IN THE CASE OF: BOARD DATE: 25 February 2016 DOCKET NUMBER: AR20160000082 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, to: a. Set aside a nonjudicial punishment (NJP) he received on 16 October 2015, having all rights and privileges restored, and removing the associated DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), with any supporting documents. b. Personally appear before the Board. 2. The applicant states, in effect: * he was innocent of the charge listed on the DA Form 2627 * evidence he presented was not accepted by his battalion commander (the imposing officer); instead he (the imposing officer) relied on a memorandum from the Army Substance Abuse Program (ASAP) which stated he had tested positive for illicit drugs * with regard to the drug test, no chain of custody was provided for his urine specimen; this would have confirmed whether or not the specimen was actually his * the imposing officer expressed doubts about the ASAP memorandum, but, in the end, chose to accept it's allegations * the imposing officer failed to follow the standard of proof during his NJP proceeding; his expressed doubts indicated he was not convinced beyond a reasonable doubt of the applicant's guilt and, as such, his finding should have been not guilty * his finding of guilty and the resultant punishment were unjust 3. The applicant provides * Enlisted Record Brief (ERB) * DA Form 4856 (Developmental Counseling Form), dated 3 September 2015 * three DA Forms 268 (Report to Suspend Favorable Personnel Actions (FLAG)), all dated 31 August 2015, but reflecting three different reasons * U.S. Army Criminal Investigation Command (CID) Form 94 (Agent's Investigation Report) dated 14 September 2015 * ASAP Repeat Positive Detail, dated 31 August 2015 * Drug Test Results for collection date 22 July 2015 showing the applicant's last four social security number with an annotation of positive for dextroamphetamine (DAMP) (central nervous system stimulant often prescribed for treatment of attention deficit hyperactivity disorder) * Picogram/milliliter to Nanogram/milliliter Conversion * DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated 8 September 2015 * DA Form 2823 (Sworn Statement), completed 8 September 2015 by the applicant * Rights Warning Procedure/Waiver Certificate, dated 9 September 2015 * memorandum, dated 9 September 2015, subject: Polygraph Examination Report * DA Form 2627 with worksheet * memorandum, dated 15 October 2015, by the applicant's defense counsel, subject: Proposed Article 15 for [applicant] * memorandum, dated 6 November 2015, by the applicant's defense counsel, subject: Article 15 Appeal for [applicant] * Omega Laboratories Test Results, dated 15 October 2015 * Omega Laboratories Chain of Custody * Certificate of Accreditation from the American National Standards Institute - American Society for Quality (ANSI - ASQ) National Accreditation Board (ANAB), certifying Omega Laboratories, Incorporated, in Forensic Testing * Non-Federal Drug Testing Custody and Control Form Instructions * Calculation between dates 22 July 2015 and 14 October 2015 showing 84 days * U.S. Army Forensic Toxicology Drug Testing Laboratory Information Sheet CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 16 May 2008. His primary military occupational specialty is 31B (Military Policeman). He has served in a variety of positions and was deployed to Afghanistan from 2009 to 2010. He is currently serving on active duty in the rank/grade of specialist (SPC)/E-4. 2. On 22 July 2015, his unit conducted a unit urinalysis. On 31 August 2015, his commander was notified by ASAP the applicant had tested positive for DAMP. His case was referred to CID for further investigation. 3. On a CID Form 94 (provided by the applicant), the investigating agent stated: * the specimen custody document - drug testing and medical review officer indicated the applicant had tested positive for DAMP; it was further determined the presence of this drug was not legitimate * the applicant waived his rights and, in a sworn statement, denied using this drug, and stated he did not know how he could have tested positive; the applicant was offered the opportunity to take a polygraph test, which he accepted * on 9 September 2015, the applicant was advised of his rights, waived his rights, and agreed to be interviewed by the agent who was to conduct the polygraph examination; the applicant again stated he had no knowledge of how he could have tested positive * he subsequently declined taking the instrument portion of the examination * based upon the agent's consultation with the trial counsel at his supporting Staff Judge Advocate, there was probable cause to believe the applicant had wrongfully used a controlled substance 4. On 7 October 2015, the applicant's battalion commander offered NJP under the provisions of Article 15, UCMJ for the charge of wrongfully using amphetamine/methamphetamine. 5. On 15 October 2015, the applicant's counsel provided the imposing officer a memorandum requesting the proposed NJP be withdrawn. In the alternative, should the commander proceed with the action, he asserted the applicant should be found not guilty. a. Counsel indicated the standard of proof at the NJP proceeding was evidence which proved guilt beyond a reasonable doubt. b. Counsel also stated the applicant was adamant he did not take any drugs. He pointed out the applicant took the initiative to take another drug test. * the applicant provided a hair follicle sample to an accredited independent drug laboratory * the test screened for amphetamine/methamphetamine, among several other drugs; all results were negative * the follicle test is accurate for 90 days * the unit urinalysis was conducted on 22 July 2015, and he provided the hair follicle sample on 14 October 2015, a date which was within the 90 day time limit * assuming the unit urinalysis was accurate, the hair follicle test should have shown the presence of the drug as well; it did not * the results of the independent laboratory raises doubts about the accuracy of the unit urinalysis test; the charge the applicant faces is solely supported by the results of this test * given the doubts raised, counsel contended the commander should find him not guilty 6. On 16 October 2015, after having been afforded the opportunity to consult with counsel, the applicant indicated he did not demand trial by a court-martial and elected a closed Article 15 hearing. He further indicated that he did request someone to speak in his behalf, and would be presenting matters in defense in person. The applicant's battalion commander found him guilty of the charge. a. His punishment consisted of reduction from sergeant/E-5 to SPC/E-4, forfeiture of $1,225 (suspended, if not sooner vacated by 3 May 2016), extra duty for 30 days, and restriction (suspended, if not sooner vacated by 3 May 2016). b. The commander directed filing in the applicant's restricted folder of his official military personnel file (OMPF). c. The applicant elected to file an appeal. 7. On 6 November 2015, the applicant's counsel submitted a written appeal. * the applicant adamantly denied having taken any drugs * counsel described the hair follicle test the applicant had done, and why it should be considered valid; the imposing officer had found the applicant guilty despite the evidence * counsel noted the imposing officer had expressed doubts during the NJP proceedings; he based his guilty finding on the fact, however, the ASAP program was sanctioned by the Department of Defense (DoD), while the independent laboratory was not * the imposing officer felt the test performed by the independent laboratory lacked veracity * counsel pointed out, although the independent laboratory was not approved by DoD, it was accredited by ANAB * ANAB is a non-governmental organization which provides accreditation services to public and private sector organizations; it is jointly owned by the ANSI and the ASQ * the imposing officer also questioned the veracity of the test because the laboratory used was close to a military installation; actually, the collection facility was near the base, but the laboratory was located out of the State * while questioning the independent laboratory results, the imposing officer blindly accepted the results of the unit urinalysis; this despite the fact chain of custody forms were missing * the absence of the chain of custody documents should be a further basis to question the validity of the unit urinalysis 8. On 9 November 2015, the unit's supporting Trial Counsel, a Judge Advocate General officer, affirmed he had considered the applicant's appeal and found the proceedings were conducted in accordance with law and regulation. He further stated, in his opinion, the punishments imposed were not unjust nor disproportionate to the offense committed. 9. On 13 November 2015, after reviewing all matters presented, the applicant's brigade commander denied his appeal. On that same date the applicant acknowledged receipt of his brigade commander's decision. 10. The applicant provides test results, dated 15 October 2015, from Omega Laboratories, showing negative results for amphetamine/methamphetamine and other drugs. The test was based on a sample of his body hair and the chain of custody is provided. 11. Army Regulation 27-10 (Legal Services - Military Justice) prescribes policies and procedures of military justice in general, and with regard to NJP in specific. NJP procedures are addressed in chapter 3. a. Chapter 3 implements and amplifies Article 15 of the UCMJ. NJP should be used in cases involving minor offenses and is intended to correct, educate, and reform offenders. b. Paragraph 3-18 (Notification and Explanation of Rights), subparagraph h Hearing), states: * in the presence of the commander, the Soldier will be allowed to personally present matters in defense, extenuation, or mitigation * the imposing commander is not bound by the formal rules of evidence before courts-martial, and may consider any matter reasonably considered to be relevant * punishment will not be imposed unless the commander is convinced beyond a reasonable doubt the Soldier committed the offense c. Paragraph 3-28 (Setting Aside and Restoration) states the punishment can be set aside and all rights, privileges, and/or property can be restored. When NJP is wholly set aside, the commander who imposed the punishment, a successor in command, or a superior authority can set aside all punishment imposed as well as the findings. When the findings are set aside, the NJP is to be removed from the OMPF. In all cases, the basis for removal is a determination that, under all the circumstances of the case, a clear injustice has occurred. A clear injustice means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier. d. Paragraph 3-43e essentially states the ABCMR has the authority to correct error and injustices that have occurred in military records. 12. Army Regulation 15-185 (ABCMR) prescribes policies and procedures for the ABCMR. It states, in pertinent part, the ABCMR considers individual applications that are properly brought before it. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. It further states, in paragraph 2-11, that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION AND CONCLUSIONS: 1. The applicant, in effect, requests the NJP he received on 16 October 2015 be set aside, and with that action, removal of the DA Form 2627 (with supporting documents), and all rights and privileges restored. 2. The applicant's request for a personal appearance hearing was carefully considered; however, by regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the evidence of record, including independent evidence he provided, is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. The ABCMR does not normally reexamine issues of guilt or innocence under Article 15, UCMJ. This is the imposing commander's function and it will not be reversed by the ABCMR unless the commander's determination is clearly unsupported by the evidence. The applicant was provided a defense attorney, he was given the right to demand trial by court-martial, and he was afforded the opportunity to appeal the Article 15 through the proper channels. The applicant did appeal this Article 15 to the next higher commander; however, his appeal was denied. The imposing commander directed filing of the Article 15 in the restricted folder of his OMPF. 4. His NJP proceedings were conducted in accordance with law and regulation and he was afforded all rights and due process. There is both insufficient evidence of record and in what he provides to show he was harmed by either an unwaived legal or factual error. Additionally, the evidence does not support the conclusion the DA Form 2627 should be removed because it was untrue or unjust. 5. Based on the foregoing, there does not appear to be sufficient basis upon which to grant the requested relief. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___X_____ ___X_____ ____X____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ____________X___________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20160000082 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20160000082 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1