IN THE CASE OF: BOARD DATE: 9 February 2016 DOCKET NUMBER: AR20150008621 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 the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 30 January 2015, be removed from her Official Military Personnel File (OMPF) and all subsequent actions vacated. She also requests her rank of sergeant (SGT)/E-5 be restored. 2. The applicant states: a. She believes the record is unjust based on the denial of due process. There were documents missing from her Article 15 packet that were provided to her after the imposition of punishment and after her appeal to the Article 15 was denied. The document in question could have been used in her favor during the proceedings and would have been a determining factor to the election of her rights specifically on the basis of electing a trial by court-martial. b. She strongly feels that receiving evidence after punishment was imposed was in violation of her rights. She was served with all the documents that were going to be considered by her command in reaching a decision. c. Since she didn't have the document in question beforehand, she feels that she was not able to receive proper counsel and she was robbed from being able to properly defend herself. The document in question also would have aided in her defense. Since her defense was to be able to show that she never admitted to using marijuana and that she never intentionally used marijuana, this evidence should have been made available to her. d. She also feels that her command didn't consider the evidence that was available to them or the circumstances around the incident. They also ignored the legal issues that were raised to them by a trial defense attorney. She also feels that the investigation was extremely biased and she was seen as being guilty as soon as her command had knowledge that she had a positive urinalysis. 3. The applicant provides: * Self-authored statement * Certificate of Training, dated 19 September 2013 * DA Form 4856 (Developmental Counseling Form), dated 12 November 2014 * Memorandum, subject: Positive Drug Testing Results, dated 5 November 2014 with drug testing results * DA Form 268 (Record to Suspend Favorable Personnel Actions (FLAG)), dated 13 November 2014 * Criminal Investigation Division (CID) Form 94 (Agent's Investigation Report) * DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated 17 November 2014 * DA Form 2823 (Sworn Statement), dated 17 November 2014 * Memorandum, subject: Polygraph Examination Report, dated 25 November 2014 * Memorandum, subject: CID Report of Investigation - Initial Final (C) - 1250-2014-CID023-75977 - 5M3A/5L2D1 * DA Form 2627, dated 15 January 2015 * Memorandum For Record, subject: Article 15: Specialist (SPC)/E-4 [applicant's name], XXX-XX-XXXX, dated 16 January 2015 * Notes from a Special Agent (SA) that were missing from Article 15 proceedings * Memorandum, subject: Memorandum Regarding Original Packet Served on Trial Defense Service (TDS) in the Article 15 proceeding for SGT [applicant's name], dated 12 February 2015 * Memorandum for Record, subject: Request for Article 15 to be Vacated, dated 11 February 2015 * DA Form 200 (Transmittal Record), dated 18 February 2015 with attachments * DA Form 7096 (Army Substance Abuse Program (ASAP) Outpatient Aftercare Plan), dated 3 March 2015 * Memorandum for Record, subject: Letter of Intent to Separate, dated 3 March 2015 * Invoice for Legal Services, dated 7 May 2015 * Congressional correspondence * DA Form 1559 (Inspector General (IG) Action Request), dated 10 April 2015 * Timeline of Events requested by Department of Army (DA IG) covering the period 27 November 2014 through 31 March 2015 * Letter, dated 23 April 2015, from the Assistant IG, Office of the IG CONSIDERATION OF EVIDENCE: 1. At the time the applicant submitted her application, she was serving on active duty in the rank of SPC/E-4. 2. After having prior service in the Army National Guard, the applicant enlisted in the Regular Army on 24 August 2006. She was promoted to SPC/E-4 on 1 October 2007. 3. Order 300-008 published by the 12th Combat Aviation Brigade on 27 October 2010 shows she was promoted to SGT/E-5 with an effective date and date of rank of 1 November 2010. 4. The applicant provided a Certificate of Training which shows she successfully completed the Army Center for Substance Abuse Programs, Unit Prevention Leader Certification Course on 19 September 2013. 5. The applicant provided a self-authored statement in which she stated: a. On 27 November (sic October) 2014, her unit conducted a random urinalysis and her First Sergeant (1SG) notified her that she had a positive urinalysis. She informed her 1SG that she was not a marijuana user and the only exposure she had was being around her husband who smoked it in her house that weekend. Her 1SG informed her that if the outcome of the investigation coincided with what she was telling him then everything would be alright. b. She was immediately command referred to ASAP where she also informed her ASAP counselor that she didn't abuse any illegal drugs. She later contacted her husband and informed him of the results of the positive urinalysis. Her husband later admitted that he had made marijuana laced brownies so she could relax and unwind. Her husband told her that it was not his intention to get her in trouble. He stated he didn't use a lot of marijuana and didn't think it was a big deal. She informed her husband that she could possibly lose her job and he stated that she should take this chance to get out of the military so she could be a better wife to him. c. On 14 November 2014, she was given another urinalysis test by her unit which came back as negative. She was escorted to the Fort Bragg CID Office where she was questioned by an SA H on why she had tetrahydrocannabinol (THC) in her system. She informed SA H that she didn't knowingly ingest marijuana. Her husband admitted he made marijuana laced brownies and she didn't know that they contained marijuana. SA H asked her to write a sworn statement surrounding the circumstances of the incident and the agent requested her husband's information. d. Her husband was questioned by CID agents. He admitted to them that he made the brownies and that he didn't care about his wife's [applicant] military career. SA H informed her that her husband's side of the story corroborated with her story and that her case would look stronger if she agreed to take a polygraph test in which she agreed to do at that time. e. On 18 November 2014, she spoke with a military lawyer (CPT G) to whom she explained the circumstances of her case. The military lawyer informed her that taking a CID polygraph would not be in her best interest and she should decline it. The military lawyer also informed her that her defense of innocent ingestion is a valid defense. Based on Article 112A of the UCMJ, if a person unknowingly ingests a controlled substance, a person could not be held responsible or found guilty of wrongful use. f. On 19 November 2014, her husband became sympathetic of his action and contacted her chain of command. Her husband spoke to the Brigade Command Sergeant Major (CSM) regarding his actions and how he didn't want to damage his wife's career. The CSM asked the applicant if she ingested marijuana knowingly and she responded "no." She informed the CSM of the circumstances of her marriage. The CSM stated that things could happen and if the investigation comes out that she didn't knowingly use marijuana that she should take it as a lesson and do what she could do to save her career. The CSM, as well as her company 1SG, advised her that she should not undergo the polygraph examination because it wasn't admissible in court. She was advised that even if she was telling the truth the polygraph could still possibly indicate she was not telling the truth. g. On 25 November 2014, she was escorted back to the Fort Bragg CID Office by a staff sergeant (SSG) where she met with an agent who was prepared to have her undergo the polygraph examination. The agent informed her that there was another agent (SA M) who was observing and listening to their conversation in another area. She declined the polygraph and the agent concurred with her decision. The agent explained that he would attempt to try to help her the best way he could, the commanding officer would be viewing the report, and the report had a lot of influence on the command's decision. She informed the agent of the circumstances of her marriage and that she didn't knowingly ingest marijuana. She maintained her innocence over several hours, but it seemed the agent became frustrated and told her that because of her low levels that she had potentially smoked marijuana. h. Since she was a former ASAP leader, she knew a urinalysis didn't indicate how marijuana was put in the body or how much marijuana was ingested. The agent questioned her whether she had smoked anything at all. She stated she had a half-smoked Black and Mild cigar during the argument with her husband. The agent suggested that the Black and Mild cigar could have contained marijuana. Her husband asked if she wanted to smoke with him so she could calm down and relax. The agent asked her if she knew her husband was referring to marijuana and she responded "yes," but she never smoked with him. i. The agent continued questioning her in an attempt to coerce her into admitting that she knowingly smoked marijuana. She maintained that she could never be sure that there was marijuana in the Black and Mild cigar and she wasn't trying to get high at any time. j. She later asked her husband if he had put marijuana in the Black and Mild cigar and he stated that there was none and that he only put marijuana in the brownies. On 9 January 2015, her command told her that she was facing punishment under Article 112A for the wrongful use of a controlled substance and a violation of Article107 for making a false official statement to CID investigators. On 13 November 2015, she was given all the contents of her Article 15 packet and taken to TDS for a review of her packet and legal advice. After reviewing her packet, she noticed that the SA put in his report that she admitted to knowingly using marijuana and the agent made contradicting statements in his report. k. She stated that in her original sworn statement when she first spoke to CID investigators on 17 November 2014 she stated she didn't knowingly use marijuana and she didn't know the brownies were marijuana laced. In the agent's report, she initially admitted to smoking a marijuana laced Black and Mild cigar in which she took three hits. At the end of the report, the agent stated that she maintained she didn't know the brownies were marijuana laced, which contradicts the accusation she made a false official statement. l. She sought counsel from CPT G again who informed her that the conversation with the CID Agent was not recorded and it would be hard to challenge the word of a CID Agent during a court-martial proceeding without a recording or without something physical. CPT G noticed the contradictory statements of the agent and advised her to accept review under Article 15 proceedings, to point out the contradicting statements of the agent, and to request the Article 15 be completely vacated. She tried to get additional evidence to support her defense. She attempted to get the CID report, but without success. On 15 January 2015, she went to see her Battalion Commander for final reading. She pointed out the contradictory statements and requested the Article 15 be vacated due to the fact that she didn't knowingly ingest marijuana. m. The Battalion Commander found her guilty on all specifications. She wrote a letter of appeal to a general officer detailing circumstances of her marriage and of the strain the Army put on her marriage. Additionally, she submitted numerous character statements and awards, but her appeal was denied without any explanation. After her appeal was denied, she spoke with a civilian lawyer who advised her to go back to the Judge Advocate General officer and attempt to get a copy of her Article 15 packet so he could review it and possibly fight the allegations at a separation board. Unlike the first time, she received a copy of the Article 15 packet. n. She noticed that a handwritten page was in her Article 15 packet that was not previously there. The page had written notes of the conversation between her and the agent. She recognized various inconsistencies with the handwritten notes that were an inaccurate representation of what she really said to the agent. She noticed the report included notes where she clarified she never was sure that the Black and Mild cigar contained marijuana and that she never was trying to get high. This evidence would have been vital for her in regards to her defense. This evidence would have given her something to challenge the agent's statements and would have given her confidence to elect a trial by court-martial. o. She returned to TDS after she discovered the new evidence. She explained this new evidence to CPT G who told her that withholding that evidence and that it was missing from original Article 15 packet was in violation of due process. CPT G explained that all available evidence was supposed to be made to the Soldier to be given proper counsel and to be able to properly defend themselves. She was instructed to write a memorandum for record to her command requesting that the Article 15 proceedings be vacated due to a violation of due process. CPT G also wrote a memorandum for submission to her command and she was advised of regulations she could use to present her case to her command again. She was advised to speak with her unit IG Office. p. She also sought a second opinion from another lawyer to whom she explained all the circumstances of her case. The lawyer was eager to take her case because he believed it was a strong case. He also believed that the investigation was biased and that the notes from the agent were intentionally taken out of her packet during the official proceedings. q. On 18 February 2015, she presented the new evidence, the memorandum from the Trial Defense lawyer, other pertinent documents, and herself to her command. She was told by her Brigade CSM that the general officer in her command had already made up his mind about her case and that he didn't have to look at it again. On 1 March 2015, a CSM told her that the general officer was sticking with his original decision and that the command was to continue with separation proceedings against her. r. She successfully completed the ASAP on 3 March 2015 and her counselor informed her 1SG that she had always maintained throughout the program that she didn't knowingly use marijuana. On 5 March 2015, after she consulted with personnel from the GI Rights Hotline, she decided to file a congressional complaint against her unit. On 31 March 2015, she decided to file a DA IG complaint since she didn't receive any results from the congressional. In the DA IG response letter, it was suggested that she petition the Army Board for Correction of Military Records. She noted that her Article 15 proceedings are filed in the performance file of her OMPF and the allied documents in her restricted file which contain everything relevant to her Article 15 but missing the written notes by SA. 6. The applicant provided the following documents: a. A memorandum, subject: Positive Drug Testing Results, dated 5 November 2014, which show that the Commander of 1st Theater Sustainment Command, Fort Bragg, NC was notified that the applicant tested positive for marijuana on 27 October 2014. The memorandum indicated the applicant would be referred to the Fort Bragg Alcohol and Drug Counseling Center for an initial interview. b. DA Form 4856, dated 12 November 2014, which shows she was counseled for testing positive for substance abuse. This form indicated she tested positive for marijuana during a urinalysis conducted on 27 October 2014. c. DA Form 268, which shows she was flagged on 27 October 2014 based on law enforcement investigation (Code M). d. Memorandum, subject; Polygraph Examination Report, dated 25 November 2014, which shows she underwent a criminal investigation for wrongful use and possession of marijuana. The polygraph examiner reported the applicant waived her rights, agreed to be interviewed, and declined to undergo the instrument portion of the polygraph examination. The report cited, in part: [Applicant] admitted that she knowingly smoked marihuana…Upon her return, they continued to argue and [Husband] began to pressure her into smoking marihuana with him…Prior to leaving, [Applicant] grabbed [Husband]'s half smoked Black and Mild cigar from an ashtray and began to smoke it…[Applicant] stated she initially thought it was a regular cigar and took two 'hits' from it…Based upon [Husband]'s reaction to her smoking, [Applicant] assumed the cigar contained marihuana…[Applicant] described at that point she "didn't care" and was "angry" and took one last "hit" from the cigar before throwing it away…[Applicant] maintained she did not know the brownies contained marihuana and terminated the interview when she related she no longer wanted to be questioned. The Polygraph Examiner stated "As no polygrams were collected, no technical opinion could be made regarding the truthfulness of [Applicant]." e. A document, dated 25 November 2014, handwritten notes of an observation of the applicant's interview. The document is not signed. f. Memorandum, subject: Memorandum Regarding Original Packet Served on TDS in the Article 15 proceeding for SGT [applicant's name], dated 12 February 2015, the Defense Counsel requested, based on denial of due process, the applicant's Article proceeding be vacated. g. Memorandum for Record, subject: Request for Article 15 be Vacated, dated 11 February 2015, the applicant requested the Article 15 be vacated for a violation of due process because evidence was withheld that she could have used in her defense. The evidence was presented to her command as part of the Article 15 packet, but was never served on her for use at TDS. She requested that her Article 15 punishment be overturned and that all subsequent actions based upon it be withdrawn. h. Memorandum for Record, subject: Letter of Intent to Separate, dated 3 March 2015, the commanding officer of the 1st Sustainment Command (Theater) stated the applicant was being separated under Chapter 14-12c for commission of a serious offense. i. DA Form 1559, dated 10 April 2015, which shows she submitted an IG Action Request in regard to why valid evidence was not considered during her Article 15 proceedings. j. Letter, dated 23 April 2015, the Assistant IG responded to the applicant's Article 15 appeal process and determined that the appropriate authority to address her concerns is the ABCMR. 7. A DA Form 2627 shows nonjudicial punishment (NJP) was imposed against the applicant on 15 January 2015 for making a false official statement to the CID (violation of Article 107, UCMJ) and for wrongfully using marijuana between on or about 27 September 2014 and 27 October 2014 (violation of Article 112a, UCMJ). 8. The DA Form 2627 shows the applicant was advised of her rights and afforded the opportunity to consult with counsel. a. The applicant did not demand a trial by court-martial. She requested a closed hearing and no person to speak in her behalf. She indicated that matters in defense, mitigation, and/or extenuation were presented and attached. b. On 15 January 2015, in an closed hearing, having considered all matters presented, the imposing authority found the applicant guilty of all specifications. c. The imposing authority directed filing the DA Form 2627 in the performance section of the applicant's OMPF. The following punishment was imposed: Reduction to SPC (E-4), forfeiture of $1,213.00 pay per month for 2 months (1 month pay suspended to be automatically remitted if not vacated before 15 April 2015), extra duty for 45 days (15 days suspended, to be automatically remitted if not vacated before 15 April 2015), and an oral reprimand. She appealed the findings and submitted additional matters. d. The reviewing judge advocate determined the proceedings were conducted in accordance with law and regulation and the punishment imposed was neither unjust nor disproportionate to the offenses committed. Her appeal was denied by the appropriate authority on 29 January 2015. e. Block 10 (Allied Documents and/or Comments) listed all allied documents considered during the Article 15 proceedings, including DA Form 4856, Urinalysis Documents, Enlisted Record Brief, and Flag (DA Form 268). 9. The DA Form 2627 was filed in the performance folder and all allied documents were filed in the restricted folder of the applicant's OMPF. 10. A review of the applicant's military personnel documents in the interactive Personnel Electronic Records Management System does not include a copy of the handwritten document in question. 11. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial. a. Chapter 3 states NJP is imposed to correct misconduct as a result of intentional disregard of or failure to comply with prescribed standards of military conduct in violation of the UCMJ. NJP may be set aside or removed upon a determination that under all the circumstances of the case, a clear injustice has resulted. b. Paragraph 3-2 (Use of NJP) states NJP may be imposed to correct, educate, and reform offenders whom the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier’s record of service from unnecessary stigma by record of court-martial conviction; or to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial. All Article 15 actions, including notification, acknowledgment, imposition, filing determinations, appeal, action on appeal, or any other action taken prior to action being taken on an appeal, except summarized proceedings, are recorded on a DA Form 2627. c. Paragraph 3-6 (Filing Determination) addresses filing of NJP and provides that a commander's decision whether to file a record of NJP in the performance section of a Soldier's OMPF is as important as the decision relating to the imposition of the NJP itself. In making a filing determination, the imposing commander must weigh carefully the interests of the Soldier's career against those of the Army to produce and advance only the most qualified personnel for positions of leadership, trust, and responsibility. In this regard, the imposing commander should consider the Soldier's age, grade, total service (with particular attention to the Soldier's recent performance and past misconduct), and whether the Soldier has more than one record of NJP directed for filing in the restricted section. However, the interests of the Army are compelling when the record of NJP reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, or evidence of serious character deficiency or substantial breach of military discipline. In such cases, the record should be filed in the performance section. d. Paragraph 3-18 (Notification and Explanation of Rights) states, in part, punishment will not be imposed unless the commander is convinced beyond a reasonable doubt that the Soldier committed the offense(s). If the imposing commander decides to impose punishment, ordinarily the commander will announce the punishment to the Soldier. The commander may, if the commander desires to do so, explain to the Soldier why a particular punishment was imposed. e. Paragraph 3-28 (Setting Aside and Restoration) states: (1) This is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored. NJP is "wholly set aside" when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under Article 15. (2) The basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice. "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier. An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier. Clear injustice does not include the fact that the Soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier. (3) Normally, the Soldier's uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment. (4) In cases where administrative error results in incorrect entries on DA Form 2627 or DA Form 2627-1 the appropriate remedy generally is an administrative correction of the form and not a setting aside of the punishment. f. The power to set aside an executed punishment and to mitigate a reduction in grade to a forfeiture of pay, absent unusual circumstances, will be exercised only within 4 months after the punishment has been executed. When a commander sets aside any portion of the punishment, the commander will record the basis for this action according to notes 11 and 12, DA Form 2627; notes 9 and 10, DA Form 2627-1; or DA Form 2627-2 (see paragraph 3-38b). When a commander sets aside any portion of the punishment after 4 months from the date punishment has been executed, a detailed addendum of the unusual circumstances found to exist will be attached to the form containing the set aside action. g. Paragraph 3-37b(2) states that for all other Soldiers, the original will be sent to the appropriate custodian for filing in the OMPF. The decision to file the original DA Form 2627 in the performance section or restricted section of the OMPF will be made by the imposing commander at the time punishment is imposed. The filing decision of the imposing commander is subject to review by superior authority. DISCUSSION AND CONCLUSIONS: 1. The applicant received NJP under Article 15, UCMJ at a closed hearing for making a false official statement to CID and for wrongfully using marijuana between on or about 27 September 2014 and 27 October 2014. 2. The evidence of record confirms the commander administering the Article 15 proceedings determined the applicant committed the offenses in question during a closed Article 15 hearing after considering all the evidence submitted. By law and regulation, before finding a Soldier guilty during Article 15 proceedings, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offenses. The evidence of record confirms the applicant waived her right to a trial by court-martial and opted for a closed Article 15 hearing. 3. The evidence of record does not indicate the applicant's rights were violated during the Article 15 proceedings. 4. The imposing commander directed filing the Article 15, UCMJ in the performance folder of her OMPF. All allied documents related to the Article 15, UCMJ were filed in the restricted folder of her OMPF. 5. The applicant's contention regarding that the record is unjust based on denial of due process is noted. The Army Board for Correction of Military Records (ABCMR) does not normally reexamine issues of guilt or innocence under Article 15 of the UCMJ. This is the imposing commander's function and it will not be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence. The applicant was provided a defense attorney, she was given the right to demand trial by court-martial, and she was afforded the opportunity to appeal the Article 15 through the proper channels. 6. The applicant's service record is void of evidence to substantiate her claim that the handwritten document in question was not among the original documents reviewed in the Article 15 proceedings, though it appears that was the case. However, it appears the content of the agent's handwritten notes were appropriately incorporated into the typed report and thus, based on the evidence of record, it appears the imposing official properly considered all relevant evidence during the closed hearing. Though it appears the handwritten document in question was not among the official documents considered during the Article 15 proceedings and it was not filed in the restricted folder of the applicant's OMPF, the absence of this document does not appear to harm the applicant in any way. 7. After a comprehensive review of the evidence in the applicant's official record, her contentions, arguments, and the evidence submitted in support of her application, there is neither an error nor an injustice and there is no reason to remove the Article 15 or restore her rank. 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) AR20150008621 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150008621 13 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1