MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           20 NOVEMBER 2001                  
	DOCKET NUMBER:   AR2001061172

	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. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Regan K. Smith		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 a January 2001 DA Form 2627 (Record of Proceedings under Article 15, UCMJ) be expunged from his OMPF (Official Military Personnel File).

APPLICANT STATES:  The applicant defers to counsel to justify his request.

COUNSEL CONTENDS:  In effect, that the applicant submitted a urine sample on 30 November 2000 as part of a unit urinalysis test.  The sample tested positive for marijuana and the applicant was punished under Article 15 of the UCMJ (Uniform Code of Military Justice).  Counsel noted that the applicant’s commander “imposed a forfeiture of $600.00 after finding, beyond a reasonable doubt, that [the applicant] knowingly and wrongfully used marijuana on or about 30 November 2001.”  Counsel stated that “a substantial right” of the applicant’s was “harmed” when a “witness surrounding the alleged marijuana use was not called to testify by telephone” even though the applicant had indicated the witness “was standing by and ready to answer any questions” from the unit commander.  The applicant appealed the UCMJ action, but his appeal was denied “without comment.”

Counsel stated that during the Article 15 hearing and the appeal, the company and appellate commanders should have used the “beyond the reasonable doubt standard of proof” to determine if the applicant was “guilty of knowing and wrongful use of marijuana.”  Counsel notes that on “essentially the same evidence,” an administrative separation board unanimously concluded, “by an even lower standard” that the preponderance of the evidence showed that the applicant “did not knowingly and wrongfully use marijuana.”

In view of the findings of the administrative separation board, counsel asked that the applicant’s UCMJ action be set-aside.  He states that request was also denied “without comment….”

Counsel argues that “an independent, impartial panel of officers” concluded the applicant “did not wrongfully use marijuana” and the chain of command “ignored the Board Members’ impartial judgment” and the UCMJ action continues to be filed on the performance portion of his OMPF.  Counsel states that the chain of command’s actions were unfair and unjust.

In support of his request, counsel submits a copy of the administrative separation proceedings and its “findings and recommendations worksheet.”  He also submits a copy of a 21 January 2001 statement from the applicant’s “witness,” mentioned above.

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

He served an initial period of active and reserve duty with the United States Marine Corps.  In 1989 he enlisted in the USAR (U.S. Army Reserve) and subsequently entered active duty as a member of the AGR (Active/Guard Reserve) Program.  He was promoted to pay grade E-7 in 1997.  His records indicate that his senior raters consistently rated him in the top or second block on performance evaluation reports.  He has been awarded several decorations, including an Army Commendation Medal, Army Achievement Medal and three awards of the Army Good Conduct Medal.

On 2 January 2001 the applicant was punished under Article 15 of the UCMJ for “wrongfully” using marijuana “as discovered by urinalysis testing initiated on or about 30 November 2000.”  In an “open” hearing, the applicant’s unit commander, after “all matters presented in defense, mitigation, and/or extenuation” were considered, imposed a forfeiture of $600.00 and directed that the UCMJ action be filed on the applicant’s performance fiche.

The applicant appealed and submitted additional matters in his defense.  On 
25 January 2001 his appeal was denied.  The 21 January 2001 statement, submitted in support of the applicant’s petition to this Board, was addressed to the commander who, on 25 January 2001, denied the applicant’s appeal.  The 
21 January 2001 statement indicates that the author had already “written one letter stating the facts about what happen[ed]” and was on “standby for a conference call” during the Article 15 proceedings, but was never called.  He indicated in the statement that he had talked to “Tony,” another guest at the author’s football party, who admitted to smoking a “blunt that night (a blunt is marijuana rolled in a cigar leaf)” and giving the applicant “the blunt as a joke.”  He stated that he knows that the applicant “would never jeopardize his career [or] his family….” 

On 25 April 2001 the applicant appeared before an administrative separation board.

In testimony before the administrative separation board, the applicant’s unit commander, who imposed the January 2001 UCMJ action, indicated that when he received the results of the urinalysis, he directed that the applicant report to the CID (Criminal Investigation Division) where the applicant provided a sworn statement.  He stated that he proceeded with the Article 15 and separation action after receiving the applicant’s sworn statement and the CID report.

In the Summary of Board Proceedings, submitted in support of the applicant’s petition to this Board, the unit commander was recorded as stating that the applicant requested an open hearing during the Article 15 proceedings and that he (the unit commander) noticed:

“a number of inconsistencies in what he [the applicant] gave to the CID agent and what he brought up during the Article 15 hearing.  In my opinion he added more confusion when he appealed the Article 15.  There were a couple of things, in his sworn statement, like he remembers going into the house and smelling marijuana.  I remember that because during the Article 15 hearing, I asked him if he left the house, after smelling marijuana, which he responded no.  I then asked him if he called the police to report the crime; which he responded no.  During the Article 15 hearing, he tried to change his statement to, that Mr. R [the author of the 21 January 2001 statement] smelled the marijuana in [the] house, which didn’t make any sense.  If I remember correctly, he told me that he did not speak with Mr. R before he met with CID.  To me that didn’t make any sense, not to mention that he would write in the sworn statement that he smelled the marijuana – then Mr. R coming into it.  When I gave him the Article 15, there was no doubt in my mind that he was guilty.  In fact one of his character witnesses, a fellow soldier that worked with him in the IG Office laughed, during the hearing.  I asked the soldier if he believed [the applicant’s] statement, in which he responded no.”

The unit commander also noted in his testimony that he had a letter from Mr. R that he considered during the Article 15 hearing and as such did not feel it necessary to contact Mr. R by telephone.

Mr. R, the author of the 21 January 2001 statement, also testified during the administrative separation proceedings.  He indicated that he and the applicant had been friends “all my life.”  He stated that the applicant arrived at his house “between four and five” and that they drank “a case of beer and a fifth of crown royal during the party.”  He stated that “we played cards from about seven to ten o’clock” and that he (Mr. R) left the house about “eight or so” to purchase additional beer for the party.  He indicated that when he “left the house, [the applicant] was not conscience” and that when he returned he “noticed a distinct smell, which [he] learned was marijuana.”  He stated that his wife’s niece and her husband (Tony) admitted to smoking the marijuana and he “put them out.”  After the applicant informed him that he [the applicant] had tested positive for drugs, Mr. R was told by Tony that he (Tony) had “given [the applicant] a blunt cigar as a joke.”  

Additional testimony from character witnesses all indicated that it was out of character for the applicant to use drugs and that he was an outstanding soldier.

At the conclusion of the Board’s proceedings, the President rendered a statement.  He told the applicant:

“This is a wakeup call.  You know as mentioned a number of times during this hearing that there was a lapse in judgement.  Some people in life don’t get a second chance.  So, I will tell you now, make sure you smell the coffee, don’t let conditions or circumstances like this enter your life ever again.  …once again I will remind you that second chances don’t come often.  And being of your rank and stature in the military right now, soldiers don’t normally receive what the board handed down.  People like you don’t survive situations like this.”

In the 25 April 2001 “Findings and Recommendations Worksheet,” submitted by the applicant’s counsel in support of his request, the administrative separation board found “by unanimous vote that [the applicant], by a preponderance of the evidence, did not knowingly and wrongfully use marijuana on or about 
30 November 2000.”  They recommended the applicant be retained and that he be “rehabilitatively transferred to another location for continued military service.”

Army Regulation 635-200, which establishes the policies and provisions for the administrative separation of enlisted soldiers, states, in pertinent part, that first time drug offenders, in grades E-1 through E-9, will be processed for separation upon discovery of a drug offense if they are not referred to a court-martial authorized to impose a punitive discharge or are not processed for separation under Chapter 9 (Alcohol or Other Drug Abuse Rehabilitation Failure).  Soldier’s being processed for separation as a result of a drug offense are entitled to an administrative separation board if they have 6 or more years of total active and reserve service on the date of initiation of a recommendation for separation.

Army Regulation 635-200 also states that when the reason for separation requires the administrative board procedure, the commander will notify the soldier in writing and, among other things, “cite the specific allegations on which the proposed action is based.”  The unit commander’s notification was not in records available to the Board, nor provided as part of the documents submitted by the applicant and his counsel in support of his request.

Chapter 2, which establishes the procedures for the administrative separation hearing, states that the rules of evidence for court-martial and other judicial 

proceedings are not applicable.  However, the board will determine whether each allegation in the notice of proposed separation “is supported by a preponderance of the evidence.”  Army Regulation 635-200 states that a “preponderance of the evidence” is evidence which, after a consideration of all the evidence presented, points to a certain conclusion as being more credible and probable than any other conclusion.

The board will then determine whether the findings warrant separation with respect to the reason for separation.  When deciding retention or separation, Chapter 1 of Army Regulation 635-200, states that the following factors will be considered:

(1) The seriousness of the events or conditions that form the basis for initiation of separation proceedings.  Also consider the effect of the soldier’s continued retention on military discipline, good order, and morale.

(2) The likelihood that the events or conditions which led to separation proceedings will continue or recur.

(3) The likelihood that the soldier will be a disruptive or undesirable influence in present or future duty assignments.

(4) The soldier’s ability to perform duties effectively now and in the future, including potential for advancement or leadership.

(5) The soldier’s rehabilitative potential.

(6) The soldier’s entire military record, including past contributions to the Army, assignments, awards and decorations, evaluation ratings, and letters of commendation.

Army Regulation 27-10, which establishes the policies and provisions pertaining to the administration of military justice, states, in pertinent part, that nonjudicial punishment is imposed to correct misconduct in violation of the UCMJ.  Such conduct may result from intentional disregard of, or failure to comply with, prescribed standards of military conduct.  Nonpunitive measures usually deal with misconduct resulting from simple neglect, forgetfulness, laziness, inattention to instructions, sloppy habits, immaturity, difficulty in adjusting to the disciplined military life, and similar deficiencies.  Article 15 proceedings are not adversary in nature and the commander is not bound by the formal rules of evidence before courts-martial.

The regulation notes, in effect, that prior to imposing nonjudicial punishment the imposing commander should investigate the matter 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.  Usually the preliminary investigation is informal and consists of interviews with witnesses and/or review of police or other informative reports.  If, after the preliminary inquiry, the commander determines, “based on the evidence currently available, that the soldier probably has committed an offense and that a nonjudicial punishment procedure is appropriate” he should take action as set forth in the regulation.  Included in those actions is the soldier’s right to demand a trial.  The demand for trial may be made at any time prior to imposition of punishment.  

However, the regulation also states that a commander should not impose punishment unless he is convinced “beyond a reasonable doubt” that the soldier committed the offense.

Black’s Law Dictionary defines “beyond a reasonable doubt” as, “fully satisfied, entirely convinced, satisfied to a moral certainty….”  Reasonable doubt is defined as, “such a doubt as would cause prudent men to hesitate before acting in matters of importance to themselves.”

Army Regulation 27-10 also establishes the policies and provisions whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored.  Nonjudicial punishment is “wholly set aside” when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual.  The basis for any set aside action is a determination that, under all the circumstances of the case the punishment has resulted in a clear injustice.  “Clear injustice” means that there exists an “unwaived legal or factual error which clearly and affirmatively injured the substantial rights of the soldier.”  An example of “clear injustice” would be the discovery of new evidence “unquestionably exculpating” the soldier.

Webster’s II New Riverside University Dictionary defines “unquestionably” as, “not open to doubt or dispute” and “exculpating” as, “to clear of blame.”

Army Regulation 27-10 states that records of nonjudicial punishment, which have been wholly set aside will routinely be transferred to the restricted fiche.  

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.  The Board notes the contentions of the applicant and his counsel.  However, the UCMJ action and the administrative separation board were conducted in accordance with applicable laws and regulations with no evidence of procedural errors which would tend to jeopardize his rights.  Notwithstanding the fact that the commander who imposed the UCMJ action and the members of the administrative separation board came to different conclusions, the Board concludes that neither the applicant’s unit commander or the administrative separation board is bound by the other’s findings.  Because of the different standards of proof, the Board concludes that there is no evidence of any “unwaived legal or factual error which clearly and affirmatively injured the substantial rights of the soldier” and as such, no basis to wholly set aside the UCMJ action.  Additionally, the Board notes that the unit commander testified during the administrative board hearing that he had a statement from Mr. R and did not feel it was necessary to contact that witness telephonically during the Article 15 proceedings for additional information.  

2.  The Board also notes that the applicant could have demanded a trial but instead chose to have the matter settled with nonjudicial punishment.  He should not now be able to avoid the ramifications of that decision simply because a separate administrative procedure came to a different conclusion regarding the applicant’s actions than did his commander.

3.  Additionally, the Board notes that in spite of the administrative board’s finding that he did not, “knowingly and wrongfully use marijuana” that same board recommended the applicant be, “rehabilitatively transferred to another location….” The Board also notes that the board’s president, in his comments to the applicant following the board, mentions that “there was a lapse in judgement” and that the applicant was being given a second chance.  Had the administrative board simply found that the preponderance of the evidence did not show that the applicant “knowingly and wrongfully” used marijuana, this Board questions the need for the rehabilitative transfer and the administrative board’s need to let the applicant know that he was being given a second chance or to remind him that, “there was a lapse in judgement.”

4.  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 that requirement.

5.  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

__JLP  __  ___MHM_  __RKS__  DENY APPLICATION

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

INDEX

CASE ID	AR2001061172	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20011120	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	126.00	
2.		
3.		
4.		
5.		
6.