RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2006-00128
		INDEX CODE: 104.00
		COUNSEL:  XXXXXXXXXX

		HEARING DESIRED:  No

MANDATORY CASE COMPLETION DATE:  14 Jul 07

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APPLICANT REQUESTS THAT:

All references to misconduct as the basis for his separation from the USAF Academy (USAFA), general discharge characterization, and requirement to reimburse the government $108,254 be removed from all Air Force records.

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APPLICANT CONTENDS THAT:

Counsel asserts the decision to discharge the applicant was unjust, capricious and unreasonable in light of the fact that an agent of the AF Office of Special Investigations (AFOSI) fraudulently obtained a forensic analysis of the applicant’s hair by forging his initials on a certification in the hair sample collection documents.  Further, the laboratory reporting the positive outcome for illegal drugs failed to follow proper forensic protocols in conducting and reporting the analysis, making the results of the testing suspect.  The only effective and just way to insure the Air Force does not repeat this fraudulent conduct is by clearing the applicant’s record.

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

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STATEMENT OF FACTS:

The following information was extracted from official documents provided by counsel (Exhibit A); and from the AFOSI Reports of Investigation (ROIs) with exhibits, the disenrollment hearing transcript, the Hearing Officer’s (HO) Hearing Report, and related documents (Exhibit B).

During the period in question, the applicant was a Cadet 2nd Class (C2C) at the USAFA.

On 19 Feb 02, Cadet 1st Class (C1C) XXXXXXXXXXXXXXXXXX, who was eventually convicted by a general court-martial (GCM) on other charges, was granted testimonial immunity by the Academy Superintendent (USAFA/CC) and ordered to answer any questions by investigators and counsel and to testify at any administrative/Uniform Code of Military Justice (UCMJ) proceedings concerning any offenses “allegedly committed by other USAFA cadets” (including the applicant).

In a 20 Feb 02 signed, sworn statement to the AFOSI, C1C XXXXXXXXXXXXXXXXXX reported that the applicant had used illegal narcotics approximately 30-40 times; he had personally seen the applicant use Ketamine, Ecstasy, and LSD on 5-10 occasions; and had last used Cocaine with the applicant during the week of finals     (16-20 Dec 01).

On 22 Feb 02, a C2C XXXXXXXXXXXXXXXXXX stated that sometime between Feb and May 01, the applicant had mentioned using Ecstasy; that between Nov-Dec 01, he had seen the applicant with a white pill in their dormitory room; and that the applicant confided to him that it was a Codeine pill.  At the time, the applicant had been injured playing football.

A former cadet and the applicant’s girlfriend also were interviewed by AFOSI but indicated they were not aware of the applicant being involved with illegal narcotics.

On 25 Feb 02, the applicant requested legal counsel, did not answer questions but did consent to search and seizure of his dormitory room, vehicle, urine, and hair for controlled substance use.  No items of evidentiary value were found in his room or car.  He was escorted to the USAFA Emergency Room for collection of his urine (which tested negative) and hair samples, which were released to the AFOSI evidence custodian.  [The circumstances of the hair collection procedure used were not clear.]

On 26 Feb 02, AFOSI contacted the US Army Criminal Investigations Laboratory (USACIL) to analyze the applicant’s hair sample; however, USACIL would not be able to process the hair sample.  From 4-8 Mar 02, the AFOSI contacted several laboratories regarding hair analysis for drug screening and Psychemedics (a leading private hair testing laboratory used by corporations, police, schools, Federal Reserve Banks) was considered the most reputable and cost-efficient.  Psychemedics requested a new sample be obtained from the applicant according to their procedures.

On 11 Mar 02, the applicant was escorted by his Air Officer Commanding (AOC) to the USAFA Cadet Clinic, where a hair sample was obtained by a doctor, who placed the sample in an envelope  and sealed the plastic bag (both provided by Psychemedics).  The sealed bag was provided to AFOSI Special Agent (SA) XXXXXXXXXXXXXXXXXX, who attached an evidence tag to the plastic bag.  The sample was stored in the AFOSI’s evidence room.  The doctor had advised that the applicant had shaved his head, arms, and legs so he obtained the hair from the applicant’s underarms and chest area.  The doctor was concerned he may not have collected enough for a hair sample.  The doctor related the applicant had told him he shaved all of his body hair because he used a lot of tape to tape his baseball injuries, and that he had sent a sample to Psychemedics on his own (after 25 Feb 02).  [Several witnesses would testify that the applicant routinely shaved his body hair for both football and baseball.]  On 12 Mar 02, the applicant’s hair sample was double wrapped and sent via registered mail to Psychemedics.  

On 14 Mar 02, Psychemedics contacted AFOSI, relating that the “March” hair sample tested negative and that there was not enough hair to provide conclusive results.  [It appears one or more phone conversations occurred between the AFOSI and Psychemedics during which the AFOSI informed Psychemedics that they had credible evidence of the applicant’s drug use and requested the lab to test another hair sample down to their limits of detection, below their administrative cutoff.] 

On 2 Apr 02, under the direction and observation of AFOSI SA XXXXXXXXXXXXXXXXXX, SA XXXXXXXXXXXXXXXXXX placed a portion of the applicant’s hair sample [from 25 Feb 02] into the envelope provided by Psychemedics and initialed the envelope [with the applicant’s first and last initials--the applicant did not initial any of this paperwork].  [The obscured certification represented to Psychemedics that the applicant had agreed the sample was his, he had witnessed the sample being placed in the envelope, he had consented to the testing, and he had released the company from liability arising from the results.  Further, SA XXXXXXXXXXXXXXXXXX did not sign her own name as the “collector” on the Chain of Custody (COC) form.] 

The sample was mailed to the lab on 3 Apr 02 and arrived there on 9 Apr 02.  On 16 Apr 02, Psychemedics’ results reported that Cocaine was found to be present at the level of 0.8ng/10mg.  Psychemedics’ cutoff for positive Cocaine samples was 5ng/10mg.  Although the drug was confirmed as present in the sample, Psychemedics indicated such a low level could not be definitively established as use.  Further results were negative for Opiates, Phencyclidine (PCP), Amphetamines, and Marijuana (Psychemedics’ cutoff for this drug was 2ng/gm).  The sample had a .34ng/10mg level of Ecstasy; Psychemedics’ cutoff for this drug was 5ng/10mg.  

On 22 Apr 02, the applicant’s current counsel was retained to represent him.  Around this time period, an HO was appointed in the applicant’s case to ensure evidence was thoroughly and impartially examined, a full and fair disenrollment hearing was held, and adequate safeguards for the truth were applied.  The HO was to conduct the hearing in a non-adversarial way.  

On 4 Jun 02, the Commandant of Cadets notified the applicant that action was being taken to discharge him from cadet status with a general characterization of service for:  wrongful use of Ecstasy between, on or about 1 Feb 01 and 25 Feb 02; wrongful possession of Codeine between, on or about 1 Nov 01 and 1 Jan 01 [sic]; wrongful possession of Codeine between, on or about 1 Dec 01 and 25 Feb 02.  The applicant was advised he was entitled to use military counsel, as well as civilian counsel at his own expense; however, neither counsel would be permitted to attend the disenrollment hearing.  After consulting counsel, the applicant did not waive his rights to counsel, to a hearing before an HO, or to submit statements.  He did not request a medical exam.  

On 12 Jun 02, the applicant signed his understanding that the government had the option of requiring him to serve on active duty for the period specified in his agreement or electing him to repay the government the total monetary cost of his advanced education.

On 24 Jun 02, the HO notified the applicant that the hearing was scheduled for 19 Jul 02, and advised him of his rights.  However, in order to allow the applicant’s counsel sufficient time to obtain his own experts’ review, the hearing was rescheduled to 26 Jul 02.

An affidavit regarding the hair sample analysis was provided from the senior scientist at Psychemedics on 11 Jul 02.  The scientist opined that with regard to the Cocaine, the confirmed levels of drugs could be reflective of either a low level or one-time ingestion of the drugs, ingestion just prior to the time or at the end of the time encompassed by the length of the hair, or passive exposure or environmental contamination of the hair.  He drew the same conclusions as to the Ecstasy, except with regard to passive exposure.  He also opined that the hair analysis results were forensically unsound and indefensible as stand-alone evidence, but could be used as “corroboration” if there was other “credible” evidence to support wrongful and knowing use of illicit drugs.

According to her 24 Jul 02 affidavit, SA XXXXXXXXXXXXXXXXXX indicated that, since this was the first time she had used the COC form, she understood it would be the applicant’s initials because that was from whom AFOSI obtained it.  This envelope was placed inside a plastic bag provided by Psychemedics, which was sealed, initialed [with the applicant’s initials], and dated 2 Apr 02.  SA XXXXXXXXXXXXXXXXXX contended it was her understanding that the applicant’s initials were placed because he was the “Test Subject.”  The plastic bag and accompanying paperwork was double sealed and placed in the AFOSI evidence room until it could be mailed.  According  to  SA XXXXXXXXXXXXXXXXXX, an evidence tag was made to show that a portion of the original hair sample was separated from it to send to the lab.  Finally, on 3 Apr 02, the applicant’s hair sample was double wrapped and sent via registered mail to Psychemedics per AFOSI instructions to Psychemedics.  

On 26 Jul 02, the applicant’s counsel advised the HO that, based on the discovery that an AFOSI agent had apparently forged his client’s initials on the COC documents that are part of the litigation package given him the week before, more investigative work was required.  He asserted his client was not capable of cross-examining AFOSI agents on COC issues, and he would be interviewing the AFOSI agent who provided the affidavit as well as possible witnesses at Psychemedics.   

On 2 Aug 02, the HO advised the applicant that the hearing would be rescheduled to 7 Aug 02 because his counsel’s expert witness would not be available until then.

In a 6 Aug 02 letter to the HO, counsel contended that due process was being denied because the applicant was required to defend himself without an attorney present.  Therefore, counsel wanted to point out a number of issues for the HO to consider before making factual findings.  The AFOSI never interviewed the doctor who prescribed Codeine for the applicant in Sep, Oct, and Nov 01 during the football season.  The AFOSI agent’s admission that she illegally forged his client’s initials on the Psychemedics COC documents, certifying he provided the hair sample, and falsely signed her name as the sample collector undermines the credibility of the entire COC.  Counsel contended a close reading of the AFOSI file suggested there may have been collusion with Psychemedics “. . . to perpetuate this fraud. . . . It was only after the second sample came back negative that someone devised a scheme to send the first sample in using falsified Psychemedics forms.  In light of the fact that the results were not reported as strictly negative because the cutoffs were not met, it is reasonable to conclude that discussions were taking place about how to ‘report’ the results in apparent violation of Psychemedics own policies.”  There was no assurance the applicant’s hair was that hair that was tested.  Cadet XXXXXXXXXXXXXXXXXX’s immunity and conviction make his allegations suspect and witnesses would testify that he made statements reflecting a desire to discredit the applicant.  Counsel opined that, given the poor investigation conducted by AFOSI agents and their illegal actions, the case should be withdrawn and further disenrollment action terminated. 

The disenrollment hearing was held 7 and 8 Aug 02.  On 23 Aug 02, the HO rendered her Hearing Report. She agreed with the Psychemedics scientist that the hair analysis test results could not stand alone, that they were below the cutoff, and the government failed miserably to comply with any aspects of Psychemedics’ procedures or other relevant standards in the industry regarding how hair analysis samples are to be collected and transmitted.  Psychemedics also deviated significantly from the standard of care in the industry and from its own norms.  Accordingly, she gave the hair results little weight in her analysis, but did not dismiss them out of hand.  She gave great weight to Cadet XXXXXXXXXXXXXXXXXX’s testimony but little weight to Cadet XXXXXXXXXXXXXXXXXX’s.  The applicant was legitimately prescribed Codeine for his football injuries; therefore, his possession of this drug was not wrongful.  With regard to Cocaine, again the hair analysis could not stand alone but she found Cadet XXXXXXXXXXXXXXXXXX credible.  The HO noted counsel’s objection to the administrative disenrollment process with regard to denial of due process for the applicant to defend himself without an attorney present.  She did not address the substantive merits of this argument as it was beyond the scope of her duties as HO.  She found, by a preponderance of the evidence, that the applicant wrongfully used Cocaine and Ecstasy during the charged timeframes.

HQ USAFA/JA rendered a legal review on 6 Sep 02, finding that the applicant received all the due process afforded by AFI 36-2020.  The Staff Judge Advocate (SJA) indicated that, although the AFOSI’s handling of the hair sample was woefully deficient, the applicant’s own expert witness stated that the analysis could be used to corroborate other credible evidence.  The SJA was satisfied that the evidence supported the HO’s findings and recommended the USAFA/CC forward the case to the Secretary of the Air Force (SAF) with a recommendation for disenrollment, a general discharge, and recoupment.

On 18 Dec 02, the SAF Designee (Director, Air Force Review Boards Agency) directed the applicant’s separation from cadet status with a general discharge.  

On 31 Dec 02, HQ USAFA/JA advised the applicant that they were proceeding to establish his debt ($108,254) with the Defense Finance and Accounting Service (DFAS).  The notification also indicated that, on 16 Sep 02, the applicant had agreed with the Superintendent’s recommendation that he be ordered to reimburse the government for the cost of his Academy education.

The applicant was discharged from the USAFA with a general characterization on 10 Jan 03.

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AIR FORCE EVALUATION:

HQ USAFA/JA recommends denial and notes that all of the issues raised in this appeal were raised and addressed prior to the Superintendent’s original consideration of the HO’s findings and his recommendations to the SAF.  No new issues were presented in support of the applicant’s request.  AFOSI’s failures were not caused by any intentional wrongdoing, but rather because they were unfamiliar with the collection procedure established by Psychemedics, a private company.  The HO gave little weight to the test results because of the irregularities in the sample collection; however, she did properly use the results of the hair sample tests to corroborate the testimony of a witness.  The HO found Cadet XXXXXXXXXXXXXXXXXX’s testimony credible without referring to the test results.  Cadet XXXXXXXXXXXXXXXXXX was on appellate leave at the time of his testimony and it would not have been in his best interests to lie at the hearing.  HQ USAFA/JA contends that, contrary to counsel’s assertions, the applicant received all due process afforded him.  The preponderance of the evidence supported the basis for the disenrollment.  The applicant acknowledged his reimbursement obligation should he choose to resign or fail to complete educational requirements.  The applicant’s drug use was, without question, a significant departure from the expected conduct of members of the Air Force.  His negative behavior clearly outweighed any positive aspects of his military record.  

A complete copy of the evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel contends the USAFA/JA advisory attempts to whitewash AFOSI misconduct and justify the actions of the Academy in using the illegally and forensically unsound fruits of AFOSI misconduct.  The applicant is obligated to repay over $100,000 without having had the benefit of a lawyer who could cross-examine the witnesses who presented the evidence against him.  The HO’s findings are somewhat suspect in that she served on the faculty of the Academy, whose improper actions are being challenged.  An independent judge would not have excused the AFOSI agent’s misconduct.  Cadet XXXXXXXXXXXXXXXXXX was not cross-examined by an experienced lawyer and, if this convict was so believable, why did the HO need to use the lab results for corroboration?  This Board is the conscience of the Air Force and should honestly and carefully apply forensic standards where the stakes involve holding an Air Force member for such a huge debt.

A complete copy of counsel’s response is at Exhibit E.

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ADDITIONAL AIR FORCE EVALUATION:

HQ USAF/JAA recommends denial.  They do not dispute the COC for the hair sample collected from the applicant contained numerous errors, including collection of the sample by personnel not certified by Psychemedics, the absence of evidence that decontamination and sample collection procedures specified by the lab were used, and an AFOSI agent’s completion of entries in the COC documents that should have been completed by the applicant himself and the person who actually collected the hair sample.  It is also undisputed that Psychemedics detected Cocaine and Ecstasy at levels well below the cutoff required to report the sample as positive, that it did not detect the metabolite of either drug in the hair sample, and that it used only one testing methodology, as opposed to two, to test the hair sample.  These different procedures were apparently the result of a request by AFOSI.  HQ USAF/JAA contends the HO properly analyzed the issues regarding the validity of the hair analysis results and properly gave those results only the limited weight the applicant’s own expert witness testified they could be given.  Her conclusion was consistent with the wide latitude HOs are given with regard to evidentiary issues.  Further, the HO’s report evinces a careful and balanced assessment of the various factors bearing on the credibility of the witness.  Counsel’s conflict-of-interest allegations are without merit.  As a faculty member, the HO was not otherwise involved in the preparation/processing of the applicant’s case.  Counsel’s allegation is firmly rebutted by the HO’s frank assessment of the government’s failings with respect to the hair analysis, and her finding that the applicant did not, as was alleged, wrongfully possess Codeine.  Similarly, USAFA/JA is tasked by the governing instruction (AFI 36-2020, para. 25.8) with reviewing such cases and advising the Superintendent thereon.  The USAFA/JA advisory opinion is consistent with that responsibility and, like the HO’s report, acknowledges the government’s failings with respect to the hair analysis.  

A complete copy of the additional evaluation is at Exhibit F.

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COUNSEL’S RESPONSE TO ADDITIONAL AIR FORCE EVALUATION:

A complete copy of the additional Air Force evaluation was forwarded to counsel on 20 Apr 06 for review and comment within 30 days (Exhibit G).  As of this date, this office has received no response.

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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.  After a thorough review of the evidence of record and the applicant’s submission, a majority of the Board is not persuaded the requested relief is warranted. Counsel’s contentions are duly noted; however, these issues were raised prior to the USAFA Superintendent’s original consideration of the HO’s findings and recommendations to the SAF.  The numerous errors involved in the COC for the hair samples were acknowledged by the HO and both legal advisories.  Also noted is that Psychemedics detected Cocaine and Ecstasy at levels well below the cutoff required to report the sample as positive, did not detect the metabolite of either drug in the hair sample, and used only one methodology, rather than two, to test the hair sample.  As a result of these irregularities, the HO gave the lab results only the limited weight the applicant’s own expert witness testified they should be given.  The HO found Cadet XXXXXXXXXXXXXXXXXX’s testimony credible and her report demonstrates a careful and balanced assessment of the various factors bearing on the credibility of the witness.  Her conclusion that a preponderance of the evidence established the applicant wrongfully used Cocaine and Ecstasy is apparently consistent with the wide latitude HOs are afforded in these procedures regarding evidentiary issues.  Counsel has not persuaded the Board majority that the applicant was denied due process or that a conflict of interest impacted the findings of the HO.  The majority of the Board therefore adopts the rationale expressed in the HQ USAF/JAA advisory as the basis for our decision that the applicant has not sustained his burden of having suffered either an error or an injustice.  In view of the above and absent persuasive evidence to the contrary, the Board majority concludes the applicant has not sustained his burden of having suffered either an error or an injustice.  Therefore, the Board majority finds no compelling basis to recommend granting the relief sought.
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RECOMMENDATION OF THE BOARD:

A majority of the panel finds insufficient evidence of error or injustice and recommends the application be denied.

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The following members of the Board considered this application in Executive Session on 13 June 2006 under the provisions of AFI 36-2603:

By a majority vote, the Board recommended denial of the application.  XXXXXXXXXXXXXXXXXX voted to grant the appeal, but does not wish to submit a Minority Report.  The following documentary evidence relating to AFBCMR Docket Number BC-2006-00128 was considered:

   Exhibit A.  DD Form 149, dated 9 Jan 06, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, USAFA/JA, dated 2 Feb 06.
   Exhibit D.  Letter, SAF/MRBR, dated 24 Feb 06.
   Exhibit E.  Letter, Counsel, dated 27 Mar 06.
   Exhibit F.  Letter, HQ USAF/JAA, dated 14 Apr 96.
   Exhibit G.  Letter, AFBCMR, dated 20 Apr 06.

                                   

AFBCMR  BC-2006-00128

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD 
                                        FOR CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application of XXXXXXXXXXXXXXXXXX 

	I have carefully reviewed the evidence of record and the recommendation of the Board members.  A majority found that applicant had not provided sufficient evidence of error or injustice and recommended the case be denied.  I concur with that finding and their conclusion that relief is not warranted.  Accordingly, I accept their recommendation that the application be denied.

	Please advise the applicant accordingly.