MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           8 March 2000                  
	DOCKET NUMBER:   AR1999022099

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Elzey J. Arledge, Jr. 		Member	
	Mr. Ernest W. Lutz, Jr.		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, the applicant requests either a physical disability discharge, or that his general discharge for misconduct be revoked and he be reinstated in the Army.  

APPLICANT STATES:  That his general discharge was illegal, that evidence was withheld and ignored, that his rights were violated, there was a conspiracy and a cover-up, an assault by his commander, witness tampering, invasion of privacy, destroyed evidence, improper procedures, slander, public humiliation, and falsification of evidence.  He states that he was under a physician’s care and was taking medication at the time of the [urinalysis] test.  Proper test procedures were not followed and he was denied a request that a sample be sent to an independent laboratory for analysis.  He received an administrative discharge and was denied the right to trial by court-martial.  He was released just days prior to his normal separation date.

His battalion commander stated that he was going to make an example of a drug addict and assaulted him in front of witnesses.  His battalion commander was aware of the applicant’s heart condition-that he could only work half days; however, his battalion commander ignored this.  He also had angina, hiatal hernia, chronic peptic ulcer disease, anxiety and depression, and migraine headaches, resulting in his limited ability to work.

He came up positive for cocaine in the urinalysis test; however, statements from doctors and congressmen have indicated that the medications that he was taking produce a positive test result for hard drugs. 

The administrative discharge was illegal.  He should have received a physical disability discharge. 

He states that he is a single father, trying to raise his daughter, and has been on social security disability since June of 1993.  Since April of 1999 he has had three operations, for his stomach, heart, and hernia.  He is unable to work and has lost his house and car, and is homeless.  He is still recuperating from surgery.  The VA has refused service connected disabilities for 6 1/2 years. 

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant entered on active duty on 5 July 1972 and was released from active duty on 2 July 1975 in the grade of E-4.  

He enlisted in the Army Reserve on 23 June 1989, receiving a medical waiver for his hearing (physical profile serial was 1 1 1 3 1 1).  He reenlisted in the Army Reserve for six years on 11 June 1990, was discharged in September after enlisting in the Army National Guard for six years on 6 September.  He was promoted to Sergeant E-5, was discharged from the Army National Guard, and reenlisted again in the Army Reserve for six years on 16 January 1991.  On      22 August 1991 he was ordered to active duty in an active duty Guard/Reserve (AGR) status for three years, with duty as a recruiter with Kearns Recruiting Station in Kearns, Utah.  His record indicates his duty station as the Sandy, Utah Recruiting station.

A VA medical report shows that the applicant was admitted to a hospital in Salt Lake City on 23 January 1990 for continuing light-headed episodes, and discharged on 31 January, and that he had been hospitalized in November 1989 after losing consciousness, falling and breaking three ribs.  He was felt to be suffering from a primary seizure disorder; however, no cardiovascular system test was undertaken during that hospitalization.  The physician diagnosed his condition as mitral valve prolapse and hyperlipdemia, prescribed certain medications, and he was discharged to home in good condition.

In a 12 June 1990 endorsement, the 96th Army Reserve Command (ARCOM) administrative assistant indicated that the applicant’s medical condition was evaluated by the ARCOM surgeon and he recommended that the applicant would have no problem performing his duties as long as he was under doctor’s care and receiving medication.  The applicant was completing a petroleum supply specialist school, which would meet the requirement of his not performing duties involving height.

A 27 February 1992 medical report shows that the applicant had three days of chest pain, and he did have shortness of breath.  The assessment at that time was that the applicant had a strong family history of positive cardiac risk factors including an elevated cholesterol which was seen in his old chart.  That report indicated that he would be reassessed after a workup was completed.  Further assessment ruled out myocardial infarction.  The etiology for chest pain was assessed to most likely chronic anxiety.  He had been requiring frequent doses of morphine, and the doctor indicated that that was an unusual manifestation if it was esophageal disease, but since the applicant smoked two packs a day and used caffeine about eight cups of coffee a day, and aspirin, he believed an upper endoscopy was warranted.

On 9 November 1992 the applicant’s commanding officer informed the applicant that he was considering whether the applicant should receive nonjudicial punishment under Article 15, UCMJ, for wrongfully using cocaine.  The applicant demanded trial by court-martial.

In an undated statement in support of the applicant, an NCO stated that the applicant was a very successful recruiter, a member of the local chapter of the American Disabled Veterans, and that the applicant had undergone several hardships, divorce, custody of his oldest child, and not knowing where his other children were, until he found them in a shelter.  He also stated that the applicant had heart problems, having been twice hospitalized.  He went on to say that the applicant had been recognized as recruiter of the quarter, and selected as the new recruiter of the year for the recruiting company.  Another NCO, the station commander, stated that the applicant was a hard working and responsible soldier who could be counted on to perform his assigned duties.  He stated that he was informed of the urinalysis results, passed those results to the applicant immediately, and informed him that the company commander wanted a list of all his prescribed medications.  He also stated the applicant was later upset that several individuals knew about the results of the urinalysis test.

On 13 October 1992 the applicant made a statement to the effect that he had never used cocaine, that he was currently on certain medications, and that either those medications or a recent change in his medications contributed to a positive drug screen.  

On 13 November 1992 and again on 20 November 1992 a Member of Congress (MC) inquired on behalf of the applicant, stating that the applicant took medication daily, and that when selected for a random urinalysis test, he acquiesced immediately, and provided a list of his medications, which the applicant stated that they did not look at.  The MC stated that the sample bottle was not sealed and that should have been standard procedure.  He stated that the applicant never used drugs other than prescription medicines, and his staff assistant had inquired of a reputable pharmacist, who informed them that both Tylenol III with codeine and Inderal 80 LA, could produce residue which could be interpreted as hard drugs.  He stated that the applicant had not been given the benefit of a trial, and questioned why the word was spread that the applicant was a drug addict.  He stated that the applicant believed he could not get an unbiased opinion.  He stated that the applicant believed that his character had been defamed.

In a reply to the MC, the Chief of the Army Reserve, informed him that the applicant was informed of his right to consult with counsel and his right to demand an administrative separation hearing, and should he so elect, he would have the opportunity to present evidence that his prescription drugs produced a positive test.  That official further informed the MC that only key personnel were notified that the applicant was being considered for an administrative separation.

On 23 November 1992 the applicant’s commanding officer notified the applicant that he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense, use of cocaine.

On 10 December 1992 the applicant consulted with counsel, stated that he understood the basis for the contemplated action, its effects, and the rights available to him.  He requested consideration of his case by an administrative separation board, personal appearance before the board, and representation by counsel.  He stated that he understood the nature and consequences of the other than honorable conditions discharge that he might receive.

On 30 December 1992 the applicant’s commanding officer recommended to the separation authority that the applicant be discharged for misconduct, use of cocaine between 1 September 1992 and 30 September 1992.

A report of medical examination indicates that the applicant was qualified for separation with a physical profile serial of 1 1 1 3 1 1.  That report indicates that the applicant had mitral valve prolapse, peptic ulcers, hiatal hernia, and bilateral hearing loss, among other medical defects.  A report of mental status evaluation indicates that the applicant was mentally responsible, had the mental capacity to understand and participate in proceedings, and had no mental illness to preclude elimination.  He was cleared psychiatrically for any action deemed appropriate. 

In a 22 January 1993 medical report, a clinical psychologist at the Air Force 649th Medical Group at Hill Air Force Base, stated that the applicant had been followed in the mental health clinic since April 1992 because of major depression, characterized by insomnia, decreased interest/self-worth/energy/concentration and feeling overwhelmed.  His stressors included divorcing his wife, his family in Mississippi losing their farm, and his increased stress as a single parent.  He also had the onset of chest pain which related to mitral valve prolapse and was recently diagnosed as having a hiatal hernia.  An additional stressor was when he tested positive for cocaine in September 1992.  He contested that that was a false positive because he was on Tylenol #3, Inderal, and Xanax for his mitral valve prolapse.  That doctor stated that the applicant revealed he was publicly ridiculed in front of his unit for his positive urinalysis and his basic rights were violated.  His depression became more severe.  In December 1992 he was diagnosed with major depression, and was started on Prozac.  The applicant throughout his treatments had presented himself as an honest and trustworthy individual, who did not exhibit characterological or behavioral symptoms associated with illicit drug use.  The applicant’s condition was diagnosed as major depression, recurrent, primary, moderate, without psychotic features; mitral valve prolapse, and hiatal hernia.  That psychologist stated that the fact that his depression was aggravated by military service making the prognosis poor as long as he remained in the Army.  He recommended that the applicant be given a medical board and that consideration be given to medically discharging him from the Army.    

On 24 March 1993 an administrative separation board met to determine whether the applicant should be discharged for misconduct.  The applicant was present and represented by counsel.  Proceedings of the board show:

•	The associate director for forensic toxicology, Northwest Toxicology, testified that the applicant’s urine specimen was positive for cocaine metabolite benzoylecgonine, the chain of custody was acceptable, and the sample was free of discrepancies.  There was no reason to believe that the chain of custody of the sample was compromised.  Red tamper-resistant tape was not used because Army regulations did not require it.  Northwest Toxicology had never reported a false positive in over one million samples tested.  A person could unknowingly be exposed to cocaine.  A retest could be requested by the soldier.  The testing does not determine whether cocaine was ingested knowingly or unknowingly.  Only cocaine will produce the cocaine metabolite benzoylecgonine.  To avoid contamination of a sample it stays in the same bottle and portions will be poured from the bottle for each test.  Nothing is put into the bottle in order to avoid contamination.  The drugs pamelor, Xanax, Inderal, Zantac, Ibuprofen, and Tylenol 3, will not produce a positive test for cocaine.  Neither would amphetamines and antihistamines.
•	A staff sergeant, the observer for the urinalysis test, described the procedures for the test, indicating that the soldier would give his identification card to the unit alcohol and drug coordinator (UADC), an Army captain; he would get an empty specimen bottle and walk with the soldier to the latrine.  The person being tested would put his urine in the bottle and then put a cap on it.  They would then return to the area where the UADC was set up.  Each person was done the same way.  There were no other people in the latrine when each specimen was obtained.  He did not lose sight of the bottle and at no time did the individual lose sight of the bottle.  When each specimen was obtained the UADC would put a label on the bottle and the label would be initialed.  
•	The UADC testified likewise, stating that after receiving the bottle from the observer, the person submitting the specimen, the observer, and he (the UADC) would then initial the label that was put on the bottle. Then he would put the label in the box next to him.  The applicant was the first person tested. He said the test was not being conducted correctly because there was no tape to seal the top of the bottle.  The applicant did not write on the appropriate form why he believed the correct procedures were not followed, but indicated verbally his concern of the lack of tape (USAREC Form 1001, Acknowledgement of Proper Urinalysis Specimen Collection Procedures, indicates that the applicant stated that proper procedures were not followed regarding his specimen, but did not give a reason why they were not followed).  The UADC did not leave the table with the bottles at any time during the test and the bottles did not leave his sight.  He then delivered the bottles to Northwest Toxicology.  He closed the box but did not seal it because he was going directly to the laboratory.  He did not tamper with the samples.  He had been the applicant’s supervisor since November 1991 and the applicant was a good soldier.  He was the top new recruiter in the company in FY 92.  He never had any problems with the applicant.  The applicant did have marital and medical problems, having stayed in the hospital for two or three days for heart problems.  Government exhibit 13, urinalyis ledger, was entered into evidence.  That ledger shows that the applicant was the first person tested, shows the specimen number, the applicant’s name, social security number, and signature, and the name and signature of the observer.
•	A member of the Disabled American Veterans organization testified on behalf of the applicant, stating that the applicant was his neighbor, had worked in a rehabilitation program and made a speech against drugs, and based on his experience, the applicant was not the type of person to use drugs.
•	An NCO testified on behalf of the applicant and stated that the applicant’s recruiting abilities were excellent, that he was a good NCO, and he believed that the applicant did not use drugs.  He stated that the applicant was on various medications for stress and heart problems, and also had personal problems.  He stated that he was tested on the same day as the applicant and did not notice any irregularities in the testing procedures, except that the medications that the applicant was taking were not listed on the appropriate form.   
•	An Army lieutenant colonel testified on behalf of the applicant, stating that the applicant was one of the best NCOs that he had worked with, that he had received the Army Commendation Medal for his service, and that he did not believe that the applicant used cocaine, but there was a mistake during the testing procedures.
•	An Air Force colonel, the chief of the mental health clinic of the 649th Medical Group, testified on behalf of the applicant, stating that the applicant was diagnosed as having a major depression, that he was put on Prozac, and that he had been in weekly psychotherapy.  His records also showed that he had a heart-valve condition.  That officer stated that the applicant should be sent to a medical evaluation board.  He stated that the applicant was fully competent.
•	An Army major testified on behalf of the applicant, stating that the applicant had been assigned to his unit, and his performance was superb.  He did not believe the applicant used cocaine.
•	Another NCO testified that he did not believe that the applicant used cocaine, that the applicant had no tolerance for people who used drugs.  He believed that the medications taken by the applicant accounted for his positive urinalysis.
•	A wife of an NCO also testified for the applicant, stating that the applicant had temporary guardianship of her 17 year old son so that her son could live in a better educational and social setting.  She said that the applicant did not approve of illegal drug use.
•	The applicant testified that he was a successful recruiter, was taking a number of medications at the time of the urinalysis, did not and had never used cocaine.  The correct testing procedures were not followed, in that when he came back from the latrine there was nobody at the desk to receive his sample.  A sergeant was handling some of the urine samples.  It was too lax of an atmosphere.  He was told by the UADC to fill out a form, just sign it and initial it, and that is what he did.  He stated that other recruiters touched the specimen bottles besides the UADC and the test observer, and that the test observer and the aforementioned sergeant were opening specimen bottles during the urinalysis. 
•	The UADC was recalled as a witness and testified that he had custody of the bottles during the entire time of the urinalysis.  The only ones to touch the bottles were himself, the observer, and the person being tested.  Lids were on the bottles when given to the persons being tested.  Everything was organized. The test procedures were not rushed.
•	The observer was recalled and he verified the testimony of the UADC, and stated that he did know the sergeant, who the applicant had stated had handled the urine samples.  He did not see him lingering around where the specimen bottles and documentation were, nor did he see him handling any of the specimen bottles.  The UADC devoted his entire time for the urinalysis testing and nothing else interfered.
•	An Army major, the officer in charge of forensic toxicology drug testing center at Tripler Army Medical Center, testified that his last duty assignment was at the Fort Meade drug testing laboratory, and he had testified 43 times in courts-martial and administrative boards and had been accepted as an expert witness in the field of forensic toxicology.  The drugs [the applicant uses] would not produce a positive test for cocaine, nor would amphetamines and antihistamines.  Any combination of those drugs would not cause a positive reading for cocaine.  
•	The applicant’s battalion commander testified that he did not condone drug use, that he signed an endorsement recommending a general discharge [for the applicant], and he did not believe production was relevant to the case.  He stated that if the applicant was retained it would be devastating to the unit.  

The Board found that the allegation of misconduct, use of cocaine, was supported by a preponderance of the evidence, and recommended that the applicant be separated from the service and that his service be characterized as under honorable conditions (General Discharge).  The separation authority approved the findings and recommendations of the board.

On 17 May 1993 the separation authority directed that the applicant be separated with a General Discharge Certificate.

A 2 June 1993 medical record indicates that the applicant was hospitalized from 31 May 1993 to 2 June, and his discharge (from the hospital) diagnosis was noncardiac chest pain syndrome, major depression and mild post traumatic stress disorder (PTSD), duodenal ulcer, hiatal hernia, hyperlipidemia, and tobacco abuse. It was recommended that he follow-up with the VA or mental health clinic near his home after his discharge from the Army. 

The applicant was discharged under honorable conditions (general) under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – abuse of illegal drugs, on 3 June 1993.  He had 3 years, 11 months, and 11 days of service.

A 13 July 1993 medical record shows that he had been admitted to a VA hospital on 1 July 1993 because he was having a lot of situational problems.  His mother and father didn’t understand that he was sick and kicked him out of the house because they thought he was using drugs.  His brother brought him to the hospital and his brother indicated that he had a past history of substance abuse; however, the applicant denied any substance abuse.  The applicant was mildly depressed, and stated he was having adjustment problems.  He was maintained on the medications that he brought with him, and given other medications.  He complained of PTSD symptoms, but those were rather nebulous.  His records were obtained from his previous hospitalization, showing that he did have full psychological testing for PTSD, and it was felt that he did not meet the criteria for PTSD, and was given a diagnosis of depression.  He was diagnosed as having an adjustment disorder with anxiety and depression.

A 28 December 1998 medical record shows that the applicant was admitted to a VA hospital on 14 December 1998 and discharged on 18 December.  His condition was diagnosed as nonspecific colitis, internal hemorrhoids, nonspecific substernal chest pain, gastroesophageal reflux disease, hypertension, and a history of coronary artery disease.  He was advised to exercise as tolerated and keep a low cholesterol and low sodium diet. 

Army Regulation 600-85, Appendix E, provides the standard operating procedures for chain of custody for commander-directed urinalysis, and states in pertinent part that the UADC receives urine specimen bottles, labels them, recording the Julian date, specimen number, and individual’s social security number.  The UADC initiates and records appropriate information on one         DA Form 5180-R (Urinalysis Custody and Report Record) for each observer, maintains a urinalysis ledger documenting all individuals submitting test samples with the Julian date, specimen number, individual’s social security number, and the name of the observer.  The UADC distributes the urine specimen bottle to the soldier in the presence of the observer, directs the soldier to verify the information on the label, by signing his name in the urinalysis ledger and initialing the gum label.  The observer will also verify the information on the label and sign the urinalysis ledger.  The observer directly observes the soldier urinating into the specimen bottle and placing the cap on the bottle.  Observer will take custody of the bottle and returns the bottle to the UADC and signs the prepared chain of custody form.  The observer and UADC initial the labels of each specimen bottle, and the UADC signs the chain of custody form.  The regulation does not indicate that a tape would be used to seal the top of the bottle.  The UADC places the DA Form 5180-R for the specimen container in an envelope, places the envelope, unsealed inside the specimen container, and secures the specimen container, and transports  the container unsealed to the installation biochemical collection point.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Paragraph 14-12c(2) states that abuse of illegal drugs is serious misconduct and that first-time drug offenders, grades     E5-E9, will be processed for separation upon discovery of a drug offense.  A discharge under other than honorable conditions is normally appropriate for a soldier discharged under chapter 14; however, the separation authority may direct a general discharge if such is merited by the soldier’s overall record.

Army Regulation 635-40, paragraph 3-2b, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

Army Regulation 635-40, paragraph 4-3, provides that a member may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.  However, the officer exercising general court-martial jurisdiction may abate the administrative separation if the disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions, or other circumstances warrant disability processing instead of alternate administrative separation. 

DISCUSSION:  Considering all the evidence, allegations, and information 
presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time  with no indication of procedural errors which would tend to jeopardize his rights.  The character of the discharge is commensurate with the applicant's overall record of military service. The applicant was present at the discharge board proceedings and was represented by counsel.  Notwithstanding the applicant’s contentions, the proceedings revealed that the proper procedures were followed during the administration of the urinalysis test.  The top of the bottle was not taped, as the applicant contends, however, there was no requirement to do so.  Expert testimony indicates that the medications the applicant was taking at the time of the test, and any combination of those medications, would not produce a positive test for cocaine.  The requirements concerning chain of custody of the urine sample were met. 

2.  The applicant did have medical problems.  In a 22 January 1993 medical report, a clinical psychologist recommended that the applicant be given a medical board and that consideration be given to medically discharging him from the Army.  Testimony by an Air Force officer during the board proceedings seconded that recommendation; however, that officer also stated that the applicant was fully competent.  The applicant’s report of medical examination indicates that the applicant was medically qualified for separation, as does the report of mental status evaluation.  Furthermore, his continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.  And, because of the nature of his discharge proceedings, he could not be referred for disability processing had he been considered unfit for service.

3.  There is no evidence, nor has the applicant provided any, to show that his discharge was illegal, that evidence was withheld, ignored, or falsified; that there was a conspiracy and cover-up, an assault by his commander, that his rights were violated, etc.  He has not proven these contentions.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___rvo___  ___eja__  __ewl____  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999022099	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000308	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  177	108.00	
2.	110.00	
3.		
4.		
5.		
6.