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ARMY | DRB | CY2005 | 20050000357
Original file (20050000357.doc) Auto-classification: Approved



                            RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:                 10 JANUARY 2006
      DOCKET NUMBER:         AR20050000357


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Deyon D. Battle               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Kenneth Wright                |     |Chairperson          |
|     |Mr. Dale DeBruler                 |     |Member               |
|     |Mr. Qawly Sabree                  |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that the record of nonjudicial punishment (NJP)
under Article 15, Uniformed Code of Military Justice (UCMJ) be removed from
his official records and that he be reinstated in the Army with restoration
of all of the rights and privileges to which he was entitled prior to the
imposition of punishment.

2.  The applicant states that his military records indicate that he
possessed, used, and distributed a controlled substance, and that his
command placed on record that the controlled substance was
Alphamethyltryptamine (AMT).  He states that AMT was not a controlled
substance on or before 28 January 2003 and that it later became a
controlled substance on 4 April 2003.  He states that the Constitution
provides that "No Bill of Attainder or ex post facto Law shall be passed"
and to find him guilty of a law that was not yet passed is a violation of
the United States (US) Constitution.  He states that Article 112a, UCMJ
clearly states the definition of a controlled substance and that AMT does
not fit the definition.  He states that Soldiers are in violation of
Article 107 when they sign an official document that is knowingly false
with the intent to deceive and that he is on record stating that he had
never seen another Soldier with illegal drugs, which was not a false
statement, as AMT was not illegal.  He states that US Supreme Court
decisions consistently have held that it is unlawful to punish a person for
an act that was innocent when it was done, but afterwards converted to
guilt by a subsequent law.

3.  The applicant goes on to state that in January 2003, he purchased one
gram of AMT over the internet from a US based company using his credit card
and the purchase was accurately represented as AMT on the US customs label
when it was delivered to his post office box.  He states that he shared the
AMT with a fellow Soldier and later that day, the fellow Soldier became ill
and was hospitalized.  He states blood tests show that in addition to AMT,
the other soldier had consumed amphetamines.  He states that he was
questioned by investigators who erroneously assumed that AMT was an
amphetamine and when investigators asked him if he had ever seen the other
Soldier with illegal drugs, he answered "no" due to the fact that AMT was
not illegal.  He states that he underwent urinalysis testing twice for use
of controlled substances and that each time he tested negative because AMT
was not illegal.  He states that investigators alleged to his commander
that he lied in an official statement when he said that he had never seen
the other Soldier with illegal drugs; that he possessed a controlled
substance; that he distributed a controlled substance and that he consumed
a controlled substance.  He states that he was offered an Article 15
hearing to present exculpatory evidence and to explain why he was not
guilty of the offenses and that he readily admitted legally purchasing AMT,
consuming it and sharing it with the other Soldier.  He states that his
commander ignored his claim that AMT was not a controlled substance and
decided to impose the most serious punishment permissible, by initiating
action to discharge him from the Army for use of a controlled substance,
based on the one AMT incident.  He concludes by stating that he trusted his
chain of command to protect his rights by reviewing the allegations against
him in a fair and judicious manner as required by Army Regulation 27-10 and
that the fair and judicious action did not occur.  He states that despite
the documented events, his love of country and his desire to serve in our
nation's Army remain strong.

4.  The applicant provides in support of his application, a copy of a
Record of Proceedings under Article 15, UCMJ; a copy of his Certificate of
Release or Discharge (DD Form 214); a copy of portions of rules and
regulations from Federal Register/Volume Number 65 dated 4 April 2003; a
copy of portions of Army Regulation 27-10; and excerpts taken from the
punitive articles of the UCMJ.

CONSIDERATION OF EVIDENCE:

1.  On 21 November 2001, he enlisted in the Army in Smyrna, Georgia, for
4 years, in the pay grade of E-4.  He successfully completed his training
as a signal intelligence analyst.

2.  The available records indicate that the applicant was assigned to A
Company, 527th Military Intelligence Battalion, Camp Humphreys, Korea, when
an investigation was initiated regarding an incident that occurred with the
applicant and a private first class (E-3).

3.  In Volume 68, Number 18 of the Federal Register dated 28 January 2003,
the Department of Justice, Drug Enforcement Administration (DEA) released a
notice of intent to temporarily place AMT and 5-methoxy-N,N
diisopropyltryptamine
(5-MeO-DIPT) into Schedule I of the Controlled Substances Act.  The
intended action was based on a finding by the DEA Deputy Administrator that
the placement of AMT and 5-MeO-DIPT into Schedule I of the CSA was
necessary to avoid an imminent hazard to the public safety.  The DEA
defined AMT and
5-MeO-DIPT as tryptamine derivatives that share several similarities with
the Schedule I tryptamine hallucinogens, alpha-ethyltryptamine (AET) and
N,N-dimethyltryptamine (DMT), respectfully.

3.  According to the Special Agent (SA) Report, which was completed by a
Camp Humphreys Resident Agency, 6th Military Police (MP) Group SA, on 29
January 2003, his office was notified by the Commander, B Company, 532nd
Military Intelligence Battalion, who was notified by the Yongsan MPs that
at about 0940 hours on 29 January 2003, the E-3 had been admitted to the
hospital on the Yongsan Army Base for an apparent drug overdose.  The
report indicates that the Commander informed the SA that an E-3 (the other
soldier involved in this incident) had been apprehended by Korean National
Police and released to the MPs for suspected drug use.  The report also
indicates that at about 0940 hours on 29 January 2003, officials from the
21st MP Detachment Criminal Investigation Division (CID) coordinated with
officials at the SA's office and informed them that the hospital had the E-
3 in the intensive care unit for an apparent drug overdose and that
toxicology results of the substance ingested were pending.  The report
indicates that the CID SA stated that his office was initiating a report of
investigation regarding a possible wrongful use of a controlled substance
and that the SA made a verbal request that the 6th MP Group conduct a
search of the E-3's room and to collect any additional information
available regarding the incident from B Company, 532nd Military
Intelligence Battalion.  The report indicates that at about 0952 hours on
29 January 2003, a trial counsel from the office of the Command Judge
Advocate was briefed on all aspects of the investigation and that a search
of the E-3's barracks room met with negative results.

4.  The SA's report indicates that at about 1800 hrs on 29 January 2003,
the applicant was interviewed and he provided a sworn statement in which he
stated that he was with the E-3 on 28 January 2003, and that evening they
went to a club in Seoul, Korea.  The applicant stated that he was not aware
that the E-3 had consumed illegal drugs and that he observed a battery size
item inside the E-3's beer and thought it was unusual, but was unaware of
what the item contained.  The report indicated that at about 1418 hrs on 3
February 2003, the applicant was advised of his rights, which he waived and
provided a sworn statement in which he admitted to purchasing an unknown
drug over the internet and consuming the drug with the E-3.  The report
indicates that he admitted to purchasing an additional unknown drug from
the internet, and that at about 1420 hrs the applicant authorized a search
of his barracks room and two bottles of suspected controlled substances
were seized from within a stereo speaker as evidence.

5.  In the sworn statement that the applicant submitted on 3 February 2003,
he stated that he heard about a drug called AMT that he could purchase
online after doing a short search for it.  He stated that he found several
websites that sold the substance and that he simply clicked on the first
website he saw and ordered some to be delivered to his mailbox.  He stated
that in about 1 week, one gram of the substance was in his hands and that
he and the E-3 decided to take the substance and to go out.  He stated that
they first took a little at about 1100 hours at Osan where they shopped
around and played a few games of darts.  He stated that neither of them
felt any effects of the drug and that at about 1800 hours, they decided to
go to Seoul.  He stated that he and the E-3 measured out a little more of
the drug and took it while they were on their way to Seoul.  The applicant
stated that they ended up going to Hung De where the E-3 seemed to be
showing some effects of the drug.  He stated that after walking around a
bit, they ended up in a dance club where they took more of the drug.  He
stated that they remained in the club until a club employee told them both
to leave because of the E-3's behavior.  He stated that he and the E-3 left
the club and he realized that the E-3 was acting like a drunk, pulling down
his pants and kissing people.  He stated that he tried to get the E-3 to
calm down so that he could get him back home without being arrested;
however, the E-3 did not care about what he had to say, so he went back to
Camp Humphries.  He stated that was the last he heard from the E-3 that
night.  While being questioned by the SA, the applicant stated that he
ordered the AMT about 1 1/2 weeks before he and the E-3 used it; that the E-
3 did not help him pay for the AMT; that the E-3 never gave him any money
for the drug; that the E-3 never gave him anything for the drug; that he
used the drug on the night that the E-3 ended up in the hospital; that he
purchased the AMT because he just wanted to experience it and to see what
the drug was about; that he had heard about AMT from a guy he knew at home;
that he conducted a search on the internet and found the drug; that he had
never purchased the AMT in the past; and that he knew AMT could be used as
a drug to get high because he had heard of legal Ecstasy and while on the
internet, he typed in the words "legal high" and he came across AMT.

6.  During his questioning the applicant stated that he did not know what
AMT was and that he purchased the AMT because he wanted to feel good.  He
stated that after taking the AMT he felt "physically vibrating" as his body
vibrated; his lower jaw vibrated; colors were distorted; and "stuff looked
like it was moving".  He stated that he received approximately 1 gram of
AMT and used about a little less than 1/2 gram; that the E-3 used the
remaining amount of the AMT; that he did not know if the E-3 used any other
drug on the night in question; that the E-3 was drinking Budweiser on the
night in question; that he paid $80.00 for the AMT; that he purchased it
using his Visa credit card; that he did not remember the name of the
company that he purchased the AMT from; that he did not remember if the
website that he used to find the AMT had any disclaimers about the purpose
of the drug; that he no longer had the mailing receipt, box or bill of
sale; that he had no other drugs in his room because he had thrown them
away in the weight lifting room; that he had ordered another drug online;
that the name of the drug was 5-MeO-DIPT, which he believed to be the same
type of drug as

AMT; that he paid a total of $150.00 for the 5-MeO-DIPT and the AMT; that
he never used any of the 5-MeO-DIPT; and that he did not know that it was
illegal to use or possess either of the two substances.

7.  On 3 March 2003, the applicant's unit commander was notified that he
had satisfactorily completed Alcohol and Drug Abuse Prevention Training.

8.  The applicant was referred for a mental status evaluation on 17 March
2003 and he was cleared for any administrative action deemed appropriate by
the command.

9.  On 21 March 2003, NJP was imposed against him for making a false
official statement, (stating that he had never seen the E-3 with illegal
drugs) and for the wrongful possession, distribution and use of AMT, a
controlled substance.  His punishment consisted of a reduction to the pay
grade of E-1, a forfeiture of pay in the amount of $575.00 per month for
2 months, and restriction.  The applicant acknowledged receipt of the
record of NJP and he indicated his intent to appeal by submitting
additional matters.  The available records show that his appeal was denied
and the Article 15 was filed in the performance portion of his Official
Military Personnel File (OMPF).

10.  On 4 April 2003, the DEA issued a final rule temporarily placing AMT
and
5-MeO-DIPT into Schedule I of the Controlled Substance Act (CSA).

11.  In an undated memorandum, the applicant was notified that he was being
recommended for discharge under the provisions of Army Regulation 635-200,
chapter 14, due to commission of a serious offense.  The commanding officer
cited use and possession of an illegal drug and distribution of AMT to at
least one soldier who he later left in an off-limit area after curfew after
seeing his nearly fatal reaction to the drug as the basis for the
recommendation for discharge.  The applicant acknowledged receipt of the
notification on 1 October 2003, and he indicated that he was submitting
statements in his own behalf.  A review of the available records fails to
show that he submitted statements in his own behalf.

12.  The appropriate authority approved the recommendation for discharge
with the issuance of a general discharge.  Accordingly, on 20 December
2003, the applicant was discharged under the provisions of Army Regulation
635-200, chapter 14, for misconduct, based on the commission of a serious
offense.  He had completed 2 years and 1 month of net active service and he
was assigned a reentry (RE) code 3 and a JKQ (misconduct) separation code.
He was issued a general discharge.

13.  On 5 January 2005, the Army Discharge Review Board denied the
applicant's request for an upgrade of his discharge.

14.  Army Regulation 27-10 prescribes the guidelines for the filing of NJP.
 Paragraph 3-37b(1) states, in pertinent part, that for soldiers in pay
grades E-4 and below (prior to punishment) who have been in the Army less
than 3 years as of the date punishment is imposed, the original DA Form
2627 will be filed in local NJP files and destroyed at the end of 2 years
or upon transfer of the soldier from the unit, whichever occurs first.  For
all other soldiers, the original will be forwarded to the appropriate
custodian for filing in the OMPF as directed by the imposing commander.

15.  Article 112a of the Uniform Code of Military Justice provides that any
person subject to this chapter who wrongfully uses, possesses,
manufactures, distributes, imports into the customs territory of the United
States, exports from the United States, or introduces into an installation,
vessel, vehicle, or aircraft used by or under the control of the armed
forces a substance described in subsection (b) shall be punished as a court-
martial may direct.  The substances referred to are the following: opium,
heroin, cocaine, amphetamine, lysergic acid diethylamide, methamephetamine,
phencyclidine, barbituric acid, and marijuana, and any compound or
derivative of any such substance.  This Article also identifies a
controlled substance as any substance not specified above that is listed on
a schedule of controlled substances prescribed by the President for the
purposes of this article and any other substance not specified above or
contained on a list prescribed by the President that is listed in Schedules
I through V of section 202 of the CSA.

16.  An RE-3 code applies to persons who are not considered fully qualified
for reentry or continuous service at time of separation, but the
disqualification is waivable.  Persons with bars to reenlistment, and those
discharged under the provisions of chapters 5, 9, 10, 13, 14, and 16 of
Army Regulation 635-200 are some of those instances in which a person would
be issued a code of RE-3 code at the time of separation.

DISCUSSION AND CONCLUSIONS:

1.  Although the Board does not condone the applicant's actions, this Board
disagrees with decision made by the ADRB in this case.



2.  Although ATM and 5-MeO-DIPT are tryptamine derivatives and tryptamines
are listed in Schedule I as a controlled substance, the UCMJ defines
compounds or derivatives of opium, heroin, cocaine, amphetamine, lysergic
acid diethylamide, methamphetamine, phencyclidine, barbituric acid, and
marijuana
as controlled substances.  At the time of the incident in question, the
tryptamine drugs that were listed in Schedule I of the CSA were
diethyltryptamine and dimethyltryptamine, not AMT or 5-MeO-DIPT.

3.  Neither AMT nor 5-MeO-DIPT was listed in Schedule I of the CSA and
neither of the drugs were derivatives of any of the drugs listed in the
UCMJ as controlled substances.  Therefore, this Board finds that neither of
the drugs that the applicant possessed, used and distributed at that time
were controlled substances as defined in the UCMJ and Schedule I of the
CSA.

4.  AMT and 5-MeO-DIPT were not included into Schedule I of the CSA until
4 April 2003 and while the Board, in no way, condones the applicant actions
in this case, he was erroneously furnished an Article 15 (DA Form 2627),
which reflects that he possessed, used and distributed a controlled
substance and that he made a false official statement when he stated that
he had never seen the E-3 with illegal drugs.  Additionally, the Article 15
was erroneously filed in the applicant's OMPF.

5.  In accordance with the applicable regulation, Soldiers in pay grades E-
4 and below (prior to punishment) who have been in the Army less than 3
years as of the date punishment is imposed, the original DA Form 2627 will
be filed in local NJP files and destroyed at the end of 2 years or upon
transfer of the soldier from the unit, whichever occurs first.  Therefore,
the Article 15 was improperly filed in his OMPF and it should be removed in
its entirety.

6.  According to the discharge proceedings, the applicant's chain of
command based his discharge on misconduct due to his possession use and
distribution of an illegal drug.  Therefore he was erroneously discharged
from the Army prior to the completion of his required service and he was
unfairly assigned an RE code which would require him to obtain a waiver for
reenlistment.

7.  Inasmuch as the applicant reached his active duty ETS on 20 November
2005, it would not be appropriate for this Board to reinstate him on active
duty as requested.  However, the interest of justice dictates that the
contested NJP be expunged from his military file, with all rights,
privileges, and property restored.



8.  Based on the applicant's erroneous separation from active duty it would
now be appropriate to correct his records to show that he remained on
active duty in the pay grade of E-4 until he reached his active duty ETS on
20 November 2005; that he was released from active duty upon completion of
his required service; and that he was transferred to the United States Army
Reserve Control Group (USAR) (Reinforcement) for the remainder of his
statutory military service obligation.  Doing so would result in the
applicant being entitled to a separation code that reflects that he was
released from active duty upon completion of his required service and an RE
code to show that he is eligible for reentry in the United States Army
without a waiver prerequisite.

9.  Once the recommended corrections are made, the applicant should contact
his local recruiting personnel for further active duty or USAR
participation.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

____KW_  ____DD _  __QS ___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected by:

      a.  expunging the NJP that was imposed against him on 21 March 2003,
from his Official Military Personnel File;


      b.  restoring him to the rank of specialist (E-4) with entitlement to
all of the rights, privileges, and property that were taken from him as a
result of the imposition of the erroneous Article 15;


      c.  voiding his Certificate of Release or Discharge (DD Form 214) for
the period ending 20 December 2003 and issuing him a new DD Form 214 for
the same period of service to show that he was honorably released from
active duty
and transferred to the USAR Control Group (Reinforcement), under the
provisions of Army Regulation 635-200, chapter 4, in the rank of specialist
(E-4), and that his Narrative Reason for Separation was based on Completion
of Required Service.


      d.  showing that he was assigned an RE-1 code and a KBK (Completion of
Required Service) separation code; and


      e.  showing that he completed 4 years, 0 months and 0 days net active
service with entitlement to all back pay due him as a result of the
improper discharge.


2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application as pertains to
reinstatement on active duty.




                                  _____Kenneth Wright_____________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050000357                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060110                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |20031220                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |CHAPTER 14/MISCONDUCT                   |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES         1.  277  |126.0000/NJP                            |
|2.  281                 |126.0400/EXPUNGE RECORD                 |
|3.  626                 |144.6000/MISCONDUCT                     |
|4.  748                 |144.8501/DRUG RELATED CONDUCT           |
|5.  749                 |144.8502/DRUG RELATED USE/POSSESS       |
|6.                      |                                        |


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