BOARD DATE: 23 May 2017 DOCKET NUMBER: AR20160000858 BOARD VOTE: __x_______ _x______ ___x__ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 23 May 2017 DOCKET NUMBER: AR20160000858 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: * removing the DA Form 2627 dated 18 June 2014 from his OMPF * restoring his rank to SGT/E-5 with a date of rank of 1 July 2012 * paying him any back pay and entitlements he is due based on this correction * amending his DD Form 214 to show in: * item 4a/4b - SGT/E-5 * item 12i - 1 July 2012 __________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. BOARD DATE: 23 May 2017 DOCKET NUMBER: AR20160000858 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 a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 18 June 2014, be removed from his official military personnel file (OMPF) and his rank of sergeant (SGT)/E-5 be restored. 2. He states he received an Article 15 and was subsequently discharged with an under honorable conditions (general) discharge on 3 September 2014. However, on 8 July 2015, the Army Discharge Review Board (ADRB) granted his appeal for a discharge upgrade. He explains the Article 15 was the reason he was discharged. The field grade Article 15 reduced him in rank from E-5 to specialist four (SP4)/E-4. He states that given the fact the ADRB found his discharge was improper, it is reasonable to assume the Article 15 and his subsequent reduction were also improper. 3. He provides his self-authored statement and ADRB Case Report and Directive. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 14 April 2009. 2. On 25 June 2012, he was promoted to the rank of SGT/E-5. 3. On 8 May 2014, the battalion commander was notified that the applicant's urine specimen was positive for codeine and morphine. The memorandum states the urine sample was obtained on 16 April 2014. 4. On 14 May 2014, the Medical Review Officer (MRO), Army Substance Abuse Program (ASAP), met with the applicant to discuss his positive urinalysis. He stated the applicant did not have any prescription that would allow changing the form from "illegitimate" use. 5. On 14 June 2014, the unit commander notified the applicant he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, misconduct - abuse of illegal drugs. Specifically, the commander stated the basis for his action was the applicant tested positive for codeine/morphine on or about 16 April 2014. 6. On 18 June 2014, while in the rank/grade of SGT, nonjudicial punishment (NJP) was imposed against him for wrongfully using codeine/morphine on or about 16 April 2014. 7. The NJP shows in: a. Item 3 (Having been afforded the opportunity to consult with counsel and understanding my rights listed above and on page three of this form, my decisions are as follows), the applicant initialed "I do not demand trial by court-martial; A person to speak in my behalf is requested; and matters in defense, extenuation, and/or mitigation will be presented in person." b. Item 4a (In a closed hearing, having considered all matters presented, I hereby make the following finding), the battalion commander initialed "Guilty of All Specifications." His punishment consisted of a reduction to specialist/E-4 and 45 days of extra duty. The commander directed the DA Form 2627 be filed in the restricted section of the applicant's OMPF. The applicant initialed item 5, stating "I appeal and submit additional matters." 8. After considering all matters presented in the appeal, the higher approving authority denied the applicant's appeal 9. On 23 June 2014, the applicant consulted with military counsel. After being advised of the basis for the contemplated separation action and its effects and the rights available to him, he requested representation by counsel and submitted a statement in his own behalf. A copy of the statement is not contained in his OMPF .10. On 25 June 2014, an MRO submitted a second memorandum concerning the applicant's positive urinalysis. He stated he found no evidence of intoxication, doctor shopping, or any drug seeking behavior during his review of the applicant's medical records. He also found no history of positive urinalysis. He adds: a. The applicant does not have a prescription for the medication in question. However, he was seen twice at two different emergency rooms (ER) in the eight days before the drug test. The night before the drug test, 15 April 2014, he was seen at the Madigan ER. On both occasions, he was provided narcotic pain medication during the ER visits. He has another valid prescription for a similar narcotic, oxycodone, from 2 April 2014, after dental work. b. The positive for morphine is likely explained by codeine. Given the number of provider visits and time in two different ERs, the likelihood of pharmacy or clinic error increases in terms of which narcotics were utilized. He saw nothing in the applicant's available medical history that would indicate he has a drug problem. Additionally, an ASAP assessment, dated 10 June 2014, indicates a chief problem of "low risk" and a recommendation for Prime for Life which was completed on 12 and 13 June 2014. c. He does not believe the investigation should be pursued as a criminal matter. He does not believe this was intentional misuse of a controlled substance. The information available to him indicates a high suspicion for medication error given the lack of prior positives and the multiple narcotics administration and prescriptions in the two weeks prior to the urinalysis. 11. On an unknown date, the separation authority approved the recommendation for discharge under the provisions of AR 635-200, paragraph 14-12c(2), for misconduct – abuse of illegal drugs and directed the issuance of a general discharge under honorable conditions. 12. On 3 September 2014, he was discharged under the provisions of AR 635-200, paragraph 14-12c(2), misconduct (drug abuse) with a characterization of service listed as under honorable conditions, general. His DD Form 214 shows he completed 5 years, 4 months, and 20 days of active service. It also shows in: * Item 4a/4b (Grade/Rate or Rank/Pay Grade) - SPC/E-4 * Item 12i (Effective Date of Pay Grade) - 18 June 2014 13. On 12 September 2014, the applicant appealed to the ADRB to upgrade his discharge. The board found the circumstances surrounding the discharge mitigated the discrediting entry in the applicant's service record (there was not a preponderance of evidence to support the applicant illegally used drugs based on the MRO's memorandum). Accordingly, the ADRB granted relief in the form of an upgrade of the characterization of service to honorable and a change to the narrative reason to Secretarial Authority. Additionally, his reentry eligibility code was changed from "4" to "1." REFERENCES: Army Regulation 600-37 (Unfavorable Information) establishes policies and procedures whereby a person may seek removal of unfavorable information from official personnel files. The regulation also ensures that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in the individual’s OMPF. The regulation states that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. Claims that an Article 15 is unjust will be adjudicated by the Army Board for Correction of Military Records (ABCMR). DISCUSSION: 1. The applicant argues, in effect, that the DA Form 2627 in his record should be removed based on ADRB's decision to upgrade his discharge from general to honorable. 2. The evidence of record shows on 18 June 2014, while in the rank/grade of SGT/E-5, NJP was imposed against him for wrongfully using codeine/morphine on or about 16 April 2014. He was reduced from E-5 to E-4. The applicant appealed the NJP, but his appeal was denied. 3. On 25 June 2014, a MRO submitted a second memorandum concerning the applicant's positive urinalysis. He stated the information available to him indicates a high suspicion for medication error given the lack of prior positives and the multiple narcotics administration and prescriptions in the two weeks prior to the urinalysis. He further states he does not believe the investigation should be pursued as a criminal matter and he does not believe the misuse of a controlled substance was intentional. 4. Based on the MRO's memorandum, the ADRB granted relief and upgraded the applicant's discharge to honorable. 5. As specified in Army Regulation 600-37, in order to remove a document from the OMPF, there must be clear and convincing evidence showing the document is untrue or unjust. It appears that the memorandum from the MRO, dated 25 June 2014, may meet that requirement. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000858 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000858 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2