RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  6 March 2008
	DOCKET NUMBER:  AR20070018635 


	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

Ms. Joyce A. Wright

Analyst


The following members, a quorum, were present:


Mr. James Gunlicks

Chairperson

Mr. Donald Steenfott

Member

Mr. Roland S. Venable

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 her record of punishment, under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), dated 12 July 2007, be removed from her official military personnel file (OMPF) and that her rank of staff sergeant (SSG/E-6) be restored.  

2.  The applicant states, in effect, that she was found guilty at an Article 15 proceeding in July 2007 for illegal drug use.  Her chain of command recommended that she be discharged and she appeared before an administrative separation board.  The separation board recommended her retention and that her Article 15, under UCMJ, be vacated (sic) to include restoring her rank.

3.  The applicant provides a copy of her separation board proceedings, with attachments, in support of her request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving on active duty in the Regular Army.  She was promoted to staff sergeant (SSG/E-6) with an effective date and date of rank (DOR) of 1 October 2005.  

2.  On 12 July 2007, the applicant was punished under Article 15, of the UCMJ, for wrongfully using cocaine and methamphetamines on or between 9 and 14 March 2007.  Her punishment consisted of reduction to pay grade E-5 and a forfeiture of $1161.00 per month for 2 months (however forfeiture in excess of 1 month was suspended, to be automatically remitted if not vacated by 14 January 2008).

3.  In her defense, the applicant contended she tested positive for the use of illegal substances as a result of her hospitalization in January 2007 due to an assault by her boyfriend.  While hospitalized, the evidence shows she was given medications by her physician which outside a medical treatment facility would be classified as illegal.  The applicant's command opined the events had no bearing on the charged misconduct and discounted her contention.





4.  The applicant did not demand trial by court-martial, she requested a closed hearing and that she be allowed to submit additional matters in her own behalf in person.  The applicant’s commander directed that the Record of Proceedings under Article 15, dated 12 July 2007, be filed in the performance section of her OMPF.  For reasons unclear in the record, the Article 15 was ultimately filed in the restricted portion of her OMPF.

5.  The applicant appealed the punishment imposed.  The applicant's appeal and additional matters for review are unavailable for the Board to review.   

6.  On 20 July 2007, the applicant’s appeal was forwarded to the Office of the Staff Judge Advocate (OSJA), Trial Counsel.  The attorney stated in his opinion that the proceedings were conducted in accordance with law and regulation and the punishments imposed were neither unjust nor disproportionate to the offenses committed.  

7.  On 24 July 2007, the brigade commander denied the applicant's appeal.

8.  On 28 September 2007, the Commander, Fort Huachuca, Arizona, appointed an administrative separation board, to determine if the applicant should be discharged from the Army prior to her normally scheduled expiration term of service (ETS) date. 

9.  On 28 September 2007, the applicant appeared before an administrative separation board.  The board found that the allegation the applicant committed a serious offence by wrongfully using cocaine and methamphetamines on or between 9 and 14 March 2007, was not supported by a preponderance of evidence.  The board recommended that she be retained in service, and that her previous Article 
15, be vacated (sic), to include restoring her rank.  

10.  Army Regulation 27-10 (Military Justice) establishes the policies and procedures for administration of military justice.  Chapter 3 sets forth the policy and procedures for nonjudicial punishment under Article 15, UCMJ.  Paragraph 3-2 states that the use of nonjudicial punishment is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  Nonjudicial punishment may be imposed to preserve a Soldier's record of service from unnecessary stigma by record of court-martial conviction.  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, UCMJ.  The Soldier will be advised that he has a right to demand trial.  The demand for trial may be made at any time prior to imposition of punishment.  The Soldier will be informed of his right to fully present his case in the presence of the imposing commander, to call witnesses, present evidence, be accompanied by a spokesperson, request an open hearing, and/or examine available evidence.  Punishment will not be imposed unless the commander is convinced beyond a reasonable doubt that the Soldier committed the offense(s).

11.  Army Regulation 27-10, in effect at the time, prescribed the guidelines for the filing of nonjudicial punishment.  Paragraph 3-3b (2) states, in pertinent part, that the decision to file the original DA Form 2627 in the OMPF will be determined by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander is final and will be indicated in item 5, of the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ).

12.  Paragraph 3-25 pertains to the vacation of suspended punishment imposed. It states that a commander may vacate any suspended punishment provided the punishment is of the type and amount the commander could impose and where the commander has determined that the Soldier has committed misconduct (amounting to an offense under the UCMJ) during the suspension period.  The commander is not bound by the formal rules of evidence before courts-martial and may consider any matter, including unsworn statements, the commander reasonably believes to be relevant to the misconduct.  There is no appeal from a decision to vacate a suspension.  Unless the vacation is prior to the expiration of the stated period of suspension, the suspended punishment is remitted automatically without further action.

13.  Paragraph 3-27 pertains to remission.  It states that this is an action whereby any portion of the unexecuted punishment is canceled.  Remission is appropriate under the same circumstances as mitigation.  An unsuspended reduction is executed on imposition and thus cannot be remitted, but may be mitigated or set aside.

14.  Army Regulation 600-37 sets forth policies and procedures to:  (a) authorize placement of unfavorable information about Army members in their individual official personnel files; (b) to ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in their individual official personnel files; and (c) to ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from their official personnel files. 





15.  Paragraph 7-2, of the above referenced regulation, states that once a document has been directed for filing in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.  The regulation contains provision for the transfer of a DA Form 2627 from the performance portion to the restricted portion of the OMPF; however, there are no provisions for the removal a DA Form 2627 from the OMPF.

16.  Army Regulation 600-8-104 provides policy and procedure for maintenance of a Soldier's personal information.  The restricted portion of a Soldier's OMPF is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of information on this fiche is strictly controlled and will not be released without written approval from the CG, PERSCOM [now the Commander, Human Resources Command]; the Commander, ARPERCEN; the Commander, ARNG Personnel Center; or the HQDA selection board proponent. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant tested positive for legal use of drugs administered to her while she was hospitalized.  She was hospitalized in the month of January 2007.  No punishment was imposed and the administrative separation board did not hold that against her.  Because the physician said the results were positive he attributed the results to the legal use of drugs which outside a medical treatment facility would be illegal.

2.  The applicant’s request to remove the record of non-judicial punishment dated 12 July 2007, from her OMPF was carefully considered.  The evidence shows that the DA Form 2627 was properly filed as directed by the officer who administered the punishment.

3.  The evidence shows that the punishment administered under Article 15, was administered in accordance with the applicable regulation.  All requirements of law and regulation were met and the applicant's rights were fully protected throughout the process.  She appealed her punishment and was denied.  

4.  The post commander appointed an administrative separation board to determine if the applicant should be discharged from the Army prior to her normally scheduled ETS date. 
5.  The applicant appeared before the administrative separation board.  The board found that the allegation the applicant had committed a serious offense by wrongfully using cocaine and methamphetamines on or between 9 and 14 March 2007, was not supported by a preponderance of evidence.  The board recommended that she be retained in service, and that her Article 15 punishment be vacated (sic), to include restoring her rank.  

6.  It is noted that the administrative separation board erroneously used the term "vacate" instead of remit.  It can logically be concluded that it was the separation board's intent to leave the applicant where she was on the day prior to the date she received nonjudicial punishment.

7.  The applicant is currently on active duty and serving in the rank and pay grade of SGT/E-5.  To this date, no action has been taken to restore her rank and remove the Article 15, dated 12 July 2007, from her OMPF.

8.  Based on the evidence presented, and in the interest of equity and justice, it is recommended that the applicant's Article 15, under UCMJ, dated 12 July 2007, be removed from the restricted portion of the applicant's OMPF and that her rank of SSG/E-6 be restored to her, with an original effective date and DOR of 
1 October 2005, and to show that she is entitled to back pay and allowances, effective 12 July 2007 to present.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JG____  ___RSV _  ___DWS   DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

Notwithstanding the staff DISCUSSION AND CONCLUSION above, the Board unanimously determined during their review that the evidence presented was insufficient to warrant a recommendation for relief.  The fact that the Soldier had been prescribed medicine that would have been illegal to take without a prescription was known to the chain of command and would have been presented during the Article 15 and subsequent appeal.  There is no evidence to indicate that the convening authority (CA) was not aware of the recommendation of the Separation Board (the CA probably convened the board).  After considering the recommendation and the evidence presented in the appeal, the CA chose to let the Article 15 stand.  The Board can think of several scenarios in which the Soldier could have taken prescription drugs and also taken other drugs not prescribed.  Additionally, when the urinalysis was given the Soldier would have had the opportunity to declare any prescription drug use.  There is no evidence she did that.  Based on all the above, the Board presumes the chain of command acted prudently and fairly.  The Board supports the chain of command and do not recommend relief.  There is no injustice here.  As a result the Board recommends that the applicant’s request be denied.  




_____James B. Gunlicks_____
          CHAIRPERSON




INDEX

CASE ID
AR20070018635
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2008
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
ACTIVE DUTY
DISCHARGE AUTHORITY
AR . . . ACTIVE DUTY
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.
126
2.

3.

4.

5.

6.