PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:           18 September 2001
	DOCKET NUMBER:   AR2001052781

	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	
	Mr. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Karen A. Heinz		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 the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 9 September 1999, be expunged from his Official Military Personnel File (OMPF) and that his rank be restored to staff sergeant, pay grade E-6.

3.  The applicant states, in effect, that he was administered NJP (nonjudicial punishment) under Article 15, Uniform Code of Military Justice (UCMJ), for testing positive for cocaine on a unit drug screening.  He steadfastly asserted that he never knowingly used cocaine and provided a statement from his sister-in-law that she introduced cocaine into his drink because he would no longer permit her to live with his family.  The applicant's battalion commander, who had just assumed command, did not know the applicant or his character and presumed that if he tested positive for cocaine, he must have knowingly ingested the drug.

4.  In support of his application, the applicant presents:  a self-authored memorandum dated 8 January 2001; his Enlisted Record Brief, dated 26 January 2001; a copy of his DA Form 2-1 (Personnel Qualification Record); a copy of his Bachelor of Science degree; six statements of support; a copy of the DA Form 2627 and associated paperwork; a copy of an administrative separation packet (under chapter 14, Army Regulation 635-200) submitted by his company commander on 4 January 2000; a copy of an administrative separation board hearing, dated 14 November 2000, with associated paperwork; and a copy of a memorandum from his battalion commander, dated 23 May 2001, in which the NJP of 9 September 1999 is set aside.

5.  The applicant’s military records show that he was given a random urinalysis test for drugs on 17 May 1999 and that he tested positive for cocaine use.  On 9 September 1999, the applicant's battalion commander administered NJP under the provisions of Article 15, UCMJ.  The applicant presented numerous letters of support, as well as a letter from his sister-in-law stating that she had been living with the applicant's family, but was asked to leave because of her drug use.  She stated that on Mother's Day 1999 the entire family gathered at her mother's home and she put a small amount of cocaine in the applicant's drink because she was mad at him for kicking her out of his home.  The battalion commander was not persuaded by the letter and imposed punishment of reduction to sergeant/E-5, forfeiture of $922 per month for 2 months, and 45 days of extra duty.  The applicant appealed and the brigade commander suspended the forfeiture and extra duty.

6.  On 23 May 2001, the applicant's battalion commander -- the same individual who imposed the 9 September 1999 NJP -- set aside the Article 15 under the provisions of paragraph 3.28, Army Regulation 27-10, Military Justice.  In a detailed memorandum, he indicated that he was setting aside the NJP action because he had based his original decision on the presumption that anyone who tested positive for drugs must have knowingly used those drugs.  He added that he should have made that determination without relying on a presumption.

7.  Army Regulation 27-10 prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial, United States, 1984.  As such, the regulation also governs the administration of NJP.  It states, in pertinent part, the authority to impose nonjudicial punishment charges a commander with the responsibility of exercising his or her authority in an absolutely fair and judicious manner.  The commander of the alleged offender must ensure that the matter is investigated promptly and adequately.  The investigation should provide the commander with sufficient information to make an appropriate disposition of the incident.  The investigation should cover whether an offense was committed, whether the soldier was involved, and the character and military record of the soldier.  It also provides that the power to set aside an executed punishment will be exercised within 4 months, absent unusual circumstances.  If a commander sets aside an executed punishment after 4 months, a detailed addendum of the unusual circumstances will be attached to the form containing the set aside action.

CONCLUSIONS:

1.  The applicant's battalion commander imposed NJP against the applicant for testing positive for cocaine on a unit drug urinalysis screening.  In so doing, he relied on the presumption that anyone who tested positive for drugs must have knowingly ingested those drugs.

2.  Under the provisions of paragraph 3.28, Army Regulation 27-10, the same battalion commander set aside the applicant's NJP citing the unusual circumstances of having relied on an improper presumption in determining the applicant's guilt.

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

RECOMMENDATION:

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

	a.  Expunging the record of NJP from the OMPF of the individual concerned;

	b.  Restoring his rank to staff sergeant/E-6, with the appropriate date of rank and all back pay and allowances; and

	c.  By placing the records of the individual concerned before a standby promotion board for consideration for promotion to sergeant first class, if appropriate.

BOARD VOTE:  

__JHL___  __MHM_  ___KAH__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____JoAnn H. Langston
		        CHAIRPERSON

INDEX

CASE ID	AR2001052781	
SUFFIX		
RECON		
DATE BOARDED	20010918	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY	DASA	
ISSUES         1.	126.0400	
2.		
3.		
4.		
5.		
6.