IN THE CASE OF:	

		BOARD DATE:	17 December 2009

		DOCKET NUMBER:  AR20090009122 


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, in effect, that the applicant's DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) be set aside and removed from his local file.

2.  Counsel states that the applicant was denied his right to confer with him as his counselor prior to the Article 15 hearing.  As a result of the injustice, the applicant did not know whether to turn down the Article 15 and demand trial by court-martial, to request an open or closed hearing, or to request a spokesperson or witnesses for the Article 15.  He maintains that the applicant attended the Article 15 hearing without an understanding of what evidence to present or how to properly argue his case.

3.  Counsel maintains that during the Article 15 hearing, the imposing authority failed to apply the correct legal standard beyond a reasonable doubt.  As a result, the applicant was found guilty and punished based on inadequate evidence.  Additionally, counsel argues that the appellate authority failed to afford relief to the applicant after being provided evidence that the proceedings were not conducted in accordance with regulation.


4.  Counsel states that around December 2008, the applicant conducted an online search for supplements and weight gain products.  At some point, he Googled the term "steroids" and the search revealed hundreds of websites, including a legal pill known as "Sustanon 250."  He offers that when the applicant ordered the pills online he fully believed the pills were legal.  On or about
6 December 2008, the mailroom clerk gave the applicant a package that was received from an unknown person in Pakistan.  Counsel adds that the applicant felt vials in the package and knew that he never ordered vials or anything from Pakistan; therefore, he gave the package to the mailroom's Noncommissioned Officer in Charge (NCOIC).  He offered that due to the suspicious nature of the package, the package was placed in a bunker outside of the post office and Explosive Ordnance Disposal (EOD) was called.  The package was opened and revealed vials of liquid labeled "Sustanon 250."

5.  Counsel maintains that there is no evidence that the government ever forensically tested the vials to determine what the vials actually contained.  He adds that the government called the pharmacy and a Soldier in the pharmacy opined that Sustanon 250 is a Scheduled III Controlled Substance and can only be used with a prescription.  Counsel offers that after the Air Force Security Police Investigation (AFOSI) was conducted, the applicant was charged with wrongful possession of 115 milliliters (ml) of Sustanon 250 in violation of Article 112a.

6.  Counsel recalls that on 6 March 2009, the applicant came to Trial Defense Services (TDS) to speak with an attorney about his Article 15, but there were no attorneys in the office.  Therefore, the applicant watched a video about the Article 15 process and spoke with a paralegal.  Counsel maintains that the applicant did not speak to an attorney nor make an election in block 3 of the DA Form 2627.  Counsel reiterates that at no time did he advise the applicant about his Article 15 or assist him in the explanation or election of his rights.

7.  On 12 March 2009, counsel recalls that he spoke to the applicant concerning polygraph testing and Article 31 rights.  Counsel adds that he did not advise the applicant fully about his Article 15 or assist him in the explanation or election of his rights in block 3 of the DA Form 2627.  He offers that it was his belief that the Article 15 was on hold or dismissed pending further evidence.  However, he adds that he informed the applicant if the unit continued to pursue the Article 15 in the future, he should return to TDS to speak to him on the best course of action.

8.  Counsel states that there was no possession in the applicant's case; therefore, there cannot be a wrongful possession charge.  He also states that the evidence demonstrates that the applicant refused to take possession of the 
package which is corroborated by the mailroom NCOIC.  He argues that since the applicant's refusal to accept possession of the package, there cannot be proof beyond a reasonable doubt of "wrongful possession."  He adds that since the liquid was never tested, there is also no proof that the substance in the vials was actually Sustanon 250.  Counsel opines that the applicant's punishment under UCMJ is based on the fact that he [the applicant] received a previous Article 15 for steroid possession.

9.  The applicant's counsel provides a copy of the DA Form 2627; the AFOSI, including the applicant's and the mailroom NCOIC's sworn statement; numerous electronic mails (e-mails); and internet documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows his rank/grade, at the time of the Article 15, was private first class (PFC)/E3 with a date of rank of 1 December 2008.

2.  On 6 February 2009, in a sworn statement, the applicant stated that around December 2008, he ordered Sustanon 250 in the pill form online.  On
6 February 2009, he received a suspicious package from the mailroom, but he did not accept the package because he knew that it was not what he ordered.  He offered that he had Googled "steroids" on the website and researched the information and determined that Sustanon 250 was the best pill on the market for weight gain.  Therefore, he ordered the pills at a cost of $300.00.

3.  The AFOSI, dated 7 February 2009, stated that in December 2008 the applicant ordered via the internet Sustanon 250, a Schedule III Controlled Substance.  On 6 February 2009, the applicant received a parcel containing 115 ampoules of Sustanon 250.  During an interview with the applicant he admitted that he used a Morale, Welfare, and Recreation (MWR) computer to order Sustanon 250 at a cost of $300.00 on his Service Credit Union debit card.  The applicant stated that he did not receive payment confirmation because he used a fake e-mail address and he did not have online banking.  He further stated that when he physically received the parcel containing 115 ampoules, it was not what he ordered; he thought he was getting Sustanon 250 in a pill form.  AFOSI stated that the 115 unopened glass ampoules labeled 1 ml were seized by the investigators.  The AFOSI stated that a Soldier was contacted to research Sustanon 250 and verified that it was a Schedule III Controlled Substance that required an authorized prescription.  Additionally, the investigating officer researched the internet and found that Sustanon 250 had a street value of $25.00 per ampoule.  A law enforcement records check was conducted that revealed the applicant had one previous UCMJ incident, dated 19 June 2008, for 
wrongful use/possession of drugs.  Sustanon 250 in the vial form is a Schedule III Controlled Substance as defined in 21 Code of Federal Regulations (CFR) 1300.01 and 13000.  However, in the pill form Sustanon 250 is not a controlled substance under the Controlled Substance Act.

4.  On 17 March 2009, nonjudicial punishment was imposed against the applicant for wrongfully possessing 115 ml of Sustanon 250, a Schedule III Controlled Substance on or about 6 February 2009.  In block 3 of the DA Form 2627 (having been afforded the opportunity to consult with counsel, my decisions are as follows:) the applicant’s initials are in 3b, I do not demand trial by court-martial; 3b(1) I request the hearing be closed; and 3b(2) a person to speak in my behalf is requested.  His punishment consisted of reduction to the grade of private (PV1)/E1, forfeiture of $699.00 per month for two months, and 45 days of restriction and extra duty, both suspended.  Block 5 (I direct the DA Form 2627 to be filled in the Performance fiche or Restricted fiche) of this form is lined out, indicating that filing in either the Performance or Restricted fiche is not applicable and, therefore, the Article 15 would be locally filed.

5.  On 17 March 2009, counsel appealed the Article 15 findings and punishment on behalf of the applicant.  Counsel provided the same argument to the appellate authority as he provided to this Board.  He requested that the Article 15 be dismissed for lack of evidence.

6.  In an e-mail to counsel from the battalion commander, dated 18 March 2009, he stated that if the applicant produced documents through his bank account to show that he ordered the pills, it would help his case.  Counsel responded that his fear was that the records would only show a price and not differentiate between what was actually ordered and what was sent.  Additionally, counsel stated that if the applicant had simply accepted the package it would be a mute issue.  Counsel also stated that he did not believe that forensic testing was ever conducted on the alleged Sustanon 250 and the ampoules could very well contain water, sugar, or some other mixture or substances that were not illegal.  The battalion commander agreed that counsel had good points, but interjected that the applicant's refusal to accept the package could have been based on questions asked by the mailroom NCOIC regarding the package that were out of the norm.  The battalion commander stated that he was concerned that the document stated that the applicant was not afforded the opportunity to speak with counsel.  He stated that he asked the applicant specifically, once the proceeding began, if he had the opportunity to speak to counsel and he stated he did.

7.  On 23 March 2009, after consideration of all matters presented in the appeal, the appellate authority denied the applicant's appeal.

8.  In an e-mail, dated 23 March 2009, counsel requested that the appellate authority reconsider his decision to uphold the Article 15 punishment on the applicant.  Counsel cited that the alleged steroids were never forensically tested, the applicant refused to accept possession of the package, and that the applicant believed the substance he ordered was a legal form of Sustanon 250, as justification for his request.  Additionally, he stated that there was honest confusion concerning whether the applicant spoke to an attorney about his Article 15.  He added that the applicant spoke to him concerning a polygraph test, but not the Article 15.  He offered that when the applicant spoke to him, he believed that the Article 15 was on hold because the unit did not have sufficient evidence to bring forth charges in an Article 15.

9.  On 25 March 2009, the brigade judge advocate stated in an e-mail that the counsel's request for reconsideration based on the merits and his request for reconsideration of the sentence were improper.  He quoted the regulation as stating that only one appeal was permissible under Article 15 proceedings.  He further stated that a request for reconsideration was not an option after an Article 15 appeal was finalized in this case.  Therefore, the appellate authority would not act on his request and the decision made on the appeal was final.

10.  In a sworn statement, dated 4 April 2009, the mailroom NCOIC stated that he picked up a package for the applicant that was wrapped in a white cloth and from Pakistan.  He stated the applicant refused to accept the package because he did not know who sent the package.  The NCOIC stated that he took the package back to the post office and placed it in the bunker until EOD arrived.

11.  The internet documents show that Sustanon 250 was listed as "legal" for use by body builders and strength athletes.  The price was listed as $33.05 each, if four or more bottles were purchased or up to $55.96 for one bottle.  However, a statement on a website stating that a steroid is legal does not absolve an individual of liability if in fact the substance is illegal.  Additionally, it sells at about $12.00 per ml; 115 vials would have cost more than $300.00.

12.  A review of the websites selling steroids on the internet show that the price of Sustanon 250 in ampoules cost anywhere from $250.00 to $400.00 depending on the amount.

13.  Army Regulation 27-10 (Military Justice) states that the commander of the alleged offender must ensure that the matter is investigated promptly and adequately.  The investigation should provide the commander with sufficient information to make an appropriate disposition of the incident.  The investigation should cover:  (1) Whether an offense was committed; (2) Whether the Soldier was involved; and (3) The character and military record of the Soldier.
14.  Army Regulation 27-10 states, in pertinent part, that a commander who, after a preliminary inquiry, determines that the Soldier committed an offense 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 also be notified of his right to remain silent; right to counsel; right to demand trial by court-martial; right to present his case to the imposing commander; right to call witnesses, to present evidence, to be accompanied by a spokesperson; right to request an open hearing; and the right to examine available evidence.

15.  The same regulation states that if the Soldier requests a decision period, the Soldier will be given a reasonable time to consult with counsel to decide whether or not to demand trial by court-martial.  The decision period will not begin until the Soldier has received actual notice and explanation of rights under Article 15 and he/she has been provided a copy of the DA Form 2627with items 1 and 2 completed.  The Soldier will be advised that if he/she demands a trial, block 3a of DA Form 2627 must be initialed and item 3 must be signed and dated within the decision period; otherwise, the commander will proceed under Article 15.  The decision period should be determined after considering factors, such as the complexity of the case and the availability of counsel.  If the Soldier does not request a delay, the commander may continue with the proceedings immediately.

16.  Army Regulation 27-10 states that punishment will not be imposed unless the commander is convinced beyond a reasonable doubt that the Soldier committed the offense(s).  If the imposing commander decides to impose punishment, ordinarily the commander will announce the punishment to the Soldier.  The commander may, if the commander desires to do so, explain to the Soldier why a particular punishment was imposed.  Additionally, the commander will explain the appeal procedures that are available to the Soldier.

17.  Army Regulation 27-10 states that only one appeal is permissible under Article 15 proceedings  The next superior authority to the commanding officer who imposed the Article 15 will act on an appeal if the Soldier punished is still of the command of that officer at the time of appeal.  Action by the superior authority on appeal will be entered in item 9, DA Form 2627.  The superior authority may conduct an independent inquiry into the case, if necessary or desirable.

18.  Army Regulation 27-10 defines the term setting aside and restoration. Paragraph 3-28 states that this is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored.  Nonjudicial punishment is "wholly set aside" when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under Article 15.  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.

DISCUSSION AND CONCLUSIONS:

1.  Counsel argues that the applicant's Article 15 should be dismissed and removed from his file based on the fact that he [the applicant] was not afforded due process, the alleged steroids were not forensically tested, and the applicant was not in possession of the alleged steroids as indicated on the Article 15.

2.  Certain facts in the case are undisputed:  the applicant ordered Sustanon 250 online; the mailroom received a package for the applicant from an address in Pakistan; that package contained 115 1 ml ampoules of a substance purported to be Sustanon 250; Sustanon 250 in vial form is a Schedule III controlled substance while Sustanon 250 in the pill form is not; and the applicant did not take possession of the package, other than the brief time to inspect it and determine that it contained ampoules of some kind of drug.

3.  However, there are several alleged facts that are based solely upon the applicant’s statement to AFOSI and are susceptible to challenge.  First, the applicant claimed that he spent $300 for the steroids.  This claim does not correlate with the facts.  AFOSI obtained information that a 1 ml ampoule of Sustanon 250 had a street value of $25.00.  Secondly, the applicant stated that he used a fake e-mail address in ordering the steroids “that he believed to be perfectly legal.”  Thirdly, the applicant received a prior Article 15 which is relevant in showing that he had knowledge that certain steroids were illegal, his ability to identify kinds of steroids, and to rebut his claim that he either accidently ordered the wrong substance or received something he did not order by mistake.  Fourthly, it is entirely possible to conclude that the applicant refused to accept the steroids because the packaging looked suspicious and would draw attention to himself.

4.  Given the facts presented by counsel, it would have been reasonable for the applicant to decline the Article 15 and demand trial by court-martial had he been properly counseled concerning his rights.  Additionally, counsel's assertion that the applicant's punishment under Article 15 for the alleged wrongful possession of Sunstanon 250 was based on the fact that he had previously received an Article 15 for a similar offense, appears to have some validity.  This fact, coupled with the applicant's inability to produce a bank statement, giving a fake e-mail address, and the cost of the Sunstanon 250 pills vice the ampoules would cause doubt in anyone's mind as to the applicant's credibility.

5.  Nevertheless, evidence of record shows that a forensic test was never conducted on the alleged Sustanon 250 ampoules to ascertain whether the contents in the ampoules were in fact Sustanon 250, a Schedule III Controlled Substance.  The question then is whether the applicant was guilty of possession of steroids.  The AFOSI, e-mails, and a sworn statement by the mailroom NCOIC, as well as his counselor, all verify that the applicant refused to accept the package containing the alleged Sustanon 250.  Regardless of the imposing authority's assumption concerning the reason for the applicant's refusal of the package, the package was not in the applicant’s possession.  Therefore, the Article 15 that states "wrongfully possessing" is incorrect.

6.  Further, it is unknown if the commander would have elected the same punishment of reduction to the grade of private (E1), forfeiture of $699.00 per month for two months, and 45 days of restriction and extra duty (both suspended) if the offense had been listed as "wrongfully attempt to possess” versus "wrongfully possessing" a controlled substance. 

7.  Therefore, in the interest of justice, it would be appropriate to correct the Article 15 to read "wrongfully attempt to possess a controlled substance" and void the punishment listed on the Article 15.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X____  ___X ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board determined that the evidence presented was insufficient to change the conclusion of the fact-finder and the appellate authority that the applicant possessed the steroids.  The Board determined that the fact-finder and the appellate authority could have reasonably assumed that the package contained an illegal controlled substance, based on the applicant’s previous misconduct.  As a result, the Board recommends that the applicant’s request be denied in its entirety.



      ________XXX___________
       	   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)                                         AR20090009122



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ABCMR Record of Proceedings (cont)                                         AR20090009122



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