IN THE CASE OF:	  

		BOARD DATE:  9 July 2013

		DOCKET NUMBER:  AR20130010264 


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:

   a.  The nonjudicial punishment (NJP) imposed against him under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 21 July 2011, be set aside.

   b.  Restoration of his rank/grade to sergeant (SGT)/E-5 with back pay and allowances.

   c.  Removal of the relief for cause DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the rating period 31 October 2010 through 10 August 2011 from his record.

2.  The applicant states that on 21 July 2011 he was found guilty of wrongfully using marijuana and punished under Article 15, UCMJ.  He was subsequently reduced in rank and prevented from being promoted to staff sergeant (SSG)/E-6 despite having passed the promotion board.  He received a relief for cause NCOER.  However, after the Article 15 proceedings, additional evidence surfaced that exonerated him, including two other Soldiers admitting to marijuana use, record testimony of a botched urinalysis sample collection, and the possibility of defending his innocence through Deoxyribonucleic Acid (DNA) testing was denied as a result of the U.S. Army Forensic Toxicology Drug Testing Laboratory's inability to follow protocol.  Therefore, allowing the Article 15 to remain in his record, and by not correcting the subsequent punishments, would constitute an error and an injustice.
3.  The applicant makes a statement of the facts as follows:

	a.  He unequivocally swears and affirms that he has never smoked marijuana or used any other illicit drugs during his Army career.  On 30 March 2011, his unit conducted a urinalysis.  Proper protocol for urinalysis testing was not followed and his urine sample was mistakenly marked.  There were at least three failed protocols during the urinalysis collection procedure:

		(1)  Before he submitted his sample, he verified his social security number with the Unit Prevention Leader (UPL), signed the chain of custody form and initialed the bottle label while it was on the label sheet.  This was the standard set forth by the UPL.  He placed the unlabeled sample on the UPL's table and walked away so he could finish administrative tasks before everyone was released.  Guidance was handed down permitting unit members to be released for the rest of the day once their individual urine samples were collected.  Because of this announcement, the UPL station turned to chaos, and he was unable to verify the label he signed to go on the sample he submitted.

		(2)  Secondly, he could not verify his sample was properly sealed. 

		(3)  Lastly, his Common Access Card (ID card) was not returned to him by the UPL, but rather by his squad leader several hours later.

	b.  Three weeks later, on 20 April 2011, the results of the urinalysis came back.  He was one of two Soldiers whose samples returned positive for Tetrahydrocannabinol (THC) (marijuana).  Specialist (CPC) C-----'s specimen also tested positive.  However, SPC C----- and his battle buddy, SPC L------, admitted to smoking marijuana just days before the test while on block leave.  Both Soldiers admitted their marijuana use to other enlisted Soldiers before the tests came back.  In addition, SPC C-----and SPC L------- admitted to the Company Commander, Major (MAJ) MW, that they smoked marijuana days before the test.  They came clean with the Company Commander after they learned that he (the applicant), although innocent, incorrectly tested positive.  Both Soldiers signed sworn statements admitting guilt.  Unfortunately, this information was not available during the Article 15.

	c.  Based on the belief that his sample was mislabeled, he requested and funded a DNA test to compare his DNA with the positive urine specimen.  Fort Meade, MD retained his sample, and was required to maintain it for at least 1 year.  Captain (CPT) SA, trial defense counsel, and CPT GB requested the urine specimen be sent for DNA testing.  The sample was sent to DNA Solutions, Inc. through Accurate, Reliable, Confidential (ARC) point Labs – Nashville, TN for testing.  Unfortunately, the company was unable to recover DNA due to a breakdown of the genetic profile.  The company was unable to determine the genetic profile because Fort Meade failed to properly maintain and ship the sample.  Against Department of Defense and Federal Workplace standards and common practice and procedure in the medical field the urine specimen had been thawed and frozen numerous times.  Furthermore, the samples were not shipped overnight and were not shipped cold.  Instead, they were sent on a Friday and took several days to arrive.

	d.  The 30 March 2011 urinalysis followed a block leave after they returned from deployment.  While many Soldiers may have celebrated by "partying," he celebrated with his family.  While he was on deployment, his third child was born. She was 4 months old by the time he arrived home.  Therefore, he spent his block leave introducing himself and beginning a relationship with his daughter.  In addition, he spent time with his two older sons, attempting to convince them that he would not be returning to Afghanistan for a while and that they would have their dad at their side for the foreseeable future.  Needless to say, he spent every waking moment of leave with his wife and children.  He has never been one to celebrate recklessly, and most certainly not when he has a family with a recent addition coupled with a promising Army career.

4.  The applicant makes the following argument:

	a.  He has never in his Army career used drugs.  In addition, the evidence shows that his sample was incorrectly labeled and tested.  Lastly, both the separation board and the Army Central Clearance Facility (CCF) found that he did not use drugs and that the urinalysis sample tested was in fact not his sample.  

		(1)  First, his sample was incorrectly labeled and tested.  It is clear from the evidence now at hand that two other Soldiers actually abused marijuana during block leave and they should have returned positive urinalysis samples.  Both Soldiers admitted to the use, and yet only one of their urinalysis samples came back positive.  It is evident from the confusion and mishandling of the urinalysis testing that his sample was inadvertently mislabeled and submitted for testing.  Because of poor sample keeping and shipping procedures at Fort Meade he is unable to prove through DNA testing that the urine sample which tested positive for marijuana does not belong to him.

		(2)  Secondly, the administrative separation board determined that he did not use drugs.  On 21 November 2011, Colonel (COL) RJL, the Brigade Commander, convened a separation board to determine whether he wrongfully used marijuana between 28 February and 30 March 2011, and therefore determine whether or not he should be separated from the service.  With the new evidence and the two Soldiers’ admissions, the improper urinalysis collection, and the improper urinalysis retention, the separation board found that a "preponderance of the evidence does not support the allegation.  It is imperative to underscore the legal standard used by the separation board.  The separation board's findings are held to a "preponderance of the evidence" standard, whereas the Article 15 findings are held to a "beyond reasonable doubt standard."  The latter standard is a high burden for the government.  However, the former standard "beyond a preponderance of the evidence" is a relatively low standard.  Therefore, if the evidence met the higher standard, it must have also presumptively met the lower standard.  However, as he has clarified, additional evidence was at the disposal of the separation board that was not available for the Article 15.  Therefore, it follows logically that if the separation board, using the new evidence, believed that the lower threshold was not met, then the Article 15, also using the new evidence, could not have met its higher burden.  As a result, it is unfair and contrary to legal standards to allow the Article 15 to remain in his record.

		(3)  Lastly, the Army CCF found that he did not use marijuana.  Following the Article 15, the CCF revoked his security clearance.  However, after the additional evidence of the two other Soldiers admitting use and the circumstances surrounding the urinalysis sample collection and retention, the CCF made a favorable determination and reinstituted his security clearance.  The CCF standard required "evidence that the person did not commit the offense." Therefore, the CCF found that he did not wrongfully use marijuana.

5.  The applicant concludes that although there is a presumption of administrative regularity, the preponderance of the evidence shows that an error or injustice exists and that he was wrongfully punished under Article 15, UCMJ.  

6.  The applicant provides:

* Contested Article 15
* Commanding General's (CG) decision regarding the applicant's request for redress
* Selected documents of the administrative separation board
* Email exchanged
* Trial defense counsel's request for DNA testing
* Technical examination report
* Extract of a Department of Health and Human Services drug-related guideline
* Internet articles regarding DNA identification
* Letter from ARC point Labs of Nashville
* Enlisted Record Brief
* Findings and recommendation of the administrative separation board
* CCF Statement of Reason

CONSIDERATION OF EVIDENCE: 

1.  With respect to the removal of the contested NCOER for the rating period from 31 October 2010 through 10 August 2011:

	a.  The applicant's request is premature.  Paragraph 2-5, Section II, Army Regulation 15-185, the regulation under which this Board operates, states the Board will not consider any application if it determines that an applicant has not exhausted all administrative remedies available to him/her.  

	b.  There is no evidence that the applicant appealed this NCOER through the Commander, U.S. Army Human Resources Command, Fort Knox, KY, Army Enlisted Special Review Board, and that he was denied relief.  The applicant is directed to exhaust his administrative remedies.  The NCOER issue will not be further discussed in the Record of Proceedings. 

2.  Having had prior enlisted service, on 25 August 2005, the applicant enlisted in the Regular Army and he held military occupational specialty 11B (Infantryman). He served through an extension and a reenlistment and he attained the rank/grade of SGT/E-5 on 1 November 2007. 

3.  In or around November 2008, he was assigned to A Company, 1st Battalion, 187th Infantry, 3rd Brigade Combat Team, 101st Airborne Division, Fort Campbell, KY.

4.  On 30 March 2011, the applicant participated in a unit urinalysis and his urine sample tested positive for marijuana. 

5.  On 21 July 2011, Lieutenant Colonel (LTC) KDK, Commander, 1st Battalion, 187th Infantry, advised the applicant that he was considering whether he should be punished under Article 15, UCMJ, for wrongfully using marijuana between on or about 28 February and 30 March 2011. 

6.  After having been afforded the opportunity to consult with counsel, the applicant indicated he did not demand trial by a court-martial and elected a closed Article 15 hearing.  He further requested someone to speak in his behalf and that he would present matters in defense in person.


7.  On 10 August 2011, he accepted NJP under the provisions of Article 15, UCMJ, for violating Articles 112a of the UCMJ, wrongfully using marijuana.  His punishment, as indicated on the DA Form 2627, consisted of a reduction to SPC/E-4, a forfeiture of $1,162.00 pay for 2 months (suspended until
10 February 2012), extra duty for 14 days, and an oral reprimand.  The imposing commander directed the original DA Form 2627 be filed in the restricted section of the applicant's Army Military Human Resource Record (AMHRR).

8.  Additionally, on 10 August 2011, the applicant initialed the block indicating he wished to appeal and submit additional matters.  He placed his signature in item 7 (Initial appropriate block, date, and sign).  On 17 August 2011, he submitted his appeal and made a similar argument as shown on his application to this Board.  With his appeal, he submitted multiple character letters, including one from a sergeant major, speaking of his character. 

9.  On 19 August 2011, a military attorney reviewed the proceedings for legal sufficiency and found them to have been conducted in accordance with law and regulation and the punishment imposed was not unjust or disproportionate to the offense committed.

10.  On 29 August 2011, after reviewing all matters presented in appeal, COL RJL, the Brigade Commander, denied the applicant's appeal.  

11.  On 29 August 2011, the applicant acknowledged receipt of the decision to deny his appeal.  He placed his signature in item 10 (I have seen the action taken on my appeal). 

12.  On 28 September 2011, the DA Form 2627 was filed in the restricted section of the applicant's AMHRR.

13.  The complete actions of the administrative separation board are not available for review with this case.  The selected documents the applicant provides show an administrative separation board convened on an unknown date to determine if the applicant should be separated for misconduct.  The administrative separation board:

* found a preponderance of evidence does not support the allegations that the applicant wrongfully used marijuana between on or about 28 February 2011 and 30 March 2011
* recommended the applicant be retained in the service


14.  On 12 December 2012, in what appears to be a request for redress submitted by the applicant, the CG, 101st Airborne Division notified the applicant that he had reviewed the NJP, administrative separation board, and the appellate action.  After considering all the circumstance in this case, no clemency or correction was warranted.  However, it was ordered that the applicant be immediately reassigned to another unit.  

15.  Army Regulation 27-10 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.  Prompt action is essential for NJP to have the proper corrective effect.  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 3-28 describes setting aside and restorations.  This 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.  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.  The basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice.  "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier.

	b.  Paragraph 3-37c(1)(a) states that for Soldiers in the ranks of SGT 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. 

	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  there must sufficient evidence to support the removal of the DA Form 2627 from a Soldier's record by the ABCMR.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the commander administering the Article 15 proceedings determined the applicant committed the offense in question during an Article 15 hearing after considering all the evidence submitted by the applicant.  By law and regulation, before finding a Soldier guilty during Article 15 proceedings, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offenses.  The evidence of record confirms the applicant waived his right to a trial by court-martial and opted for an Article 15 hearing.

2.  The ABCMR does not normally reexamine issues of guilt or innocence under Article 15, UCMJ.  This is the imposing commander's function and it will not be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence.  The applicant was provided a defense attorney, he was given the right to demand trial by court-martial, and he was afforded the opportunity to appeal the Article 15 through the proper channels.  The applicant appealed this Article 15 to the next higher commander; however, his appeal was denied.  The imposing commander directed filing the Article 15 in the restricted section of his AMHRR.  This is where the subject Article 15 is currently filed.

3.  His NJP proceedings were conducted in accordance with law and regulation and his Article 15 and allied documents are properly filed in the performance section of his AMHRR as directed by the imposing commander.  There is insufficient evidence of record and he provides insufficient evidence to show the Article 15 is untrue or unjust.

4.  With respect to his arguments:

	a.  The administrative separation board was not tasked to determine his guilt or innocence of the UCMJ violation.  It was tasked to consider whether he should be separated from active duty.  It appears after hearing his testimony and those of others, the administrative separation board found a preponderance of evidence did not support the allegations that the applicant wrongfully used marijuana between on or about 28 February and 30 March 2011.  The administrative separation board made a recommendation.  It had no UCMJ authority over the Soldier. 

	b.  But even after the administrative separation board made its recommendation, the CG reviewed the Article 15, administrative separation board, and the appellate action.  After considering all the circumstances in this case, he found no clemency or correction was warranted, although he ordered that the applicant be immediately reassigned to another unit

	c.  The basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice.  "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  The applicant did not provide convincing evidence that shows the imposing commander denied him the right to speak or bring issues in his defense during the proceedings. 

	d.  The argument he now presents was previously presented and considered by the appeal authority and is not sufficient to change the determination of guilt made by the imposing commander.  His dissatisfaction with the outcome of this Article 15 does not invalidate it.  His commander determined that he violated the UCMJ and he was punished for it.  There is neither an error nor an injustice and there is no reason to set the Article 15 aside or restore his rank.

5.  The Article 15 is properly filed in his AMHRR.  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 unless directed by an appropriate authority.

6.  The applicant has not demonstrated the NJP action was unjust or untrue, that this NJP should be removed, or that a removal would be in the best interest of the Army.  In view of the foregoing, there is an insufficient evidentiary basis for granting him the requested relief in this case.

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)                                         AR20130010264



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ABCMR Record of Proceedings (cont)                                         AR20130010264



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