PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            4 September 2003
	DOCKET NUMBER:   AR2003084908

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Frank C. Jones		Member	
	Ms. Barbara J. Ellis		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 reconsideration of previous application to correct his military records by backdating his date of rank (DOR) for promotion to the rank of chief warrant officer three (CW3).

3.  The applicant states, in effect, that his attorney did not properly or accurately represent his case to the Board and therefore, he requests that the facts as outlined in his application be reconsidered by the Board and that his DOR be back-dated to May 1998.  He continues by stating that he was promoted to the rank of chief warrant officer two (CW2) on 6 July 1991 and that he entered the Maryland Army National Guard (MDARNG) from the United States Army Reserve (USAR) in January 1997.  He goes on to state that he had sufficient time in grade for promotion to the rank of CW3 in the MDARNG; however, the MDARNG requires completion of the warrant officer advanced course (WOAC) prior to promotion to the rank of CW3, so he procured a seat in the WOAC beginning 19 January 1998.  He further states that on 8 January 1998, he was advised by his commander that he tested positive for THC (tetrahdrocannabinol) during a urinalysis.  As a result, he was flagged, his school seat was canceled and all favorable personnel actions were suspended.  He quickly discovered that an over-the-counter health food supplement known as Hemp Liquid Gold (a liquid form of essential fatty acids used to support immune system functions) contained enough THC to cause a positive urinalysis.   On 20 January 1999, he requested in writing that he be allowed to appear before a retention board to plead his case.  Despite all efforts by his chain of command, it was not until he requested the assistance of his congressional representative that he was granted a hearing on 13 January 2000.  After presenting evidence and expert testimony, he was cleared of any wrongdoing and he had to complete the WOAC by correspondence before he could get promoted, because residence attendance was no longer available.  As soon as he finished the course he was promoted to the rank of CW3 in October 2000.  However, had the chain of command not dragged the case out, he would have been able to be promoted in May 1998.  In support of his application he submits a letter of support from his commander, his promotion orders and the board results.

4.  The Memorandum of Consideration (MOC) of the Board’s 18 October 2001 review of the case (AR2001056132) is incorporated herein by reference as if wholly set forth.

5.  The applicant’s submission is new evidence and/or argument that requires Board consideration.

6.  The applicant was honorably released from active duty (REFRAD) in the rank of CW2 on 5 July 1994 and was transferred to the USAR.  He was selected for promotion to the rank of CW3 by the 1996 USAR promotion selection board for promotion on 6 July 1997.  However, on 5 March 1997, he accepted an appointment in the MDARNG.  
7.  On 4 December 1997, orders were published by the MDARNG which directed the applicant to report to the WOAC at Fort Rucker, Alabama, for the period of 19 January to 24 March 1998. 

8.  On 8 January 1998, the applicant was advised that he tested positive for THC in a urinalysis conducted on 13 December 1997.  The applicant was advised of his rights and a suspension of favorable personnel actions (flag) was initiated against him.  His commander also initiated a request to withdraw the applicant's Federal Recognition.

9.  On 20 January 1998, the applicant submitted a request to appear before a board of officers to determine if he should be retained in service.

10.  The applicant appeared before a board of officers on 22 January 2000, 2 years after his request, and was represented by civilian counsel.  After hearing the testimony and reviewing the evidence presented, the board of officers found the applicant innocent of the allegation that he had abused the illegal drug – marijuana, that his unknowing ingestion was from an over-the-counter product called Hemp Liquid Gold.  The board refused to recommend his withdrawal of Federal Recognition and apologized for the delay in conducting the proceedings. The Board recommended that Federal Recognition be retained and that he be restored to regular duty status.

11.  On 25 October 2000, the applicant was promoted to the rank of CW3 with a DOR and effective date of 19 October 2000.  

12.  On 1 March 2002, the applicant's commander at the time, authored a statement in which he asserts, in effect, that the applicant was denied due process by the chain of command and that he would have been promoted to the rank of CW3 in the spring of 1998, had those delays not have occurred.  He supports the applicant's request to have his DOR back-dated.

13.  In March 1999, the United States Air Force (USAF) amended Air Force Instruction 44-121 (Alcohol and Drug Abuse Prevention and Treatment Program) to prohibit military members from ingesting hemp oil or products made with hemp seed oil.

14.  On 14 April 1999, the Commandant of the United States Coast Guard (USCG) dispatched ALCOAST Message Number 026/99, which prohibited USCG members from ingesting hemp oil or products made with hemp seed oil.

15. Army Regulation 600-85, Army Substance Abuse Program (ASAP), effective 15 October 2001, provides, in paragraph 1-35d, that products made from hemp seed oil may contain varying levels of THC, an active ingredient of marijuana, which is detectable under the Army Drug Testing Program.  In order to ensure military readiness, the ingestion of hemp seed oil or products made with hemp seed oil is a violation of Article 92, Uniform Code of Military Justice.

CONCLUSIONS:

1.  The Board finds that the applicant was properly exonerated of any wrongdoing by a duly constituted board of officers.  However, the 2-year delay in convening the board of officers in order to allow him due process has denied him a benefit that he otherwise would have been able to obtain had the error/injustice not occurred.  

2.  While the Board understands that the issue at hand was in fact a "new frontier" that had not been previously explored and mapped out, the fact remains that the applicant unknowingly ingested a product that contained THC and has since been banned by the Army and other services.  His due process rights were delayed and as a result, he was denied the opportunity to attend the WOAC as scheduled and his promotion to the rank of CW3 was unjustly delayed.

3.  Therefore, the Board finds that the applicant is entitled to have his effective date and DOR for promotion to the rank of CW3 back-dated to 19 May 1998, with entitlement to all back pay and allowances from that date.

4.  Although the Board has no authority to correct State Army National Guard (ARNG) records governed under Title 32 of the United States Code, the Board is of the opinion that in so far as the Department of the Army is concerned, it would be in the best interest of justice to correct the ARNG records of the individual concerned.

5.  In view of the foregoing findings and conclusions, correcting the applicant’s records as recommended below would correct an error or rectify an injustice.

RECOMMENDATION:  That all of the Department of the Army records related to this case be corrected by showing that he individual concerned was promoted to the rank of CW3, effective 19 May 1998, with a DOR of 19 May 1998 and entitlement to all back pay and allowances from that date.
BOARD VOTE:

___fcj ___  ___bje __  ___rvo __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_Raymond V. O’Connor, Jr._
		        CHAIRPERSON

INDEX

CASE ID	AR2003084908	
SUFFIX		
RECON		
DATE BOARDED	2003/09/04	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION		
REVIEW AUTHORITY		
ISSUES         1.  315	131.0500/dor	
2.		
3.		
4.		
5.		
6.