IN THE CASE OF:	  

		BOARD DATE:	          9 September 2009 

		DOCKET NUMBER:  AR20090003432 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the following:

   a.  Cancellation of the applicant's indebtedness in the amount of  $143,021.00;

   b.  Removal of a United States Military Academy (USMA) on-line public press release article concerning the applicant's charges;

	c.  Upgrade his discharge characterized as under other than honorable conditions to honorable; and

	d.  Commission the applicant as an officer with all back pay and allowances.

2.  Counsel provides a brief synopsis of the applicant's military history.  He states that the applicant attended West Point from June 2004 until June 2007 when his tenure was cut short after testing positive for cocaine on a urinalysis.  He explains that in January 2007, a forensic toxicology report indicated that the applicant had tested positive for 148 nanograms per milliliter (ng/ml) of benzoylecgonine, the primary metabolite in the drug cocaine and some over-the-counter medications.  He maintains the acceptable level of benzoylecgonine set by the Department of Defense (DOD) is 100 ng/ml.   
3.  Counsel provides the following:  USMA Oath of Allegiance; Academic Record; Cadet Performance Reports; Leadership Performance Reports; Demerit Review; USMA Forms 2-3 (Record of Formal Proceedings Under Article 10, Cadet Disciplinary Code); Sworn Statement; Memorandum, Subject:  Disciplinary Award No. 153; USMA Form 2-3-1A (Summarized Article 10 Proceeding for Minor or Recurring Offenses); Memorandum, Subject:  Disciplinary Award No. 180 with applicant's rebuttal; Positive Drug Report; Charge Sheet with applicant's acknowledgement;  Memorandum, Subject, Article 32(b) Investigation with counselor's rebuttal and excerpts from the Code of Federal Regulation and a lab packet, Applicant's Resignation; DD Form 214 (Certificate of Release or Discharge From Active Duty); Recoupment of Educational Assistance Costs with the applicant's rebuttal; Press Release with counsel's request for removal; and a 38 page document on the "Application for Clinical Investigation Project." 

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he was appointed as a cadet at the USMA, West Point, New York, on 28 June 2004.  

2.  In the applicant's Oath of Allegiance, he agreed, in pertinent part, to complete the course of instruction at the USMA.  He signed the oath indicating that if he voluntarily failed, or because of misconduct failed to complete the period of active duty specified, he would reimburse the United States in an amount that bears the same ratio to the total cost of advanced education provided him as the unserved portion of active duty bears to the total period of active duty he agreed to serve.  Further, he agreed that if he was separated from the USMA for breach of his service agreement, and the Army decided that he should not be ordered to active duty because such service would not be in the best interests of the Army, he would be considered to have either voluntarily or because of misconduct failed to complete the period of active duty and may be required to reimburse the United States.

3.  The applicant's Cadet Performance Report from June 2004 through July 2004 shows he received the majority of "Sustain" ratings by his rater in Army Values and Leadership Attributes/Skills/Actions.  He received "Improvement" ratings in Physical, Emotional, and Decision-Making.  He was assessed as "Center of Mass - lower half" with the comment of "has potential, but needs to be more disciplined."  The reviewer concurred with the rater's assessment. 

4.  The applicant's Cadet Performance Report from June 2005 through July 2005 shows he received the majority of "Sustain" ratings by his rater in Army Values and Leadership Attributes/Skills/Actions.  He received "Improvement" ratings in Motivating and Assessing.  He was assessed as "Above Center of Mass - lower half" with the comment of "[Applicant] volunteered for extra details and to carry extra weight.  He did not complain during this detail even when most of those around him were.  He thoroughly understands the big picture and is willing to accept responsibility for his actions.  He is going to be a very good team leader and an officer."

5.  On 15 February 2006, the applicant was punished under Article 10 for consuming alcohol on 28 January 2006, as an underage minor.  His punishment consisted of 100 hours of extra duty, 60 days of restriction, reduction in the rank of private first class (PFC) and withdrawal of privileges for 90 days.  The memorandum, Subject: Disciplinary Award No. 53, dated 15 February 2006, contains the same information as the Article 10.

6.  On 16 January 2007, the applicant was punished under Article 10 for driving an unauthorized private owned vehicle (POV) on post on 18 November 2006.  His punishment consisted of 50 hours of extra duty, 50 days of restriction, and loss of driving privileges.  The memorandum, Subject: Disciplinary Award No. 180, dated 16 January 2007, contains the same information as cited in the Article 10. 

7.  In the applicant's rebuttal to the memorandum, he said that the vehicle belonged to his parents who purchased the vehicle to accommodate their transportation needs while visiting the Academy and the Northeast.  He explained that his father attended a football game at the Academy on 21 October 2006.  The following morning, he drove his parents to the airport and took responsibility of the vehicle.  He offered that he knew he could not keep a vehicle on West Point until after Spring break and therefore, the vehicle was kept off-post.  He said he was under the impression that the vehicle could be driven on post during the weekends, after duty hours.  The applicant added that once he was informed of the violation, he immediately drove the vehicle off-post and did not operate the vehicle in the area again.

8.  The applicant's demerit review record shows that he was assessed the following demerits:  35 on 28 January 2006 for underage drinking; 5 on 
13 October 2006 for being absent; and 35 on 18 November 2006 for being caught driving an unauthorized vehicle.

9.  The Forensic Toxicology Drug Testing Laboratory sheet, dated 7 February 2007, shows that an initial and verification screen test were conducted on 
11 January 2007 and both tests were positive for cocaine metabolites.  On
12 January 2007, a confirmation test revealed a positive reading of 148 nm/ml for benzoylecgonine which was produced by the metabolism of cocaine, a controlled substance.   Additionally, the laboratory report stated that the DOD cutoff for benzoylecgonine was 100 ng/ml.  

10.  On 5 February 2007, charges were preferred against the applicant for the wrongful use of cocaine between on or about 4 December 2006 and on or about 4 January 2007. 

11.  On 6 February 2007, an internet article released from USMA Public Affairs Office stated that charges were preferred against four cadets for drug-related offenses.  The applicant was mentioned by name in this article.  The applicant's counselor sent a letter to the Office of the Staff Judge Advocate requesting that the Army remove from the website of USMA the article concerning the applicant. He said that the article was no longer accurate.

12.  A memorandum, subject:  Article 32(b) Investigation dated 13 February 2007, shows that the applicant was notified of a pending investigation concerning the preferred charges against him and his rights during the investigation.

13.  On 2 March 2007, the applicant's counselor recommended dismissal of the preferred charges on the applicant because the test result "was barely positive." The counselor said that a reading of 148 ng/ml was an extremely low reading and may not be a positive test.  He quotes the Department of Transportation cutoff limit of 150 ng/ml and confirmation test limit of 300 ng/ml and argued that their cutoff limit was to avoid false accusations and false positives.  The counselor stated that aside from the "positive" drug test, there was no evidence that the applicant ingested cocaine.  He offered that the result of the test was so low as to be consistent with touching objects that at one time contained the drug. The counselor cited that the charge was inconsistent with the applicant's character and the applicant's involvement in the neo-cart medical study as additional justification to dismiss the court-martial.  He also attached a report and a review from a doctor in which he said that the doctor's review concluded that one or both of the test results were not correct.

14.  On 7 March 2007, the applicant requested to resign in lieu of trial by court-martial under the provisions of chapter 7, Army Regulation 210-26.  The applicant signed his request for resignation which showed that he was making the request under his own free will; that he was afforded the opportunity to speak with counsel; that he may be furnished an Under Other Than Honorable Conditions Discharge Certificate which may render him ineligible for many or all benefits under both federal and state laws and that the discharge may carry substantial prejudice in civilian life.   He further understood that if issued a general discharge under honorable conditions, he may expect to encounter substantial prejudice in civilian life.  He also understood that rather than be ordered to active duty service, the Army may require him to repay the cost of his educational expenses in accordance with Section 2005, Title 10, U.S. Code.

15.  On 3 April 2007, the Director of Resource Management provided a detailed account of the cost of education for the applicant for the period 2005 through
2 April 2007.  The total amount listed was $143,021.00.  This amount was relayed to the applicant on 19 April 2007, in the IO's recoupment letter.  The applicant stated that he disputed the findings and reserved the right to seek redress.   
 
16.  On 27 June 2007, the Assistant Secretary of the Army (ASA) (Manpower and Reserve Affairs (M&RA)) approved the applicant's request for resignation in lieu of court-martial with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  Additionally, the applicant was directed to repay $143,021.00 in education benefits based on the results of the recoupment investigation.

17.  The applicant's DD Form 214 shows that he was discharged with a character of service listed as under other than honorable conditions, on 27 June 2007, under the provisions of Army Regulation 612-205, paragraph 7a(1)(b), Table 3, Rule 6.  The applicant had completed 2 years, 11 months, and 30 days of service as a USMA cadet.

18.  On 15 January 2008, the IO said that he had considered the information the applicant provided in his response dated 29 April 2007.  He found that the applicant had adequate notice that he would be financially liable for the cost of his education if he failed to fulfill his obligation in accordance with his agreement to serve.  Therefore, he found that the applicant's debt to the United States totaled $143,021.00.

19.  In the processing of this case, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1.  That office recommended that the applicant's request be denied.  The agency said that after the applicant consulted with counsel, he voluntarily tendered his request to resign from the USMA in lieu of trial by court-martial.  In his request, the applicant acknowledged that the separation authority could characterize his service as under other than honorable conditions.  The USMA case was processed in accordance with Army and Academy regulations, which provided due process and ensured the fairness of the proceedings.  The agency said that the ASA (M&RA) approved the applicant's resignation in lieu of trial by court martial and determined that the nature of his offense warranted an other than honorable discharge and recoupment of $143.021.00.

20.  Additionally, the Office of the Deputy Chief of Staff, G-1, recommended that the applicant's request to remove the adverse and allegedly fallacious online article from the USMA website be denied.  The agency said that the USMA Public Affairs Office indicated that the article does not constitute a violation of the Privacy Act and that such announcements were standard practice at all Service Academies after charges were preferred against cadets/midshipmen.

21.  On 2 July 2009, the applicant's counsel responded to the Office of the Deputy Chief of Staff, G-1, advisory opinion.  He argued that G-1's assertion that ASA (M&RA)'s decision to separate the applicant from the USMA and discharge him from the Army was final and precluded review by the Army Board for Correction of Military Records (ABCMR) was inconsistent with the Board's statutory mandate.  The counselor quotes the ABCMR's authority and opined that since the G-1's argument is without merit, the ABCMR should wholly reject the advisory opinion's recommendation and address the arguments contained in the application.  

22.  DoD Directive (DODD) 1332.23, "Service Academy Separations," dated     19 February, 1998, applies to the Office of the Secretary of Defense (OSD); the "DoD Components"; cadets and midshipmen attending the U.S. Military Academy, West Point, New York; the U.S. Naval Academy, Annapolis, Maryland; and the U.S. Air Force Academy, Colorado Springs, Colorado, hereafter referred to as "Service Academies."  The directive states, in pertinent part, that if such person, with the approval of the Secretary concerned or because of misconduct, voluntarily fails to complete the period of active duty specified in the agreement, he or she shall reimburse the United States in an amount that bears the same ratio to the total cost of advanced education received as the unserved portion of active duty bears to the total period of active duty such person agreed to serve.

23.  Army Regulation 210-26 (United States Military Academy) provides policy and procedures for the general governance and operation of the USMA.  Chapter 7 provides rules concerning separation of cadets prior to completion of the course of instruction.  Paragraph 7-6 states that if charges have been preferred against a cadet under the UCMJ or separation proceedings against a cadet have been initiated for misconduct, honor, or conduct under this regulation, the cadet concerned may resign in lieu thereof.  Such resignations may be submitted at any time prior to final separation approval.  Discharge under other than honorable conditions may be issued if discharge is pursuant to a resignation in lieu of court-martial.



24.  Army Regulation 210-26 also states, in pertinent part, that cadets who resign from the Military Academy, or who are separated from the Academy prior to completion of the course of instruction, will be deemed to have breached their service agreement. 

25.  Army Regulation 612-205 (Appointment and Separation of Service Academy Attendees) provides guidelines on cadet separation policy.  Table 3, rule 6 states that if separation action is started after commencement of the third academic year (junior year) but before commencement of the fourth academic year (senior year) and the cadet is separated or resigns he or she will be transferred to the Reserve as an E-3 (or appropriate grade) for 2 years and may be ordered to active duty for not less than 2 years, or discharged from the Army if transfer to the Reserve is inappropriate.  However, if the separation authority determines that the cadet is being separated from the Academy because of demonstrated unsuitability, unfitness, or physical disqualification from military service, the cadet will be discharged from the Army.

26.  Army Regulation 600-8-24 (Officer Transfers and Discharges) sets forth the basic authority for the separation of officer personnel.  Paragraph 1-22a provides that an officer will normally receive an Honorable characterization of service when the quality of the officer's service has met the standards of acceptable conduct and performance of duty.  

27.  Army Regulation 600-8-24, paragraph 1-22b provides that an officer will normally receive a General Under Honorable Conditions characterization of service when the officer's military record is satisfactory but not sufficiently meritorious to warrant an Honorable discharge.  A separation under honorable conditions will normally be appropriate when an officer in pertinent part, (1) Submits an unqualified resignation or a request for release from active duty (REFRAD) under circumstances involving misconduct or (2) Is separated based on misconduct, including misconduct for which punishment was imposed, which renders the officer unsuitable for further service, unless an Under Other Than Honorable Conditions separation is appropriate.

28.  Army Regulation 600-8-24, paragraph 1-22c provides that a discharge Under Other Than Honorable Conditions is an administrative separation from the service under conditions other than honorable.  An officer will normally receive an "Under Other Than Honorable Conditions" when they in pertinent part :  (1) Resign for the good of the service; (2)  Are involuntarily separated due to misconduct, moral or professional dereliction, or for the final revocation of a security clearance under DODD 5200.2-R and Army Regulation 380-67 as a result of an act or acts of misconduct, including misconduct for which punishment was imposed.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's counselor opines that if the DOD cutoff for the acceptable level of benzoylecgonine was set at 150 ng/ml and confirmed at 300 ng/ml as set by the Department of Transportation, the applicant's urine specimen would not have been listed as positive for cocaine metabolites.  Regardless of whether the Department of Transportation's acceptable level of benzoylecgonine exceeds the level established by DOD, the bottom line is that the applicant was under DOD standards and as such was confirmed for a positive cocaine metabolite, benzoylecgonine.  The Department of Transportation standards have no bearing on this case.

2.  On 5 February 2007, charges were preferred against the applicant for the wrongful use of cocaine.  After consulting with counsel, on 7 March 2007, the applicant requested to resign in lieu of trial by court-martial.  The applicant signed his request for resignation indicating he understood that rather than be ordered to active duty service, the Army may require him to repay the cost of his educational expenses.

3.  Prior to the approval of the applicant's request for resignation, on 19 April 2007, he was provided a detailed account of the cost of his education for the period 2005 through 2 April 2007, $143,021.00.  He disputed this amount, but provided no documentation explaining why this amount was incorrect.

4.  The fact of the matter is that the applicant entered into an agreement to reimburse the United States if he failed to complete the course of instruction at the USMA due to misconduct.  The applicant breached his service agreement and was discharged from the USMA in lieu of court-martial.  As a result, there is no basis for cancellation of the applicant's indebtedness.

5.  The applicant's counsel requests removal of a USMA public press rerelease on line article concerning the applicant's charges.  Since there is insufficient evidence to show the applicant was improperly discharged, there is an insufficient basis on which to grant this relief.

6.  The applicant's counsel requests that the applicant's discharge be upgraded to honorable.  Evidence of record shows the applicant's request for resignation in lieu of court-martial, under provisions of chapter 7, Army Regulation 210-26 was voluntary, administratively correct, and in compliance with applicable regulations. 



7.  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 the aforementioned requirement.

8.  In view of the foregoing, there is no basis for granting the applicant's request for discharge upgrade and likewise, his request to be commissioned as an officer with all back pay and allowances.

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)                                         AR20090003432





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ABCMR Record of Proceedings (cont)                                         AR20090003432



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