BOARD DATE:	  2 October 2012

		DOCKET NUMBER:  AR20110023853 


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 removal of documentation pertaining to nonjudicial punishment (NJP) imposed under Article 15, Uniform Code of Military Justice (UCMJ), from all government databases and restoration of his rank/pay grade.

2.  He states he was proven innocent of all charges and his rank was restored to specialist (SPC)/E-4.  However, approximately 1 month later on 16 September 2005, he was brought up on the same charges by the same commander who imposed the original Article 15.  Colonel (COL) R____ S____ was the imposing commander and he called the second Article 15 "phase II."  He contends there should not be anyone above the Federal law or military regulations.  Double punishment is not allowed as he was proven innocent.  Because of his innocence, he should not have been punished at any point.

4.  The applicant provides:

* a toxicology report
* two memoranda from the U.S. Trial Defense Service (TDS)
* his appeal
* a memorandum of support
* his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 20 December 2005



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.  His records show that after a period of prior service in the U.S. Army Reserve (USAR), he enlisted in the Regular Army on 15 July 1999.  He was honorably discharged on 17 July 2002 after completion of required active service.  His rank/pay grade at the time of his discharge was SPC/E-4 with a date of rank of 1 April 2001.

3.  He enlisted in the USAR on an unknown date.  He entered active duty on 
22 September 2004.

4.  The applicant provided copies of a memorandum from the Armed Forces Institute of Pathology, dated 30 June 2005, subject:  Testing of Augmentin, Nexium, Tamiflu, Tylenol III, and Zithromax; toxicology examination reports, dated 12 July 2005; and a laboratory summary, dated 14 July 2005.

	a.  The memorandum gives the life expectancy of each drug in the blood stream and possible detections.

	b.  The toxicology reports show he tested positive for cocaine and benzoylecgonine; however, Augmentin, Nexium, Tamiflu, Tylenol III, Zithromax, and other medications which he stated he was taking were not detected.

	c.  The laboratory summary as written by the Laboratory Scientific Director, ExperTox, Incorporated, shows that on 15 and 31 May 2005, the laboratory tested a urine sample collected from the applicant.  The sample tested positive for the presence of cocaine but the results were negative for the presence of the other listed drugs.  Based on pharmacological literature, he concluded that the tested urine sample came from an individual who had not consumed any of the listed medications, with the exception of cocaine, for a period of 5 to 7 days.

5.  He also provided a memorandum from the TDS, Fort Sam Houston, TX, dated 18 August 2005.  This document states the Article 15 imposed upon the applicant on 6 July 2005 by COL R____ S____ could not stand and should have been dismissed.  The applicant was already a month into the previously-imposed punishment and the new Article 15 was for the same offenses.  The defense counsel added that the Article 15 packet was insufficient because the social security number (SSN) on the NJP did not match the SSN listed in the urinalysis printout.  Therefore, there was no evidence the applicant tested positive.  Furthermore, the NJP does not list a date for the occurrence.

6.  A second memorandum from the TDS, dated 30 September 2005, which was also provided by the applicant, shows his defense counsel stated the applicant faxed a memorandum from Brigadier General J____ V____ stating the previous Article 15 was set aside due to procedural violations, but it did not detail what those violations were.  The defense counsel added that COL R____ S____ reinitiated the Article 15 on 21 September 2005 with the same charges as in the previous Article 15.  The defense counsel contended that a new imposing officer should have been appointed.

7.  The applicant also provided a copy of his appeal to the NJP imposed on 6 July and 21 September 2005.

8.  A memorandum of support, dated 15 July 2005, shows he participated in several named operations and field training exercises while serving on active duty.  His knowledge and experience was valuable to the brigade because he provided first-hand information about systems in a real-world setting.

9.  The applicant provided a DD Form 214 which shows he was honorably released from active duty to the control of his USAR unit on 20 December 2005.  His rank/pay grade is shown as private (PVT)/E-1 with a date of rank of 21 September 2005.

10.  None of the imposed NJP's or any of the documentation which shows the Article 15 dated 6 July 2005 was set aside are available for the Board's review.

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

	a.  Chapter 3 implements and amplifies proceedings under Article 15 of the UCMJ.  It states the basis for any set-aside action is a determination that the punishment has resulted in a clear injustice under all of the circumstances of the case.  "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.
	b.  This regulation also states that setting aside and restoration are actions 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.

	c.  The grade from which reduced must be within the promotion authority of the imposing commander or of any officer subordinate to the imposing commander.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was proven innocent of all charges of drug use and his rank was restored to SPC/E-4; however, a month later he was given a second Article 15 for the same offenses.

2.  He has not provided this Board with copies of either Article 15, the memorandum setting aside the punishment, or any other documentation issued by his chain of command which proves he was punished twice.  The memoranda from his defense counsel appear to be a third-party account of the events with no supporting evidence to show the stated allegations.

3.  The evidence suggests that he was afforded due process in that he was afforded the opportunity to consult with counsel, to accept the Article 15 proceedings, and to provide a defense to the charges.

4.  The basis for any set-aside action is a determination that the punishment has resulted in a clear injustice under all of the circumstances of the case.  In this case, his reduction in pay grade was within the regulatory limits of his commander and there is no evidence showing that either of the NJP's resulted in an injustice.


5.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption.  In this instance, the "presumption of regularity" is based on Army Regulation 27-10, chapter 3, which covers setting aside punishments.  It states an unwaived legal or factual error must have occurred that clearly and affirmatively injured the substantial rights of the Soldier.  Therefore, in the absence of evidence to the contrary, it is concluded that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the NJP process.

6.  In view of the foregoing, he is not entitled to the requested relief.

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 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)                                         AR20110023853



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ABCMR Record of Proceedings (cont)                                         AR20110023853



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