IN THE CASE OF:	  

		BOARD DATE:	  4 May 2010

		DOCKET NUMBER:  AR20090016710 


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 a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) be set aside and removed from his official military personnel file (OMPF) and that he be restored to the rank and position he held prior to the imposition of the punishment. 

2.  The applicant states:

* improper procedures were used
* bias was involved
* wrong legal standard and elements of proof were relied upon by  the imposing commander
* he did not receive a fair hearing on 21 May 2008
* he was retained due to the unjust nature of the proceedings and reasonable doubt as to his guilt
* the "testing facility" reported his urine sample positive for tetrahydrocannabinol at 31 nanograms per milliliter
* during the initial reading of the Article 15 proceedings, the command sergeant major's (CSM) comments were inappropriate
* he adamantly denied using illegal drugs before and during the Article 15 reading
* the CSM equated his alleged drug use to an incident that resulted in the death of the CSM's son
* the CSM's approach to positive drug tests affected the second reading
* 
his commanding officer (CO) admitted that he did not know the standard of proof in an Article 15 hearing was "beyond a reasonable doubt"
* his CO did not reach out to any of his staff to obtain advice on the proper procedures for conducting an Article 15 hearing
* his CO denied his request for a full copy of the litigation packet
* it was determined that his urine sample contained a very low level of the active ingredient of marijuana
* his military history establishes that drug use is inconsistent with his character
* the Army Substance Abuse Program (ASAP) told his unit he showed no evidence of drug dependence or abuse and did not need to participate in the program
* since his reduction in pay grade, he has regained the rank of a noncommissioned officer
* he should not have his career negatively affected because the battalion command group was uneducated as to their responsibility and the legal standard
* the battalion command group abused its position by letting personal bias affect its decision making

3.  The applicant provides the following documentation:

* a memorandum for Chairperson, Army Board for Correction of Military Records (ABCMR), dated 14 August 2009
* DA Form 2627
* a statement addressed to the Appellate Authority, 1st Brigade Combat Team, 1st Infantry Division
* new drug testing results
* testimony given by another Soldier to that Soldier's defense counsel
* an excerpt from the Military Judges' Benchbook entitled, "3-37-2.  Drugs - Wrongful Use (Article 112a)"
* an undated memorandum to his commander from his defense counsel requesting information for an Article 15 appeal
* a Standard Form 600 (Chronological Record of Medical Care)
* an ASAP enrollment packet
* a memorandum for Chairperson, ABCMR, from the Judge Advocate senior defense counsel, dated 14 August 2009
* a memorandum for record, dated 2 September 2009

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests removal of the Article 15 from the applicant's OMPF.

2.  Counsel states:

* a summarized transcript of the administrative separation board proceedings was never produced because the separation authority decided to retain the applicant
* parts of the tapes were not audible and the majority of the proceedings were not recorded
* he remembers the CO testifying he did not know the appropriate standard of proof and believed the Army had a "zero tolerance" policy for drug use
* the CO stated that he believed innocent ingestion through a cigarette was still use of an illegal drug for which the applicant could be held responsible
* a doctor from Fort Meade, Maryland, testified that the low level of drugs found in the applicant's system was consistent with innocent ingestion
* he was the attorney of a Soldier who tested positive for drugs where he discovered the CSM interfered with the applicant's right to a fair hearing by placing the blame of his own son's death at his feet during the first reading of the Article 15

3.  Counsel provides no additional documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve on 23 March 1995 in the pay grade of E-2.  He completed training as a behavioral science specialist and as a medical specialist.  He was advanced through the ranks to the pay grade of E-4.

2.  On 29 December 1998, the applicant enlisted in the Regular Army (RA) for 4 years in the pay grade of E-4.  He was promoted to E-5 on 1 March 2001 and he reenlisted in the RA for 4 years on 24 April 2002.

3.  The Chronological Record of Medical Care that the applicant submitted shows that on 7 May 2008:

* he was seen by a social worker for evaluation
* based on information provided, no diagnosis was made
* he did not meet diagnostic criteria for abuse or dependence
* he could benefit from attending Army Drug Abuse Prevention Training (ADAPT) to embrace knowledge and decision-making skills
* the social worker recommended that he attend ADAPT

4.  The ASAP enrollment form he submitted shows he was command-referred as a result of a positive urinalysis.

5.  Nonjudicial punishment was imposed against the applicant on 21 May 2008 for wrongfully using marijuana between 17 March 2008 and 16 April 2008.  His punishment consisted of:

* reduction to pay grade E-4
* forfeiture of $1067.00 per month for 2 months
* 45 days of extra duty

6.  The DA Form 2627 that he was furnished shows that he elected not to demand trial by court-martial; however, he elected to submit an appeal to the Article 15 and to submit additional matters.  His CO directed that the DA Form 2627 be filed in his OMPF.

7.  In an undated statement addressed to the Appellate Authority, 1st Brigade Combat Team, 1st Infantry Division, the applicant asserted he:

* had been falsely punished for an offense that he did not commit
* did not use illegal drugs or willingly ingest any such substance
* had been in the Army for 13 years
* deployed to Kosovo for Operation Joint Guardian
* deployed in support of Operation Iraqi Freedom
* had a permanent change of station to Korea (twice)
* had education goals
* would not do anything to jeopardize or endanger his chances for seeing his goals and dreams become a reality
* adamantly and vehemently denied the charges

8.  In an undated memorandum to the brigade commander, the applicant's defense counsel stated he was appealing the applicant's Article 15 because the applicant denied knowingly using marijuana.  His counsel stated:

* the applicant was denied a copy of the litigation report in his case, which would have contained any certificates of error or correction in the chain of custody or testing
* he believed that if such certificates existed they would not have been included in his file
* exculpatory evidence that should have been in the Article 15 file of another Soldier who tested positive on the same urinalysis was omitted from his file
* he discussed an exculpatory polygraph with trial counsel in the applicant's case


9.  The brigade commander denied the applicant's appeal on 3 June 2008.

10.  The administrative separation board proceedings are not filed in the applicant's OMPF.  The "individual voir dire" of the CSM that the applicant submitted shows the questions asked by his defense counsel and the answers that were provided by his CSM.

11.  When the applicant's CO was asked by the defense counsel what the standard of proof he was held to before he could find a Soldier guilty, he replied, "I have to be convinced that he committed the offense."  When asked by defense counsel, "But clear and convincing – were you ever advised by your legal advisor that it's the same standard as a court-martial – proof – proof beyond any reasonable doubt?" the CO replied, "I don't know if I was advised or not.  I didn't ask for any advice on what I needed for standard of proof."

12.  The applicant provides excerpts from the Military Judges' Benchbook of the criteria used when determining the guilt of a Soldier prior to punishment under Article 112a, UCMJ.

13.  In a memorandum for record, dated 2 September 2009, the Office of the Staff Judge Advocate, 1st Infantry Division, Operational Law Chief, stated that he was the board recorder for the administrative separation board hearing and he provided his recollection of the testimony given by the applicant's battalion commander during that board.  He states the applicant's battalion commander testified that he reserves all drug-related misconduct for himself and does not allow the company commanders to administer punishment for drug-related misconduct.  He stated he was aware of the applicant's positive urinalysis result and that he had adjudged Article 15 punishment.  When asked what his standard of proof was for an Article 15, he replied he didn't know and the defense counsel rattled off the different standards and informed him that the standard was beyond a reasonable doubt, the same as for a court-martial.  The battalion commander admitted that it may be possible to ingest marijuana without knowing it, but he had faith in the lab results and the testing.  He testified that the decision regarding punishment was solely his responsibility and there was no doubt in his mind regarding the applicant's guilt.

14.  Army Regulation 27-10 (Military Justice) prescribes policies and procedures pertaining to the administration of military justice.  Chapter 3 states that a commander will personally exercise discretion in the nonjudicial process by evaluating the case to determine whether proceedings under Article 15 should be initiated, determining whether the Soldier committed the offense(s) where Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial, and determining the amount and nature of any punishment if punishment is appropriate.

15.  Paragraph 3-18(l) of Army Regulation 27-10 provides 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.

DISCUSSION AND CONCLUSIONS:

1.  The question in this case is whether the applicant was afforded due process with regard to the issuance and the filing of the Article 15 in his OMPF.

2.  The contentions made by the applicant and his counsel have been noted.  However, insufficient evidence has been submitted to show that he was erroneously issued the Article 15, that it is inappropriately filed in his OMPF, or that the punishment imposed against him was improper.

3.  He could have requested trial by court-martial if he believed that he was being erroneously administered the Article 15.  Instead he elected not to do so and the Army was not obligated to afford him a polygraph.

4.  The applicant's contention that he did not knowingly ingest marijuana has been noted.  However, the fact that his CSM may have made inappropriate statements to him during the reading of the Article 15 proceedings is not proof that he did not knowingly use marijuana.  Further the commander, not the CSM, decided the ultimate of guilt.

5.  Although he submits evidence to show his CO stated he did not know the appropriate standard of proof to be used in establishing guilt in issuing an Article 15 for the wrongful use of marijuana, the evidence shows that he tested positive for marijuana and he has provided no evidence to the contrary.  Further, counsel mischaracterized the commander's response.  The commander said he was convinced of the applicant's guilt when asked what standard he applied.  Defense counsel interjected the "clear and convincing" standard in his next question.  This creative questioning did not dissuade the commander of the applicant's guilt, even after defense counsel questioned him about the "beyond a reasonable doubt" standard.  The urinalysis provided ample evidence for the commander to believe the applicant knowingly used marijuana and to disbelieve the applicant's denial.

6.  The applicant's battalion commander reviewed the evidence he submitted in support of his defense to the Article 15 and he directed that it be filed in the performance portion of the applicant's OMPF.  This commander reviewed the applicant's appeal and was still convinced of his guilt.

7.  The administrative separation board proceedings are not in the applicant's file. 
The fact that he is still a member of the Army does not show error or injustice in the issuance of the Article 15 and the available evidence suggests that the Article 15 was appropriately filed in the performance portion of his OMPF and the punishment imposed against was not disproportionate with the offense.

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)                                         AR20090016710



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ABCMR Record of Proceedings (cont)                                         AR20090016710



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