ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 November 2019 DOCKET NUMBER: AR20190011553 APPLICANT REQUESTS: removal of the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 17 August 2017, from his Army Military Human Resource Record (AMHRR). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Memorandum, U.S. Army Trial Defense Service, Fort Riley, KS, dated 20 June 2017, subject: Field Grade Article 15 (Applicant) * Indictment, U.S. District Court, dated 7 March 2019 * Letter, Office of the Staff Judge Advocate, Headquarters, 1st Infantry Division and Fort Riley, KS, dated 5 August 2019 * Memorandum, U.S. Army Garrison, Fort Riley, KS, dated 30 July 2019, subject: Appeal – Notification of Denial of Continued Active Duty Service under the Qualitative Management Program (QMP) (Applicant) * Memorandum, U.S. Army Garrison, Fort Riley, KS, dated 10 August 2019, subject: Character Reference in Appeal to (Applicant's) Denial for Continued Service under QMP FACTS: 1. The applicant states that after reviewing his Article 15 offenses with Fort Riley counsel, the offenses would have been dismissed if the following information was available at the time of the proceedings: * the supplements he was and had been taking for over a year were tainted with steroids by Blackstone Labs unbeknown to him * Blackstone Labs is currently being prosecuted in Federal court on numerous charges for illegally adding steroids and harmful ingredients to their supplements without warning customers * ingestion of steroids could not have been known at the time he was taking the supplements * an accidental ingestion letter was sent by Trial Defense Service lawyers, recommending a finding of not guilty of the Article 15 offenses, but it was never considered during the proceedings * he would have not been found at fault with the information known now 2. The applicant's counsel states: * the presence of the DA Form 2627 in the applicant's AMHRR led to his consideration for denial of continued service by the QMP Selection Board * the applicant has always maintained he never knowingly took steroids * several of the supplements he was taking at the time he tested positive for steroids were manufactured by Blackstone Labs, a company which was considered to be a legitimate supplement provider at the time * several employees of Blackstone Labs are now under indictment for, among other crimes, adding steroids to several of the supplements sold by the company without the knowledge of consumers * his opinion, if the information revealed by this indictment had been known at the time the applicant received nonjudicial punishment under Article 15, he would have been significantly less likely to have received the punishment 3. The applicant was serving in the Regular Army in the rank/grade of sergeant first class/E-7 at the time he came under investigation for possible illegal steroid use while deployed to Camp Buehring, Kuwait. 4. The U.S. Army Criminal Investigation Command investigation contains: a. a sworn statement from First Lieutenant L____, dated 26 May 2016, wherein he states, "After gunnery in the end of March or the beginning of April, I first learned that [Applicant] was taking trenbolone [a steroid used on livestock to increase muscle growth and appetite], which is a steroid. We were roommates at the time he approached me"; and b. the applicant's sworn statement, dated 31 May 2016, wherein he states, "I work out every day for a minimum of two hours, I have lifted weights all my life, I use supplements[,] I take protein daily, use minimum of two test[osterone] boosters[,] currently [F]lex and xpgym, [Dr. J]ekyll [P]ump, [A]nimal [P]ak, and vitamin D." 5. He was awarded the Army Commendation Medal on 1 July 2016 for outstanding service during Operation Spartan Shield in Kuwait from 7 December 2015 to 6 July 2016. 6. His noncommissioned officer (NCO) evaluation report (NCOER) covering the period 14 August 2015 through 12 August 2016 shows:? a. His rater rated his overall performance as "FAR EXCEEDED STANDARDS" and commented: * "rate number one of three Platoon Sergeants I have rated" * "developed his Soldiers, both as individuals and as a mission ready team" * "keep with troops, our Soldiers deserve his leadership" b. His senior rater rated his overall potential as "QUALIFIED" and commented: "[Applicant] ranks #4 of 4 Sergeants First Class I senior rate. A capable NCO, but requires further development before leading at the next level. Continue to challenge in demanding positions. Send to Master Leader's Course when available." 7. On 23 January 2017, the applicant received developmental counseling from his commander, recommending UCMJ action and potential separation from Army service. a. The key points of the discussion were stated as: (1) The applicant failed to adhere to simple regulations, instructions, and orders. He tested positive for steroids when tested on 20 June 2016. He was flagged for adverse action and recommended for field-grade nonjudicial punishment under Article 15 and potential separation from the service if found guilty. He was not fully eligible for favorable actions such as awards and promotions. (2) He was command referred to the Army Substance Abuse Program. b. He disagreed with the information and stated: "have not used an illegal steroid knowingly." 8. The U.S. Army Criminal Investigation Command Law Enforcement Report, dated 21 February 2017, shows: a. The applicant was suspected of wrongful use of steroids. b. The Camp Buehring Criminal Investigation Command Office was notified by a company commander who reported Soldiers in his unit were suspected of using steroids. c. Probable cause urinalyses were conducted, but unknown person(s) gained access to the unit's Conex (storage container) on 29 May 2016 and removed the urine specimens. A second set of urine specimens were obtained and submitted for testing for the presence of steroids, which resulted in positive results for the applicant. d. On 8 January 2017, Trial Counsel, Staff Judge Advocate, Fort Riley, KS, opined probable cause existed to believe the applicant committed the offense of wrongful use of a controlled substance. e. On 27 January 2017, the applicant invoked his right to remain silent. 9. His NCOER covering the period 13 August 2016 through 12 August 2017 shows: a. His rater rated his overall performance as "EXCEEDED STANDARD" and commented: * "number one of three Sergeants First Class that I rate" * "consistently demonstrated the capability to manage complex tasks and perform above expectations" b. His senior rater rated his overall potential as "HIGHLY QUALIFIED" and commented: "(Applicant) is the number two Sergeant First Class that I senior rate. He has the potential to successfully lead a company of Infantrymen in any situation. He excels in uncertain situations with minimal guidance. Select ahead of peers for promotion, Master Leader Course, and positions of increased responsibility." 10. On 19 June 2017, the applicant's commander initiated nonjudicial punishment under Article 15 against him for: a. making an official statement to Special Agent W____ on or about 31 May 2016 at or near Camp Buehring, Kuwait, with intent to deceive, to wit: that "you do not take steroids," and that "you had no steroids other than the prescription steroids in your possession," or words to that effect, which statement was totally false and was then known by him to be so false; and b. for wrongfully using steroids between on or about 18 May 2016 and on or about 18 June 2016. 11. On 20 June 2017, the applicant's counsel requested a finding of not guilty of the alleged misconduct against the applicant. His counsel stated the applicant disputes that he knowingly used steroids or any other illegal substances. The applicant is a former collegiate football player and has maintained a rigorous weightlifting routine throughout his life. The specific supplements he took during that time are outlined in his rebuttal matters. All of the supplements were purchased legally from stores authorized to sell legitimate products aimed at improving athletic performance. At no point did the applicant use any substances he believed were illegal or that he believed contained steroids. The evidence in the applicant's rebuttal matters raise far more than a reasonable doubt as to his knowing use of steroids.? 12. On 17 August 2017 after having been afforded the opportunity to consult with counsel, the applicant elected not to demand a trial by court-martial. a. He requested a closed hearing, a person to speak on his behalf, and to attach matters in defense, extenuation, or mitigation. b. His records do not contain documentation of matters in defense, extenuation, or mitigation. c. In a closed hearing, having considered all matters presented, the imposing authority found the applicant guilty of all specifications. d. The imposing authority directed filing the original DA Form 2627 in the performance folder of the applicant's AMHRR. e. The applicant elected not to appeal the nonjudicial punishment. 13. His NCOER covering the period 13 August 2017 through 12 August 2018 shows: a. His rater rated his overall performance as "EXCEEDED STANDARD" and commented: * "refused to ever accept anything other than the absolute best performance from himself and everyone around him" * "elevated the performance of those around him; absolute model NCO" * "conducted himself in such a manner that left no doubt about his professionalism, integrity, or honor" b. His senior rater rated his overall potential as "MOST QUALIFIED" and commented: "(Applicant) is the top one out of three Sergeants First Class that I currently senior rate and in the top 5% of NCOs that I have ever served with. (Applicant possesses enormous potential in the United States Army. This Soldier is ready to serve as a First Sergeant now. Promote to MSG [master sergeant] and send to MLC [Master Leader Course] immediately." 14. He was awarded the Army Good Conduct Medal (5th Award) on 16 November 2018 for exemplary behavior, efficiency, and fidelity in the federal military service during the period 6 November 2015 to 5 November 2018. 15. The applicant provided an indictment by the U.S. District Court, dated 7 March 2019, showing corporate defendants Blackstone Labs and Ventech Labs were indicted for illegal products of Super DMZ RX 2.0 and Angel Dust. Blackstone Labs and Ventech Labs were charged with the following counts:? * conspiracy to defraud the lawful functions of the U.S. Food and Drug Administration's oversight of food, drugs, and dietary supplements * introduction of unapproved new drug (Super DMZ RX 2.0) into interstate commerce * conspiracy to distribute controlled substances (anabolic steroids trendione, halodrol, epistane, methylstenbolone, dimethazine, and methyl-1-etiocholenolol) * distribution of controlled substances (dimethazine and methylstenbolone) * possession with intent to distribute a controlled substance (dimethazine) * money laundering 16. The applicant's AMHRR does not contain and he did not provide his notification of denial of continued active duty service under the QMP. 17. On 30 July 2019, the applicant appealed his notification of denial of continued active duty service under the QMP, wherein he stated: * the Army Board for Correction of Military Records has not had a sufficient amount of time to review and potentially remove the adverse document that is the basis for the QMP decision from his AMHRR * his performance has substantially improved since the incident which led to the offenses under Article 15 on which the QMP decision was based 18. The applicant provided a character reference memorandum from Colonel S____, Commander, U.S. Army Garrison, Fort Riley, KS, dated 10 August 2019, wherein he stated: * he strongly endorses the applicant for continued service on active duty * the applicant's outstanding performance to his unit and the U.S. Army has been highlighted by all commands he has served * his consistent work ethic and demonstration of the Army Values is shown daily * his contributions as a leader have been exceptional to the Soldiers of Fort Riley * the applicant claims most of the products he used came from Blackstone Labs during the time of the incident related to his nonjudicial punishment under Article 15 19. The applicant provided no evidence showing the strength enhancement supplements he was taking were produced by Blackstone Labs. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief is not warranted. 2. No evidence was presented to prove that the applicant was taking suppliments produced by Blackstone Labs. 3. The applicant admitted to his roommate, an Army First Lieutenant, that he was taking steroids. The First Lieutenant provided sworn statement that, “After gunnery in the end of March or the beginning of April, I first learned that [applicant] was taking trenbolone [a steroid used on livestock to increase muscle growth and appetite], which is a steroid. We were roommates at the time he approached me.” ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. REFERENCES: 1. 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. Chapter 3 implements and amplifies Article 15 of the UCMJ. a. Paragraph 3-4 (Personal Exercise of Discretion) states a commander will personally exercise discretion in the nonjudicial punishment process by: (1) evaluating the case to determine whether proceedings under Article 15 should be initiated; (2) determining whether the Soldier committed the offense(s) where Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial; and (3) determining the amount and nature of any punishment, if punishment is appropriate. b. Paragraph 3-6 (Filing Determination) states a commander's decision whether to file a record of nonjudicial punishment in the performance folder of a Soldier's AMHRR is as important as the decision on whether to impose nonjudicial punishment itself. c. Paragraph 3-37 (Distribution and Filing of DA Form 2627 and Allied Documents) states the original DA Form 2627 will be filed in the Soldier's AMHRR. The decision to file the original DA Form 2627 in the performance folder or the restricted folder in the AMHRR will be made by the imposing commander at the time punishment is imposed. 2. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to ensure the best interests of both the Army and Soldiers are served by authorizing unfavorable information to be placed in, transferred within, or removed from an individual's AMHRR. Unfavorable information will not be filed in the AMHRR unless the recipient has been given the opportunity to review the documentation that serves as the basis for the proposed filing and a reasonable amount of time to make a written statement in response. 3. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes policies governing the Army Military Human Resource Records Management Program. The AMHRR includes, but is not limited to, the Official Military Personnel File (OMPF), finance related documents, and non-service related documents deemed necessary to store by the Army. a. Paragraph 3-6 states that once a document is properly filed in the AMHRR, the document will not be removed from the record unless directed by the ABCMR or other authorized agency. b. Appendix B states the original DA Form 2627 will be sent to the appropriate custodian for filing in the OMPF. The decision to file the original DA Form 2627 in the performance folder or the restricted folder in 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 any superior authority. However, the superior authority cannot direct that a report be filed in the performance folder that the imposing commander directed to be filed in the restricted folder. Records of nonjudicial punishment presently filed in either the performance or restricted folder of the OMPF will remain so filed, subject to other applicable regulations. 4. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. a. Chapter 19 (Qualitative Management Program) contains policies and procedures for voluntary and involuntary separation, for the convenience of the Government, of Regular Army NCOs under the QMP. NCOs whose performance, conduct, and/or potential for advancement do not meet Army standards, as determined by the approved recommendations of Headquarters, Department of the Army, centralized selection boards responsible for QMP screening, will be denied continued service. b. Paragraph 19-11 (Appeal Provisions) states a Soldier denied continued service under the QMP may appeal the determination and request retention on active duty on the basis of improved performance and/or presence of material error in the Soldier's record when reviewed by the selection board. A Soldier may submit only one appeal and requests for reconsideration of denied appeals are not authorized. The mere fact that a Soldier's performance has improved or that the Soldier's file contains material error is not necessarily sufficient to overcome the reason for QMP selection. The appeal board may determine the reason for the QMP selection still applies, even in light of the improved performance or correction of an error. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190011553 8 1