IN THE CASE OF:  	  

		BOARD DATE:  22 September 2015	  

		DOCKET NUMBER:  AR20150001383 


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, in effect, the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 23 January 1986, be purged from the restricted folder of his official military personnel file (OMPF).

2.  The applicant states the findings and recommendations of an administrative elimination board held on 14 October 1986, approved his retention on active duty, reinstated him to the Sergeant First Class (SFC) Promotion Selection List, and rescheduled him for the Advanced Noncommissioned Officer Course (ANCOC).  However, the Staff Judge Advocate General (Lieutenant Colonel RLW) recommendation was against the board's decision.  

3.  The applicant provides:

* DA Form 2627
* DA Form 2496 (Disposition Form)
* Enclosure 2 (Verbatim Findings and Recommendations)
* 3-page article from the Army Times, dated 4 November 1985
* a memorandum
* 5 letters
* Order Number 52-34
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 2166-6 (Enlisted Evaluation Report)
* Permanent Orders 146-5
* DA Form 1059 (Service School Academic Evaluation Report)
CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  Having 3 years and 3 months of prior active service, the applicant reenlisted in the Regular Army on 13 October 1977.

3.  On 23 January 1986, in an open hearing while serving in the rank/grade of staff sergeant (SSG)/E-6, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for wrongfully using some amount of marijuana between 15 September and 16 October 1985.  Said wrongful use was determined by urinalysis while at Fort Eustis, VA, on 16 October 1985.  His punishment consisted of a reduction to the rank/grade of sergeant (SGT)/E-5, a forfeiture of $581.00 pay, and extra duty for a period of 30 days.  He elected not to appeal his punishment. 

4.  Item 5 of the DA Form 2627 concerns the filing of the Article 15 and it shows the imposing officer directed the applicant's Article 15 be filed in the restricted folder of his OMPF.  

5.  Review of the applicant's OMPF shows the Article 15 is currently filed in the restricted folder of his OMPF. 

6.  On 31 July 1994, having completed sufficient service for retirement, the applicant retired honorably in the rank/grade of SSG/E6.  His effective date of pay grade is listed on his DD Form 214 as 1 December 1990.

7.  The complete facts and circumstances surrounding the applicant's administrative elimination board are not available for review; however, the applicant provides select documents pertaining to the proceedings and additional documents which include:

   a.  A 3-page article criticizing drug labs for errors and policies published in the Army Times on 4 November 1985.
   
   b.  A letter of retention, issued by the Marine Maintenance Officer, dated 6 February 1986, recommending the applicant's retention on active duty.
   
   c.  A letter to the President of the Board, issued by a chief warrant officer four, Marine Engineer, dated 10 February 1986, recommending the applicant's retention on active duty.  He states the applicant is aware of the situation he has incurred, which he painfully regrets.
   
   d.  Order Number 52-34, issued by U.S. Army Military Personnel Center, dated 27 May 1986, which shows the applicant was promoted to the rank/grade of SFC/E-7, with a date of rank (DOR) of 27 June 1986 and an effective date of  1 July 1986.
   
   e.  DA Form 1059, issued by the Chief, Student Service Division, dated 14 July 1986, which shows the applicant successfully completed the nonresident Transportation Corps ANCOC.
   
   f.  A letter, issued by the Staff Judge Advocate (SJA), dated 4 November 1986, to CompuChem Laboratories requesting CompuChem Laboratories to examine the ToxiChem Laboratories reports and to prepare answers to the alleged deficiencies in testing procedures.  It was noted the action by the separation authority had been delayed pending their response.
   
   g.  A letter, issued by CompuChem Laboratories, dated 14 November 1986, which notes the laboratory director was formulating a substantive response.
   
   h.  A letter, issued by the SJA, dated 16 December 1986, to CompuChem Laboratories requesting a response to their previous inquiry.
   
   i.  A memorandum for record issued by the Chief, Administrative/Procurement Law, dated 29 January 1987, in which it is noted from 21 November 1986 to 27 January 1987, at least 20 phone calls were made to CompuChem Laboratories; each resulting in a promise of prompt action.  Finally, on 28 January 1987, the director of CompuChem Laboratories advised him that the clinical director no longer worked there and had apparently not complied with his requests.  The director assured him that he would forward a response immediately.
   
   j.  Verbatim Findings and Recommendations, undated, presumably signed by the president, three board members, and recorder which states in the 
Chapter 14, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) proceedings concerning the applicant, the board found that the applicant's urine sample was erroneously reported positive for marijuana by the drug testing laboratory, CompuChem, Inc.  It had not been clearly established that despite attempts to rehabilitate the applicant as a satisfactory Soldier, further effort was unlikely to succeed.  It had not been clearly established that rehabilitation of the applicant was impracticable or that the applicant was not amenable to rehabilitation.  The applicant's job performance did merit his retention on active duty.  It would be in the best interest of the Army to retain the applicant on active duty.  In view of the findings, the board recommended the applicant be retained on active duty and that action be taken to set aside the Article 15, UCMJ imposed on him as the result of the defective urinalysis and that he be reinstated on the E-7 promotion list and be rescheduled for ANCOC as soon as possible.
   
   k.  DA Form 2496, dated 29 January 1987, from the SJA to the Adjutant General referencing the administrative elimination of the applicant.  The document states a Chapter 14, Army Regulation 635-200, administrative elimination board was held in the case of the applicant on 14 October 1986.  The board considered a letter from ToxiChem Laboratories attacking the validity of the CompuChem urinalysis testing and found the applicant's urine sample was erroneously reported positive for marijuana by the drug testing laboratory, CompuChem, Inc.  It has not been clearly established that despite attempts to rehabilitate the applicant as a satisfactory Soldier, further effort is unlikely to succeed.  It has not been clearly established that rehabilitation of the applicant is impracticable or that the applicant is not amenable to rehabilitation.  The applicant's job performance does merit his retention on active duty.  It would be in the best interest of the Army to retain the applicant on active duty.  The board recommended that the applicant be retained on active duty and that action be taken to set aside the Article 15, UCMJ imposed on the applicant as a result of the defective urinalysis and that he be reinstated on the E-7 promotion list and be rescheduled for ANCOC as soon as possible.

		(1)  However, due to the nature of the board's findings and recommendations, the SJA's office requested CompuChem Laboratories to evaluate their positive test result and the letter from ToxiChem Laboratories.  The response from ToxiChem Laboratories (sic) shows that they properly reported that the applicant's urine showed evidence of marijuana.

		(2)  The acting SJA recommended that the convening authority specifically disapprove the board's first finding (that the applicant's urine sample was erroneously reported positive for marijuana by CompuChem Laboratories) as well as the board's second recommendation (that action be taken to set aside the Article 15, UCMJ imposed on the applicant as a result of the defective urinalysis and that he be reinstated on the E-7 promotion list and rescheduled for ANCOC). He further recommended the convening authority approve the board's first recommendation and direct retention.

   l.  DA Form 2166-6, dated January 1988, which shows he received a change of rater evaluation while performing duties as a platoon sergeant for Headquarters and Headquarters Company, 24th Transportation Battalion, Fort Eustis, VA.  His rank is identified on the form as SGT with a DOR of 23 January 1986. 
   
   m.  Permanent Orders 146-5, issued by U.S. Army Transportation Center,  Fort Eustis, VA, dated 20 October 1989, which shows he was awarded the Army Good Conduct Medal (Third Award) for the period 13 October 1986 to 12 October 1989.  His rank is identified as SGT on the orders.   

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 (MCM).  Chapter 3, of the regulation in effect at the time, implemented and amplified Article 15 of the UCMJ and Chapter XXVI of the MCM.  

   a. Paragraph 3-4 states 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.  If it is clear that NJP will not be sufficient to meet the ends of justice, more stringent measures must be taken.  Prompt action is essential for NJP to have the proper corrective effect.  NJP may be imposed to correct, educate, and reform offenders who have shown they 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.

   b. Paragraph 3-20 describes the setting side of punishment and restoration or rights, privileges, or property.  This is an action whereby the punishment or any part or amount thereof, whether executed or unexecuted, is set aside and any property, privileges, or rights affected by the portion of the punishment set aside are restored. 

      (1)  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.  

      (2)  "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.  Clear injustice does not include the fact that the Soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier.  Normally, the Soldier's uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment. 

9.  The presumption of administrative regularity in the conduct of governmental affairs can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  In this instance, the "presumption of regularity" is based on Army Regulation 15-185 (ABCMR) which states the ABCMR begins its consideration of each case with the presumption of administrative regularity and that the applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request, in effect, to purge the DA Form 2627, dated 23 January 1986, from the restricted folder of his OMPF has been carefully examined.

2.  The evidence of record confirms the imposing commander administering the Article 15 proceedings and after consideration of all the evidence, determined the applicant committed the offense in question.  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 charged offense(s).  

3.  The imposing commander's function is to make a decision as to whether or not a Soldier committed the offense in question and render an appropriate punishment if necessary.  These decisions will not be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence or they failed to follow the applicable regulations.  

4.  The evidence of record shows 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.  However, the applicant waived his right to a trial by court-martial, opted for an open Article 15 hearing, and waived his right to an appeal.

5.  The complete facts and circumstances surrounding the applicant's administrative elimination board were not available for review; however, the applicant provided select documents pertaining to the proceedings.  While it is evident the applicant was allowed to remain on active duty and that he eventually retired in the rank/grade of SSG/E-6, there is insufficient evidence which shows the elimination board's recommendation to set aside the Article 15 imposed on the applicant as a result of a defective urinalysis was ever approved by proper authority.

6.  Based on the foregoing, there appears to be an insufficient evidentiary basis to support removal of the Article 15 from the restricted folder of the applicant's OMPF.

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)                                         AR20150001383



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ABCMR Record of Proceedings (cont)                                         AR20150001383



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