MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           24 October 2000                   
	DOCKET NUMBER:   AR2000043313

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. John T. Meixell		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:  That he be reinstated into the U. S. Army Reserve (USAR).

APPLICANT STATES:  That on the day of the drug test he was called back, told his label had come off the bottle, and they wanted him to put another label on the bottle.  At the time he had no reason to suspect his sample had been tampered with and so complied with their request.  The sample came back positive for marijuana.  His separation board believed the testing personnel who testified it was impossible to tamper with a sample and he was discharged.  Later, he was told that one of the unit administrators, Mr. W___, had, in previous tests, gotten someone else to provide him urine for the test with the knowledge of the observer.  The observer told him this in confidence.  Then it added up what happened.  Prior to his drug test, the applicant had filed a congressional complaint against Mr. W___.  Mr. W___ hated the section officer-in-charge and the applicant and had a blind hate of the state of Mississippi and anyone from there.  The applicant was from Mississippi.  Mr. W___ had the motive and the means to switch his sample.  The applicant then contacted the drug testing laboratory and requested that a DNA analysis be done on his sample but he was informed the sample had been destroyed.  He was never given any official notification of the board’s decision in writing.  He never even received the honorable discharge the board voted to give him.  He is 52 years old with an unblemished record of 17 years in the service.  Because the evidence was destroyed, he should be reinstated as an active member of the USAR.

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

After having had prior commissioned service in the U. S. Marine Corps, he entered the USAR in January 1984.  He was promoted to major on 15 December 1991.

On 2 February 1998, action was taken to involuntarily separate the applicant from the service for testing positive on a urinalysis, given on 27 September 1997, for substance abuse (marijuana), personal misconduct, conduct unbecoming an officer, and moral and professional dereliction.

On 18 February 1998, the applicant acknowledged receipt of notification to show cause for retention.  He requested review of his case by a board of officers. 

On 31 May 1998, a board of officers convened.  

Major B___ testified that he was an observer for the 27 September 1997 urinalysis test.   He escorted the applicant to the staging area where the applicant collected the specimen bottle from Major W___.  He then escorted the applicant to the latrine, maintaining visual contact with the bottle at all times.  He observed the applicant urinate in the bottle and seal it.  He escorted the applicant back to the staging area to turn in the bottle and sign some documents.  The bottle was under his observation at all times.  It was highly unlikely for someone to tamper with the bottle while it was under his observation.  He recalled that there was a problem where the security tape was torn on a bottle but he did not recall whose specimen it was.  It was his recollection that Major W___ had the individual concerned return to the staging area where the individual and he observed the old tape being taken off and a new piece of tape placed on the bottle.  He recalls Major W___ placing the tamper resistant tape on the specimen bottle in front of the individual and himself.  He did not notice any tear in the tape at that time.  Under cross-examination, Major B___ recalled that Major W___ made a comment that a label was torn.  The tear was below the lid.  If the lid had been opened the seal would have been torn on both sides of the lid.  The tear was very small.  The individual from Fort Bragg in charge of the testing, Major R___, arrived immediately and gave instructions that they had to get that individual (the applicant) to observe the old seal being taken off and a new seal being put on.  

Major W___ testified that he was the alcohol and drug control officer (ADCO) 
and helped administer the 27 September 1997 urinalysis test.  He testified that Major R___, from Fort Bragg, was the officer-in-charge of the test.  As far as test procedures, he testified that after the applicant and the observer returned with the specimen he, the applicant and the observer all initialed the label with the applicant’s social security number and the label was then placed on the bottle.  The tamper resistant tape strip was then placed over the top.  He did not tamper with the applicant’s bottle and there was no way that anyone else could have tampered with the bottle while it was in his possession.  Major R___ noticed that the tip of the red tape had a corner off.  There was no break in the tape.  Major R___ told him to have the observer bring the applicant back to the table to have the red tape redone on that particular bottle.  Once the applicant came back to the table the problem was explained to him.  The old tape was taken off in his presence and a new piece of tape was placed on the bottle in his presence.  Once all the samples were boxed, social security numbers were verified, it was verified that the seals were intact and then the box was given to Major H___.  At that point the box was taped up.  Major W___ testified that it was possible to remove the red tape from the bottle and reseal it afterwards without anyone knowing.  There were 8 to 10 unit alcohol and drug coordinators (UADCs) at the 27 September 1997 test and two observers working under each UADC.  Once the applicant’s bottle was placed in the box, the box was in his sight the entire time.  Major R___ was the only other person to pick up the specimen bottle.  

Major H___, a reservist assigned to the Civil Affairs and Psychological Operations Center, Fort Bragg, NC, testified that he was at the 27 September 1997 test to ensure quality control.  He testified that the boxes of specimens were always in his sight.  Policy was that the boxes were under a minimum two-man control.  If a UADC had to go the restroom, the boxes of samples and an ADCO went with him.  

Major A___ from the Tripler Army Medical Center Forensic Toxicology Drug Testing Laboratory in Hawaii testified by telephone.  He testified that to test positive for marijuana from passive inhalation, an individual would have to be in a 4x4 room with no windows and no air and marijuana joints burning for at least 4 to 6 days.  They would not test a sample if the seal were broken.  If a box of samples was received and one of the bottles had leaked they would not test any bottles in that box.

The applicant testified that he gave his sample, observed the red tamper resistant tape being placed over his bottle, and went back to his section.  He went back to the testing room when requested to do so.  When he went there, Major R___ was holding the sample bottle in one hand and the label sticker in the other hand.  Major R___ told him the sticker label would not stay on and that he needed him to sign another one and put it on.  He initialed another label.  He did not watch Major R___ put it on.  He did not watch him place the red security tape back on the bottle.  He accepted Major R___’s explanation that that was his bottle.  He did not use marijuana at any time prior to the submission of that urine sample.

A witness for the defense testified that he overheard several of the people who had come in from other units to administer the test talk about a sample that had a broken seal.  There was a discussion as to what should be done.  Another witness was unavailable to testify but the government and defense stipulated that his testimony would have been that he and the applicant had gone to Hardee’s after submitting their samples.  When they returned to the unit, they were told that the testers were looking for the applicant because of a problem with his sample.

The board found that there was sufficient evidence to support a finding that the applicant used an illegal drug, that he committed personal misconduct, that he committed conduct unbecoming an officer, and that he committed moral and professional dereliction.  The board stated that they considered all of the evidence, irregularities and that they found that in order for the sample to be tampered with it would have required a conspiracy and in their opinion a conspiracy could not have occurred under the circumstances that were in that room.  The board found that they had confidence in the laboratory’s analysis of the sample.  The board recommended, in light of the applicant’s service record and years of service, that he be discharged from the service and further recommended that he be issued an Honorable Discharge Certificate.

On 23 July 1998, the acting Staff Judge Advocate (SJA) performed a legal review of the board proceedings.  The acting SJA determined that all legal requirements were complied with although several harmless procedural errors were noted.

On 17 August 1998, the SJA performed a legal review of the board proceedings. The SJA noted defense counsel’s objection to the composition of the board and that the objection was properly overruled.  The SJA noted defense counsel’s general objection without basis as to the validity of the urinalysis information presented and that the objection was properly overruled.  The SJA noted that the only real controversy was the retaping of the applicant’s specimen bottle. 
The officer in charge of the testing had noticed a tear on the tip of the red security tape on the applicant’s bottle.  He was brought back and, without objection, had his bottle retaped.  The SJA determined that there was no break in the chain of custody.

On 31 August 1998, the Commanding General, U. S. Army Special Operations Command, Fort Bragg, NC recommended approval of the findings and recommendation of the board.  

On 26 October 1998, the U. S. Army Reserve Personnel Command approved the findings and recommendations of the board and directed the applicant be issued an Honorable Discharge.  

On 26 October 1998, the applicant was honorably discharged from the USAR.  

Army Regulation 135-175 prescribes the policies, criteria, and procedures governing the separation of Reserve officers of the Army.  In pertinent part it provides that an officer may be involuntarily separated due to moral or professional dereliction for any one of a number of reasons including acts of personal misconduct and conduct unbecoming an officer.

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.  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.

2.  The Board notes the applicant’s contention that Mr. W___ had a motive to switch his urine sample bottle (but provides no evidence other than his self-authored statement of that motive) but provides no explanation of the means of how it could have been done.  He does not contend that Mr. W___ was one of the UADCs or observers, so there would have been no excuse for Mr. W___ to loiter around the tables where the bottles were kept.  He provides no evidence that Mr. W___ previously conspired with either the observer, Major B___; the UADC, Major W___; or the officer in charge, Major R___, to switch his sample.  According to board testimony, the sample was never in control of or in sight of any one person alone.  It was either in control of or in sight of the applicant and the observer; the applicant, the observer, and the UADC; or the UADC and the officer in charge until it was boxed up with the other samples.  The applicant does not name or provide a statement from the observer who told him about Mr. W___’s switching his own samples.  Even so, that would have been a conspiracy between Mr. W___ and one other person.  The Board agrees with the board of officer’s finding that it was unlikely a more widespread conspiracy could have occurred in the applicant’s case.

3.  The Board notes the conflicting testimony at the applicant’s board.  Three individuals testified that the tamper resistant tape had a small tear near the bottom.  When the applicant came back to the table the old tape was taken off in his presence and a new piece of tape was placed on the bottle in his presence.  The applicant testified that when he returned to the table, Major R___ was holding the sample bottle in one hand and the sticker label in the other hand.  He testified that Major R___ told him the sticker label would not stay on and that he needed him to sign another one and put it on.  The applicant provided no witnesses at his board who corroborated his version of events nor does he now explain the conflicting testimony.

4.  Unfortunately, urine samples are not retained for a very long time and the applicant’s sample was destroyed before he could request a DNA analysis.  However, the Board concludes that that is not a sufficient reason to reinstate him in the USAR.

5.  The Board notes the applicant’s contentions that he was not given official notification of the board’s decision or his Honorable Discharge Certificate.  It would be appropriate to ensure he received all the documents to which he is entitled.

6.  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.

NOTE:  The Army Review Boards Agency, Support Division, will be directed to provide the applicant an Honorable Discharge Certificate and official notification of the board of officer’s decision, as appropriate.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__MKP___  __ESC___  __JTM___  DENY APPLICATION

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

INDEX

CASE ID	AR2000043313	
SUFFIX		
RECON		
DATE BOARDED	20001024	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.03	
2.		
3.		
4.		
5.		
6.