IN THE CASE OF:	  

		BOARD DATE:	    12 January 2010

		DOCKET NUMBER:  AR20090010507 


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 that his DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) be removed from his Official Military Personnel File (OMPF).

2.  The applicant states that on 26 November 2008, he received an Article 15 in which his punishment consisted of reduction to sergeant (SGT)/E-5, forfeiture of 
$1202.00 pay per month for two months, extra-duty for 45 days, and restriction for 45 days.  He maintains that the evidence does not support the battalion commander's findings and therefore, the Article 15 should be dismissed and his rank reinstated.  The applicant cites the findings of his administrative separation board as proof of his innocence.

3.  The applicant provides a copy of his Chapter 14 proceedings.  

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows his rank/grade, at the time of the Article 15, was staff sergeant (SSG)/E6 with a date of rank of 1 January 2008.  The applicant is currently serving in the rank of SGT.

2.  On 26 November 2008, nonjudicial punishment was imposed against the applicant for the wrongful use of cocaine.  His punishment consisted of reduction to the grade of E-5, forfeiture of $1202.00 pay per month for two months, extra-duty for 45 days, and restriction for 45 days.  In block 3 of the DA Form 2627 he indicated that he was afforded the opportunity to consult with counsel and did not demand trial by court-martial.  He also initialed block 7 of this form indicating that he did not wish to appeal.  The commander directed that the Article 15 be filed in the performance section of the applicant's OMPF.

3.  On 4 February 2009, the applicant's chain of command recommended that he be discharged under the provision of Army Regulation 635-200, chapter 14, paragraph 14-12c (Commission of a Serious Offense), positive urinalysis for cocaine.  After consulting with counsel, the applicant requested that his case be heard by an administrative separation board. 

4.  On 22 April 2009, the applicant appeared before an administrative separation board.  The board reviewed the evidence, to include the laboratory results for the applicant's positive urinalysis, and found that the applicant "did not" test positive for cocaine during a urinalysis.  The board stated that the allegations of misconduct within the meaning of commission of a serious offense in accordance with Army Regulation 635-200, chapter 14, Section 3, paragraph 14-12 were not supported by a preponderance of the evidence.  In view of their findings, the board recommended that the applicant be retained in the military service.  

5.  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.

6.  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.

7.  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 2627 with 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.

8.  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.

9.  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.

10.  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.  On 26 November 2008, the applicant received an Article 15 for wrongful use of cocaine as determined by a positive urinalysis.  He maintains that the evidence does not support the battalion commander's findings and cites the administrative separation board's findings and recommendation as proof of his innocence.  

2.  The fact that the administrative separation board found that the applicant "did not" test positive for cocaine during a urinalysis and recommended he be retained in the military service is not sufficient justification to remove the 
Article 15.  Army Regulation 27-10 requires the commander issuing the Article 15 to find the applicant guilty beyond a reasonable doubt before imposing punishment.  The fact that the applicant was afforded due process during his Article 15 proceedings and elected not to demand trial by court-martial or even to appeal the Article 15 or the punishment could well have led the commander to find the applicant guilty beyond a reasonable doubt.  Therefore, the administrative separation board's statement concerning the urinalysis results and their subsequent recommendation to retain the applicant in the service are not sufficient justification to show that the Article 15 was rendered unjustly or in error.

3.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

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)                                         AR20090010507





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ABCMR Record of Proceedings (cont)                                         AR20090010507



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