PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:           9 November 2000
	DOCKET NUMBER:   AR2000043544

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

	Mr. Carl W. S. Chun		Director	
	Mr. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater 		Chairperson	
	Mr. Orville W. Troesch Jr.		Member	
	Ms. Barbara J. Lutz  		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his General Discharge (GD) be upgraded to an Honorable Discharge (HD); that he be returned to active duty, or in the alternative, that he be permitted to retire; that a nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, which was administered against him on 29 January 1997 be revoked; and that his pay records be corrected and he be reimbursed for any pay improperly withheld or collected.

3.  The applicant states, in effect, that he was improperly separated for misconduct because of a faulty unit urinalysis test; that he was denied due process in the NJP proceeding taken against him; that he was denied due process in the administrative separation board action taken against him; and that he was denied due process by the Defense Finance and Accounting Service (DFAS) in the imposition of a debt against him.

4.  In support of his application, the applicant submits voluminous documentation consisting of a 4-page attachment to his DD Form 149, Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552, with the following enclosures:  Record of Administrative Discharge Board, Article 15 Hearing, Army Discharge Review Board (ADRB) hearing, Correspondence with DFAS, and Other Documents and Papers.  A complete listing of supporting documents is attached to this Proceeding.

5.  The applicant’s military records show that he was a sergeant first class (E-7) in the United States Army Reserve (USAR), serving on active duty as a recruiter. On 5 November 1996, he reported to a military dental clinic with a complaint of tooth pain.  He was treated with an anaesthetic--mepivacaine--and with the analgesics motrin and percocet.  On 26 November 1996, he participated in a unit drug screening and submitted a urine sample.  The sample was sent by certified mail to the US Army Medical Laboratory, Forensic Toxicology at Fort George G. Meade, Maryland for testing on 2 December 1996.  The test results indicated that the applicant had used cocaine.

6.  On 12 December 1996, the applicant's commander notified the applicant that he had tested positive for cocaine and that separation action was being initiated against him under the provisions of Army Regulation 635-200, chapter 14, for misconduct.  The applicant was advised of his rights and consulted with legal counsel who advised him of the impact of the discharge action.  He requested an administrative separation hearing before a board of officers.

7.  On 29 January 1997, the applicant's battalion commander offered, and the applicant accepted, NJP for illegal use of drugs (cocaine).  During the NJP hearing, the battalion commander allegedly telephoned an outside source to resolve a question about whether the applicant could have tested positive for cocaine because of having undergone dental treatment on 5 November 1996.  After apparently satisfying himself that the applicant could not have tested "falsely positive" because of his dental treatment, the battalion commander punished the applicant through forfeiture of $520.80 per month for 2 months.

8.  On 17-18 December 1996, the applicant underwent a complete physical and mental status evaluation which found him qualified for separation action under chapter 14, Army Regulation 635-200.  The applicant's administrative separation hearing was conducted on 12 June 1997.  His counsel presented a defense witness in the drug testing field who testified that he considered the Fort Meade drug lab's procedures suspect in the applicant's case.  An official from the Fort Meade drug lab testified for the Government that the lab's procedures were correct and were certified as correct by an oversight agency.  He also stated that the applicant's dental treatment could not have resulted in a positive test for cocaine, as only cocaine, and no other drug, produced the metabolite benzoylecgonine when introduced into the body.  

9.  The board of officers, after weighing all of the evidence in the case, found that "[Applicant] committed a serious offense, to wit:  wrongful use of cocaine based on the urinalysis testing and laboratory report from the Fort Meade, Forensic Toxicology."  They also found that he was not desirable for further retention in the military service, and recommended that he be separated with an other than honorable discharge.  However, the board of officers also recommended that the applicant's separation be suspended for 6 months during which time he would take weekly urinalysis tests and perform non-recruiting duties.

10.  The recommendation of the board of officers was forwarded to the Commander, US Army Recruiting Command (USAREC) for action.  The commander directed that the applicant be separated with an under other than honorable conditions discharge.  This action was cancelled when it became known that the applicant had more than 18 years of service and the entire record of proceedings of the administrative separation board was forwarded to Headquarters, Department of the Army for a final decision.  On 19 February 1998, the Assistant Secretary of the Army for Manpower and Reserve Affairs directed that the applicant be separated with an under other than honorable conditions discharge for misconduct, commission of a serious offense.  He also directed that he be reduced to the lowest enlisted grade (E-1).

11.  On 16 March 1998, the US Army Reserve Personnel Command (AR-PERSCOM) published an order reducing the applicant from E-7 to E-1 effective 19 February 1998.  On 23 March 1998, the applicant was separated with an under other than honorable conditions discharge under the provisions of chapter 14, Army Regulation 635-200 for misconduct.  He had total creditable service of 18 years, 8 months, and 3 days.

12.  On 24 September 1998, the applicant appeared with counsel before the ADRB at a hearing in Tampa, Florida.  The applicant argued:  that his separation was unlawful because the administrative separation board had recommended that his separation be suspended for six months; that his separation was a blatant violation of Army Regulation 635-200 which mandates that the separation authority adhere to the administrative separation board's recommendation; that the characterization of his separation was not supported by the evidence; and that his discharge under other than honorable conditions was inequitable because it was based on one isolated incident and disregarded more than 18 years of faithful service.  The ADRB rejected the applicant's first three contentions noting that the separation authority acted within his authority by rejecting the board's recommendation to suspend separation.  However, the board accepted the applicants' contention that his under other than honorable conditions separation was inequitable given his lengthy honorable service and voted to upgrade his discharge to general under honorable conditions and to restore his grade to E-7.

13.  On 25 August 1998, the DFAS notified the applicant that he owed a debt of $2,315.13 resulting from his demotion on 19 February 1998.  On 25 November 1998, AR-PERSCOM published an order revoking the 16 March 1998 order that reduced the applicant from E-7 to E-1.  On 9 March 1999, DFAS again notified the applicant of his debt and requested that he make payment on that debt.

14.  Army Regulation 600-85 prescribes policies and procedures needed to implement, operate, and evaluate the Army Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).  Army policy provides that alcohol and drug abuse will not be tolerated and that serious consequences will accrue for such misbehavior.  It mandates that officers and noncommissioned officers (sergeant and above) who are identified as illegal drug abusers will be processed for separation.

15.  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.  Specific categories include minor disciplinary infractions, a pattern of misconduct, or commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave.  Army policy states that a discharge under other than honorable conditions is normally considered appropriate, but a general discharge under honorable conditions or an honorable discharge may be granted.

16.  Army Regulation 635-200 also provides that a soldier with 6 or more years of total active and reserve service on the date of initiation of a recommendation for separation is entitled to a hearing before an administrative separation board.  When board action is completed on a soldier with over 18 years of service, the findings and recommendations of the board, with complete documentation and the recommendation of the convening authority, will be forwarded to Headquarters, Department of the Army (HQDA) for final determination when discharge is recommended.  A recommendation that separation be suspended is not binding on the approving authority.

CONCLUSIONS:

1.  The applicant underwent a command-directed urinalysis test on 26 November 1996.  The urine collection, handling and testing were properly conducted and the applicant tested positive for the use of cocaine.

2.  The applicant was subjected to administrative separation action as a result of his positive urinalysis test.  His discharge proceedings were conducted in accordance with applicable law and regulations.  Although the original separation recommendation was acted upon by the Commander, USAREC (who was not the designated approving authority), the error was caught and corrected and the administrative separation recommendation was forwarded to HQDA for action.

3.  The applicant accepted NJP for his wrongful use of cocaine and was punished by forfeiture.  The NJP was imposed in compliance with applicable laws, regulations and policies.  The punishment imposed was neither unjust nor disproportionate to the offense, and there is no evidence of any substantive violation of any of the applicant's rights.

4.  When the ADRB acted to upgrade the applicant's under other than honorable conditions discharge, it also directed that he be restored to his former grade of 
E-7.  This caused AR-PERSCOM to revoke the order that reduced the applicant from E-7 to E-1.  The applicant was thus entitled to E-7 pay through the date of his separation on 23 March 1998.  It is therefore unjust for the DFAS to pursue a collection action against the applicant based solely upon his 19 February 1998 reduction.

5.  In view of the foregoing, the applicant’s records should be corrected, but only as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by:

a.  Canceling any debt against the individual concerned that may have accrued as a result of the AR-PERSCOM order of 16 March 1998 which was subsequently revoked on 25 November 1998 as a result of board action by the ADRB; and

	b.  Refunding to the individual concerned any monies already collected to satisfy that debt.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__jlp____  __owt ___  __bjl____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		   __Jennifer L. Prater__
		        CHAIRPERSON

LIST OF SUPPORTING DOCUMENTS

1.	Memo, 16 Jul 97, Cdr, USAREC to Cdr, ARPERCEN, directing applicant's separation UP AR 635-200 C14.
2.	Memo (3-pages), 28 Feb 97, Cdr, USA Recruiting Bn-Tampa to Cdr, 2nd Recruiting Bde, recommending applicant's separation UP AR 635-200 C14.
3.	Memo (2-pages), 12 Dec 96, Cdr, USA Recruiting Bn-Tampa to Applicant, informing of initiation of separation action.
4.	Privacy Act statement.
5.	Memo (2-pages), 7 Feb 97, Applicant to Cdr, USA Recruiting Bn-Tampa, stating that he received legal counsel and will exercise his rights.
6.	DA Form 4856, 12 Dec 96, stating applicant was positive on drug screen.
7.	DA Form 2627, 29 Jan 97, punishing applicant with forfeiture of $1,021.60 for cocaine use.
8.	DA Form 3822-R, 17 Dec 96, clearing applicant for administrative action.
9.	SF Form 93, 18 Dec 96.
10.	SF Form 88, 18 Dec 96, with 7-pages of lab tests, EKG's etc.
11.	DA Form 2-1, Personnel Qualification Record (5-page).
12.	Memo, 21 Mar 97, Cdr, 2nd Recruiting Bde, requesting administrative separation board.
13.	Memo, 3 Apr 97, Cdr, USAREC, designating applicant as respondent before an administrative separation board.
14.	Memo (3-pages), 3 Apr 97, HQ, USAREC, appointing administrative separation board.
15.	Memo, 5 Jun 97, HQ, 2nd Recruiting Bde, requesting excusal from administrative separation board.
16.	Memo, 2 Jun 97, Applicant's civilian counsel, requesting USAR and Hispanic representation on the administrative separation board.
17.	Memo, 5 Jun 97, HQ, USAREC, appointing USAR and Hispanic members to administrative separation board.
18.	Copy of Item 14.
19.	Memo, 21 Feb 97, Cdr, USAREC, delegation of authority to excuse board members.
20.	Memo, 2 Jul 97, Cdr, 2nd Recruiting Bde, forwarding record of proceedings of administrative separation board.
21.	DA Form 1574 (9-pages), 12 Jun 97, Report of Proceedings of Administrative Separation Board.
22.	Summary of Proceedings (38-pages), 12 Jun 97, Administrative Separation Board.
23.	Memo, 12 Dec 96, HQ, 2nd Recruiting Bde to Cdr, US Army Medical Laboratory, Forensic Toxicology, requesting litigation packet.
24.	Litigation Support Packet (56-pages), 31 Dec 96.
25.	Memo, 21 Apr 97, HQ, 2nd Recruiting Bde to Applicant, notification to appear before administrative separation board.
26.	Acknowledgment, 25 Apr 97, Applicant to HQ, 2nd Recruiting Bde, acknowledging notification to appear.
27.	Memo, 16 May 97, HQ, 2nd Recruiting Bde to Applicant, modification of notification to appear.
28.	Acknowledgment, Undated, Unsigned.
29.	Facsimile Transmittal Header Sheet, 16 May 97.
30.	Memo, 19 May 97, HQ, 2nd Recruiting Bde to Applicant, modification of notification to appear.
31.	Copy of Item 28.
32.	Copy of Item 7.
33.	Copy of Item 7.
34.	USAREC Form 1001, 26 Nov 96, Privacy Act Statement.
35.	Motion to Suppress and/or Dismiss (2-pages), 11 Jun 97, Applicant's civilian counsel.
36.	Motion - Objection to Recorder (2-pages), 10 Jun 97 Applicant's civilian counsel.
37.	MFR, 13 Jun 97, Applicant's civilian and military counsel, objection to recorder statement.
38.	Memo, 26 Nov 96, Cdr, USA Recruiting Bn-Tampa, commander-directed urinalysis testing.
39.	Organizational Alpha Roster, 25 Nov 96, Recruiting Company - Orlando.
40.	Copy Receipt for Certified Mail, 26 Nov 96, sending urine samples to lab.
41.	USAREC Form 1051 (2-pages), 26 Nov 96.
42.	DD Form 2624 (4-pages), 26 Nov 96.
43.	MFR, 26 Nov 96, Responsibilities of Observers During Drug Testing.
44.	Table of Exhibits, Undated, A thru F (F is Excerpt, Army Times, 30 Sep 96).
45.	Curriculum Vitae (4-pages), Undated, Wayne A. Morris.
46.	Memo (5-pages), 22 Jan 96, Tripler Army Medical Center to USATDS, Tripler drug lab.
47.	Curriculum Vitae (3-pages), Undated, Jay Still.
48.	Hypothetical Court Testimony (5-pages), Undated, pointing out problems in drug testing labs.
49.	5-Pages, Undated, with topics of Security, Reagents-Controls-Standards, Methods, LCO Review, Exam for Certification, Surgeon General's SOP, Surgeon General's Inspection, Personnel, Chain of Custody Documentation.
50.	Final Report of the Independent Review of Radioimmunoassay Analytical Data and laboratory Operating Procedures of the Navy Drug Screening Laboratory, Norfolk, VA (1-26 of 76-pages), 25 May 1995, outlining employees who reported false negatives and false positives on drug tests.
51.	Copy of Letter to Editor, 30 Sep 96, Army Times, LTC (Ret) Charles M. Williams, noting that in 1983 his urine sample was tampered with and resulted in a false positive reading.
52.	DA Form 2166-7, 9701, Applicant, indicates he is a drug abuser.
53.	DA Form 2166-7, 9601, Applicant.
54.	DA Form 2166-7, 9509, Applicant.
55.	DA Form 2166-7, 9409, Applicant.
56.	DA Form 2166-7, 9303, Applicant.
57.	DA Form 2166-7, 9203, Applicant.
58.	Memo, 23 Dec 96, Applicant's military counsel, requesting Litigation packet and Sample Retest.
59.	DA Form 705, 21 Oct 95-10 Apr 97, Applicant's scores.
60.	SF 93, 11 May 96, Applicant, stating that he is allergic to codiene and morphine.
61.	SF 601-A, 5-6 Nov 96, Applicant's dental record, showing treatment for pain with mepivacaine, motrin, and percocet.
62.	Memo, 13 Jun 97, Applicant's civilian and military counsels, requesting a verbatim transcript of administrative separation hearing.
63.	Memo, 18 Jun 97, HQ, 2nd Recruiting Bde to Cdr, USAREC, forwarding the request for verbatim transcript of administrative separation hearing.
64.	Memo, 25 Jun 97, Cdr, USAREC to Applicant's military counsel, denying request for verbatim transcript, but approving a summarized proceeding and a verbatim findings and recommendations portion.
65.	Orders B-03-000013, 16 Mar 98, HQ, ARPERSCOM, reducing the applicant from E-7 to E-1 effective 19 Feb 98 per VOCO of ASA M&RA.
66.	Orders B-03-000013R, 25 Nov 98, HQ, ARPERSCOM, revoking the reduction from E-7 to E-1.
67.	DD Form 257A, 23 Mar 98.
68.	Letter, 30 Nov 98, ARBA-STL to Applicant, stating that his discharge is upgraded to a GD.
69.	Letter, 9 Mar 99, DFAS-D to Applicant, stating his debt is $2,803.94.
70.	Memo, 3 Feb 97, Applicant to Unknown (Thru Cdr, 2nd Recruiting Bde), asking that his NJP punishment be reduced or suspended.
71.	Letter (3-pages), 25 Aug 98, DFAS-D to Applicant, stating his debt is $2,315.13 as a result of his reduction to E-1 on 19 Feb 98 which did not take effect until after the EOM Mar 98 pay period.
72.	DA Form 4856, 12 Dec 96, Cdr, Orlando Recruiting Company to Applicant, re:  positive urinalysis.
73.	Memo, 16 Dec 96, Applicant to Cdr, Tampa Recruiting Company, asking that he be permitted to stay on recruiting duty.
74.	Memo: 23 Dec 96, Applicant's military counsel to HQ, 2nd Recruiting Bde, asking for assistance in obtaining a copy of Litigation Packet and Sample Retest.
75.	Copy of Item 70.
76.	Order Appointing Mediator and Scheduling Mediation (2-pages), 31 Jul 98, US District Court, Middle District of Florida, Tampa Division to SECARMY, referring the applicant's case to a mediator.
77.	Memo (4-pages), 25 Jul 98, Applicant's military counsel to Cdr, ARPERSCOM, requesting that applicant be allowed to remain on active duty.

INDEX

CASE ID	AR2000043544	
SUFFIX		
RECON		
DATE BOARDED	20001109	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19980323	
DISCHARGE AUTHORITY	AR 635-200 C14	
DISCHARGE REASON	A60.00	
BOARD DECISION	GRANT PLUS	
REVIEW AUTHORITY	DASA	
ISSUES         1.	110.0000	
2.	128.1500	
3.		
4.		
5.		
6.