IN THE CASE OF:	  

		BOARD DATE:	  11 September 2008

		DOCKET NUMBER:  AR20080013127 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that all documents (141 pages) pertaining to his 1999 Federal Recognition Withdrawal Board be removed from the restricted portion of his official military personnel file (OMPF). 

2.  The applicant states, in effect, that those documents should be removed due to favorable findings.  He also states he is currently a Reservist serving on active duty as the J-3 Civil Military Operations Planner for the Joint Special Operations Command – Philippines, in support of Operation Enduring Freedom.  He further states that he requested a Withdrawal of Federal Recognition Board after he was falsely accused of testing positive of tetrahydrocannabinol (THC), (marijuana), during a unit urinalysis on 1 March 1999, while he was a member of the Alaska Army National Guard (AKARNG).  The Investigation Board convened by the Area Commander concluded that he did not commit the alleged misconduct and recommended he retain his Federal Recognition.  The Board’s findings determined that the chain of custody was clearly broken and that eight administrative discrepancies were noted on this one test.  The recommendations and findings were approved on 15 September 2000.

3.  The applicant further states, in effect, that he is currently being considered for promotion to colonel.  He believes that the documents will hinder his eligibility to progress to the next higher grade and his chances for any command positions will not be considered favorably.

4.  The applicant provides, in support of his request, copies of his Involuntary Separation Board memorandums, his Report of Proceedings by Investigating Officer/Board of Officers, and Withdrawal of Federal Recognition memorandums. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he was appointed in the AKARNG, as a second lieutenant, effective 9 May 1981, with prior enlisted service.  He was promoted to major effective 1 April 1994.

2.  A Forensic Toxicology Drug Testing Laboratory memorandum, dated 6 April 1999, shows a screening test conducted on 12 March 1999 revealed the applicant tested positive for marijuana metabolites.  

3.  On 17 May 1999, the applicant’s commander recommended his Federal Recognition be revoked due to his conduct unbecoming an officer.  On the same day, The Adjutant General (TAG), AKARNG, concurred with the recommendation.

4.  On 30 June 1999, the applicant’s commander initiated action to withdraw the applicant’s Federal recognition from the AKARNG due to a positive drug urinalysis test.  The memorandum also advised the applicant of his rights to elect:  (a)  to resign in lieu of withdrawal of Federal Recognition, (b)  or be transferred to the Retired Reserve, (c)  or have his case acted upon by a board of officers.

5.  On 16 July 1999, the applicant elected to have his case acted upon by a board of officers.

6.  On 7 October 1999, the applicant was notified that a board of officers would be convened to determine whether his Federal Recognition should be withdrawn because of moral or professional dereliction, to wit:  use of an illegal drug.  The applicant acknowledged receipt of the notification on the same day.

7.  A Federal Recognition Withdrawal Board convened on 1-2 December 1999.   The board found that the test in and of itself was valid and that THC was present in the urine sample obtained from the applicant and the specimen was not tampered with.  The board also found that the chain of custody was clearly broken and that if that was a court-martial proceeding, the test would be inadmissible.  Throughout the proceedings at the hearing, testimony and evidence demonstrated that the process, procedures and training were clearly lacking.  The board recommended significantly more command emphasis and direct involvement in the testing process.  Strict adherence to the procedures and implementation was paramount to maintaining the integrity and confidence in the 
urinalysis-screening process.  The board further found the applicant did not commit the misconduct alleged and recommended his Federal Recognition be retained.

8.  On 11 July 2000, the Report of Board Proceedings was forwarded for legal review.  

9.  On 17 July 2000, the Office of the Chief Counsel, DCARNG (District of Columbia), found the board of officers’ recommendation to be legally sufficient.  

10.  On 15 September 2000, the Chief, National Guard Bureau, approved the recommendation to retain Federal Recognition of the applicant.

11.  The applicant was discharged from the AKARNG on 2 May 2004 and transferred to the United States Army Reserve (USAR) Control Group (Individual Ready Reserve).

12.  The applicant was promoted to lieutenant colonel in the USAR on 3 May 2004.  He was ordered to active duty on 19 February 2008 and is currently serving on active duty.

13.  Army Regulation 600-37, in pertinent part, provides the policy for authorized placement of unfavorable information in individual official personnel files.  It provides that unfavorable information will not be filed in an official personnel file unless the individual has been given the chance to review the documentation that serves as the basis for the proposed filing and make a written statement, if desired, that rebuts the unfavorable information.  The referral to the recipient will include reference to the intended filing of the letter and include documents that serve as the basis for the letter.

14.  Army Regulation 600-37, further specifies that once an official document has been properly filed 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.  

15.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, the Military Personnel Records Jacket, the Career Management Individual File, and the Army Personnel Qualification Record.  It also prescribes the composition of the OMPF.  Paragraph 2-4 of this regulation states that once a document is placed in the 
OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation. 

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to removal of all documents (141 pages) pertaining to his 1999 Federal Recognition Withdrawal Board from the restricted portion of his OMPF.  He has not shown error, injustice, or inequity for the relief he now requests.  

2.  The evidence of record shows that on 12 March 1996, the applicant tested positive for marijuana based on a screening test.  On 7 May 1999, the applicant’s commander recommended his Federal Recognition be revoked based on conduct unbecoming an officer and the TAG, AKARNG, concurred with the recommendation.  Action was initiated to withdraw the applicant’s Federal Recognition and he elected to have his case acted upon by a board of officers.  In December 1999, a Federal Recognition Withdrawal Board found that the test in and of itself was valid and that marijuana was present in the applicant’s urine sample.  The board also found that the applicant did not commit the alleged misconduct and recommended his Federal Recognition be retained.  The board’s recommendation was approved on 15 September 2000.  The applicant was discharged from the AKARNG on 2 May 2004, transferred to the USAR, and promoted to lieutenant colonel on 3 May 2004.  

3.  After review of the evidence submitted in this case and the evidence of record, there is insufficient evidentiary basis to support removing of all the documents in question from the applicant's OMPF.  The applicant contends that the documents will hinder his eligibility for promotion.  However, he has not shown that their filing was improper and if allowed to stay filed in his OMPF, he will not be selected for promotion to the next higher grade.   

4.  Based on the foregoing facts and conclusions, the applicant has not provided clear and convincing evidence that the documents were untrue or unjust, in whole, or in part, to support his request for their total removal from his OMPF.  Therefore, there is no basis for removing all of the documents entirely from his OMPF.

5.  While the Board understands the applicant’s desire to have the documents removed, it finds no basis for compromising the integrity of the Army’s records.  The Army has an interest in maintaining the accuracy of its records and the data contained in those records should reflect the conditions and circumstances that existed at the time the records were created.  In the absence of a showing of material error or injustice, the Board is reluctant to recommend that those records be changed.

6.  In view of the foregoing, there is no basis for granting the applicant’s requests.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ___x____  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.




      _________x_____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080013127



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ABCMR Record of Proceedings (cont)                                         AR20080013127


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