MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           16 November 2000                   
	DOCKET NUMBER:   AR2000043890

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

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. James E. Anderholm		Member	
	Ms. Martha E. Schuler		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That the proceedings under Article 15 dated 28 July 1999 be set aside and the Article 15 be expunged from her records.

APPLICANT STATES:  The applicant defers to counsel.

COUNSEL CONTENDS:  That the applicant was found guilty of misuse of a controlled substance on 28 July 1999 in proceedings under Article 15, Uniform Code of Military Justice (UCMJ).  Subsequently, she faced a separation hearing. The board of officers determined that the government failed to show by a preponderance of the evidence that she used cocaine as alleged in the Article 15 proceedings.  A soldier facing nonjudicial punishment may be found guilty only if the imposing commander is convinced beyond a reasonable doubt that the soldier committed the offense in question.  This standard of proof is the highest standard known to the law and is identical to the standard of proof used at courts-martial.  The board of officers determined there was insufficient evidence to meet the lesser burden imposed by an administrative regulation, a mere preponderance of the evidence.  Therefore, in light of the additional evidence that the board heard, the initial Article 15 should be set aside as a matter of law and fairness.

EVIDENCE OF RECORD:  The applicant's military records show:

On 10 May 1989, she enlisted in the Army National Guard.  She was promoted to Staff Sergeant, E-6 on 28 January 1998.  On 2 February 1998, she was voluntarily ordered to active duty in an active guard/reserve (AGR) status and assigned to the Army National Guard Readiness Center, Arlington, VA.

In June 1999, the applicant tested positive for cocaine following a unit urinalysis test.  A Criminal Investigation Command (CID) investigation established probable cause to believe she committed the offense of wrongful use of cocaine.  On       28 July 1999, the applicant accepted nonjudicial punishment under Article 15, UCMJ for wrongfully using cocaine.  Her punishment was to be reduced to Sergeant, E-5, to forfeit $870.00 pay for 1 month, and to perform extra duty for 30 days.  The Article 15 was directed to be filed in the restricted fiche of her Official Military Personnel File.

Separation proceedings under the provisions of Army Regulation 635-200, paragraph 14-12c were initiated on the applicant.  She elected to have her case heard by an administrative board.

On 12 April 2000, a board of officers convened.  The applicant’s commander testified that before he requested an Article 15, he conducted an inquiry to make sure that “all the evidence is there” and that he did not execute any legal actions prior to seeking Judge Advocate General opinions.  Her supervisors testified that she was an outstanding soldier, were surprised to hear she tested positive for drugs and believed she should be retained.  A bio-chemist from the Fort Meade Drug Testing Laboratory testified for the government.  He testified that the procedures used at the laboratory were accepted in the scientific community and that several security measures were in place there.  Urine samples were packaged in boxes which were inspected for tampering.  If there were signs of tampering, the specimens would not be tested.  Once the box was open, the social security numbers on the chain of custody (document) were matched with the bottles.  The applicant’s urine was tested twice for presumptive positive and then tested in a highly reliable, state-of-the-art machine to determine the nanogram level of BZE (a substance produced by cocaine).  If she had taken the cocaine on (that) Friday night, her nanogram level would have been at 135,000 nanograms.  He testified that “common sense would tell you that she probably would have felt the affects (sic) of cocaine.”  The applicant testified that she had never used cocaine or other drugs.  She was at a dance club that Friday night but she did not know if anyone slipped anything into her drink.  She could not say if she felt anything at the club.  

The board found that the evidence did not establish, by a preponderance of the evidence, that the applicant wrongfully used cocaine.  The board determined that the findings did not warrant separation and that the applicant should be retained in the service.  On 19 April 2000, the Commanding General, Military District of Washington approved the recommendation for retention.

Army Regulation 27-10 prescribes policies and procedures pertaining to the administration of military justice.  Paragraph 3.4 states that a commander will personally exercise discretion in the nonjudicial process, evaluate the case to determine whether proceedings under Article 15 should be initiated and determine whether the soldier committed the offense where Article 15 proceedings are initiated and the soldier does not demand trial by court-martial.  Paragraph 3.13 states that the authority to impose nonjudicial punishment charges a commander with the responsibility of exercising the commander’s authority in an absolutely fair and judicious manner.  Paragraph 3.14 states that the commander of the alleged offender must ensure that the matter is investigated promptly and adequately.  The investigation should cover whether an offense was committed, whether the soldier was involved and the character and military record of the soldier.  Paragraph 3.18J states that the imposing commander is not bound by the formal rules of evidence before courts-martial.  Paragraph 3.18L states that punishment will not be imposed unless the commander is convinced beyond a reasonable doubt that the soldier committed the offense.  

Department of the Army Pamphlet 27-9, Military Judges’ Benchbook, paragraph 2-29 states that by “reasonable doubt” is intended not a fanciful or ingenious doubt or conjecture, but an honest, conscientious doubt suggested by the material evidence or lack of it in the case.  It is an honest misgiving generated by insufficiency of proof of guilt.  Proof beyond a reasonable doubt means proof to an evidentiary certainty although not necessarily to an absolute or mathematical certainty.  The proof must be such as to exclude not every hypothesis or possibility of innocence, but every fair and rational hypothesis except that of guilt. If, on the whole evidence, (the jury) is satisfied beyond a reasonable doubt of the truth of each and every element, then (the jury) should find the accused guilty.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Paragraph 14-12c states that first-time drug offenders, grades E-5 – E-9 must be processed for separation upon discovery of a drug offense.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  The Board concludes that no significant additional evidence was considered by the administrative board of officers that was not considered by the commander when he imposed nonjudicial punishment.  During the board hearing neither the applicant nor her defense counsel challenged the chain of custody documentation of her urine specimen.  The bio-chemist from the laboratory that tested her specimen testified that the procedures used at the laboratory were accepted in the scientific community, that several security measures were used, that there were no signs of tampering with the box containing the applicant’s specimen, that the laboratory received periodic inspections, and that a highly reliable machine tested her specimen as positive for cocaine.  Neither the applicant nor her defense counsel challenged his testimony.  The bio-chemist testified that “common sense would tell you that she probably would have felt the affects (sic) of cocaine.”  However, even though the applicant denied using cocaine at any time (and there was no substantiating evidence to support her testimony), her only testimony concerning her feeling the effects of the drug were “I could not say if I felt anything at the club.”

3.  The Board concludes that the applicant’s commander exercised his authority in the absolutely fair and judicious manner required by regulation and that by the standard of “beyond a reasonable doubt” he determined that the applicant was guilty of the wrongful use of cocaine.  Despite the administrative board’s finding that the evidence did not establish, by a preponderance of the evidence, that the applicant wrongfully used cocaine, the Board concludes that their finding did not diminish the validity of the commander’s determination otherwise.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__wtm___  __jea___  __mes___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000043890	
SUFFIX		
RECON		
DATE BOARDED	20001116	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	126.00	
2.		
3.		
4.		
5.		
6.