IN THE CASE OF:	  

		BOARD DATE:  19 July 2012

		DOCKET NUMBER:  AR20120009337 


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 his military records by showing his nonjudicial punishment (NJP) was set aside.

2.  The applicant states, in effect, that his commander prematurely charged him with committing a crime without having evidence.  His subsequent appeal of the NJP was denied.  The NJP proceedings were reviewed by the legal advisor and found to be in accordance with law and regulation.  However, it was later determined that the substance he was accused of using was not in fact a controlled substance.  The commander then took action to change the charges but he did not have legal authority to do.  Therefore, he believes that he should have all of his rights and privileges restored as a result of the commander's illegal action concerning the subject NJP.

3.  The applicant provides copies of:

* 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, 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.  At the time of his application, the applicant was serving in the Regular Army in the rank of private, pay grade E-2.

2.  A DA Form 2627 indicates that on 16 February 2012, the applicant accepted NJP for wrongful possession of "Spice," a schedule I controlled substance, for wrongful use of this substance, for failure to go to his appointed place of duty, and for dereliction of duty.  The document further shows:

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

	b.  he requested a closed hearing;

	c.  he did not offer any matters in defense, extenuation, and/or mitigation;

	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;

	f.  the applicant appealed the NJP, but he did not submit any additional matters; and

	g.  the appeal was denied on 28 February 2012.

3.  The memorandum from the Drug Chemistry Branch, 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.

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


5.  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 he 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.

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

7.  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.  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;

	c.  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; and

	d.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his military records should be corrected by showing that his NJP was set aside because the imposing commander illegally changed the charges on the DA Form 2627.

2.  The available evidence clearly shows the applicant accepted NJP and admitted guilt to possession and use of what he thought was a controlled substance.  His subsequent appeal was denied.

3.  However, when the laboratory test results showed the substance in question were not actually a controlled substance the superior authority corrected the charges to show only the lesser included charges and mitigated the punishment by reducing him 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, his punishment was immediately mitigated in his 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.  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.

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)                                         AR20120009337



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ABCMR Record of Proceedings (cont)                                         AR20120009337



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