IN THE CASE OF:	  

		BOARD DATE:	    2 September 2010

		DOCKET NUMBER:  AR20100017716 


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 her Article 15, dated 3 September 2009, be set aside and restoration of all rights and privileges.

2.  The applicant states the colonel who administered the Article 15 proceedings was her superior commander and he was aware of the reported allegations against her alleging a positive urinalysis.  Since she had no way of disproving the urine specimen was hers nor could she claim it wasn't positive, she chose to allow the commander to handle the proceedings.  She believed if she was given the opportunity to present her case in accordance with her legal rights, at least her commander would have heard her side.  Instead, he denied her even the opportunity to present any evidence at this hearing and when she complained, he was both unethical and dishonest and he claimed it did not happen.

3.  The applicant also provides a statement from a civilian paralegal from the U.S. Army Trial Defense Service (TDS), Subject:  Report of concern by SSG (applicant's name), RE:  Article 15 Proceedings, dated 3 September 2009; DA Form 2627 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice], dated 3 September 2009; DA Form 2166-8 (NCO [Noncommissioned Officer] Evaluation Report) for the period 27 October 2008 through 3 September 2009; and a self-authored memorandum, Subject:  Appeal of Proceedings UP [Under the Provisions of] Article 15, UCMJ for SSG (applicant's name).

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently a Regular Army Soldier in the rank/grade of sergeant (SGT)/E-5 who initially enlisted for a period of 4 years on 3 June 2003 and holds military occupational specialty 42A (Human Resources Specialist).  She was promoted through the ranks to staff sergeant (SSG)/E-6 on 1 March 2006 and she executed a 4-year reenlistment on 27 April 2007.

2.  She served in Korea from 1 December 2003 to 1 December 2005 and Iraq from 3 December 2006 to 19 February 2008.  Section VII (Awards and Decorations) of her Enlisted Record Brief (ERB) shows she was awarded the Joint Service Commendation Medal, Army Commendation Medal, Army Achievement Medal (4th Award), Army Good Conduct Medal (2nd Award), National Defense Service Medal, Korea Defense Service Medal, Iraq Campaign Medal, Global War on Terrorism Service Medal, NCO Professional Development Ribbon with Numeral 2, Army Service Ribbon, Overseas Service Ribbon (2nd Award), and the Drivers and Mechanic Badge with Driver-W Bar.

3.  On 16 July 2009, while assigned to BCTP (Battle Command Training, Program), Fort Leavenworth, KS, she participated in a random unit urinalysis and her urine sample tested positive for THC (Tetrahydrocannabinol).

4.  On 3 September 2009, at a closed hearing, she accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for wrongfully using THC between on or about 17 June 2009 and on or about 16 July 2009.  Her punishment consisted of reduction to SGT/E-5, a forfeiture of $1,249.00 pay for 1 month, 45 days of extra duty, and 45 days of restriction (suspended).  The imposing commander directed this Article 15 be filed in the performance section of her Official Military Personnel File (OMPF).

5.  On 3 September 2009, by memorandum, she appealed her punishment.  She stated the following:

	a.  She had travelled to Texas on a long weekend and socialized with friends and family.  Upon her return, the command conducted the urinalysis.  She was more surprised than others of the positive results.  She subsequently contacted her friends to determine what happened but no one acknowledged putting her in an unfavorable position.

	b.  It was not possible for her to do drugs because she was the unit prevention leader and knew she and other members would get tested.  She also grew up in a broken home that contained an addict.  She had a very promising military career and would not have jeopardized her career by doing something stupid.

	c.  The imposing commander did not want to hear from her about guilt or innocence.  He had already determined she was guilty and only wanted to hear from her regarding punishment.  In effect, she was denied her right to present matters in her defense.  This was witnessed by her senior NCO and officer chain of command but no one interfered on her behalf.

	d.  Her entire chain of command betrayed and abandoned her.  They all agreed that it was OK to not allow her to even attempt to present a defense and agreed to the maximum punishment.

6.  On 11 September 2009, a military attorney reviewed the applicant's appeal and determined the proceedings were conducted in accordance with law and regulation.

7.  On 23 September 2009, subsequent to a legal review, the next higher headquarters commander (Fort Leavenworth Garrison Commander) reviewed the applicant's appeal, including matters submitted by her and the legal review, and decided to deny her appeal.

8.  The applicant submitted a copy of her NCOER (for informational purposes only) and a statement by a TDS civilian paralegal whose office previously provided her legal assistance with her Article 15.  He states the applicant established an attorney - client relationship with his office after the allegation against her for having tested positive for THC.  The paralegal describes the events that occurred prior to and after accepting the NJP as follows:

	a.  He contacted the trial counsel who advised the commander and offered to have the applicant take a polygraph.  They seemed to agree but an agent was not available at the location and the local Staff Judge Advocate (SJA) did not accept one done by a private polygrapher.

	b.  After receiving legal advice and assistance, the applicant appeared before the commander.  Upon conclusion, she was dejected and claimed that she went before the commander along with several members of her chain of command.  During the proceedings, when she tried to speak in her defense, the commander interrupted her and stated he did not want to hear from her concerning guilt or innocence and that he had seen the laboratory results and knew what was in there.  He only allowed her to speak about the punishment he intended to impose.

	c.  At that time, counsel immediately contacted the trial counsel who claimed he had briefly stepped out of the room during the proceedings and was unaware of what occurred.  Counsel then complained to the SJA who made an inquiry with the same trial counsel who in turn inquired with the chain of command and that they all thought the imposing commander had allowed her to present evidence.  He urged the SJA to inquire directly with the imposing commander but by then the commander had been made aware of the complaint and indicated he provided the applicant with an opportunity to speak.

	d.  The applicant is a motivated Soldier who rose through the ranks quickly.  She had had multiple assignments including back to back deployments, served as her unit's administrator of the drug testing program, and she held a security clearance.  Her chain of command did not relieve her and initially elected to retain her in the Army; however, later inquired about reassigning her.

	e.  He believes the imposing commander did exactly what the applicant stated he did based on her coming to him (the paralegal) right after the proceedings.  He (the paralegal) also believes the imposing commander was so offended by the allegations of illegal drug use he became over jealous [sic] (zealous) and felt if a Soldier came up positive, there was no defense for that Soldier.  The imposing commander denied the applicant procedural justice.

9.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial (MCM).  It states a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ.  Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  If it is clear that NJP will not be sufficient to meet the ends of justice, more stringent measures must be taken.  Prompt action is essential for NJP to have the proper corrective effect.  NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier’s record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.

10.  Paragraph 3-28 of this regulation describes setting side and restorations. 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.  NJP 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.  An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier.  Clear injustice does not include the fact that the Soldier’s performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier.  Normally, the Soldier’s uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment. 

11.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, Military Personnel Records Jacket, Career Management Individual File, and the Army Personnel Qualification Records.  Paragraph 2-4 of this regulation states that once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by selected agencies such as the Army Board for Correction of Military Records (ABCMR).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the Article 15, dated 3 September 2009, should be set aside and all rights and privileges should be restored.

2.  The evidence of record confirms the commander administering the Article 15 proceedings determined during a closed Article 15 hearing, after considering all the evidence submitted by her, that she committed the offense in question.  By law and regulation, before finding a Soldier guilty during Article 15 proceedings, the commander must be convinced beyond a reasonable doubt that the Soldier committed the charged offense(s).  The evidence of record confirms the applicant waived her right to a trial by court-martial and opted for a closed Article 15 hearing.

3.  The ABCMR does not normally reexamine issues of guilt or innocence under Article 15 of the UCMJ.  This is the imposing commander’s function and it will not be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence.  She was provided a defense attorney, she was given the right to demand trial by court-martial, and she was afforded the opportunity to appeal the Article 15 through the proper channels.

4.  She did not provide convincing evidence that shows the imposing commander denied her the right to speak or bring issues in her defense during the proceedings.  Additionally, an inquiry was made by the SJA through the trial counsel and it was determined by members of her chain of command that the imposing commander allowed her to present evidence.  The argument she presents is not sufficient to change the determination of guilt made by the commander.

5.  Her dissatisfaction with the outcome of this Article 15 does not invalidate it.  She violated the UCMJ and she was punished for it.  There is neither an error nor an injustice and there is no reason to set the Article 15 aside or to restore her rights and privileges.

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)                                         AR20100017716



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ABCMR Record of Proceedings (cont)                                         AR20100017716



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