IN THE CASE OF:	

		BOARD DATE:	  9 August 2012

		DOCKET NUMBER:  AR20120009336 


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 correction of her military records by showing her 
non-judicial punishment (NJP) was set aside.

2.  The applicant states:

   a.  her commander rushed to judgment and actually charged her with committing a crime by violating Article 112 of the Uniform Code of Military Justice (UCMJ) without evidence;
   
   b.  her appeal of the NJP was denied;
   
   c.  the imposing commander's legal advisor reviewed the NJP proceedings and found them to be in accordance with law and regulation;
   
   d.  subsequently, the U.S. Army Criminal Investigation Laboratory (USACIL) determined the substance she was accused of using was not in fact a controlled substance;
   
   e.  the superior commander attempted to initiate "supplementary action" to change the NJP proceedings by altering the original charges and lessen her punishment as a token to her commander, which he did not have authority to do; and
   
   f.  as a result, all of her rights and privilege should be restored as a result of the commander's illegal action concerning the subject NJP.
3.  The applicant provides:

* self-authored statement
* Email dated 4 April 2012 (2 pages)
* DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)
* DA Form 2627-2 (Record of Supplementary Action Under Article 15, UCMJ)
* Memorandum, Subject:  Drug Chemistry Branch - Final Report, dated 20 March 2012
* U.S. Army Criminal Investigation Command Report of Investigation (ROI), 1st Supplemental, dated 4 April 2012

CONSIDERATION OF EVIDENCE:

1.  The applicant's military record shows she enlisted in the Regular Army on 10 August 2009, for a period of 4 years.  At the time of her application, she was serving on active duty in the rank of private, pay grade E-2, at Fort Leavenworth Kansas.

2.  A DA Form 2627 indicates the applicant accepted NJP on 16 February 2012 for wrongful use and possession of "Spice," a schedule I controlled substance, a violation of Article 112a of the UCMJ.  The document further shows:

	a.  she did not demand trial by court-martial;

	b.  she requested a closed hearing;

	c.  she decided to present matters in defense, extenuation, and/or mitigation in person;

	d.  the imposing commander found that the applicant was guilty of all specifications;

	e.  the punishment imposed consisted of reduction to private, pay grade 
E-1, a forfeiture of $745.00 pay for 2 months, extra duty for 30 days, restriction for 30 days, and an oral reprimand; and

	f.  the applicant appealed the NJP, indicating she had submitted additional matters.

3.  On 28 February 2012, the applicant's appeal was reviewed by the Staff Judge Advocate (SJA) who opined that the proceedings complied with legal requirements and the punishment imposed was lawful.  The SJA also recommended the commander consider the matters submitted by the applicant in determining whether or not to amend the punishment in favor of the applicant or to suspend her sentence.

4.  On 28 February 2012, the Brigade Commander, 15th U.S. Army Military Police Brigade, the appellate authority, denied the applicant's appeal.
The applicant did not acknowledge action taken on this appeal.

5.  A USACIL memorandum, dated 20 March 2012, as provided by the applicant, reports, in essence, that the exhibits submitted for testing were identified as non-controlled substances that may be considered a synthetic cannabinoid.

6.  An email, dated 4 April 2012, from the trial counsel, as provided by the applicant, states the applicant and another Soldier had recently received NJP wherein they admitted to purchasing and smoking spice.  They stated that it had given them a buzzed/altered state of mind.  They believed that what they smoked really was spice.  This email informed the applicant's defense counsel that the results from the laboratory testing showed she did not buy and smoke spice.  The email further stated that if the applicant wanted to submit a second appeal she could do so by sending it directly to the trial counsel, who would package the action for the commander's review.

7.  On 2 May 2012, the appellate authority made the following changes on the applicant's DA Form 2627:

	a.  the charge of wrongfully possessing "Spice" was changed to the lesser included charge of wrongfully attempting to possess "Spice";

	b.  the charge of wrongful use of "Spice" was changed to the lesser included charge of wrongfully attempting to use "Spice"; and

	c.  a note was added to block 10 (Allied Documents and/or Comments) stating in essence that on 20 March 2012, the substance possessed and used by the applicant was not the controlled substance she believed it to be, "Spice."  The appellate authority changed the charges to "attempt" and mitigated the punishments from reduction to pay grade E-1 to reduction to pay grade E-2.

8.  The DA Form 2627-2, dated 2 May 2012, shows the applicant's NJP was mitigated by changing her reduction from pay grade E-1 to E-2.

9.  Army Regulation 27-10 (Military Justice) provides that:

	a.  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;

	b.  the imposing commander or successor in command may set aside some or all of the findings;

	c.  an 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;

	d.  any superior authority may exercise the same powers as may be exercised by the imposing commander whether or not an appeal has been made;

	e.  the basis for any set aside action is a determination that, under all of the circumstances of the case, the punishment has resulted in a clear injustice;

	f.  in cases where administrative error results in incorrect entries on the DA Form 2627 the appropriate remedy generally is an administrative correction of the form and not a setting aside of the punishment; and

   g.  the power to set aside or mitigate an executed punishment, absent unusual circumstances, will be exercised only within 4 months.

10.  Paragraph 3-38 of the military justice regulation provides for Supplementary Action.  It states that it is any action taken by an appropriate authority to suspend, vacate, mitigate, remit, or set aside punishment after action has been taken on an appeal or the DA Form 2627 has been distributed.  Supplementary action will be recorded on a DA Form 2627-2.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her military records should be corrected by showing her NJP was set aside because the imposing commander illegally changed the charges on the DA Form 2627.  However, by regulation, the appropriate authority, in this case, the applicant's superior commander, can suspend, vacate, mitigate, remit, or set aside punishment and/or findings after action has been taken on an appeal or the DA Form 2627 has been distributed.

2.  The available evidence clearly shows the applicant accepted NJP and admitted guilt to possession and use of what she thought was a controlled substance.  Her subsequent appeal was denied.
3.  When the laboratory test results showed the substance in question was not actually a controlled substance the superior authority corrected the findings to show guilt only to the lesser included offenses, as consistent with the evidence, and mitigated the punishment by reducing her only to pay grade E-2.

4.  In this case, when the chain of command was informed that the applicant had not actually possessed or used a controlled substance, her punishment was immediately mitigated in her favor to provide less punishment based on a lesser degree of misconduct.

5.  There is insufficient evidence of an error, injustice, or illegal action in this case.  What the imposing commander and the appellate authority did was proper and authorized by the provisions of the governing regulation.  

6.  In view of the above, the applicant's request should be denied.

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)                                         AR20120009336





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120009336



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1