IN THE CASE OF:	  

		BOARD DATE:	  2 November 2010

		DOCKET NUMBER:  AR20100010083 


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, to have the applicant's court-martial and administrative separation expunged from his records.  Counsel further requests that the applicant be allowed to return to active duty. 

2.  Counsel states, in effect, based on facts in the findings of the court-martial against the applicant, the court-martial and the administrative discharge should be expunged. 

3.  Counsel provided a 20-page brief.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army on 22 March 1995.  Records show he completed basic combat training and advanced individual training.  He was awarded military occupational specialty 52D (Power Generator Equipment Repairer).  The highest rank he attained while serving on active duty was staff sergeant SSG/E6.

2.  On 16 January 2006, the applicant underwent a urinalysis and was reported positive on 29 January 2006.

3.  The applicant was tested again on 2 February 2006 and 5 February 2006.  The results of the first urinalysis revealed a monogram level of 221.  The second was negative for the presence of the metabolites tetrahydrocannabinol (THC).  The third test revealed a level of 31 monograms.

4.  On 7 August 2007, the applicant was convicted by a special court-martial of the following charges/specifications:

* Intent to deceive, sign an official record (Noncommissioned Officer Evaluation Report (NCOER)
* 2 specifications of wrongful use of marijuana 

5.  On 20 December 2007, the applicant received discharge under the provisions of Army Regulation 635-200, chapter 14.  His characterization of service was "General Under Honorable Conditions."  He had completed 12 years, 8 months, and 29 days of creditable active service.

6.  Counsel provided the following statements and arguments:

	a.  On Martin Luther King weekend 2006, the applicant met a friend who invited him to a party.  Unbeknownst to the applicant was a woman named Ms.V********from the Netherlands in attendance.  It was undisputed and agreed upon by the government that Ms. V******** had made a pie laced with marijuana and brought it to the party.  Ms. V********had been asked by her friend, S********, to bake marijuana laced pie for her friend, M******.  She brought the pie to the party and gave it to S********.

	b.  On 16 January 2006, the applicant underwent a urinalysis and was reported positive on 29 January 2006.  The applicant was unable to explain how he came up positive for marijuana use.  He backtracked his steps and was informed that the lady at the party had spiked the pie with marijuana.

	c.  The applicant was tested again on 2 February 2006 and again on
5 February 2006.  The results of the first urinalysis revealed a monogram level of 221.  The second was negative for the presence of the metabolites (THC).  The third test revealed a level of 31 monograms.

	d.  Counsel states that when the applicant was told the results of the third test he recalled eating some cookies left over from the party which he had brought home.  The applicant took the remainder of the cookies to the U.S. Army Criminal Investigation Command (USACIDC, also known as CID) and asked they be tested for drugs.  CID refused.
	e.  On 6 June 2007  the applicant requested for an expert witness,  His counsel made a request to the convening authority to appoint Dr. A***** M******* as the defense expert witness in toxicology.  The reason for the request was to explain that the positive result from 3 February 2006 could have been an artifact of the earlier innocent ingestion.

	f.  On 29 June 2007, the defense made a motion to dispute Ms. V******** in the Netherlands.  In the request, the defense specifically set forth that Ms. V********* baked the pie with the marijuana and that this pie ended up at the party.  Further, the defense stated that Ms. V********* wished to testify but did not wish to testify in Germany as she violated German drug laws.   However, she would voluntarily testify in the Netherlands at a deposition by memorandum dated 26 July 2009.  The government offered to support a written disposition but defense declined.  After an oral argument the military judge denied the motion.

	g.  On 18 July 2007, the defense renewed the application as a motion directed to the military judge, requesting the appointment of Dr. A***** M*******as an expert witness.  At the oral argument the defense counsel was unable to fully articulate his position.  Defense counsel stated he had not spoken to the proposed expert but oddly enough, the trial counsel had.  The defense counsel's excuse was he was concerned that he would have to pay the proposed expert for an introductory call.  However, trial counsel did call the proposed expert without having to pay any fee.  Failure to speak to the proposed expert precluded defense from making an acceptable proof to the court; therefore, the motion for an expert witness was denied.

	h.  On 6 November 2006, the applicant was notified by email that he was eligible for sergeant first class.  He was further notified that his last NCOER should have been dated October 2005 and that he had a           six-month gap in his records.  The applicant had in his possession a copy of the missing NCOER which he provided to the Personnel Service Center.  He was also notified that he needed his 2006 NCOER to complete his promotion packet and that the First Sergeant (1SG) and Commander (CDR) were in IRAQ.

	i.  He was told by the rear detachment 1SG to draft his own NCOER.  Upon completion of drafting his NCOER, he was told "Jokingly" that this was a common occurrence and normally the NCO's would write the NCOER's for the 1SG and someone else would sign it.

	j.  The applicant satirically signed the draft NCOER and turned it over for shredding.

7.  On 16 November 2006, the CDR rendered a written statement that he had received a copy of the applicant's NCOER from the acting 1SG and the personnel actions NCO.  They stated "they had received it from the Personnel Service Battalion (PSB) and were suspicious from it." 

8.  Counsel states that there was no explanation as to how the acting 1SG received the draft NCOER from the PSB, nor were there any records indicating 
it was ever turned in to the PSB.  When the CDR presented the draft NCOER to the applicant, he acknowledged signing the document, but never admitted to submitting the official NCOER.  It was obvious the intent of the applicant was to not submit the draft, which was supposed to be shredded, but the applicant's counsel failed to take the very simple steps to establish the fact.

9.  Counsel states, based upon the foregoing, it is clear that the defense counsel failed to properly interview and call witnesses to testify, defense counsel failed to properly investigate and locate witnesses and finally, defense counsel failed to properly advance a defense which was consistent with the facts and which would have resulted in the applicant's acquittal.

10.  On 27 March 2008, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade to his discharge.  On 8 September 2008, his request was denied.

11.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides the principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support maintaining the Official Military Personnel File (OMPF).  Chapter 2 provides detailed guidance and instructions with regard to the initiation, composition, maintenance, changing, access to, and transfer of the OMPF.  Table 2-1 (Composition of the OMPF) shows that court-martial orders are filed in the performance section of the OMPF when there is an approved finding of guilty on at least one specification.  

12.  Court-Martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U. S. Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records (ABCMR) is not empowered to set aside a conviction.  Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.


DISCUSSION AND CONCLUSIONS:

1.  The counsel's request to have the applicant's court-martial, administrative separation expunged, and to allow the applicant to return to active duty were carefully considered.

2.  The evidence of record shows the applicant's trial by a special court-martial was warranted by the gravity of the offenses charged.  The conviction was effected in accordance with applicable law and regulations.  Additionally, neither counsel nor the applicant has shown any error or injustice or that the sentence was too harsh.  

3.  By law, any redress of the finality of a court-martial conviction is prohibited.  The ABCMR is only empowered to set aside a conviction if clemency is determined to be appropriate to moderate the severity of the sentence. Therefore, he has established no basis for removal of the documents.

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)                                         AR20100010083



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1