PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            31 March 1999                  
	DOCKET NUMBER:   AR1999018181

	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. Loren G. Harrell		Director	
	Mr. Clark .		Analyst	

  The following members, a quorum, were present:

	Mr. Curtis W. Barbee		Chairperson	
	Mr. John H. Kerr		Member	
	Mr. Walter T. Morrison		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 a Record of Proceedings Under Article 15, UCMJ, imposed on 13 January 1998 be removed from his official military personnel file (OMPF) and, in effect, that all rights, privileges, and property be restored.  He states, in essence, that he was punished for the wrongful use of cocaine; however, he did not knowingly or willingly use cocaine; that he unknowingly drank a pina colada that had been "spiked" and had been prepared for another individual; and that the two people who were aware of what happened were not allowed to testify at the proceedings.  Counsel argues, in part, that the applicant would never use cocaine because he is HIV positive and is aware that any drug could lower his immune system resistance and result in his death because of AIDS (Acquired Immunodeficiency Syndrome).  In support of the application, he submitted numerous documents including statements signed by his wife and by a civilian who admits to being responsible for the applicant ingesting raw cocaine.

3.  On 13 January 1998, following a unit urinalysis, the applicant, serving on active duty in pay grade E-5, was punished under Article 15, UCMJ, for the wrongful use of cocaine on or about 26 August 1997.  The punishment, imposed by a field grade officer, was reduction to pay grade E-4.  The applicant appealed the punishment and included a 14 November 1997 statement signed by a civilian who wrote that he had been a friend of the applicant's mother in law for more than 30 years; that he was hosting a small party in New York when the applicant and his wife, who were visiting the applicant's mother in law at the time, stopped by; that his guests had spiked some of the drinks; and that the applicant had been inadvertently served a spiked drink.  

4.  In an undated statement, the applicant's wife (also a service member) supported the aforementioned statement indicating that she had also "drank pina coladas spiked with cocaine.  I had no idea that there were drugs in the place or that the drinks were spiked."  She further wrote that "[the applicant] would never use drugs because he knows that because of his medical condition, the cocaine could kill him.  [He] will not even be in a room where people are smoking, so surely he wouldn't hang around with drug users."

5.  On 20 February 1998 the applicant's appeal was denied.

6.  On 23 March 1998 an administrative board, after listening to testimony including that of the civilian who had hosted the aforementioned party, and a laboratory officer who testified that because of the low level of cocaine ingestion, the applicant would not have necessarily felt any effects from the cocaine, found that the allegation that the applicant had exhibited misconduct (commission of a serious offense)" was not supported by the preponderance of evidence."  Retention in the service was recommended.  On 11 June 1998 the recommendation was approved by the convening authority, a major general.

7.  On 1 July 1998 the applicant's counsel requested that the Article 15 be set aside; however, stating, in part, that "the evidence you present does not unquestionably exculpate the soldier" and "I remain convinced beyond a reasonable doubt of [his] guilt" the convening authority denied the request.

8.  On 1 December 1998 the applicant was advised that his correspondence addressed to the Army Suitability Evaluation Board was being returned without action.  He was advised to submit an application to this Board.  Contained in that correspondence was a 5 November 1998 memorandum signed by the applicant's company commander during the period of time in question.  He wrote, in part, "I never believed that [the applicant] knowingly ingested a controlled substance.  He was too smart and too concerned about his medical condition and his future to poison his body." 

CONCLUSIONS:

1.  The evidence of record clearly indicates that the applicant did not willingly or knowingly ingest the cocaine which was subsequently detected in a urinalysis. Accordingly, his punishment under Article 15, UCMJ, was unjust as is the retention in his OMPF of documents related to that event.

2.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected:

a.  by removing from the OMPF of the individual concerned the Record of Proceedings Under Article 15, UCMJ, imposed on 13 January 1998, together with all documents related thereto, and by showing that the punishment imposed thereby was null, void, and of no force or effect; and

b.  by restoring to him all rights, privileges, and property lost as the result of the foregoing proceedings.

2.  That, in accordance with paragraph 21e, Army Regulation 15-185, following completion of the administrative correction directed herein, the proceedings of the Board and all documents related to the subject Article 15 be returned to the Board for permanent filing.  

BOARD VOTE:  

CWB____  JHK_____  WTM___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999018181	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	1999 March 31	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	126.00	
2.		
3.		
4.		
5.		
6.