BOARD DATE:	  20 March 2014

		DOCKET NUMBER:  AR20130009077 


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 that all records pertaining to administrative actions taken against him for the wrongful use of D-Amphetamine be corrected and/or expunged.  These records include:  Findings of his Flying Evaluation Board (FEB), all entries made on his DA Form 759 (Individual Flight Record and Flight Certificate - Army) regarding said FEB, General Officer Memorandum of Reprimand (GOMOR), and any and all U.S. Army Criminal Investigation Command (USACIDC) arrest/charge records.

2.  The applicant states that at no time in his military career did he use any illegal or controlled substance not prescribed to him by an appropriate medical authority.  He has firmly and emphatically stated his innocence of these charges at every opportunity.  He has an exemplary record with many honors and deployments.  The proceedings against him after failing a random drug test were not handled fairly or correctly.  He was never convicted either by Article 15 under the Uniform Code of Military Justice (UCMJ) or by court-martial.  He has an arrest record with the USACIDC and the Federal Bureau of Investigation (FBI) for the wrongful use of D-Amphetamine and this could do irreparable harm to his future employment.

3.  The applicant provides:

* Letter, undated
* email correspondence between the applicant's civilian counsel and a Staff Judge Advocate
* Forensic Credibility Analysis Report, dated 21 May 2012
* Forensic Polygraph Expert Credibility Assessments - Expert Witness Résumé
* Quality Control Review of Polygraph Examination
* Memorandum, Army Substance Abuse Program (ASAP), dated 31 May 2012
* Memorandum, FEB, dated 6 July 2012
* DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers)
* Memorandum, Separation Under the Provisions of Army Regulation 
600-105 (Aviation Service of Rated Army Officers), Chapter 6, FEB, dated 
25 July 2012 with allied documents
* DA Form 2808 (Report of Medical Examination), dated 15 August 2012
* DA Form 4186 (Medical Recommendation for Flying Duty), dated 
5 September 2012
* Memorandum, Initiation of Elimination, dated 19 September 2012
* Memorandum, Show Cause Board Rebuttal Matters and Election Form, dated 5 November 2012
* GOMOR, dated 19 November 2012
* Orders Number 263-0021, dated 19 September 2012
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Officer Record Brief, dated 27 August 2012
* DA Forms 67-8 (Officer Evaluation Report) for the rating period 
3 November 2006 through 28 February 2012
* Numerous character references and letters of support

CONSIDERATION OF EVIDENCE:

1.  Army Regulation 15-185, the regulation that governs the operations of the Army Board for Correction of Military Records (ABCMR) states that the ABCMR will not consider an application until the applicant has exhausted all administrative remedies to correct the alleged error or injustice. 

2.  There is no evidence with his application that shows he ever attempted to correct his problem concerning USACIDC records by requesting an amendment or removal of the titling actions upon which the DCII Index information is based through the USACIDC, United States Army Crime Records Center, Russell Knox Building, 27130 Telegraph Road, Quantico, VA  22134-2253.  These administrative remedies must be exhausted prior to consideration of his case by this Board.  As such the portion of his requests regarding the removal of USACIDC documents will not be addressed further in this Record of Proceedings. 



3.  The applicant is currently serving as a Chief Warrant Officer (CW2) in the 
U.S. Army Reserve (USAR).

4.  On an unknown date while on active duty in the Regular Army the applicant was command referred to ASAP due to receiving a positive urinalysis for Amphetamine.  On 4 May 2012, the applicant was assessed and diagnosed with an Amphetamine Related Disorder.  The ASAP Clinical Social Worker indicated that:

* he should attend a 2-day Army Drug and Alcohol Prevention Training course
* his diagnosis and recommended treatment were based on receiving a positive urinalysis for Amphetamine and denying the illegal use of [any] substance
* the incident of using a non-prescribed substance appears isolated and does not suggest a pattern of mis-use or intentional use

5.  On an unknown date, an investigating officer (IO) was appointed pursuant to Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers) to conduct an investigation into the circumstances surrounding his use of a prohibited substance containing D-Amphetamine.

6.  On 11 June 2012, the IO completed his findings and recommendations to a FEB.  He found that the applicant did use a prohibited substance, in violation of Army Regulation 40-8 (Medical Services-Temporary Flying Restrictions Due to Exogenous Factors Affecting Aircrew Efficiency).  

7.  The IO stated that the applicant displayed undesirable habits or traits of character, had a positive urinalysis, and his use of a substance containing D-Amphetamine clearly showed a dangerous or unacceptable change in pattern of performance as outlined in Army Regulation 600-105.  The IO recommended the applicant be terminated from aviation service and the board of officers concurred with the findings and recommendation. 

8.  On 6 July 2012, the Commander, 3rd Infantry Division and Fort Stewart reviewed the applicant's FEB packet and recommended he be terminated from aviation service.

9.  On 25 July 2012, the appropriate approval authority approved the IO’s findings and recommendations.  He directed that the applicant be terminated from aviation service.

10.  On 5 September 2012, a Flight Surgeon approved the applicant for continued flight duty based on a medical examination.

11.  In a Department of the Army (DA) message, subject:  Mandatory Separation, dated 18 September 2012, the Chief, Officer Retirements and Separation, notified the applicant that he would be mandatorily separated on 10 January 2013 as a result of his non-selection for promotion during the fiscal year 2012, CW3/4/5 Promotion Selection Board.

12.  On 19 September 2012, the applicant's commander initiated action to notify the applicant that he was required to show cause for retention on active duty under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraphs 4-2b(5) because of his acts of personal misconduct. 

	a.  The reasons for his proposed action for elimination were:

		(1)  his positive urinalysis for D-Amphetamine on or about 19 March 2012;

		(2)  general officer approved findings of the FEB held on 11 June 2012 which directed his termination from aviation service; and

		(3)  his actions on or about 17 March 2012 were conduct unbecoming of an officer.

   b.  The commander advised the applicant of his rights, options, and the separation procedures involved.  The applicant had 30 calendar days to submit a rebuttal statement, request appearance before a Board of Inquiry (BOI), or submit his resignation in lieu of elimination.

	c.  The applicant acknowledged receipt of the notification on 5 October 2012.

13.  On 5 November 2012, the applicant submitted a rebuttal to the commander's recommendation of elimination action.  He requested that the board be closed for the following reasons:

	a.  The sole basis for separation was personal misconduct based on a positive urinalysis on 19 March 2012.  The urinalysis showed low levels of D-Amphetamine (a schedule II prescription drug).  He maintained from the beginning that he did not knowingly ingest illegal drugs.  Further, he chose to turn down an Article 15 action in order to refute the charges in a court martial.

	b.  His defense counsel was twice denied requests to use the open door policy of the General Officer Show Cause Authority.
	c.  He provided evidence of his character and duty performance to defend against the charge.  His record was exemplary and his character references portrayed an officer who would not and did not abuse illegal drugs.

	d.  In a memorandum, dated 31 May 2012, the ASAP Counseling Supervisor stated that the positive result did not suggest a pattern of mis-use or intentional use. 

	e.  The FEB was conducted in a manner that denied him a proper venue through which to defend himself of the charge.  He cited the following irregularities:

* Only 2 of 15 requested witnesses were provided
* a request to have the positive urinalysis retested was denied
* findings were inconsistent with the evidence in that there was no clear "change in pattern of performance and misconduct”; further, the ASAP memorandum contradicted this statement
* the board was not given the option to allow continuance or suspension pending the allegation being addressed though formal UCMJ action
* he did not receive formal notice of the appointing authority's decision regarding the board until 5 October 2012, over 2 months after the board completed their findings
* he was approved for flight status on 5 September 2012
* on 23 August 2012, he was non-selected for promotion despite his otherwise exemplary record
* applicant requested and was approved for discharge effective 
10 January 2013
* punishment for his alleged misconduct had already occurred  both in the results of the FEB and the denial to the Army of a career aviator rated among the best of his peers

14.  He asked for the opportunity to continue to serve as an officer in the U.S. Army and appearance before a BOI if the convening authority did not close the case.

15.  The applicant received a GOMOR on 19 November 2012 from the Commander, Fort Stewart, Fort Stewart, GA.  He was reprimanded for the use of an illegal drug and a positive urinalysis for D-Amphetamine.

16.  On 5 December 2012, the applicant acknowledged receipt of the GOMOR and requested the document be filed in his local personnel file.  He submitted character references and documents related to his duty performance.  The general officer imposing authority directed the GOMOR be filed in the applicant's Army Military Human Resource Record (AMHRR).

17.  On 10 January 2013, he was honorably discharged under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 5-9 due to non-selection, permanent promotion.  His DD Form 214 shows he completed 7 years, 8 months, and 9 days of total active service.  He was appointed a USAR CW2 the following day.

18.  He provided:

	a.  A letter which outlines his childhood and his Army career to include his units of assignment, positions held, deployments, and accomplishments.  He contends that he does not take drugs and at this point in his life he would never jeopardize his future for something as ridiculous as amphetamines.

	b.  A Forensic Credibility Analysis conducted at the request of the applicant and his counsel.  It states that the applicant voluntarily provided a list of all medications taken and substances ingested during the four-day St. Patrick's Day weekend prior to the urine testing on 19 March 2012.  The Medical Review Officer (MRO) reported use of these substances would not explain the positive result of the urinalysis, reflecting an illegitimate use of the Schedule II controlled substance.  It was the professional opinion of the examiner that the forensic credibility analysis of the applicant clearly supported his denial of any use of any illicit Schedule 2 controlled substance other than those listed and reported to the MRO during the seven-day period preceding his urinalysis.

	c.  A polygraph report which states that on 21 May 2012 the applicant was administered a polygraph examination to determine his truthfulness when denying the use of illegal drugs.  The polygraph examination resulted in the opinion of "No Deception Indicated" which basically suggests that the applicant was being truthful in his denial.

	d.  A printout of email correspondence, dated 24 April 2012, between the applicant's counsel and a Staff Judge Advocate in which counsel argues that the applicant is not an illegal drug abuser; therefore, the Army Directive under which he is being charged was not applicable.  Nonetheless, the applicant was notified of his mandatory separation due to non-selection for promotion and counsel requested that the applicant be allowed to separate for that reason and not for misconduct.
	
	e.  Officer Evaluation Reports, his Officer Record Brief, and character references which attest to his outstanding character, technical ability, professionalism, and moral character.

19.  The applicant provides no evidence to show he or his counsel requested the positive urine specimen be retested and that his request were denied and for what reason.

20.  Army Regulation 600-85 (The Army Substance Abuse Program) states that positive urine specimens may be retested if a sufficient quantity of the specimen is available and a written request for retesting is submitted by the unit commander, the MRO, or an attorney representing the Soldier.  The Soldier may request retesting through his/her commander or attorney.  A Soldier whose urine has tested positive for illegal drugs may obtain a retest at a commercial laboratory (Substance Abuse and Mental Health Service Administration approved) outside the DOD laboratory system at the Soldier’s own expense when a sufficient quantity of the same specimen is available for retesting.

21.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) provides that all personnel information recorded under the authority of this regulation is the property of the United States Government.

	a.  Once recorded, it will not be removed except as provided by law or this regulation.

	b.  Once placed in the AMHRR, the document becomes a permanent part of that file.  The document will not be removed from, or moved to, another part of the AMHRR unless directed by proper authority.

	c.  Documents designated for transfer from the performance or service section of the AMHRR will be moved to the restricted section, if authorized.  When discovered by the custodian or requested by the Soldier concerned, transfer restricted documents mistakenly filed in the performance or service section to the restricted section.

22.  Army Regulation 600-37 (Unfavorable Information) provides that an administrative memorandum of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the Soldier.  The memorandum must be referred to the recipient and the referral must include and list applicable portions of investigations, reports, or other documents that serve as a basis for the reprimand.  Statements or other evidence furnished by the recipient must be reviewed and considered before filing determination is made.
23.  A memorandum of reprimand may be filed in a Soldier's AMHRR only upon the order of a general officer-level authority and is to be filed in the performance section.  The direction for filing is to be contained in an endorsement or addendum to the memorandum.  If the reprimand is to be filed in the AMHRR, the recipient's submissions are to be attached.  Once filed in the AMHRR, the reprimand and associated documents are permanent unless removed in accordance with Army Regulation 600-37, chapter 7.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that all records pertaining to administrative actions taken against him for the wrongful use of D-Amphetamine be corrected and/or expunged was carefully considered. 

2.  The applicant's contention that he did not knowingly ingest D-Amphetamine has been noted.  The evidence shows that on 19 March 2012 he tested positive for D-Amphetamine, an illegal substance.  An IO confirmed the same and recommended to the FEB that he be terminated from aviation duty.  The FEB approved these findings and recommendations and subsequently the applicant was required to show cause for retention. 

3.  During this same period, the applicant was informed that due to his non-selection for promotion he would be mandatorily discharged on 10 January 2012.  As part of his rebuttal for the show cause proceeding he requested the board be closed because the ASAP counselor found no pattern of mis-use of D-Amphetamine, he was denied retesting of the specimen, he was denied access to the approval authority as outlined by the open door policy, and his stellar military performance.  

4.  The applicant received a GOMOR on 15 November for his use of illegal drug and a positive urinalysis which was filed in his AMHRR.  In his rebuttal, he maintained his contention that he never knowingly ingested any drug that was not prescribed to him.

5.  He presents an independent polygraph finding as proof that he was truthful in his denial of having knowingly taken any illegal substance; however, polygraph results are not definitive or infallible, and generally are not admissible in criminal proceedings and cannot be used as the sole basis to overturn clinical urinalysis results.  He further contends that he was denied the opportunity to have the sample retested but provides no evidence of such a request or the reason for denial.

6.  His contentions are found to be sincere and the evidence shows that expended a great amount of his personal time and finances to obtain an independent polygraph; however, this is insufficient evidence to definitively show that his positive urinalysis was in error.

7.  The only matter at issue was the knowing nature of the ingestion.  The urinalysis results provided ample evidence for the commander to conclude beyond a reasonable doubt that the applicant knowingly used D-Amphetamine.  A polygraph is insufficient evidence to outweigh clinical test results.

8.  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.

9.  The applicant was afforded all required due process.  The applicant has not demonstrated the urinalysis results or GOMOR were unjust or untrue or that correction or removal would be in the best interest of the Army.  In view of the foregoing, his 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)                                         AR20130009077





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ABCMR Record of Proceedings (cont)                                         AR20130009077



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