IN THE CASE OF:	  

		BOARD DATE:	  22 August 2013

		DOCKET NUMBER:  AR20120022466 


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 the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ), dated 20 July 2012, be removed from his Official Military Personnel File (OMPF) (now known as the Army Military Human Resource Record (AMHRR)) and that he be reimbursed all monies forfeited as a result of his punishment.

2.  The applicant defers to his counsel's written argument and supporting exhibits which were submitted along with this application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the Article 15 be removed from the applicant's AMHRR.

2.  Counsel states:

   a.  The applicant has suffered from stomach and anxiety problems for years and he continues to suffer with these medical problems today.  On 28 February 2012, the applicant provided a urine sample which tested positive for tetrahydrocannabinol (THC).

   b.  On 7 June 2012, punishment was imposed (forfeiture of $2,635.00 per month for 2 months) on the applicant for a violation of Article 112a of the UCMJ for wrongful use of marijuana between 20 January and 28 February 2012.  On  12 June 2012, the applicant appealed the punishment and on 19 July 2012, the appeal was denied.
   c.  The applicant's spouse provided a detailed sworn statement in which she admits to placing marijuana, without the applicant's knowledge, in his food.  Her statement is corroborated by another witness and evidence.  In addition, the applicant passed a polygraph to prove his innocence.
 
   d.  Imposing punishment at the Article 15 was in error and unjust because the evidence at the Article 15 was insufficient for a fair and rational fact finder to be convinced beyond a reasonable doubt the applicant committed the offense.  
   
   e.  The law requires proof of knowledge of the substance at issue.  The applicant may not be convicted of the use of a controlled substance if the accused did not know he was actually using the substance. 
   
   f.  The urinalysis result was never formally made part of the record at the Article 15 proceeding.  The commander was aware of the results (via hearsay), but the results were never introduced as evidence at the Article 15.  This error was unjust because there was no evidence at the proceeding of the applicant's positive urinalysis result, the commander just proceeded without requiring any evidence or proof.
   
   g.  The polygraph examination proves that he did not knowingly or consciously use THC during the charged time period.  The applicant's spouse's sworn statement explains why his urinalysis was positive.  The spouse's sworn statement is corroborated by the applicant's sworn statement, the medical marijuana card, and the polygraph examination.
   
   h.  The Article 15 hearing, Judge Advocate General review, and the appeal process were in error and unjust because every part in the process just rubber stamped the urinalysis result rather than fairly evaluate the evidence or seek additional evidence.
   
   i.  The applicant requested and offered to take any additional polygraphs (assuming the Army would want to confirm the polygraph examiner's result with a U.S. Army Criminal Investigative Command (CID) polygraph) at every stage of the proceedings.  The commander who held the Article 15, staff judge advocate who reviewed the appeal, and the commander who denied the appeal should have ensured a CID polygraph was administered if they had any question regarding the independent polygraph.  The defense was confident of the polygraph because the examiner's qualifications exceeded those of any CID agent.
   
   j.  The Army had made its mind up and presumed guilt during the Article 15 hearing and the appeals process rather than evaluate the evidence and require proof beyond a reasonable doubt. 
   
   k.  The applicant did not knowingly use marijuana.  The evidence proves that the applicant did not knowingly use marijuana.  An Article 15 which stains the reputation of an innocent man must be removed.  The applicant requests this error and injustice be removed from his records.
       
3.  Counsel provides:

* sworn statement from the applicant's spouse
* DA Form 2627
* letter appealing the Article 15
* a memorandum
* sworn statement from the applicant
* letter and 3-page resume from a member of the Virginia Polygraph Service
* sworn statement from the applicant's sister-in-law
* Physician Statement and Recommendation
* 19 pages of the applicant's medical records

CONSIDERATION OF EVIDENCE:

1.  Having prior service as a commissioned officer in the U.S. Air Force, the applicant was appointed an officer in the U.S. Army in the rank of captain (CPT) on 29 July 2008.

2.  His AMHRR contains a General Officer Memorandum of Reprimand issued by the 8th Army Commander, dated 23 September 2011.  The applicant was reprimanded for committing adultery, making a false official statement, and disobeying a lawful order in violation of Articles 134, 107, and 92 of the UCMJ. 

3.  On 7 June 2012, while holding the rank CPT, and in an open hearing, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ for wrongfully using marijuana at or near Fort Belvoir, VA, between on or about 30 January and 28 February 2012.  His punishment consisted of forfeiture of $2635.00 pay per month for two months.

4.  The DA Form 2627 that he was furnished shows that he elected not to demand trial by court-martial; however, he elected to submit an appeal to the Article 15 and to submit additional matters.  His commanding officer directed that the DA Form 2627 be filed in the performance section his OMPF.  This form also clearly shows in item 10 (Allied Documents and/or Comments) the batch and report results for the applicant's specimen.

5.  On 19 July 2012, the appellate authority denied the applicant's appeal and concluded that the proceedings were conducted in accordance with law and regulation and the punishment imposed was not unjust nor disproportionate to the offense committed.

6.  The applicant provides sworn statements from his spouse and sister-in-law attesting to his anxiety, stomach issues, and how he was unknowingly administered marijuana through his spouse's cooking.  He also provides several pages of his service medical records and a letter, dated 28 March 2012, containing the results of an independent polygraph examination in which the examiner opines the applicant was being truthful when answering questions to determine if the applicant had knowingly and deliberately ingested anything containing THC in the year 2012.

7.  On 15 April 2013, the applicant was discharged from the U.S. Army with an under honorable conditions (general) discharge.  The narrative reason for his separation was unacceptable conduct.  

8.  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.  It provides that 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.  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.

	a.  Paragraph 3-6 addresses filing of NJP and provides that a commander's decision whether to file a record of NJP in the performance section of a Soldier's AMHRR is as important as the decision relating to the imposition of the NJP itself.  In making a filing determination, the imposing commander must weigh carefully the interests of the Soldier's career against those of the Army to produce and advance only the most qualified personnel for positions of leadership, trust, and responsibility.  In this regard, the imposing commander should consider the Soldier's age, grade, total service (with particular attention to the Soldier's recent performance and past misconduct), and whether the Soldier has more than one record of NJP directed for filing in the restricted section.  However, the interests of the Army are compelling when the record of NJP reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, or evidence of serious character deficiency or substantial breach of military discipline.  In such cases, the record should be filed in the performance section.
	
   b.  Paragraph 3-37b(2) states that for Soldiers in the ranks of sergeant and above, the original will be sent to the appropriate custodian for filing in the AMHRR.  The decision to file the original DA Form 2627 in the performance section or restricted section of the AMHRR will be made by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander is subject to review by superior authority.   Additionally, records directed for filing in the restricted section will be redirected to the performance section if the Soldier has other records of NJP reflecting misconduct in the grade of sergeant or higher that have not been wholly set aside and recorded in the restricted section.
	
   c.  Paragraph 3-43 contains guidance on the transfer or removal of DA Forms 2627 from the AMHRR.  It states that applications for removal of an Article 15 from the AMHRR based on an error or injustice will be made to the Army Board for Correction of Military Records (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.

9.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) provides policies, operating tasks, and steps governing the AMHRR.

	a.  This regulation states that only those documents listed in table 2-1 and table 2-2 are authorized for filing in the AMHRR.  Depending on the purpose, documents will be filed in the AMHRR in one of three sections:  performance, service, or restricted.  Table 2-1 (Composition of the AMHRR) shows the DA Form 2627 is filed in either the performance or restricted section of the AMHRR, as directed in item 5 of the DA Form 2627.

	b.  Paragraph 2-3 (Composition of the AMHRR) provides that the restricted section of the AMHRR is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of information in this section is controlled.  It will not be released without written approval from the Commander, U.S. Army Human Resources Command, or the Department of the Army Headquarters selection board proponent.  This paragraph also provides that documents in the restricted section of the AMHRR are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the AMHRR; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant violated the UCMJ while serving as a CPT and subsequently accepted NJP on 7 June 2012.  The imposing commander directed filing the Article 15 in the performance section of his AMHRR.  This is where the subject Article 15 is currently filed.

2.  The contentions made by the applicant and his counsel have been noted.  However, insufficient evidence has been submitted to show that he was erroneously issued the Article 15, that it is inappropriately filed in his AMHRR, or that the punishment imposed against him was improper.

3.  The applicant was afforded the opportunity to consult with defense counsel prior to his hearing.  He could have requested trial by court-martial if he believed that his commander was incapable of fairly judging the evidence.  Instead he elected not to do so.  Although he presents an independent polygraph finding, and believes the commander who denied the appeal should have ensured a CID polygraph was administered if he had any question regarding the independent polygraph, the Army was not obligated to afford him a polygraph nor are polygraph results definitive, infallible, or generally admissible in criminal proceedings.

4.  The applicant's contention that he did not knowingly ingest marijuana has been noted.  However, evidence also shows the applicant has a documented history of misconduct and has been reprimanded for making a false official statement in the past.  

5.  Although counsel claims the appropriate standard of proof was not used in establishing the applicant's guilt the evidence shows that he tested positive for marijuana.  The applicant's own evidence and theory concede that he ingested marijuana.  The only matter at issue was the knowing nature of the ingestion.  The applicant's denial was not credible and the statements of his wife and sister-in-law were tainted with bias and self-interest.  The urinalysis provided ample evidence for the commander to conclude beyond a reasonable doubt that the applicant knowingly used marijuana.

6.  The purpose of maintaining the AMHRR is to protect the interests of the Army and the Soldier.  In this regard, the AMHRR serves to maintain an unbroken, 
historical record of a Soldier's service, conduct, duty performance, evaluation periods, and any corrections to other parts of the AMHRR.  Once placed in the AMHRR, the document becomes a permanent part of that file and will not be removed from or moved to another part of the AMHRR unless directed by an appropriate authority.

7.  The applicant was afforded all required due process.  The applicant has not demonstrated the NJP action was unjust or untrue, that this NJP should be removed because of the length of time, or that removal would be in the best interest of the Army.

8.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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 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)                                         AR20120022466





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ABCMR Record of Proceedings (cont)                                         AR20120022466



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