letters attest to her character and the fact the applicant is not an abuser of drugs.  

7.  The applicant is currently serving on active duty in the Regular Army in pay grade E-4.

8.  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.  

9.  Paragraph 3-18 of the military justice regulation contains guidance on notification procedures and explanation of rights.  It states, in pertinent part, that the imposing commander will ensure that the Soldier is notified of the commander's intention to dispose of the matter under the provisions of Article 15. It further stipulates that 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, 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.  It 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, present evidence, request to be accompanied by a spokesperson, an open hearing and to examine available evidence. 

10.  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 that 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. 

11.  Paragraph 3-28 further states that clear injustice does not include the fact that the Soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the soldier.  It further states that normally, the Soldier's uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that her record is in error or unjust because she did not use an illegal substance and therefore she should be restored to the rank of sergeant with the date of rank of 1 October 2005, that she should receive back pay due to the reduction in rank, that she should be reimbursed $500.00 pay due to the forfeiture of pay and that her record be cleared were carefully considered.  However, there is insufficient evidence to support this claim.

2.  The hair sample test results submitted by the applicant were also carefully considered.  The fact that the hair sample test results were negative does not render the original positive urine tests invalid.  

3.  The evidence of record confirms that 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 chose to have her case disposed of through Article 15 proceedings at a closed hearing with her battalion commander.  Subsequent to the hearing, at which the applicant presented matters of defense, mitigation, and/or extenuation, punishment was imposed.  The applicant appealed the punishment and a legal review determined the punishment was legally sufficient.  The appellate authority denied her appeal. 

4.  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" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  There is no such evidence of a fatal legal or factual error that would support setting aside the punishment imposed on the applicant, to include the reduction now in question.  Therefore, in view of the circumstances of this case there is no reason to grant the applicant’s requests.  

5.  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

__JEA___  __LE____  __JCR __  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.





_____
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/11/01
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.

2.

3.

4.

5.

6.