RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-02685
		INDEX CODE:  A60.00

		COUNSEL:  NONE

		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His general discharge be upgraded to honorable.

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APPLICANT CONTENDS THAT:

Human error may have been the cause of his positive drug test.

There was a problem with his original specimen bottle that resulted in the use of another specimen bottle.  The problem arose because he mistakenly washed his hands and caused some excess water to be on the outside of the bottle.  This caused smearing on the label and the urinalysis program personnel to use another bottle and to create by hand a new label for his bottle.

His urine sample may have been contaminated during the Brooks Air Force Base (AFB) Laboratory testing procedures.

His positive urine test may have been an unintentional mistake caused by the Brooks AFB Laboratory recording procedures or transcription of the testing results.

In support of his appeal, the applicant provided an expanded statement, extracts from his military personnel records, documentation pertaining to his urinalysis testing and results, and copies of the unit urinalysis ledgers.

Applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant’s available military personnel records indicate that he enlisted in the New York Air National Guard and as a Reserve of the Air Force on 14 Jun 97.

On 21 Apr 01, the applicant submitted to a random urinalysis drug test at the 107th Air Refueling Wing (107 ARW), Niagara Falls Air Reserve Station.  The results of the applicant’s urinalysis evidenced positive marijuana use.  

On 11 Aug 01, the applicant’s commander notified him that he was recommending that the applicant be separated from the Air National Guard and as a Reserve of the Air Force.  The reason for the action was drug abuse, as evidenced by a positive urinalysis result.  The applicant was advised of his rights in the matter and that a general discharge would be recommended.  The applicant acknowledged receipt of the notification, consulted military counsel, and submitted statements for consideration.  

On 9 Feb 02, the Staff Judge Advocate, 107 ARW, found the discharge case file to be legally sufficient and recommended that the discharge package be forwarded to Headquarters, New York Air National Guard (HQ NYANG) for further action.

On 8 Mar 02, the Staff Judge Advocate, HQ NYANG, reviewed the discharge case file and found it to be legally sufficient.

The applicant was discharged from the Air National Guard and as a Reserve of the Air Force on 21 Mar 02 under the provisions of AFI 36-3209 (Misconduct) and furnished a general discharge.  He was credited with 4 years, 9 months, and 8 days of service.

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AIR FORCE EVALUATION:

ANG/DPFP recommended denial indicating that they contacted the state of New York and the National Guard Bureau’s Counterdrug Office for information regarding the applicant’s discharge, and for information regarding standard urinalysis processing procedures at the Brooks AFB Laboratory.  The state of New York provided information relevant to the chain of custody issue.  In a statement made on AF Form 1168, Statement of Suspect/Witness/Complainant, the member who served as the urinalysis monitor on 21 Apr 01 made reference to applicant’s scenario.  The monitor’s account of what took place on 21 Apr 2001 is contrary to the applicant’s statement.  The monitor stated that the person providing the specimen urinated on the label.  The applicant stated that he spilled water on the label while washing his hands.

According to ANG/DPFP, the National Guard Bureau’s Counterdrug Office commented on the chain of custody issue and stated that the practice of switching specimen bottles “is not a typical practice,” however, given the set of circumstances, it was reasonable as long as the member providing the specimen witnessed the transfer and the chain of custody was maintained.  In his statement, the applicant acknowledged that this was handled appropriately.

AFPC/DPFP noted that in his statement, the applicant questioned the procedures at the Air Force Drug Testing Laboratory.  He alleged that a problem at the lab might have accounted for his positive drug result.  The National Guard Bureau’s Counterdrug Office indicated that this was not likely.  The applicant also raised the question of whether a drug in the specimen processed directly ahead of his could have been carried over and transferred to his specimen.  According to the National Guard Bureau's Counterdrug Office, a positive test result is only reported after a member’s original urine sample has been tested and resulted in a positive test on three separate tests:  screen, re-screen, and confirmation testing.  During the re-screen, water blanks are inserted between samples to eliminate any chance of carryover.

Additionally, the National Guard Bureau’s Counterdrug Office made the following statements concerning the applicant’s case. “M---’s testing results were typical for an occasional/recreational user of marijuana rather than a chronic or heavy user.  The confirmed level of use was relatively low.  Negative results on 25 Apr 01 and 5 May 01 were not surprising since the member had recently been subjected to urinalysis testing and had several days to continue flushing the drug out of his body by drinking fluids.  Testing conducted by the civilian laboratory, Associated Pathologists Laboratory (APL) with hair, urine, and blood specimens were not relevant.  It was unlikely that the laboratory followed chain of custody procedures and did not collect the specimens in accordance with standard forensic procedures.  Hair testing was not a significant indicator of drug use for an occasional user, but a better predictor for the heavy or regular user.  Urine testing is the only established and recognized method of testing military members at this time.”

In ANG/DPFP's view, it was unfortunate that the applicant tested positive for marijuana use.  However, after testing positive, he received a letter of notification from his commander, which outlined all information, and notification rights required by AFI 36-3209, including that the commander’s recommendation would result in general discharge (under honorable conditions) for drug abuse in accordance with AFI 36-3209, paragraph 3.21.3.2.  The applicant submitted written acknowledgement of receipt of the letter of notification and his specific understanding that approval of the commander’s recommendation would result in a general (under honorable conditions) discharge.

A complete copy of the ANG/DPFP evaluation is at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to applicant on 31 Jan 03 for review and response.  As of this date, no response has been received by this office (Exhibit C).

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  The applicant's complete submission was thoroughly reviewed, and his contentions were duly noted.  However, we do not find the applicant’s assertions and the documentation presented in support of his appeal sufficiently persuasive to override the rationale provided by the Air Force office of primary responsibility (OPR).  The evidence of record reveals that the applicant was involuntarily discharged from the Air National Guard and as a Reserve of the Air Force for misconduct as a result a positive urinalysis test for marijuana.  No evidence has presented which has shown to our satisfaction that the applicant’s separation was improper or contrary to the prevailing Air Force instruction.  Therefore, in the absence of sufficient evidence that the applicant’s substantial rights were violated, the information used as a basis for his discharge was erroneous, or that his superiors abused their discretionary authority, we adopt the Air Force rationale and conclude that no basis exists to recommend granting the relief sought in this application.

4.  The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered AFBCMR Docket Number 02-02685 in Executive Session on 25 Mar 03, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 17 Aug 02, w/atchs.
    Exhibit B.  Letter, ANG/DPFP, dated 10 Jan 03, w/atchs.
    Exhibit C.  Letter, SAF/MRBR, dated 31 Jan 03.