MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            22 March 2000
	DOCKET NUMBER:   AR1999030054

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. James M. Alward		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Mr. Arthur A. Omartian		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:  In effect, that nonjudicial punishment (NJP) he received in September 1992, in the form of a DA Form 2627 (Record of Proceedings Under Article 15 of the UCMJ), be removed from his records.  In addition, that his grade be restored to staff sergeant/E-6, the grade he held prior to his acceptance of this NJP, and that he receive all back pay and allowances that result.  He further requests that the forfeiture imposed on him as a result of this NJP be reimbursed.  Finally, he requests that a period of AWOL contained in his records be removed.  He submits a National Medical Services Incorporated (NMSI) letter, dated in October 1993; a Department of the Army (DA) Form 4187 (Personnel Action); and a State of New Jersey Form CPO106, dated in April 1993, in support of his application.

APPLICANT STATES:  In effect, that due to the death of his mother and his relocation, all the paperwork he uses to support his request was sent to the wrong address.  He comments that it took him some time and work to get the proof for his case together.

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

He entered active duty on 19 September 1980 and served on active duty continuously until he was discharged, under other than honorable conditions (UOTHC), on 23 July 1993.  

The highest rank attained by the applicant while on active duty was staff sergeant/E-6.  He served in military occupational specialty (MOS) 63B (Light Wheel Vehicle Mechanic) and held the additional skill identifiers of 
P (parachutist) and H (Instructor).  

On 28 September 1992, the applicant accepted NJP for wrongfully using cocaine between 5 and 8 May 1992.  The cocaine use was detected by the biochemical testing of a urine sample submitted by the applicant on 8 May 1992.  His punishment for this offense was a reduction in rank to sergeant/E-5 and a forfeiture of $741.00 per month for 2 months(1 month suspended).  The applicant appealed the NJP and indicated he would submit additional documents.

On 2 October 1992, NMSI provided the applicant’s military defense counsel a copy of a toxicology report they had prepared on the applicant.  This report indicates that the following 3 specimens were tested:  one plastic container with gold cap, sealed and labeled by the Military Drug Testing Laboratory, which contained 20 milliliters of urine; one sealed urine collection of 50 milliliters taken by NMSI on 8 September 1992; and one sealed urine collection of 2 milliliters also taken by NMSI on 8 September 1992.  

The NMSI test findings indicate that the specimen received from the Military Lab contained cocaine/metabolites but the specimens taken by them did not.  The conclusions arrived by NMSI as a result of their analysis was that the testing revealed the presence of cocaine metabolites in the urine that was sent from the Military Drug Testing Laboratory.  It further stated that from the results of the blood group antigen studies, it is possible that the antigens in the urine from the military lab was due to antigen activity, other than the blood group antigens; however, the evaluator could not conclude with any degree of scientific certainty that the urine sample received from the Military Drug Testing Laboratory came from the same individual as the samples in their laboratory from the applicant.

On 15 December 1992, the applicant’s NJP appeal was reviewed by the Office of the Staff Judge Advocate who determined that NJP proceedings were conducted in accordance with law and regulation and that the punishments imposed were not unjust or disproportionate to the offense committed.

The applicant provided a court document issued by the New Jersey Superior Court, Middlesex County, Law Division, Criminal Court, dated 19 April 1993.  This document indicates that charges against him for possession of a controlled substance; possession with intent to distribute; and possession with intent to distribute on or near school property, were dismissed pursuant to a plea agreement with a co-defendant.  

The DA Form 4187 provided by the applicant is verified by his unit commander and indicates that the personnel and finance records of the applicant that indicate that he had been AWOL from 18 December 1992 to 10 January 1993 should be amended.  It goes on to state that the applicant was erroneously listed as AWOL when he was transferred from one organization to another and that he in fact was present for duty during that timeframe.  

The specific facts and circumstances surrounding the events which lead to the applicant’s discharge are not contained in the record.  There is, however, a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) on file.  This document shows that the authority for the applicant’s  discharge was Chapter 10, Army Regulation 635-200; that the narrative reason for his separation was for the good of the service-in lieu of trial by court-martial; and that the characterization of service was UOTHC.  

Block 28 (Dates of Time Lost During This Period) of the DD Form 214 lists only one period of time lost, which is from 24 March 1993 to 23 July 1993.  There are no other periods of time lost or AWOL recorded in the applicant’s record of service.  

Army Regulation 27-10 prescribes the policies and procedures pertaining to the administration of military justice within the Army.  It states, in pertinent part, that NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; to preserve soldier’s record of service from unnecessary stigma by record of a court-martial conviction; and for further military efficiency by deposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.  As its name indicates, NJP is different from a trial by court-martial.  An NJP hearing is a more informal proceeding where the rules of evidence need not be strictly applied.  

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 noted the contentions of the applicant that his NJP should be removed from his records; that his grade should be restored to staff sergeant/
E-6; and that he should be reimbursed money forfeited as a result of this NJP and any due back pay and allowances.  However, after carefully examining the evidence of record and the independent evidence submitted by the applicant, the Board found no basis to grant this relief.  

2.  Notwithstanding the NMSI report, there is no conclusive evidence to show that the applicant did not use cocaine during the period indicated in the NJP action. The NMSI report was provided to the applicant’s military defense counsel, who had ample opportunity to present it and make arguments on the applicant’s behalf during the NJP appeal process.  There is no indication that this report or counsel arguments were persuasive during the legal review of the NJP appeal.  Therefore, the Board concludes this report does not provide a basis to grant the requested relief.

3.  The Board was unable to determine how the civil court document dismissing charges against the applicant has any bearing on any of his requests for relief.  The NJP accepted by the applicant, and the punishment imposed as a result, was the result of his use of cocaine as determined by a positive biochemical test, and had nothing to do with the civil charges.  Thus, the Board concludes this factor provides no grounds to change or correct any of the applicant’s military records. 

4.  The Board also noted the applicant’s request that his records be corrected in regard to his periods of AWOL.  However, the Board found no correction necessary in this area.  The DD Form 214 issued to the applicant lists only one period of time lost, and that covers the period 24 March through 23 July 1993.  The AWOL period covered on the DA Form 4187 provided by the applicant, 
18 December 1992 to 10 January 1993, is not listed on his DD Form 214 nor is it recorded anywhere else in his military records.  Therefore, the Board concluded there is no effective relief to grant in this area.  

5.  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 the aforementioned requirement.

6.  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

___ja ___  ___tsk___  ___ao___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999030054	
SUFFIX		
RECON		
DATE BOARDED	2000/03/22	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1993/07/23	
DISCHARGE AUTHORITY	AR 635-200 C10	
DISCHARGE REASON	In Lieu of Court-Martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 328	134.0000	
2.		
3.		
4.		
5.		
6.