MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            8 June 2000
	DOCKET NUMBER:   AR2000039473

	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. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance		Analyst	

	The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Mr. Arthur A. Omartian		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, that he be reinstated to active duty and be provided all due back pay and allowances. 

APPLICANT STATES:  In effect, that his contentions and arguments are advanced in the enclosed brief from his counsel. 

COUNSEL CONTENDS:  In effect, that the Army erred in administratively  separating the applicant for testing positive for Tetrahydrocannabinol (THC) on a biochemical test of urine when the chain of custody had been broken; the Army erred when the office of the Staff Judge Advocate (SJA) advised the applicant’s chain of command that he must be separated as he tested positive for THC on a biochemical test of urine; the Army erred in refusing the applicant’s urine sample be retested; and the Army erred in imposing nonjudicial punishment (NJP) (Article 15) action against the applicant based on his testing positive for THC on a biochemical test of urine when the chain of custody during the urinalysis had been broken.  Counsel’s expanded argument is provided in the enclosed brief, which includes statements from the unit commander who imposed the NJP action and from the unit commander who initiated the separation action on the applicant.  

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

He continuously served on active duty for 11 years and 7 months prior to being discharged on 15 August 1997.  He was separated, in the rank of specialist/E-4 (SP4), with a general, under honorable conditions discharge (GD).  A DD Form 214 (Certificate of Release or Discharge From Active Duty) was issued to and signed by the applicant on the date of his separation.  This document verifies that he was separated under the provisions paragraph 14-12c of Army Regulation 635-200, by reason of misconduct, and that he was issued a GD.  

The applicant’s record shows that the highest rank he held on active duty was sergeant/E-5 (SGT) which he attained on 1 July 1991.  It also reveals that he completed two overseas tours in Germany and served in combat in Saudi Arabia during Operation Desert Shield/Storm.  Over the course of his career he was recognized for individual achievement or service with the Army Commendation Medal and two Army Achievement Medals.

On 21 November 1996, he submitted a urine specimen as part of drug testing being conducted on behalf of the commander of the 6th Area Support Group (ASG) at the Panzer Community Counseling Center, Boblingen, Germany.  The record contains a DD Form 2624 (Specimen Custody Document) which outlines the specimen processing steps and the chain of custody.

The custody document accounts for the applicant’s specimen throughout its processing cycle.  It indicates that the specimen was released by the observer (OBS) to the unit alcohol drug coordinator (UADC), who in turn released the specimen to the installation biochemical testing coordinator (IBTC).  The IBTC verified the integrity of the collection process to that point and then placed the specimen in a permanent storage area where it remained secured overnight prior to being shipped to a drug testing laboratory (DTL).

On 22 November 1996, the day after the sample was collected, the IBTC mailed the specimen by priority mail to the DTL at Fort Meade, Maryland.  On 
5 December 1996, it was received by the DTL, with the seal in tact, and was placed into temporary storage in the processing room.  On 10 December 1996, it was removed from temporary storage and reverification was conducted on the specimen.  On 11 December 1996, the specimen was tested at the DTL and the results showed that it was positive for THC.  

On 18 December 1996, the military police investigator (MPI) branch of the military police, at Patch Barracks in Stuttgart, Germany, were notified of the positive result of the applicant’s urinalysis drug test.  The applicant was interviewed by a MPI after being advised of his legal rights, which he waived.  He rendered a written statement denying the offense, at which time he was processed and released to his unit.  The MPI coordinated with the SJA’s office who opined that there was sufficient evidence to believe that the applicant had committed the offense of the wrongful use of a controlled substance.  

On 27 January 1997, the applicant accepted NJP for wrongfully using marijuana, the use of which was detected by biochemical testing of a urine sample, which he submitted to military authorities on 21 November 1996 at Panzer Kaserne, Boblingen, Germany.  His punishment for this offense was a reduction in rank to SP4 and a forfeiture of $697.00 per month for 2 months.  

As a result of the reduction punishment included in the NJP action, the applicant exceeded the retention control point (RCP) for soldiers in the rank of SP4.  Table 3-1 (Retention Control Points) of Army Regulation 601-280 establishes the RCP for soldiers holding the rank of SP4 as 10 years.  In effect, this rendered the applicant ineligible for reenlistment/retention.

On 3 February 1997, the applicant appealed the NJP action based on a chain of custody violation in the processing of his urine sample.  He claimed that the logging in of his urine sample at the storage facility of the Alcohol and Drug Prevention Control Program (ADAPCP) was not accomplished in accordance with Army Regulation 600-85 or 6th ASG policy.  On 6 February 1997, the appropriate authority, after careful consideration of the appeal submitted by the applicant, denied the appeal.

On 13 May 1997, the applicant was notified that separation action was being initiated against him, under the provisions of paragraph 14-12c.  The reason cited by the applicant’s unit commander for taking the action was that he had tested positive for THC on a biochemical test of urine.  The unit commander advised the applicant that he was recommending he receive a GD but that the separation authority was not bound by this recommendation.

On 21 May 1997, the applicant’s military defense counsel prepared a memorandum for the commander of the 6th ASG.  In it she recommended that the applicant be retained and argued that the separation may be based on an invalid urinalysis test because the specimen was collected by trainees in the ADAPCP, who made mistakes.  

Defense counsel further argued that the chain of custody, required by the regulation, was not maintained in this case because the test documentation failed to indicate the exact location of the applicant’s sample when it was in stored in the ADAPCP facility.  This violates the provision of the regulation that indicates that the exact location of the sample should be annotated while it is in temporary storage.  Further, she contends that by regulation, because a formal chain of custody was not maintained in this case, the test is invalid and the final results of the sample are irrelevant.  

In her memorandum, defense counsel also argues that, under the provisions of Army Regulation 635-200, the separation of soldiers in the grade of SP4 is not mandatory.  She goes on to state that while the chain of command may elect to process a separation action, the separation authority may also choose to retain soldiers if their character of service and potential for further service merit retention.  She then submitted matters of record pertaining to the applicant, which she believed supported a decision by the separation authority to retain the applicant.  

Trial counsel from the Stuttgart Legal Service Center of the 21st Theater Army Area Command responded to defense counsel’s memorandum.  He pointed out that defense counsel’s arguments were riddled with inaccuracies and untruths.  He also indicated that, while it is true that documentation must state the exact location of specimens in temporary storage, it is not true that documentation of the exact location is required if the specimen is being held in a permanently identified storage area.  

Trial counsel further commented that he had checked the policy with the area urinalysis  coordinator (AUC) and discovered that the applicant’s specimen was stored in a permanently identified storage area; therefore, the exact location documentation was not required.  In addition, the AUC verified that, while students did take the samples, proper procedure was followed and the provisions of the regulation were adhered to throughout the processing of the applicant’s specimen.  The AUC also certified that a formal chain of custody was maintained throughout the processing and handling of the applicant’s specimen.  Finally, the AUC stated, in accordance with the regulation and local policy, the testing results of the applicant’s specimen were relevant and official. 

Trial counsel also pointed out that the defense counsel’s argument against separation processing based on the applicant’s rank of SP4 was without merit.  This conclusion was based on the fact that at the time of the applicant’s violation of drug policy he held the rank of SGT, which made separation processing mandatory under the provisions of chapter 14 of Army Regulation 635-200.

On 27 June 1997, the applicant, after consulting with defense counsel and being advised of the basis for the contemplated separation action and its effects, completed his election of rights.  He voluntarily submitted a conditional waiver of his rights and consideration of his case by an administrative separation board.  This waiver was contingent on his receiving a discharge no less favorable than a GD.

On 16 July 1997, the applicant’s unit commander submitted his recommendation for separation.  He cited the applicant’s positive testing on a biochemical test of urine which showed the use of marijuana.  He recommended that the applicant receive a GD.  On 30 July 1997, the appropriate authority approved the applicant’s separation and directed that he receive a GD.  Accordingly, on 
15 August 1997 the applicant was discharged, after completing 11 years and 
7 months of active military service.

The applicant’s current counsel, in her expanded brief, reasserts the arguments made by the applicant’s military defense counsel during the separation process and advances four areas in which she contends the Army erred in its actions against the applicant.  First, she argues that the chain of custody was not followed in the applicant’s case and that this should render the results of the applicant’s test invalid and the final results of the sample invalid.  She contends the Army ignored this chain of custody violation and used the test result to support the applicant’s separation.  

The second issue raised by counsel is that the Army erred when the unit chain of command was erroneously advised by the SJA that the applicant must be separated based on his having tested positive for drug use.  Counsel claims this allegation is supported by a statement from the applicant’s previous commander who indicates he was told by the SJA that retention of the applicant was not an option.  

Counsel also advances the theory that that the applicant was improperly denied the right to obtain a sample of his urine for retesting.  She contends this seriously hindered his defense against the separation action being processed on him.  Finally, counsel advances the argument that the NJP accepted by the applicant was imposed in error because it did not account for the broken chain of custody in the processing of the applicant’s urine sample.  Had this been considered the positive specimen would have been invalid and therefore the results could not have used against the applicant in this proceeding. 

The packet submitted by counsel includes a statement from the applicant’s previous commander.  This statement indicates that after being advised of the positive urinalysis on the applicant the unit commander had his first sergeant contact the SJA office.  He indicates that his first sergeant was told that separation paperwork was required and retention of the applicant was not an option.  The commander indicated that he made his desire to retain the applicant known and was again advised that the applicant would have to be processed for separation.  

There is also a statement from the commander that imposed the NJP action on the applicant.  He indicates that during the Article 15 process, after he reviewed the evidence to include the chain of custody paperwork and after consulting with trial counsel, he found the applicant guilty of the wrongful use of marijuana.  He states that it was brought to his attention by the applicant’s current counsel that the chain of custody had been broken, but he has not been able to independently confirm this fact.  He concludes that if the chain of custody had been broken and he had been made aware of that fact, he would not have found the applicant guilty of the offense.  

Army Regulation 600-85 (Alcohol and Drug Abuse Prevention and Control Program) prescribes policies and procedures needed to implement, operate, and evaluate the Army Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).  Chapter 10-5 (Collection and Transportation of Urine Specimens) gives the installation commander the overall responsibility for the collection, packaging for shipment, and shipment of urine specimens.  It is further indicates that all urine specimens must be handled by following a formal chain of custody. The chain of custody must account for each individual urine specimen in groups of 12 or less from the time of collection of the urine specimens until final analysis at the drug testing laboratory.  
Appendix E (Standard Operating Procedures for Chain of Custody) provides guidance on responsibilities for maintaining the chain of custody.  It states, in effect, that the responsibility of maintaining the integrity of the specimen and the chain of custody rests with the IBTC prior to shipping the sample to the DTL.  The IBTC is tasked to ensure the UADC properly seals each specimen container and to sign each chain of custody document prior to releasing the sample to one of the authorized modes of transportation to the DTL.  

Paragraph 10-8 (Retesting of Specimens)  provides that urine specimens may be retested, providing a sufficient quantity of the specimen is available to permit retesting.  A soldier may request a retest in writing through the submitting installation/command to the Army/Air Force laboratory performing the initial test.  A soldier may obtain a retest at a forensic laboratory outside the DOD laboratory system at the service member's own expense when a sufficient quantity of the same specimen is available to permit retesting. 

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. 

Paragraph 14-12c (2) of the regulation governs separation processing for the abuse of illegal drugs.  It states, in pertinent part, that first-time drug offenders in the grade of SGT and above, and all soldiers with 3 years or more of total military service, will be processed for separation upon discovery of a drug offense.  Other personnel, first-time offenders below the grade of sergeant, or with less 3 years of total military service, may be processed for separation as appropriate.  "Processed for separation" means that separation action will be initiated and processed through the chain of command to the separation authority for appropriate action.  The issuance of a discharge under other than honorable conditions is normally considered appropriate for soldiers separated under these provisions.

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 contentions of the applicant and his counsel have been noted by the Board.  However, they are not supported by either evidence submitted with the application or the evidence of record.  In the opinion of the Board, the variation of the wording used in the administrative entry on the chain of custody document by the IBTC does not constitute a fatal error nor was it prejudicial in the NJP action imposed or in the separation process. 

2.  This administrative oversight did not break the formal chain of custody of the applicant’s specimen, which appears to have been maintained throughout the urine sample testing process.  This is evidenced by the fact that the IBTC received the sample and ensured its integrity until shipping the sample to DTL, within 24 hours, where it was received with the seal in tact.  The Board did not find that the overnight storage of the applicant’s urine specimen in the IBTC’s permanent storage area constituted a violation of the chain of custody rules as defined in the regulation.  

3.  Given the Board found no violation of the chain of custody, there is no basis on which to question the imposition of NJP in this case.  The applicant accepted NJP and he was afforded all the rights associated with the action.  This included his right to appeal the action, which he did.  His appeal was carefully considered but denied by the appropriate authority.   

4.  The allegations made concerning the impropriety of the separation process against the applicant are unfounded.  The statement from a previous commander that indicates he received incorrect advice from the SJA in regard to their separation processing options is vague.  However, it is clear that, as a result of the applicant’s reduction in rank, he was ineligible for reenlistment/retention based on his having exceeded the RCP for soldiers in the rank of SP4.  Further, by regulation, soldiers in the grade of SGT and above, and all soldiers with 
3 years or more of total military service, must be processed for separation upon discovery of a drug offense.  

5.  In addition, the Board noted that the applicant, after consulting with counsel and being advised of the basis for the contemplated separation action and its effects, elected to submit a conditional wavier of his rights contingent on his receiving a GD.  Therefore, the Board found that the applicant’s discharge process was accomplished in accordance with applicable law and regulations and his service was appropriately characterized based on terms of his own conditional waiver.  

6.  The Board noted the contention that that applicant was refused the right to have his urine sample retested.  However, while the regulation does provide provisions for retesting if sufficient quantity of the specimen is available, the soldier must make this request, in writing, through the installation/command that submitted the specimen to the DTL that performed the initial test.  There is no evidence of record to show the applicant ever made such a written request. 

7.  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 this requirement.

8.  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

__slp____  __ao____  ____lm__  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000039473	
SUFFIX		
RECON		
DATE BOARDED	2000/06/08	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	1997/08/15	
DISCHARGE AUTHORITY	AR 635-200 C14	
DISCHARGE REASON	Misconduct	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  192	110.0300	
2.		
3.		
4.		
5.		
6.