MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           15 February 2001                   
	DOCKET NUMBER:   AR2000045309

	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:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Margaret K. Patterson		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 returned to active duty, that his rank be restored, and that he receive compensation for lost pay plus damages.

APPLICANT STATES:  That he did not engage in drug activities.  There was an error in the processing and handling of his urine specimen at Fort Meade, MD.  There was inadequate legal counseling at Fort Stewart, GA.  The applicant’s spouse states that the Summarized Laboratory Results state that a confirmation test was made on 17 November 1997.  According to the Specimen Custody Document – Drug Testing, DD Form 2624, the original bottle was not removed from storage on that date.  The applicant’s separation packet; the Commander’s Packet from the Forensic Toxicology Drug Testing Laboratory, Fort Meade, MD; marriage certificate; notice of bankruptcy; and Certificate of Release or Discharge from Active Duty, DD Form 214 are provided as supporting evidence.

COUNSEL CONTENDS:  Counsel recommended that the applicant’s case be heard by the Army Discharge Review Board (ADRB) first, which was done.  Counsel made no subsequent contention.

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

He enlisted in the Regular Army on 20 January 1983.  He was promoted to Staff Sergeant (SSG), E-6 on 1 January 1995.  

The applicant was assigned to Fort Stewart, GA as an Engineer Track Vehicle Crewman when he was selected for recruiter duty.  He attended the Army Recruiter Course from 6 October through 14 November 1997.  Orders were published on 19 November 1997 assigning him to Montgomery, AL as a recruiter.

On 12 November 1997 while at Fort Jackson, SC attending the Army Recruiter Course, the applicant provided an apparently routine urine specimen.  DD Form 2624 shows his specimen along with six others were received and shipped to Fort Meade, MD for testing on this date.  The specimen was received at Fort Meade with the seal intact and placed in temporary storage.  The next entry on the DD Form 2624 shows that it was taken out of temporary storage on             18 November for reverification.

On 7 January 1998, the applicant was counseled for being absent from his appointed place of duty and for failing to turn in a sick slip after he was given a direct order to do so.  

On 27 February 1998, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for wrongfully using marijuana between about 29 October and 12 November 1997.  His punishment was to be reduced to Sergeant (SGT), E-5, to forfeit $865.00 pay for 2 months, and to perform extra duty for 45 days.  He appealed the punishment.  His appeal was denied.  

On 30 March 1998, the applicant completed a separation physical and was found qualified for separation. 

On 29 April 1998, the applicant completed a mental status evaluation and was found to be mentally responsible and to be mentally capable of understanding and participating in proceedings.  He was psychiatrically cleared for any administrative action deemed necessary by his command.

On 29 May 1998, the commander initiated separation action under the provisions of Army Regulation 635-200, chapter 14 for misconduct, commission of a serious offense.  He cited the applicant’s wrongful use of marijuana as the reason.  He recommended the applicant receive a discharge under other than honorable conditions. 

The applicant refused to acknowledge receipt of the notification of separation action.  On 29 May 1998, the applicant was advised by consulting counsel of the basis for the proposed separation action and the rights available to him and the effect of any action taken by him in waiving his rights.  The applicant further understood that he was entitled to have his case considered by an administrative separation board because he was being considered for an under other than honorable discharge.  He waived consideration of his case by an administrative separation board contingent on his receiving a characterization of service of no less favorable than general under honorable conditions.  If the separation authority refused to accept his conditional waiver, he requested personal appearance before an administrative separation board and representation by military counsel.  He stated he submitted a statement in his own behalf but no statement is available.

On 4 June 1998, defense counsel submitted a separate statement in support of the applicant’s request for an honorable or general under honorable conditions discharge.  Defense counsel felt the applicant’s military record was sufficiently meritorious to warrant an honorable discharge.

On 18 June 1998, trial counsel at Fort Stewart, GA requested a Commander’s Packet (Abbreviated Litigation Support Packet) concerning the applicant’s urine specimen from the laboratory at Fort Meade, MD.  

The Summarized Laboratory Results in the Commander’s Packet noted that the initial screening test for the applicant’s urine specimen was conducted on           13 November 1997 and the rescreen was conducted on 13 November 1997.  The 

tests revealed that the specimen was positive for marijuana metabolites.  The presence of marijuana metabolites was confirmed on 17 November 1997.  The accompanying memorandum for record explaining the laboratory’s drug testing procedure stated in pertinent part that the laboratory documents all movement and handling of the specimen bottle on the DD Form 2624 and a continuation intralaboratory form (FTDTL Form 6).  The laboratory documents all subsequent aliquot handling on the intralaboratory chain of custody forms (FTDTL Form 201).

On 24 July 1998, the appropriate authority approved the applicant’s request for a conditional waiver of an administrative separation board and directed he receive a general under honorable conditions discharge.

On 13 August 1998, the applicant was discharged in pay grade E-5 under the provisions of Army Regulation 635-200, chapter 14 for misconduct.  He had completed 15 years, 6 months and 24 days of creditable active service and had no lost time.  His awards and decorations included the Army Commendation Medal (4th award), Army Achievement Medal (7th award) and the Army Good Conduct Medal (5th Award).  He served in Southwest Asia.

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, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a soldier discharged under this chapter.  However, the separation authority may direct a general or honorable discharge if such is merited by the soldier’s overall record.  

On 10 October 2000, the Forensic Toxicology Drug Testing Laboratory, Fort Meade, MD informed an analyst with the Board that they prepare two types of packets for use by a soldier’s command – a Commander’s Packet and a Litigation Packet.  They prepare whichever packet is requested by the command. The Commander’s Packet is an abbreviated Litigation Packet.  The Litigation Packet may contain as many as 40 or 50 additional documents, including FTDTL Forms 6 and 201, which record intralaboratory chain of custody of urine specimens.  They have no record of preparing a Litigation Packet.

On 2 February 2001, the ADRB determined that the applicant was properly discharged but determined that the characterization of his service was 

inequitable because his generally acceptable personal conduct and performance of duty mitigated the misconduct in the service record.  Accordingly, the ADRB voted to upgrade the characterization of the applicant’s service to fully honorable.

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.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  The applicant has provided insufficient evidence to show that his specimen was not tested on 17 November 1997.  The custody of his specimen within the laboratory would have been recorded on FTDTL Forms 6 or 201; however, neither of those two forms are provided as evidence.  In the absence of evidence to the contrary, the Board presumes that the laboratory prepared and completed those forms in accordance with applicable guidelines and that they would show that his specimen was taken from temporary storage on 17 November 1997 and tested as stated.

3.  The applicant does not explain why or how he was given inadequate legal counseling at Fort Stewart, GA nor does he provide any evidence to show he was inadequately counseled.  

4.  Since the applicant provides insufficient evidence to show the chain of custody was broken or that he was given inadequate legal counseling, the Board concludes that the punishment he was given under the Article 15 (i. e., the reduction) was appropriate and that his administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

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

__fne___  __mhm___  __mkp___  DENY APPLICATION

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

INDEX

CASE ID	AR2000045309	
SUFFIX		
RECON		
DATE BOARDED	20010215	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.03	
2.		
3.		
4.		
5.		
6.