PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           6 March 2001                   
	DOCKET NUMBER:   AR2000047680

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Mr. Ernest W. Lutz, Jr.		Member	
	Mr. Harry B. Oberg		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that she be reinstated on active duty or, in the alternative, that she be placed on the Retired List.  In addition, she requests that she be given all back pay and allowances, that the 1998 Article 15 be set aside, and that she be provided all rights and entitlements of which she was deprived.

3.  The applicant states, through counsel, that the proceedings which resulted in the applicant receiving the Article 15 and the proceedings which resulted in her being administratively separated from the Army after 19 1/2 years were both procedurally and substantively incorrect.  In March 1998, her urine sample tested as positive for THC (marijuana) at 15 nanograms per milliliter (ng/ml).  This level is the Department of Defense cutoff for a positive result.  She later learned that her consumption of legal hemp products, sold at health food stores to boost energy, can cause very low level positive results for THC.  Department of the Army has admitted this in a recent information release.  The applicant presented this information at her Article 15 proceeding.  In spite of this exculpatory information, her commander gave her the Article 15 and began the process to administratively discharge her.  Her defense counsel at the administrative hearing had access to this information but did not present any of it, instead putting on a defense which was confused and unfocused.  He had an expert witness who would testify that had the applicant drunk a glass of water before providing her urine sample, the sample would have been reported as negative.  Yet he never presented this information to the board and chose instead to raise this matter in his post hearing submissions to the commanding general.  One can only surmise that he thought there was little chance the applicant would be discharged and so he put forth little effort into her case.  The administrative separation board concluded the applicant was guilty of misconduct and should be separated with a discharge under other than honorable conditions (UOTHC).  When the applicant appealed the board’s finding to the convening authority, the command Staff Judge Advocate spoke with a representative of the Department of the Army (U. S. Total Army Personnel Command (PERSCOM)).  PERSCOM informed him that the Army would likely support the discharge but that this Board, if petitioned, would allow her to retire.  The applicant’s appeal was turned down and the convening authority forwarded the board action to PERSCOM with a recommendation for a discharge UOTHC.  PERSCOM returned the action to the convening authority for corrective action, whereupon the convening authority changed his recommendation of the type of discharge to honorable.

4.  The applicant’s military records show that she enlisted in the Regular Army on 7 May 1980.  She completed basic training and advanced individual training and was awarded military occupational specialty 71C (Stenographer).  She was later reclassified into military occupational specialty 71L (Administrative Specialist).

5.  On 22 January 1985, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for wrongful use of marijuana on or between 23 November and 3 December 1984.  She appealed the Article 15 but her appeal was denied. 

6.  On 1 January 1997, the applicant was promoted to Sergeant First Class, E-7. At this time she was assigned to the Secretary of the General Staff (SGS) and Command Group offices, Fort Jackson, SC.  In December 1997, she was reassigned to the 120th Adjutant General Battalion, Fort Jackson, SC.

7.  In March 1998, during a routine urinalysis test, the applicant’s sample tested positive for THC at a level of 15 ng/ml.  The Fort Meade Forensic Toxicology Drug Testing Laboratory (FMFTDTL) certification paperwork notes that the Department of Defense established cutoff for the metabolite THC is 15 ng/ml.

8.  On 9 April 1998, the applicant’s commander initiated separation action under the provisions of Army Regulation 635-200, chapter 14-12c on her for misconduct, commission of a serious offense, specifically, for testing positive on a urinalysis for THC.  The applicant acknowledged the action and requested consideration of her case by an administrative separation board.

9.  On 10 April 1998, the applicant completed a mental status evaluation.  She was found to have the mental capacity to understand and participate in proceedings, to be mentally responsible, and was psychiatrically cleared for any action deemed appropriate by her command.

10.  On 14 May 1998, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for wrongful use of marijuana between on or about 20 February 1998 and on or about 6 March 1998.  She appealed the Article 15, submitting extensive documentation showing how use of legal hemp products could cause a positive urinalysis result, but her appeal was denied.

11.  On 14 July 1998, the applicant’s administrative separation board was held.  Her commander testified that she had been present at the applicant’s Article 15 proceedings.  When asked at that time if there was any reason she came up positive for THC, the applicant gave several reasons, including her use of hemp products.  The commander testified that just the fact that the applicant was a Sergeant First Class who came up positive and who was allowed to stay in would send out a message to junior soldiers that when you get to a certain point in your military career they would be allowed to stay on.  The commander also testified that she knew of two instances of the applicant being late for duty and one time after the urinalysis when she had called in sick and then someone saw her at the Noncommissioned Officer Club.

12.  The applicant testified that she did not smoke marijuana at any time after enlisting.  She used hemp products because of their nutritional value.  She started using them in the mid-1980s.  The products she used were offered as exhibits.  When she had a urinalysis in 1984, her attorney told her hemp products could not cause her to come up positive.  She believed him and took that Article 15 because of that information.  She testified that she submitted a message about hemp products at her 1998 Article 15 hearing but her attorney told her not to bring in the hemp products.  She testified that she had attended a party earlier where she could have unknowingly smoked or eaten something with marijuana in it but she did not think so.  She knew what marijuana smelled like.  She testified that she believed the reason she left post headquarters was because of personality problems.  

13.  Several witnesses testified that the applicant used hemp products.  A statement from the manager of the local market where the applicant bought the products confirming she bought those products and that she had been a regular customer since January 1998 was introduced as evidence.  

14.  Only one expert witness testimony was introduced concerning whether a hair sample would indicate marijuana use.  

15.  Several witnesses, including the SGS, testified that the applicant had problems working with people.  The SGS testified that she got the job done, though.  One statement was introduced from a soldier who stated he smelled marijuana coming from the applicant’s car.  However, several statements from that soldier’s commander, platoon sergeant and others noted there were serious questions about that soldier’s credibility.

16.  The board found that the allegation that the applicant wrongfully used marijuana was supported by a preponderance of the evidence and recommended her discharge with a discharge UOTHC.

17.  On 21 July 1998, the applicant’s counsel submitted a request for disapproval of the board’s findings and recommendations to the convening authority.  Counsel noted that prior to the board he had interviewed an FMFTDTL government expert witness.  When told the ng/ml level of the applicant’s sample, the expert had stated “if she had had a glass or two of water she probably would have come back negative.”  Counsel noted that the low ng/ml reading was particularly disturbing in light of recent scientific findings by the Armed Forces Institute of Pathology and other laboratories that legal hemp health products could cause positive results for THC.  During the board the applicant presented independent evidence that she was consuming hemp products in the two months prior to the urinalysis.  Counsel included a February 1998 information paper from the Office of The Judge Advocate General, Criminal Law Division which noted that some lawful products contained enough THC to cause positive drug test results.  He also included a March 1998 message from the U. S. Army Recruiting Command which warned that hemp oil products could cause a positive THC result on urine tests.  Counsel noted that information about the dangers of hemp use had not been widely disseminated for fear that soldiers would offer a “hemp defense” every time they came up positive for THC.  However, that defense was plausible only if the soldier had a low nanogram level and credible evidence that they were using hemp products prior to the urinalysis.  The applicant had such a case.  Counsel requested that the convening authority disapprove the board findings and recommendation and retain the applicant.  Or, if he believed the board findings were correct, that he approve the findings but retain the applicant until retirement.  Counsel asked the convening authority to recall that they recently had an E-8 convicted at court-martial for marijuana use and tampering with his urine sample who was given an honorable discharge and allowed to retire.

18.  On 29 July 1998, the commanding general forwarded the board proceedings to PERSCOM with a recommendation of discharge UOTHC.  

19.  On 2 April 1999, the applicant received a Department of the Army imposed bar to reenlistment under the Qualitative Management Program (QMP).  The documents cited for imposing the bar were the two Article 15s and a Noncommissioned Officer Evaluation Report for the period ending May 1998, which contained several comments concerning her positive urinalysis.  She elected not to submit an appeal but to request retirement when she attained       20 years of active federal service.

20.  PERSCOM had the Office of The Judge Advocate General (OTJAG) review the board proceedings.  OTJAG concluded that the proceedings were not legally sufficient to support approval of a discharge UOTHC absent a specific finding of harmless error by the separation authority.  The applicant’s prior enlistment Article 15 had been presented in evidence but the separation board was not given an appropriate instruction directing it not to consider it for the purpose of recommending a characterization of service.  (OTJAG failed to address the hemp oil issue during its review.)  The case was returned to Fort Jackson, SC for action by the separation authority.  The separation authority could either refer the case to a new board for a rehearing to recommend a characterization of service without considering the prior enlistment Article 15 or return the case to Department of the Army with a recommendation for separation with an honorable characterization of discharge.

21.  On 9 July 1999, the Fort Jackson, SC Staff Judge Advocate prepared a memorandum for record indicating he talked to PERSCOM concerning the applicant’s case.  PERSCOM informed him that it was the feeling that Department of the Army (i. e., PERSCOM) would support the discharge but that this Board, if petitioned, would allow her to retire.  (Conversation between that PERSCOM point of contact and an analyst with the Board on 27 November 2000 confirmed that he does recall this conversation and the reported gist of it is correct.)

22.  On 14 July 1999, the Commanding General, Fort Jackson, SC returned the case to PERSCOM with a recommended characterization of discharge of honorable.  On 3 January 2000, the request for the applicant’s involuntary separation was reviewed by the Assistant Secretary of the Army (Manpower and Reserve Affairs) and was approved with an honorable discharge.

23.  On 9 February 2000, the applicant was honorably discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2).  She had completed 19 years, 8 months and 11 days of creditable active federal service and had no lost time.

24.  In addition to the information paper and message noted by the applicant’s counsel in his appeal to the commanding general, the applicant provides additional documents to show that use of legal hemp products could produce positive drug test results.  One document is an article from the Federal Times about an Air Force master sergeant who was court-martialed for but acquitted of marijuana use after the jury found that an over-the-counter health product may have caused him to fail drug tests.  Other documents include articles from the Journal of Analytical Toxicology concerning marijuana-positive urine test results from consumption of hemp seeds or hemp oil in food products.

25.  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(2) states that soldiers are subject to separation for commission of a serious offense and that abuse of illegal drugs is serious misconduct.  First-time drug offenders, grades E-5 through E-9 and second-time drug offenders, grades E-1 through E-9 will be processed for separation.  However, relevant facts may mitigate the nature of the offense.  Soldiers who were within two years of qualifying for retirement on the scheduled separation date would not be processed for separation unless such action was directed by the Secretary of the Army.  

26.  Appropriate regulations specify that active duty may be credited for an excess leave period under certain circumstances and that pay and allowances are permitted for excess leave.  If her request is granted, the applicant has waived any claim to such pay and allowances and has agreed to have her retired pay computed upon the basis of only 19 years, 8 months and 11 days of active service.

CONCLUSIONS:

1.  The Board does not agree with the applicant’s contention that her counsel provided an inadequate defense.  Given the circumstances of her case, her counsel may have truly believed that there was a good possibility the board would have recommended her retention.  It was then his professional opinion to keep the board proceedings as short as possible and save his stronger evidence for use with the separation authority only if needed.  This does not prove her counsel was incompetent.  The Board also does not agree with the argument that had her counsel’s stronger evidence been presented to the board the outcome would have been different.  The board only made a recommendation.  The separation authority had the evidence at the end in either case and that authority still recommended discharge.

2.  However, the Board concludes that neither the administrative separation board nor the separation authority considered the relevant evidence in this case. The relevant evidence showed that the applicant used hemp products for at least several months prior to the urinalysis for which she test positive at the lowest possible level to be considered positive.  The relevant, and official Government evidence, showed that use of legal hemp products could result in a positive test for THC.  The separation authority may have had its reasons for ignoring this evidence (such as the desire to make an example of the applicant).  The approval authority may have had its reasons for ignoring this evidence.  However, the Board concludes that the preponderance of the evidence showed that the applicant did not wrongfully use marijuana and that any doubts in this case should be resolved in favor of the applicant. 

3.  Regarding the applicant’s Article 15 that led to her administrative separation board, the Board concludes that here, also, any doubt should be resolved in favor of the applicant.  The relevant evidence showed that the applicant did not wrongfully use marijuana.

4.  The applicant does not request consideration of her 1985 Article 15.  Considering the passage of time, the Board feels that it could make no conclusion regarding that Article 15 and would presume that, in the absence of evidence to the contrary, the appropriate action was taken in that case.  Similarly, the Board will not consider the applicant’s bar to reenlistment action.

5.  Given the above conclusions, it would be appropriate to set aside the 14 May 1998 Article 15 and restore to the applicant any and all monies due her as a result of this correction.  It would not be appropriate to return her to active duty; however, it would be appropriate to show that she was retained in service in an 

excess leave status until she attained length-of-service retirement eligibility.  The applicant has specifically agreed to receiving the service credit in an excess leave status without pay and to receive retired pay computed upon the basis of 19 years, 8 months, and 11 days of active service.  However, as the Board has concluded that the preponderance of the evidence shows that the applicant committed no misconduct, it would be in the interest of justice to pay her all pay and allowances to which she is entitled.

6.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing:

     a.  that the applicant’s discharge of 9 February 2000 is void; 

     b.  that the applicant was credited with active duty for the period 10 February 2000 through 31 May 2000 in an excess leave status;

     c.  that the applicant was retired for length of service on 31 May 2000, transferred to the Army Reserve Control Group (Retired), and placed on the retired list on 1 June 2000 in pay grade E-7; and

     d.  by giving to the applicant all active duty pay and allowances due her effective 10 February 2000 and all retired pay due her effective 1 June 2000 that will become her due as a result of this correction.

2.  That the applicant’s 14 May 1998 Article 15 be set aside and all rights, privileges, and property affected be restored.

3.  The Army has an established program to counsel retiring soldiers on the rights, benefits, and privileges afforded as a result of military retirement.  Retirement Services Officers (RSO) are available at most major Army installations to provide a retirement briefing, which includes information on the Survivor Benefit Plan (SBP).  The applicant is advised to contact her nearest RSO (list enclosed ) as soon as possible to facilitate a smooth transition to retired status.

4.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__sk____  __ewl___  __hbo___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Stanley Kelley
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000047680	
SUFFIX		
RECON		
DATE BOARDED	20010306	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	20000209	
DISCHARGE AUTHORITY	AR 635-200, ch 14. . . . .  	
DISCHARGE REASON	A66.00	
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	136.00	
3.	134.00	
4.		
5.		
6.