MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            17 October 2000
	DOCKET NUMBER:   AR2000044017

	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	
	Ms. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Ms. Linda D. Simmons		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  General Officer Memorandum of Reprimand (GOMOR) dated 17 February 1998 and a Relief for Cause Noncommissioned Officer Evaluation Report (NCOER) dated 16 July 1998 be removed from his Official Military Personnel File (OMPF).  He further requests that all documents referring to marijuana use be removed from his OMPF; that he be allowed to return to recruiting duty; that his Recruiter Badge and Achievement Stars be returned to him; and that money that was withdrawn from him be reimbursed.

APPLICANT STATES:  That the allegations against him were false and that he was not afforded an opportunity to present matters in his own defense because he was refused a trial by court-martial.  He states that he would have never jeopardized the trust and responsibility given to him by his peers and superiors by smoking marijuana or by admitting to smoking marijuana.  He goes on to state that over the past 2 years, he has had to live with the fact that he was unfairly relieved from the recruiting command, an assignment that he considers to be a critical and integral part of our nation’s defense.  In support of his appeal, he submits a copy of the sworn statements of two soldiers dated 15 December 1997, alleging that he admitted to using marijuana; a copy of his rebuttal to each of the soldier’s sworn statements; a copy of his referral to the Alcohol and Drug Abuse Prevention Control Program (ADAPCP) dated 15 December 1997; a copy of his negative urinalysis report dated 19 December 1997; a copy of a Record of Proceedings Under Article 15, Uniformed Code of Military Justice (UCMJ) dated 19 December 1997; a copy of a memorandum “Recommendation for Unsuitable Relief” dated 13 January 1998; a copy of a statement made by a third soldier dated 7 February 1998, indicating that he did not see or smell any marijuana smoke on the day in question; a copy of the GOMOR dated 17 February 1998; a copy of a memorandum from his commander “Adverse Administrative Actions and Rights of Appeal” dated 28 April 1998, directing his relief from recruiting duty and notifying him that a Relief for Cause NCOER would be prepared; a copy of a memorandum dated 12 March 1998, from his Judge Advocate (JA) Defense Counsel to his Commander requesting that the GOMOR be either withdrawn or filed in his local military personnel file; a copy of a Relief for Cause NCOER dated 16 July 1998; a copy of a memorandum “Revocation of the U.S. Army Recruiter Badge” dated 9 April 1999; a copy of a memorandum dated 10 May 1999, from his JA Defense Counsel “Rebuttal to a Department of the Army (DA) Imposed Bar to Reenlistment Under the Qualitative Management Program (QMP)”; a copy of the Department of the Army Suitability Evaluation Board (DASEB) Decision Summary dated 4 February 2000; a copy of a memorandum dated 11 February 2000, from the DASEB notifying him that his appeal had been denied; a copy of a memorandum from the Total Army Personnel Command dated 15 March 2000, denying his request for reinstatement to recruiting duty; thirteen letters from friends, former co-workers, associates and one letter from his physician attesting to his good character, integrity, and professionalism.

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

On 20 September 1979, he enlisted in the Army for 4 years in the pay grade of 
E-2 and he successfully completed training as a scout squad leader.  He remained on active duty through continuous reenlistments.

On 10 June 1987, while assigned to the United States Army Recruiting (USAREC) Station, North Charleston, South Carolina in the pay grade of E-6, nonjudicial punishment (NJP) was imposed against the applicant for intent to deceive by signing applicants’ signatures on USAREC Forms 91.  His punishment consisted of a reduction to the pay grade of E-5 and a forfeiture of pay.

On 30 June 1989 he submitted an application to this Board requesting that the record of NJP be rescinded and that he be reinstated to the pay grade of E-6 with an effective date of June 1985.  He also requested that he be reassigned to the Atlanta Recruiting Battalion.  In his application he stated that blatant discrimination, false charges and disparity in treatment were the reasons why he believed his records were in error or unjust.

On 21 March 1990, the Board denied his request to have the record of NJP rescinded.

The applicant was promoted to the pay grade of E-6 on 1 January 1994.

On 15 October 1996, he applied to the DASEB requesting that the record of NJP be transferred from his Performance Fiche to his Restricted Fiche. The DASEB approved his request on 22 November 1996, based upon intent served and the NJP was transferred to his Restricted Fiche.  

On 1 December 1997, the applicant was promoted to the pay grade of E-7.

The applicant was serving as a limited production station commander on 15 December 1997, when four soldiers made allegations that he admitted to smoking marijuana.  His First Sergeant and three Staff Sergeants submitted sworn statements indicating that he admitted doing so.  One of the three Staff Sergeants alleged that he smelled the odor of marijuana in the recruiting station on 12 December 1997.  He stated that he went to the applicant’s office and spoke to him regarding his follow-ups for the day when he notice that the smell of marijuana was coming from the applicant.  The Staff Sergeant continued by stating that he went back to his desk to think about what to do.  He stated that he then asked the other Staff Sergeant to go into the applicant’s office and to see 

what odor was coming from the applicant’s office.  According to the Staff Sergeant’s statement, they both agreed that there was a strong odor of marijuana in the recruiting office that day.  The Staff Sergeant further stated that he approached the applicant about the odor and informed him that he had smelled marijuana on him on two other occasions.  According to the Staff Sergeant’s sworn statement, it was at that time that the applicant admitted to him that he was having problems at home and other personal problems so he began to drink and smoke marijuana cigarettes.  The Staff Sergeant indicates that the applicant told him that if he didn’t tell anyone he would enroll himself into the ADAPCP.  The Staff Sergeant stated that he thought about it all night, however when he returned to the station the next morning, he discussed the situation further with the other Staff Sergeant who had previously smelled the marijuana in the recruiting station.  He states that they determined that it was best to give the applicant the choice of telling the First Sergeant himself or they would tell the First Sergeant.  He chose to speak with the First Sergeant himself.

The First Sergeant’s sworn statement indicates that the applicant approached him during a Christmas party on 13 December 1997, and stated that he needed some help with a problem.  The First Sergeant stated that he asked the applicant what the problem was and he stated that he had made a mistake.  According to the First Sergeant the applicant stated that he left the recruiting station one afternoon with some of his friends for some social time and that they were drinking alcohol and they began smoking a blunt.  He went on to state that the applicant admitted to smoking some of the blunt with his friends but after he did he realized that he had made a mistake.  The First Sergeant stated that the applicant admitted to returning to the recruiting station and being confronted by the Staff Sergeant who accused him of smelling like marijuana.  During the conversation the First Sergeant asked the applicant if he had ever smoked marijuana prior to this incident and he said that he had done the same thing with the same friends about 1 month ago.  According to the First Sergeant he concluded the conversation by informing the applicant that he was not sure if his admission of guilt and request for help fell under the self-referral guidelines.  He stated that he told the applicant that he would brief the company commander on the issue so they could determine what action must be taken and to contact Keesler Air Force Base to inquire about self-referrals.  The First Sergeant stated that when he got home from the Christmas party he contacted the Staff Sergeant and informed him that he had spoke with the applicant, however, he did not reveal what the conversation was about.  He then directed the Staff Sergeant to discuss the problem and the Staff Sergeant told him about the incident that occurred in the recruiting station when he approached the applicant about smelling like marijuana.  

On 15 December 1997, the applicant enrolled himself in the ADAPCP.  At the time of his enrollment he expressed his concerns regarding his alcohol use and he made no mention regarding the use of marijuana. 

On 16 December 1997, the applicant underwent a urinalysis, the result of which was determined to be negative.

The clinical record shows that he was evaluated regarding his alcohol abuse on 17 December 1997.  The Director, Substance Abuse Control recommended out patient treatment and alcoholic’s anonymous.

The sworn statements of the third and fourth soldiers are unavailable for review.  However, the applicant submitted undated rebuttals to each of the four sworn statements.  In his rebuttals, he indicates that the information contained in the sworn statements are contradictory, that he never admitted to smoking marijuana and that each of the individuals that submitted a statement held some type of grudge against him. 

On 19 December 1997, the applicant was furnished a Record of Proceeding under Article 15, UCMJ for wrongfully using marijuana.  On 23 December 1997, he signed the Article 15 indicating that he demanded trial by court-martial.  It appears that once the applicant demanded trial by court-martial the Article 15 proceedings ceased.

On 13 January 1998, the First Sergeant submitted a memorandum to the commander recommending that the applicant be relieved of his recruiting duties for failure to maintain acceptable standards of conduct.

On 17 February 1998, the applicant received a GOMOR for misconduct.  The commander cited use of illegal substances as a basis for the GOMOR.  The commander indicated that the preponderance of evidence established that he admitted to smoking marijuana on at least two separate occasions and that his actions raised serious questions concerning his ability to hold future positions of trust and responsibility in today’s quality Army.  The commander further indicated that the written reprimand was imposed as an administrative measure and not as punishment under Article 15, UCMJ.  The commander informed the applicant that he intended to file the GOMOR in his OMPF, however a final decision about filing would not be made until after review of any matters submitted in his behalf.

Through a JA Defense Counsel, the applicant submitted a memorandum to his commander requesting that the GOMOR and the unsuitable relief action be withdrawn.  In the memorandum the JA counsel requested that the GOMOR be 

withdrawn or filed in the applicant’s local military personnel file and that he be reinstated as a station commander.  The JA counsel stated that immediately upon the allegation that the applicant committed the illegal act of wrongful use of marijuana, he demanded a trial by court-martial and he did so prior to his negative urinalysis results.  The JA counsel continued by stating that the Army has a valid drug-testing program and does not rely on the “SNIF TEST” when charging a soldier with wrongful use of marijuana.  He went on to state that the statements were clearly contradictory and that the applicant had been denied his fundamental right to cross-examine his accusers because he was not tried by court-martial.  The JA counsel stated that the government had no credible evidence that the applicant used marijuana except statements from two noncommissioned officers (NCO) who would clearly benefit from his demise.  He stated that the applicant only admitted to the First Sergeant that he needed counseling for alcohol use and that he never indicated that he needed counseling for marijuana use.  The JA counsel ended the memorandum by requesting that the applicant’s commander consider all of the supporting statements that were submitted, that the GOMOR be withdrawn, and that the applicant be returned to his duties as the station commander. 

On 1 June 1998, the commander directed that the GOMOR be filed in the applicant’s OMPF.

The applicant was furnished a relief for cause NCOER on 3 August 1998.  The NCOER shows that he was relieved of his duties for admitted use of marijuana and for conduct unbecoming a senior NCO.  The applicant refused to sign the NCOER.

On 9 April 1999, the applicant’s Recruiter Badge and all Achievement Stars were revoked.

On 3 April 1999, he was notified that he was being barred from reenlistment under the QMP based on the GOMOR.  The applicant submitted an appeal to the bar to reenlistment and the appeal was approved on 24 August 1999.

The applicant submitted an appeal to the DASEB on 1 October 1999.  In the appeal, the applicant requested that the GOMOR be removed from his OMPF.  The DASEB determined that the GOMOR was issued because he admitted to using marijuana and that the applicant had failed to provide clear and convincing evidence that he did not make such a statement.  The DASEB further determined that the evidence provided by the applicant did not overcome the presumption of regularity and his appeal was denied on 4 February 2000.

A review of the available record shows that the applicant submitted a memorandum to the United States Total Army Personnel Command requesting that he be reinstated in the military occupational specialty (MOS) of recruiter (79R40).  On 15 March 2000, his request was denied.

Army Regulation 600-37 sets forth the basic authority for the filing of unfavorable information in the OMPF.  It states, in pertinent part, that a memorandum of reprimand or admonition will be filed in the OMPF only when directed by a general officer senior to the recipient or by direction of the officer having general court-martial jurisdiction over the recipient.

Army Regulation 623-205 sets forth the policies and procedures for the Enlisted Evaluation Reporting System.  Paragraph 4-2 states, in pertinent part, that an evaluation report accepted for inclusion in the official record of an NCO is presumed to represent the considered opinion and objective judgment of the rating officials at the time of preparation. 

Paragraph 4-7 of that regulation states, in pertinent part, that when submitting an appeal, the burden of proof rests with the applicant and that he must produce evidence that establishes clearly and convincingly that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

Army Regulation 27-20, paragraph 3-18f(3) states, in pertinent part, that if a soldier demands a trial by court-martial on any offense, no further action will be taken to impose nonjudicial punishment.  Whether court-martial charges will be preferred against the applicant will be resolved by the appropriate commander.  A soldier ‘s demand for trial by court-martial will not bar disposition of minor offenses by nonpunitive measures.

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 supporting documents attesting to the applicant’s good character, integrity, and professionalism have also been noted by the Board.  However, the evidence of record clearly shows that NJP was imposed against him in 1987 for 
fraudulently signing applicants’ signatures on USAREC Forms 91.  The fact that he was a recruiter at the time and was punished for an act of misconduct that clearly involves a lack of integrity as an NCO and as a recruiter, he should not have been reassigned to recruiter duties after the record of NJP was transferred to his restricted fiche by the DASEB.  Clearly, his chain of command was convinced that allegations made against him by his senior NCO and three subordinate soldiers were true and the Board is inclined to believe that the evidence supports their decision.

3.  The applicant’s contention that he was denied due process because he was given a GOMOR and was not afforded the opportunity to dispute the allegations against him after he refused the Article 15 and demanded a trial by court-martial has been noted by the Board and appears to be without merit.  It appears that there was insufficient evidence to proceed with a trial by court-martial.  However, the decision to furnish the GOMOR as a nonpunitive measure was at the commander’s discretion and given the fact that it was the second incident while assigned to recruiting duty, there is no basis for removing it or any of its supporting documents from his record.

4.  After reviewing the evidence submitted by the applicant as well as the evidence of record, the Board is convinced that the contested NCOER represents a fair, objective and valid appraisal of his demonstrated performance and potential during the period in question.  Therefore, there is no basis for removing it from his record.

5.  Given the available evidence, the Board finds that he was appropriately relieved from his recruiting duties and that his MOS, Recruiter Badge and Achievement Stars were properly revoked.

6.  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

___be___  ___rvo __  __lds____  DENY APPLICATION

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

INDEX

CASE ID	AR2000044017	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2000/10/17	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  193	111.0000	
2.  207	111.0200	
3.  328	134.0000	
4.  1020	134.0400	
5.		
6.