IN THE CASE OF:	  

		BOARD DATE:	  10 February 2011

		DOCKET NUMBER:  AR20100014202 


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 the nonjudicial punishment (NJP) imposed against him on 18 June 2006 be removed from his official military personnel file (OMPF) and the forfeiture of pay and his rank be restored.  He also requests the reason for his general discharge under honorable conditions be changed from Army Regulation 635-200, paragraph 14-12c(2) (Misconduct (Drug Abuse)) to a medical retirement with an honorable discharge.

2.  The applicant defers his statement to counsel.

3.  The applicant provides no additional evidence in support of his application and defers to counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 18 June 2006, be expunged from his OMPF.  She also requests that his discharge be upgraded to honorable, that his rank be restored to sergeant, that he receive all back pay and allowances due as a result of the correction, that he be referred to a Physical Evaluation Board (PEB), and that he be medically retired from the Army.

2.  Counsel states the Army failed to prove beyond a reasonable doubt that the applicant used valium "wrongfully."  She states there was no evidence he did not have a prescription for the valium.  She states the applicant indicated his commander told him his failure to cooperate with the U.S. Army Criminal Investigation Command (USACIDC, also known as CID) investigation was proof he was hiding something and he was guilty.

3.  Counsel states the Army erred in overruling the applicant's referral to the PEB.  She states the entire basis for denying him a PEB was the flawed Article 15.  She states his early symptoms of the condition later diagnosed as post-traumatic stress disorder (PTSD) led him to take valium in early 2006.  She states his administrative separation should be reversed in favor of a medical retirement.

4.  Counsel states the Elimination Board Proceedings were tainted by limited use evidence.  She states his positive urinalysis for cocaine in September 2006 plainly constitutes "limited use evidence."  His positive urinalysis for cocaine was brought before the Elimination Board.

5.  Counsel provides a 24 page brief with 50 enclosures.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 13 May 2002 for a period of 
4 years.  He had previously served 2 years, 6 months, and 13 days of active service.  He was awarded military occupational specialty 68W (Health Care Specialist).

3.  The applicant served in Iraq from 29 October 2005 to 30 August 2006.

4.  On 12 February 2006, the applicant tested positive for valium use on an inspection urinalysis that was administered by the unit.


5.  In an email, dated 3 May 2006, the applicant's doctor stated he was truly unable to remember all the medications he had given the applicant while he was in Iraq.  He only recalled giving him pain control medication.  He states he very well may have given him a few valium but if they were taken when he was there they would have cleared out of the body by the time of the urinalysis.  The doctor stated he had been gone for a few months and the applicant should not be on any medications that he gave him.

6.  In an email, dated 5 May 2006, the applicant's doctor stated he recalled giving the applicant pain medications but not anxiety/sleep medications.

7.  In an email, dated 17 May 2006, to the applicant's attorney, a sergeant stated the forward operating base (FOB) stocked three types of valium before a fire on 28 January 2006.  He stated that after the fire valium was no longer stocked at the FOB. 

8.  Three sworn statements taken from members of the applicant's unit on 
26 May 2006 implicate him in the purchase of illegal substances (steroids) from an Iraqi pharmacy by Iraqi Army troops.  This arose during an investigation involving the purchase of valium from Iraqi Army troops or Iraqi pharmacies by a member of the applicant's unit.  The statements revealed the widespread availability of valium illegally purchased off the Iraqi market by members of the applicant's unit.  Witnesses interviewed during the investigation observed the applicant having difficulty putting on gloves, slurring his speech, and being drowsy during an operation prior to the urinalysis.

9.  On 18 June 2006, the applicant accepted nonjudicial punishment (NJP) under Article 15, UCMJ, for wrongful use of Benzodiazepine (valium) between on or about 8 February and 12 February 2006.  The punishment imposed consisted of reduction to specialist/pay grade E-4, a forfeiture of $1,009 pay for 2 months, and extra duty and restriction for 45 days.  In his rebuttal to the NJP, and in his rebuttal to a later separation action, the applicant explained he probably got the valium from his doctor.  Alternatively, he inadvertently obtained the valium from another Soldier, believing it to be a legal stimulant.  On 28 June 2006, his appeal was denied.

10.  In counsel's brief she states that on 25 September 2006 the applicant went off base to a nightclub.  He became drunk and in a momentary lapse of judgment he tried cocaine for the first time.  Fearful of the harm he may have done to himself, he went to the Evans Army Community Hospital and checked in the Emergency Room (ER) and asked to be tested for drugs.  He was given a urinalysis and he tested positive for cocaine.

11.  In a memorandum for the record, dated 5 December 2006, a sergeant first class states a urinalysis test coded (IU) was conducted on 21 September 2006.  The applicant was not present due to the fact that he went to sick call.  At sick call he was given 48 hours quarters.  The applicant went to Club 56 on the evening of 23 September 2006 where cocaine was supposedly slipped into his drink.  The applicant began feeling "hemped" so he drove himself to the ER where they conducted a toxicology screen.  The drug screen came back positive for cocaine.  Soldiers not present for the urinalysis on 21 September 2006 were tested on 25 September 2006.  The applicant was tested on 25 September 2006 and he tested positive for cocaine.

12.  On 7 December 2006, the applicant's commander notified him that action was being initiated to separate him under the provisions of paragraph 14-12c, Chapter 14 of Army Regulation 635-200 (Personnel Separations) for wrongfully using valium in a deployed environment.  The commander advised the applicant of his right to:

* consult with counsel
* obtain copies of documents that would be sent to the separation authority 
* request a hearing before an administrative separation board if he had more than 6 years of service
* submit statements in his own behalf
* be represented by counsel
* waive any of these rights
* withdraw any waiver of rights at any time prior to the date the discharge authority approved his discharge

13.  The applicant's commander recommended that he be processed for separation due to wrongful use of valium in a deployed environment.  The commander stated it was not feasible or appropriate to accomplish other disposition because it was his opinion the applicant was unlikely to overcome his deficiencies and be a viable member of the unit.  

14.  On 10 January 2007, the applicant submitted a statement acknowledging he had been advised by his consulting counsel of the basis for the contemplated separation action for wrongfully using valium in a deployed environment.  He had been afforded the opportunity to consult with appointed counsel, or military counsel of his own choice and he requested:

* consideration of his case by an administrative separation board
* a personal appearance before an administrative separation board
* consulting counsel and representation by military and/or civilian counsel 

15.  The applicant acknowledged he understood that as a result of a discharge under other than honorable conditions he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.

16.  In a memorandum, dated 31 January 2007, from the applicant's commander to the U.S. Army Physical Evaluation Board (PEB), Fort Lewis, WA, the commander stated the applicant had been a below average Soldier.  The commander stated the applicant was involved with using controlled substances while in Iraq and he came up positive for valium on a urinalysis on 12 February 2006.  During a CID investigation it was determined that Soldiers were using controlled substances while on patrol and while on an observation post (OP).  In one statement from the CID investigation a Soldier indicated "another separate incident on OP3 was when I witnessed the applicant (Doc H) trying to put his gloves on for 10-20 minutes.  He kept trying to put them on the wrong hand.  He was acting like he was very incoherent and everything he did looked very slow."  A second statement from the same individual indicated that "the applicant bought steroids off of OP3.  He stated 2-3 boxes were what were purchased the first time he saw it and 3-5 the second time."

17.  The commander stated the applicant was diagnosed with chronic post-traumatic stress disorder on 11 January 2007.  He stated he was now entering the MEBD process.  The commander stated the applicant did not function at the level that he would expect from someone who had been a non-commissioned officer with over 6 years of military service.  He needs maximum supervision to complete even menial tasks, not due to his medical condition, but due to his propensity to be lazy.  He is very underhanded and will try to manipulate a situation to his advantage.  The commander believed the applicant was using the medical system as a way to get out of the trouble that he was in and obtain benefits as he exits the Army.

18.  On 20 February 2007, the applicant submitted a voluntary request to waive consideration of his case by an administrative separation board contingent upon him receiving a characterization of service or description of separation no less favorable a general discharge.  The applicant's conditional waiver was disapproved and an Elimination Board was convened on 8 March 2007.  The results of this board were not available for review.

19.  On 8 March 2007, an MEBD referred the applicant to a PEB for:

* post-traumatic stress disorder, chronic
* chronic right knee pain, secondary to a medial plica, which had failed conservative and surgical treatment
20.  On 9 March 2007, the applicant disagreed with the findings and recommendation of the MEBD.  However, in a statement, dated 9 March 2007, the applicant agreed that the MEBD accurately covers all of his current medical conditions.  The applicant indicated he did not desire to continue on active duty.  On 19 March 2007, the findings and recommendation of the MEBD were confirmed.

21.  On 20 April 2007, the Commanding General, Fort Carson, CO, and the general court-martial convening authority (GCMCA) reviewed the chapter action pertaining to the applicant and directed that he be processed under the administrative separation provisions of paragraph 14-12c, Commission of a Serious Offense.  The GCMCA found that although the MEBD referred the applicant to a PEB, his medical condition was not a direct or substantial contributing cause of his misconduct and that administrative separation under paragraph 14-12c was appropriate in his case.  The GCMCA authority approved the applicant's administrative separation with a general discharge.

22.  On 26 April 2007, the applicant was discharged under the provisions of paragraph 14-12c of Army Regulation 635-200.  He completed 4 years, 
11 months, and 14 days of active service that was characterized as under honorable conditions (general).

23.  Medical records and letters submitted by the applicant show he continues to receive treatment and compensation for his medical conditions from the Department of Veterans Affairs (VA).

24.  Army Regulation 27-10 (Military Justice) prescribes policies and procedures pertaining to the administration of military justice:  

	a.  Paragraph 3-4 states that a commander will personally exercise discretion in the nonjudicial punishment process by:

		(1)  evaluating the case to determine whether proceedings under Article 15 should be initiated.

		(2)  determining whether the Soldier committed the offense(s) where Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial.

		(3)  determining the amount and nature of any punishment, if punishment is appropriate.

	b.  Paragraph 3–18 Notification and explanation of rights states: 
		(1)  The imposing commander is not bound by the formal rules of evidence before courts-martial and may consider any matter, including unsworn statements, the commander reasonably believes to be relevant to the offense.

		(2)  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.

	c.  Paragraph 3-28 states that setting aside and restoration 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.

	d.  The power to set aside an executed punishment and to mitigate a reduction in grade to a forfeiture of pay, absent unusual circumstances, will be exercised only within 4 months after the punishment has been executed.  When a commander sets aside any portion of the punishment after 4 months from the date punishment has been executed, a detailed addendum of the unusual circumstances found to exist will be attached to the form containing the set aside action.

	e.  Paragraph 3-43 contains guidance on the transfer or removal of records of NJP (DA Form 2627) from the OMPF.  It states, in pertinent part, applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the ABCMR.  It further indicates that there must be clear and compelling evidence to support the removal of a properly completed, facially valid DA Form 2627 from a Soldier’s record by the ABCMR.

25.  Army Regulation 600-85 (Army Substance Abuse Program (ASAP)), then in effect, defined the "Limited Use Policy."  

	a.  Paragraph 6-4 states that limited use prohibits the use by the government of protected evidence against a Soldier in actions under the UCMJ or on the issue of characterization of service in administrative proceedings.  Additionally, the policy limits the characterization of discharge to honorable if protective evidence is used.  Protected evidence under this policy includes information, concerning drug or alcohol abuse or possession of drugs incidental to personal use, including the results of a biochemical test, collected as a result of a Soldier’s emergency medical care solely for an actual or possible alcohol or other drug overdose.

	b.  Paragraph 10-12 (6) states protected evidence includes drug or alcohol test results if the Soldier voluntarily submits to a DOD or Army rehabilitation program before the Soldier has received an order or has knowledge of a pending test to submit for a lawful drug or alcohol test.  This limited use protection will not apply to test results which indicate alcohol or other drug abuse occurring after the voluntary submission to the rehabilitation program.

26.  Army Regulation 635-200 (Personnel Separations), then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation dealt with separation for various types of misconduct.  Paragraph 
14-12c provided for the separation of a Soldier by reason of the commission of a serious offense, which included drug abuse.  The issuance of a discharge under other than honorable conditions is normally considered appropriate for separations under the provisions of Chapter 14.

27.  Paragraph 4-3 of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides concerning administration separation and physical disability processing:

	a.  Except as provided below, an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.

	b.  If the case comes within the limitations above, the commander exercising general court-martial jurisdiction over the Soldier may abate the administrative separation.  This authority may not be delegated.  A copy of the decision, signed by the GCMCA, must be forwarded with the disability case file to the PEB.  A case file may be referred in this way if the GCMCA finds:

	(1)  The disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions.

		(2)  Other circumstances warrant disability processing instead of alternate administrative separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his NJP of 18 June 2006 should be expunged from his records, his general discharge should be upgraded to honorable, and he should be medically retired.

2.  The applicant's positive urinalysis and the three statements from members of his unit implicate him in the illegal use or purchase of a controlled substance (steroids).  Statements indicate while the applicant was on an operation, he appeared to be impaired in a manner consistent with valium usage.  The prevalence of illegal valium obtained by a member of the applicant's unit while he was present, the fact that his doctor could not remember prescribing him valium, and the fact that the applicant was unable to produce a prescription for valium are sufficient to show beyond a reasonable doubt he wrongfully used valium.

3.  It is reasonable to conclude the officer imposing the applicant's NJP exercised discretion in the NJP process for the applicant's offense.  Therefore, it is reasonable to conclude the officer considered any mitigating factors and factors raised to cast doubt on the applicant's guilt.  The record establishes the commander determined the evidence was sufficient to find the applicant guilty beyond a reasonable doubt.  The ABCMR does not find the applicant's submissions sufficient to overturn this finding.

4.  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded that the Article 15 was appropriately issued and filed in his OMPF.  Therefore, there is insufficient basis to expunge his Article 15, restore his rank, or restore the forfeiture of pay.

5.  The applicant's complete separation processing packet including his Elimination Board Proceedings was not available for review.  However, it appears the applicant's processing for separation was not initiated until after a second urinalysis in which he tested positive for cocaine.  

6.  The applicant was not processed for separation based solely on his positive urinalysis for cocaine.  However, as indicated in his commander's letter, dated   31 January 2007, he was being processed for separation based on his valium use in Iraq and a positive urinalysis for cocaine.  

7.  The limited use policy only applies if a Soldier voluntarily submits to a DOD or Army rehabilitation program before he has received an order or has knowledge of a pending test to submit for a lawful drug or alcohol test.  The applicant had been selected for the urinalysis on 21 September 2006; however, he went to sick call instead.  The other Soldiers not present were tested on 25 September 2006.  The applicant had knowledge of a pending drug test, based on him having missed the scheduled urinalysis due to illness, before he went to the ER and asked to be tested for drugs.  Therefore, his positive test for cocaine does not fall within the limited use policy.

8.  The applicant's MEBD was referred to the GCMCA as provided for in the regulation.  The GCMCA determined the applicant's medical condition was not a direct or substantial contributing cause of his misconduct and that administrative separation was appropriate.  The GCMCA approved the separation under paragraph 14-12c of Army Regulation 635-200.

9.  The available evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

10.  It is clear the applicant's prior service was considered in that he was awarded a general discharge when a Soldier is processed under paragraph     14-12c the Soldier is normally issued an under other than honorable discharge.

11.  The applicant had been promoted to sergeant, a position of authority and responsibility.  In promoting the applicant to sergeant, the Army reposed special trust and confidence in the patriotism, valor, fidelity, and professional excellence of the applicant.  As a sergeant, the applicant was in a position of trust and responsibility, and he was responsible for the welfare of those assigned under him.  The applicant violated this special trust and confidence.  The second positive urinalysis for cocaine the applicant received clearly shows he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, in view of the applicant's abuse of a position of trust there is no basis to upgrade the applicant's to an honorable discharge.

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)                                         AR20100014202



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ABCMR Record of Proceedings (cont)                                         AR20100014202



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