PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           28 October 2003                   
	DOCKET NUMBER:   AR2002074391

	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	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Ms. Linda D. Simmons		Member	
	Ms. Marla J. N. Troup		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 results of his 4 February 1999 administrative separation board be set aside and that he be restored to duty with all rank, rights, and privileges or, in the alternative, that he be given a new administrative separation board.

3. The applicant states, in effect, that he did not have benefit of competent legal counsel at his administrative separation board hearing and that his senior chain of command exerted unlawful command influence during the hearing process.

4.  In support of his application, he submits:  a 9-page letter, dated 26 October 2001, from his civilian attorney; a copy of a page from a Unit Urinalysis Ledger (CD ADAPCP Form 1), dated 16 May 1998; a copy of a 2-page DD Form 2624 (Specimen Custody Document - Drug Testing); a copy of a 2-page memorandum from the Alabama Army National Guard, Company B, 31st Support Battalion, dated 18 July 1998, subject:  Separation Under Army Regulation 135-178; a copy of a DA Form 4856 (General Counseling Form), dated 18 July 1998; a copy of a DA Form 268-E (Report to Suspend Favorable Personnel Action - FLAG), dated 18 June 1998; a copy of a memorandum from the Alabama Army National Guard, Company B, 31st Support Battalion, dated 18 July 1998, subject:  Separation Under Army Regulation 153-178; a copy of a memorandum from the Alabama Army National Guard, Company B, 31st Support Battalion, dated 18 December 1998, subject:  Administrative Separation Board; a copy of a memorandum from the Alabama Army National Guard, Company B, 31st Support Battalion, dated 27 January 1999, subject:  Appointment of Board Officers; a copy of the "Findings and Recommendations" page from the applicant's administrative separation board hearing; a copy of an unsigned, undated 4-page letter addressed "To the Adjutant General Alexander;" a copy of a 7-page memorandum, dated 23 February 1999, subject:  Administrative Separation Board - [Applicant] - MOTION TO DISMISS; a copy of Orders 068-018, Alabama Army National Guard, dated 9 March 1999; a copy of a letter to the applicant, dated 18 March 1999, from the Staff Judge Advocate, Alabama Army National Guard; a copy of a 2-page memorandum from the Alabama State Military Department, dated 23 March 1999, subject:  Notice of Termination of Technician Employment; a copy of a memorandum, dated 27 October 2000, subject:  [Applicant's] Attorney; a copy of an undated email from applicant's civilian attorney to applicant's military counsel; a copy of a 2-page letter, dated 6 November 2000; a copy of a letter, dated 23 February 2001; a copy of a 3-page affidavit from the applicant, dated 10 April 2001; a copy of a 2-page letter, dated 13 June 2001; a copy of the cover of The Alabama Lawyer, Volume 59, No. 4, dated 1998, with page 87 attached; and a copy of an internet map showing the distance between Anniston, Alabama, and Montgomery, Alabama.

5.  The applicant’s counsel contends in a 9-page submission with 21 enclosures that the applicant was effectively denied his right to counsel.  Having been assigned military legal counsel on 30 December 1998, the applicant attempted to contact his lawyer throughout the month of January 1999 without success.  The applicant finally met with counsel for the first time only minutes before his scheduled separation board hearing.

a.  Counsel adds that the applicant was a Sergeant First Class (SFC/E-7) in the Alabama Army National Guard (ALARNG); that he participated in a command-directed urinalysis test on 16 May 1998; that the results allegedly showed that he tested positive for tetrahydrocannabinol (THC), the active ingredient in marijuana; and that he was subsequently notified that separation action was being initiated.

b.  Counsel continues that, on 18 July 1998, the applicant acknowledged notification of his command's intent to separate him and requested consideration of his case by a board of officers and representation by military legal counsel.  Five months later, on 18 December 1998, the applicant was notified by correspondence that the administrative separation board would convene on 4 February 1999.  He was provided his legal counsel's name and civilian phone number and advised that it was his responsibility to contact him.  However, the applicant was located in Anniston, Alabama, and his appointed counsel was located in Montgomery, Alabama, a distance of more than 100 miles.  Neither the applicant nor his commander was able to contact counsel as he was out of his office for the entire month of January 1999 and all messages and calls went unreturned.  Counsel points out that Judge Advocate General's (JAG) Corps officers of the ALARNG assigned to do defense work are required to volunteer their time and resources.

c.  Counsel states that it was not until the morning of the administrative separation board hearing that the applicant was able to speak with his military legal counsel to inform him that he had used an herbal product for weight loss and that he believed this product was the source of the THC that was detected in his urine.  Counsel and the applicant believe that the applicant's military legal counsel failed to appropriately prepare for his case.  There was no pre-board preparation and, thus, the applicant was denied due process.  

d.  Counsel cites a number of "precedence setting Federal court cases" that he believes are relevant to the applicant's case.  He requests that the Board address two questions in resolving the issue:  1) Determine whether institutional shortcomings effectively prevented the applicant's military legal counsel from properly preparing for the administrative separation proceedings.  2) Determine

whether the military legal counsel's conduct was, as a matter of law and fact, ineffective.  Counsel believes that an effective counsel would have moved the board for a reasonable continuance and there is nothing in the applicant's record to indicate that this was attempted.  He also believes the applicant's chain of command demonstrated unlawful command influence by telling other full time employees and noncommissioned officers "they needed to be careful about attending the board and testifying."  The applicant's commander was told that his career could be in jeopardy, should he testify for the applicant.  Discouraging witnesses from testifying on behalf of a defendant raises Sixth Amendment issues in threatening the fundamental right to a fair trial. 

e.  Counsel believes that the appropriate relief would be that this Board reverse the administrative separation board's 4 February 1999 findings and recommendations, and restore the applicant's rank, rights, and privileges.  He believes that an alternative would be to restore the applicant to active duty status for remedial separation board proceedings.  

6.  The applicant’s military records show that he was an SFC serving in the Alabama Army National Guard (ALARNG).  The applicant also occupied an excepted civil service ARNG technician position as an autoworker/wage grade (WG) 8.  On 16 May 1998, he participated in a command-directed, random urinalysis test.  

7.  On 18 July 1998, the applicant was counseled and informed in writing that his urine specimen tested positive for tetrahydrocannabinol (THC), a metabolite of marijuana.  The applicant's commander also advised him of his rights under the limited use policy in accordance with Army Regulation 600-85.  The applicant's commander stated that, based on the urinalysis, he suspected that the applicant was a drug abuser; that substance abuse was incompatible with the maintenance of high standards of performance, military discipline, and readiness; and that drug abuse posed a substantial threat to the health and welfare of the unit.  The applicant was encouraged to seek evaluation, treatment and rehabilitation.  If rehabilitation were required, it would be at a state-certified substance abuse center of his choice at his own expense.  The applicant was advised that participation in a rehabilitation program would not guarantee retention in the ALARNG.  He was also informed that, if he chose to enroll in a rehabilitation program and retention were recommended, his counselor should complete the appropriate paperwork and that it should be returned to the commander within 30 days.  He was also informed that counseling was being posed as an administrative measure and that it was not to be construed as punishment.  

8.  On the same date, the applicant annotated his counseling form and authenticated it to indicate that he would not enroll in a state-certified, community-based rehabilitation program.  

9.  On the same date, the applicant's commander officially notified him in writing that he was initiating action to separate him from the ALARNG under the provisions of Army Regulation 135-178.  He was informed that the basis for the contemplated separation action was failure of the drug urinalysis test.  He was also informed of his rights.  

10.  On the same date, the applicant acknowledged notification, consulted with legal counsel, and requested a personal appearance before an administrative separation board.  He also requested further legal representation by military counsel and he acknowledged that he understood that he could retain civilian counsel at no expense to the Government.  He did not submit a statement in his own behalf.

11.  On 18 December 1998, the applicant was notified that his administrative separation hearing would be conducted on 4 February 1999.  He was also given the name and telephone number of his appointed military legal counsel and informed that it was his responsibility to coordinate with counsel.  Evidence contained in the applicant's submission to this Board confirms that he did not physically meet his military legal counsel until shortly before his administrative separation board hearing and that there was no pre-hearing preparation done by his military legal counsel.

12.  The complete administrative separation board proceedings are not available. However, the findings and recommendations indicate that the board determined the applicant did abuse marijuana/THC, "as evidenced by a sample of his urine that tested positive for the presence of marijuana/THC."  The board cited the basis for the findings was the toxicology lab report.  The board recommended that the applicant be separated from the ALARNG with an honorable discharge.

13.  On 3 March 1999, the applicant received notice of termination of civilian employment, effective 8 May 1999, as a result of the separation board's action.  

14.  The applicant requested that the Adjutant General of the Alabama State Military Department review the board's findings.  On 18 March 1999, the Adjutant General advised the applicant that the administrative separation board's findings and recommendations would not be changed.  

15.  As stated, the applicant's record does not contain all the facts surrounding the administrative separation board process.  An NGB Form 22E (Department of the Army and the Air Force National Guard Bureau - Report of Separation and Record of Service) that was prepared at the time of separation shows that, on 31 March 1999, the applicant was separated in accordance with paragraph 
8-27u, National Guard Regulation 600-200, with an Honorable Discharge and assigned to the Retired Reserve, Army Reserve Personnel Command, St. Louis, Missouri.  He had completed 22 years, 2 months, and 19 days of ARNG service.

16.  The applicant's military legal counsel at the time of the separation board action provided a memorandum, dated 23 February 1999, to this Board in support of the applicant's request.  He stated that he [legal counsel] was not in his civilian law office during the month of January and that he did not speak to the applicant until the day of the separation board hearing.  He stated that the only evidence that the Government presented to the administrative separation board was the applicant's positive urine test and that the Government failed to show that the applicant actually abused illegal drugs.  He stated that the applicant presented witnesses and affidavits, and testified in his own behalf that he used a substance that was not marijuana, but apparently contained THC, and that he used it to successfully assist with weight loss.

17.  The applicant's former military counsel contended that the applicant's commander, executive officer, first sergeant, and other members of his unit corroborated the applicant's testimony by way of live testimony and affidavit.  He added that he believes that the drug testing team failed to ask if Soldiers were using herbal supplements and that they failed to conduct the testing properly.  He said he believes that there was unlawful command influence and that the applicant was denied the right to effective counsel, stating that counsel assigned to a respondent is placed on orders for the day of the hearing and that any contact and preparation on the part of the counsel must be made at his [counsel's] own expense.  Thus, JAG officers assigned to do defense work are required to volunteer their time and resources or they will not be able to prepare a case.  He said he believes that this is a clear example of how unlawful command influence can prevent a respondent from being afforded the right to counsel.  

18.  The applicant's former military counsel said he does not believe that he had sufficient time to prepare for the applicant's case.  He added that a major assigned to the Office of The Inspector General (IG), who is married to the major in charge of the drug-testing program, was an observer at the applicant's administrative separation board proceedings, and that, although he [the major] may have had good intentions, his presence was improper, unethical, and it 

clearly demonstrated unlawful command influence.  The former counsel said it was readily known that there was a growing conflict between the major in charge of the drug testing program and the ALARNG JAG Office concerning the conduct of administrative separation boards.  Witnesses were afraid to testify for fear of retribution.  He added that he, himself, was concerned that he was being investigated which prohibited him from properly defending his client.  He said he believes that unlawful command influence was evident by commanders telling subordinates not to testify at administrative separation boards.  However, he added that the applicant's commander was not deterred; he did testify.  He concluded by saying he believes that the case against the applicant should be dismissed because the applicant was denied minimal due process.

19.  On 13 June 2001, the applicant's commander at the time of the positive urinalysis stated that, in 1998, the applicant served as the company motor sergeant; that he always exceeded the standard as a leader; and that the applicant's section consistently exceeded the expectations of every mission assigned.  He stated that, at the time of the positive urinalysis, he was not aware that the applicant had been on the unit weight control program.  He later inquired and found that the applicant had been on the unit weight control program prior to his assumption of command and that he [applicant] was continuing weight maintenance.  The unit commander said he had no knowledge that any member of his unit had been using an herbal supplement when the urinalysis was conducted.  Later, he did find that herbal supplements had been used by other unit personnel in weight maintenance and strength building with consistent success, and knowledge of the benefits of the supplement appeared to have been unit wide.  He did not find out that the applicant was using the herbal supplements until late in his investigation.  

20.  As for the urinalysis, the unit commander stated that questions arose about the guilt of the applicant and two other Soldiers.  Charges were dropped against one of the other two Soldiers after it was determined that the drug testing team had confused the samples and social security numbers of two Soldiers; however, after notification, one Soldier admitted guilt and resigned.  In the case of the second Soldier, he was cleared after he provided prescriptions that could have indicated a false positive.  The applicant, however, was separated.  

21.  Additionally, the applicant's commander stated that during his preparation to attend the applicant's administrative separation board hearing, he did hear remarks and comments indicating that he needed to be careful about attending the board and testifying.  He said he had knowledge that other noncommissioned officers and fulltime personnel heard the same comments.  He did not recall the 

exact conversations or individuals, but he knew of a sergeant first class that would have testified in the applicant's behalf, but he was influenced not to do so. As a result of all this, he did guard his comments at the hearing more than he preferred.  He did not know of any other individuals who may have guarded their statements or failed to testify due to the command climate.

22.  The applicant's commander said he also had knowledge that the applicant was unable to contact his legal counsel; that he had also tried to contact the applicant's legal counsel on 6 or 8 separate occasions and was unable to do so until just prior to the hearing.  The applicant was able to meet with his legal counsel just one half hour prior to the hearing.  The applicant's commander indicates that he informed the applicant's legal counsel that he was concerned that he had not contacted the applicant prior to this time and the legal counsel responded by stating that he had many cases to defend and the ARNG would not allow him any additional days to prepare for any defense.

23.  Army National Guard Regulation 600-200 sets forth the basic authority for the separation of enlisted personnel from the ARNGUS.  Paragraph 8-28 of this regulation provides, in pertinent part, that drug abuse is incompatible with military service and Soldiers who abuse drugs one or more times are subject to discharge. 

24.  Army Regulation 600-85 prescribes policies and procedures to implement, administer, and evaluate the Army Substance Abuse Program (ASAP).  Chapter 8 establishes the objectives, policies, and procedures for the Army's biochemical testing program.  Testing is the primary method of identification of drug abusers.
Chapter 12 establishes policies, responsibilities, and specific procedures for implementing and managing the ASAP within the Army National Guard (ARNG).

25.  Army Regulation 15-6 establishes procedures for investigations and boards of officers.  It states, in pertinent part, that proceedings of an investigation or board are normally open to the public if there is a respondent.  However, if a question arises, the determination should be made based on the circumstances of the case.  It may be appropriate to open proceedings to the public, even when there is no respondent, if the subject matter is of substantial public interest.  It may be appropriate to exclude the public from at least some of the proceedings even though there is a respondent, if the subject matter is classified, inflammatory, or otherwise exceptionally sensitive.

26.  Army Regulation 135-178 sets policies, standards, and procedures to ensure the readiness and competency of the US Army while providing for the orderly administrative separation of Army National Guard of the United States (ARNGUS) and U.S. Army Reserve (USAR) enlisted Soldiers for a variety of reasons.  It provides, in pertinent part, that when a Soldier undergoes an administrative separation hearing, the Soldier has the right to be represented at the hearing by military counsel designated according to Army Regulation 27-10, and that processing time will not exceed 90 days with time being measured from the date of notification to the Soldier of the proposed separation to the date of separation.

CONCLUSIONS:

1.  The applicant was a senior noncommissioned officer in the Alabama Army National Guard.  On 16 May 1998 during a random unit drug test, he submitted a urine sample that tested positive for THC (marijuana).

2.  In accordance with Army regulations, the applicant was notified and counseled concerning his positive urinalysis.  Under the provisions of Army Regulation 135-178, administrative separation action was initiated by his chain of command.  As was his right, the applicant requested an administrative separation board hearing and requested legal counsel.  The hearing was conducted on 4 February 1999 and the board recommended that the applicant be separated from the ARNG and as a Reserve of the Army with an honorable discharge and assigned to the Retired Reserve.

3.  The applicant's administrative separation was not accomplished in compliance with Army Regulation 135-178.  The applicant was notified of his commander's intent to separate him on 18 July 1998; the process should have been concluded not later than 18 October 1998, but took until 31 March 1999, the date he was separated.

3.  In accordance with Army Regulation 135-178, the applicant was entitled to representation by competent legal counsel at his administrative separation board. The Board finds the performance of the applicant's detailed defense counsel was ineffective as a matter of law.  Despite the applicant's repeated attempts to contact his detailed attorney over a 1-month period, applicant's attorney failed to return his calls or in any way communicate with his client.  Instead, detailed counsel simply showed up a half-hour before the board, spent five to ten minutes with the applicant, and then, essentially, marched his client into a "buzz saw."  Applicant's detailed counsel admitted he was not prepared for the board, yet he undertook the representation.  He blamed the government for not paying him to prepare, but did not ask for a delay when he saw that the case was not "typical."  The applicant's case was not the "typical" drug case.  His defense did not involve an attack on the chain of custody or even a "typical" innocent ingestion defense.  Applicant's case involved his admitted ingestion of legal herbal products, a then viable defense.  The fact that the applicant cobbled together a case on his own, does not relieve the government of its obligation to provide counsel.  More 

importantly it does not relieve counsel of his ethical obligation to perform competently.  Army Regulation 27-26, "Rules of Professional Conduct for Lawyers," states, at Rule 1.1 that "[a] lawyer shall provide competent representation to a client.  Competent representation requires the legal knowledge, skill, toughness, and preparation reasonably necessary for the representation."

4.  Additionally, the Board notes that the unlawful command influence issue in this case provides yet another basis for relief.  The applicant's commander stated that, although he did testify for the applicant, he felt constrained in his testimony because of comments made by his chain of command.  He stated that he knew of at least one other Soldier who would have testified on applicant's behalf, if the Soldier had not been fearful of possible retaliation by the command.  The applicant was entitled to present witnesses whose testimony was fettered only by the law's requirement that they speak the truth.  Instead, his chain of command unlawfully hampered his ability to call witnesses and chilled the testimony of at least one who did testify.

5.  The applicant's contention that his positive urinalysis resulted accidentally from his use of an unnamed herbal supplement he was taking for weight loss cannot be substantiated, but the argument should have been strongly and affirmatively presented by counsel in the applicant's defense.

6.  In view of the statements that were provided by the applicant and his current counsel, and, in particular, the statement from the applicant's former commander, the Board accepts the applicant's contention that improper command influence may have hindered certain witnesses from testifying in his behalf and may have affected the testimony of those who did testify in his behalf.

7.  Although the Board cannot direct the Army National Guard of the State of Alabama to effect the following recommendation, in view of the foregoing findings and conclusions, and in the interest of justice and equity, it would be appropriate to correct the applicant’s records as indicated below.

RECOMMENDATION:

That all of the records related to this case be corrected by setting aside the findings of the 4 February 1999 administrative separation board and by granting the individual concerned a new hearing before an administrative separation board.

BOARD VOTE:  

___rjw__  __lds___  __mjnt__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Raymond J. Wagner
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2002074391	
SUFFIX		
RECON		
DATE BOARDED	20031028	
TYPE OF DISCHARGE	(HD)	
DATE OF DISCHARGE	19990331	
DISCHARGE AUTHORITY		
DISCHARGE REASON	A93.17	
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	144.9317	
2.		
3.		
4.		
5.		
6.