RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 April 2008
	DOCKET NUMBER:  AR20070012512 


	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.  


Ms. Catherine C. Mitrano

Director

Mr. Michael J. Fowler

Analyst


The following members, a quorum, were present:


Ms. Carmen Duncan

Chairperson

Ms Laverne M. Douglas  

Member

Mr. Jeffrey C. Redmann

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 rank and grade of Specialist (SPC)/E-4 be restored and that he receive back pay and allowances for the period from his separation to his original expiration term of service (ETS).  He also requests that the Article 15 (nonjudicial punishment (NJP) under the Uniform Code of Military Justice (UCMJ)) and chapter 14 administrative separation proceedings (under Army Regulation 635-200) be expunged from his personnel records.  He also requests that the separation authority, separation code, narrative reason, and command to which transferred on his new DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed and that the award of the French Fourragere be removed.  The applicant asks that if the above requests are not approved, then the Board consider granting him a medical discharge.

2.  The applicant states, in effect, that he was reduced in grade as a result of an Article 15.  Shortly after arriving in Italy, his unit was deployed to Iraq and later to Afghanistan.  In Afghanistan, he began experiencing sleepless nights and frequent nightmares.  He and his unit experienced improvised explosive devices (IEDs) exploding in their convoys, enemy ambushes, a helicopter shot down, and his best friend committing suicide. 

3.  The applicant states that the night the Article 15 incident occurred, a fellow Soldier and friend who knew he was having problems sleeping offered him two tablets.  A few hours later, he felt out of it.  When he asked the fellow Soldier what the pills were, he was told "Valium, a sleeping pill."  Shortly after that he was approached by one of his noncommissioned officers (NCOs), who asked him why he seemed out of it.  The applicant states, "I explained that I was having a rough night sleeping and I'd been given two Valium tablets by my friend."

4.  The applicant states that the next morning, his first sergeant and platoon sergeant questioned him and he answered them as before.  He later learned that he was being charged with taking a Schedule III drug.  That was later changed to a Schedule IV drug.  The applicant states that the administering authority on his Article 15 was a Lieutenant Colonel (LTC) acting as his company commander.  He found out later that there had been no requests from his company commander to have the battalion commander assume Article 15 authority as he believes was required by regulation. 

5.  The applicant further states that he was diagnosed with Post-Traumatic Stress Disorder (PTSD) by the clinical director of the Army Substance Abuse Program (ASAP) in Vicenza, Italy.  However, his command did not take any action to have him medically discharged.

6.  The applicant provides a photograph of himself in Army Combat Uniform; his new DD Form 214; Headquarters, U.S. Army Infantry Center Permanent Orders 275-2874, dated 2 October 2003; an Enlisted Record Brief, prepared on 
27 October 2005; a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 14 October 2005; a memorandum from Headquarters, U.S. Army Garrison, Vicenza, dated 15 December 2005; three DA Forms 2823 (Sworn Statement), including the applicant’s statement; a medical assessment; a lab report; and transcripts of the News Hour with Jim Lehrer program.

7.  The applicant also provides an undated extract of a message from the applicant's parents; a copy of the applicant's chapter 14 administrative separation proceedings; an Army Discharge Review Board – Case Report and Directive, dated 21 December 2006; a 12-page article from the New England Journal of Medicine; and a 3-page article from the Stars and Stripes, dated 5 January 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 7 May 2003 for 3 years and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty (MOS) 11B (Infantryman).  He also completed basic airborne training.

2.  On or about 19 March 2004, the applicant was assigned to the 1st Battalion (Airborne), 508th Infantry.  On 1 December 2004, he was promoted to the rank of SPC.  During his assignment, he was deployed to Iraq and Afghanistan.

3.  A DA Form 2823, dated 14 September 2005, shows that the applicant was questioned by his company commander approximately 8 days after the Article 
15 occurred.  On the form, the applicant stated, in effect, that he took two tablets he acquired from a fellow Soldier.  At that time, he did not know that he was taking a controlled substance.  The applicant further stated, "I swear that I have never taken drugs before this period in the Army.  I swear that [if] any information on drug use in A Co 1/508 comes forth, I will notify officials." 

4.  In a DA Form 2823, dated 6 September 2005, Sergeant M___ stated that he was approached by two other noncommissioned officers concerning the applicant and another Soldier possibly being under the influence of an unknown substance.  The three noncommissioned officers confronted the applicant and the other Soldier, who informed them they had gotten hold of some Valium from Private F___.  The noncommissioned officers then questioned Private F___, who stated he got the pills from a local national.  Sergeant M___ suggested they dump the pills and handle “it” there.  So they dumped the pills.  

5.  On 14 October 2005, the applicant accepted NJP under Article 15, UCMJ for  wrongful use of Valium, a Schedule III controlled substance, during time of war.  His punishment consisted of reduction to the rank of Private (PVT)/E-1 [the DA Form 2627 shows the erroneous entry "Specialist (E-1)"], forfeiture of $618.00 pay per month for two months, restriction for 45 days, and extra duty for 45 days.  
6.  On 21 November 2005, the applicant’s commander initiated elimination action against him under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct.  The reason cited by the commander was the applicant's wrongful use of Valium, a Schedule III controlled substance, during time of war.  The company commander further clarified that although Valium is a controlled substance, it is a Schedule IV controlled substance, not a Schedule III controlled substance as originally charged in the NJP proceedings. 

7.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 28 November 2005, shows the applicant underwent a mental evaluation by a medical physician, who determined that he possessed sufficient mental capacity to understand and participate in administrative or judicial proceedings.  The physician also stated that the applicant was psychiatrically cleared for any administrative action deemed appropriate by the command.

8.  On 2 December 2005, the applicant was enrolled in the Army Substance Abuse Program (ASAP).

9.  By memorandum dated 15 December 2005, the ASAP Clinical Director stated that the applicant was returned from downrange after taking Valium, which had been distributed by another Soldier.  He was referred to psychiatry for assessment and treatment for sleep problems and symptoms of combat stress.  The Clinical Director continued that the applicant had no history of drug and alcohol problems in the past that would have necessitated treatment, but because the drug was used downrange and in a dangerous situation, he was enrolled for Valium misuse.  The Clinical Director further stated that the applicant was diagnosed with adjustment disorder with anxious mood and unresolved bereavement and was prescribed Zoloft for depression and sleep problems.

10.  On 15 December 2005, the appropriate authority approved the recommendation for separation and directed the applicant receive a General Under Honorable Conditions Discharge Certificate and not be transferred to the Individual Ready Reserve.  




11.  On 3 January 2006, the applicant was released from ASAP.

12.  On 4 January 2006, the applicant was discharged with a general discharge after completing 2 years, 7 months, and 28 days of creditable active service with no lost time.  His DD Form 214, item 25 (Separation Authority) shows the entry,  Army Regulation 635-200, paragraph 14-12c; item 28 (Narrative Reason for Separation) shows the entry, misconduct (serious offense); item 9 (Command to which Transferred) shows the entry, "N/A"; item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) includes the entry, "FRENCH FOURRAGERE" [a World War II unit award]; item 27 (Reentry Code) shows the entry "3"; and item 26 (Separation Code) shows the entry "JKQ."

13.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  The ADRB found that the discharge was inequitable, but it was not improper.  On 21 December 2006, the ADRB voted unanimously to upgrade his characterization of service to "Honorable," to change his narrative reason for separation to "Secretarial Authority," and to change his RE code to "1," based on the applicant's combat service and the medical circumstances surrounding his discharge.  

14.  On 6 March 2008, the Chief, Prevention Education Branch, Army Center for Substance Abuse Program (ACSAP) informed a Board analyst that the Army does drug testing collection at the unit level in Afghanistan utilizing 2 Base Area Codes (BACs).  All collected specimens from those BACs are forwarded to the Army Forensic Toxicology Drug Testing Lab (FTDTL) located at Tripler Medical Center, HI.  The approximate turnaround time for these specimens is two to four weeks from collection, forwarded to the FTDTL, to certification of result.  Specimens are not tested specifically for Valium.  However, a commander who has probable cause may request that a specimen be tested for the presence of Valium.  This particular test is forwarded to the Armed Forces Institute of Pathology (AFIP), in Rockville, MD.

15.  Additionally, on 6 March 2008, the Chief, Prevention Education Branch, ACSAP informed a Board analyst that they had drug testing information on the applicant for the period 23 November 2003 through December 2005, and the applicant has never had a positive drug test.  The specimen in question may have been tested at AFIP.

16.  On 7 March 2008, the Deputy Chief, Forensic Toxicology Division, Office of Armed Forces Medical Examiner, AFIP, informed a Board analyst that they never tested the applicant.

17.  Army Regulation 27-10 prescribes policies and procedures pertaining to who may impose nonjudicial punishment.  It states that unless otherwise specified in this regulation or if authority to impose nonjudicial punishment has been limited or withheld by a superior commander, any commander is authorized to exercise the disciplinary powers conferred by Article 15.  Paragraph 3-7b states that any commander having authority under the UCMJ, Article 15, may limit or withhold the exercise of such authority by subordinate commanders.  A superior authority may limit or withhold any power that a subordinate might otherwise have under this paragraph.

18.  Army Regulation 27-10 states 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.  It states 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. It states the commander of the alleged offender must ensure that the matter is investigated promptly and adequately.  The investigation should cover whether an offense was committed, whether the Soldier was involved, and the character and military record of the Soldier.  It states punishment will not be imposed unless the commander is convinced beyond a reasonable doubt that the Soldier committed the offense.  

19.  Department of the Army Pamphlet 27-9 (Military Judges’ Benchbook) 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 fact finder is satisfied beyond a reasonable doubt of the truth of each and every element, then (the jury or the judge) should find the accused guilty.

20.  The Manual for Courts-Martial, 2005 edition, states the basic evidentiary elements for an Article 112a offense (wrongful use of controlled substance) are that the accused Soldier used a controlled substance and that his use was wrongful.  Wrongful means that the accused Soldier in fact knew the substance was contraband or illegal at the time of use.

21.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  Paragraph 4-10 states medical evaluation boards are convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the Soldier’s status.  A decision is made as to the Soldier’s medical qualification for retention based on the criteria in Army Regulation 40-501.

22.  Army Regulation 40-501 governs medical fitness standards for procurement, retention, and separation.  Paragraph 3-36 (Adjustment Disorders) states that situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability but may be the basis for administrative separation if recurrent and causing interference with military duty.

23.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed and an unfit medical condition is not the direct or substantial contributing cause of his misconduct.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

DISCUSSION AND CONCLUSIONS:

1. The applicant, while assigned to an airborne unit in a combat zone, was reduced from SPC to PVT for wrongful use of Valium during time of war by means of an Article 15 proceeding.  The governing regulation does not require that the company commander request that the battalion commander impose the Article 15.  

2.  The applicant was subsequently discharged on 4 January 2006 for misconduct based upon his wrongful use of Valium.

3.  However, the Manual for Courts-Martial, 2005 edition, states the basic evidentiary elements for an Article 112a offense are that the accused Soldier used a controlled substance and that his use was wrongful.  In this case, there is no evidence to show that the applicant used Valium.  

4.  Sergeant M___ and the other two noncommissioned officers “dumped” the pills that were supposedly the Valium the applicant ingested.  

5.  Records at ACSAP showed the applicant never had a positive drug test.  Records at AFIP showed AFIP never tested a urine sample from the applicant for Valium.  These were the only two agencies that could have performed a valid urinalysis test on the applicant.  

6.  The only “evidence” showing the applicant took Valium was his sworn statement in which he stated, in effect, that he took two tablets he acquired from a fellow Soldier and that he did not know that he was taking a controlled substance at the time of use.  Even if the applicant thought he was ingesting Valium, there is no evidence (from a urinalysis) to show that the pills he took really were Valium.  Moreover, the defense of innocent use was actually raised by the applicant's statement, but the available information shows the government (the prosecutor) completely failed to address and rebut this defense, as was required by the Manual for Courts-Martial.

7.  The applicant contended that he should have been given a medical discharge. There is no medical evidence of record that shows he had any mental or medical condition prior to his discharge that would have rendered him eligible for physical disability processing, and he was psychiatrically cleared for any administrative action.  The ASAP Clinical Director indicated that the applicant only had an adjustment disorder with anxious mood and unresolved bereavement.  An adjustment disorder is not a cause for referral to a Medical Evaluation Board.

8.  Nevertheless, an injustice occurred in this case.  The applicant’s Article        15 was not properly administered, and his discharge based upon the offense for which the Article 15 was given was therefore also improper.  His records should be corrected to expunge from his record all documents related to his Article      15 and his administrative separation proceedings.  The applicant does not request reinstatement (and from his request for a medical discharge it appears he does not feel himself to be medically qualified for continued duty), but his records should be corrected to show that he continued to serve until his ETS of 
6 March 2006 and that he be paid all pay and allowances due as a result of this correction.

9.  Evidence of record also shows the French Fourragere was erroneously listed on the applicant's DD Form 214.  This award should be deleted from his DD Form 214.



BOARD VOTE:

__CD ___  __LMD__  ___JCR__  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: 

     a.  setting aside the Article 15, dated 14 October 2005, and restoring to him  all rights and privileges he lost when the punishment from that Article 15 was imposed;

     b.  voiding the applicant’s DD Form 214 that was issued as a result of ADRB’s upgrade of his previous discharge and issuing him a new DD Form 214 showing he continued to serve on active duty until 6 May 2006, when he was released from active duty by reason of ETS under the provisions of chapter 4, Army Regulation 635-200, with an honorable characterization of service and an RE code of 1; transferring the applicant to the U. S. Army Reserve (USAR) Control Group (Reinforcement); and deleting the French Fourragere from item 13 of his reissued DD Form 214; 

     c.  restoring to him all benefits he lost as the result of his discharge prior to his normal ETS;

     d.  expunging from his Official Military Personnel File all documents related to the Article 15 and to his administrative separation proceedings; and

     e.  in accordance with Army Regulation 15-185, following completion of the administrative corrections directed herein, this Record of Proceedings and all documents related to this appeal be returned to this Board for permanent filing.



____Carmen Duncan__
          CHAIRPERSON