MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           17 June 1999                    
	DOCKET NUMBER:   AC98-11074
				   AR1999015271

	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. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Thomas A. Pagan		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:  That she be authorized a length of service retirement at pay grade E-7 with full pay and allowances.

APPLICANT STATES:  In effect, that after over 19 years of impeccable military service, she was notified to appear before a Chapter 14 board after failing a urinalysis.  She never used drugs.  Her urinalysis test was conducted by the Fort Meade Drug Testing Laboratory shortly after it was discovered that laboratory technicians were falsifying drug test results.  In addition, shortly after her urine specimen allegedly arrived at the laboratory, the laboratory was broken into and several urine specimens were found in a nearby parking lot.  The charge of quarters/laboratory technician was eventually convicted for larceny of these urine specimens.  Her board was not objective.  One board member indicated that he believed the burden was on her to establish her innocence.  Her counsel argued that he should be excused for cause but the board president denied this request. She had two military and one civilian counsel.  When her civilian counsel requested a delay because he could not appear on the date the board was scheduled, the board president arbitrarily denied the request.

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

She enlisted in the Regular Army on 31 January 1978.  She was promoted to Sergeant First Class, E-7 on 1 August 1989.  She served four tours in Germany and also served in Saudi Arabia and Haiti.  Her awards and decorations include the Meritorious Service Medal, the Army Commendation Medal 1st Oak Leaf Cluster and the Army Good Conduct Medal 5th Award.  She has no record of any disciplinary actions until the incident leading to her discharge.

The applicant tested positive for cocaine use between 19 and 22 August 1995 during urinalysis testing.  The test was conducted by the Fort Meade Forensic Toxicology Drug Testing Laboratory on 5 September 1995 and confirmed by gas chromatography/mass spectrometry (GC/MS) on 7 September 1995.  Her specimen was retested 11 October 1995 and re-confirmed positive for cocaine by GC/MS.

On 21 February 1996, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice for wrongfully using cocaine sometime between 19 and 22 August 1995.

On 11 July 1996, the applicant was notified that action was being initiated to separate her under the provisions of Army Regulation 635-200, chapter 14, due to serious misconduct, wrongful use of cocaine.

The applicant acknowledged notification and requested consideration of her case by an administrative separation board, requested personal appearance before such a board, requested counsel for representation, and elected not to submit a statement in her own behalf.

The applicant’s chain of command recommended a discharge under other than honorable conditions.  The board was set to convene 3 September 1996.  Defense counsel requested a delay until 27 September 1996, which was granted. Defense counsel requested another delay until 3 October 1996, which was also granted.  The board convened on 26 November 1996.

One of the board members was challenged but the board president decided to proceed with him as a member of the board.

Several witnesses testified to the applicant’s exemplary conduct and character.  The first sergeant also testified that he does not trust the Army’s urinalysis program (his personal opinion) because “once it gets to the lab you never know what could happen.”  Other witnesses also testified that they had no confidence in the Army drug program.

The record of trial from United States vs. Specialist ____ was submitted into evidence.  Specialist ______, assigned to the Forensic Toxicology Drug Testing Laboratory, Fort Meade, MD, was charged, on 16 January 1996, with disobeying a lawful order on 20 October 1995; dereliction in the performance of his duties between 15 and 16 September 1995 as charge of quarters by failing to secure all interior and exterior doors prior to his exit from the Laboratory; dereliction in the performance of his duties between 15 and 16 September 1995 as charge of quarters by willfully propping open the door to and compromising the security system of the Laboratory, thereby rendering 2,536 urine specimens useless for military purposes; willfully damaging, on or about 15 September 1995, by rendering all 2,536 urine specimens useless, the amount of said damage being of a value of more than $100.00; stealing, on or about 15 September 1995, one box containing an unknown number of urine specimens; stealing, on or about   15 September 1995, one central processing unit; unlawfully entering, on or about 15 September 1995, the Laboratory with intent to commit larceny; and wrongfully having sexual intercourse with a woman not his wife.

Also submitted into evidence was a report of an investigation into a forensic violation at the Fort Meade Laboratory.

The board found that a preponderance of the evidence showed that the applicant did engage in serious misconduct and recommended she be discharged with a General Discharge.  On 17 December 1996, the commanding general forwarded the separation packet to Headquarters, Department of the Army (HQDA) recommending the applicant be separated and issued a General Discharge Certificate.

On 3 April 1997, HQDA approved the applicant’s involuntary discharge and directed she receive a General Discharge.

On 6 May 1997, the applicant was discharged, with a general discharge under honorable conditions, in pay grade E-7.  She had completed 19 years, 3 months and 6 days of creditable active service and had no lost time.

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.  First-time drug offenders in grades E-5 – E-9 will be processed for separation upon discovery of a drug offense. 

On 9 October 1998, the Army Discharge Review Board (ADRB) determined that the discharge was inequitable because the applicant’s generally acceptable personal conduct and performance of duty for over 19 years mitigated the discrediting entry in the service record.  Accordingly, she was granted relief in the form of an upgrade of characterization of 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 the aforementioned requirement.

2.  The applicant’s separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize her rights.

3.  The forensic violation at the Fort Meade, MD Laboratory occurred because technicians were improperly handling the “control samples” that are used to gauge the accuracy of the tests.  Control samples were put in the wrong sequence within the testing batch.  Thus, the computer showed an error in the test.  Instead of starting over, they switched the samples to their right spots to get the correct reading.  Officials were going to examine the past three years’ worth of testing records but the technicians were not mishandling soldiers’ urine samples.

4.  Specialist ______’s court-martial charges did not include tampering with urine samples.  The charges of stealing and damaging urine samples related to offenses committed on or about 15 September 1995; the applicant’s sample was tested on 7 September 1995 and retested on 11 October 1995.  The applicant has provided no evidence that her sample was in any way involved in this incident or that it was in any other way tampered with.

5.  The applicant contends that her board was not objective because one board member indicated that he believed the burden was on her to establish her innocence but he was allowed to remain on the board.  The summary of proceedings noted that the member was challenged because he believed that if a non-commissioned officer used drugs, they (sic) had to be discharged.  This is not the same as saying the burden of proving her innocence was on the applicant.  The summary of proceedings also notes that the member, after questioning, understood his duty as a board member was to determine, based on the evidence provided, if the applicant did in fact use cocaine.  This Board concludes the board president made a proper decision in retaining the challenged member.

6.  The applicant contends that when her civilian counsel requested a delay because he could not appear on the date the board was scheduled, the board president arbitrarily denied the request.  This Board notes that two delays had already been granted at defense counsel’s request and she had two military counsels.  This Board concludes the denial of this third request did not create either a hardship or an injustice for the applicant.

7.  This Board also recognizes the applicant’s 19 years of honorable service with only this one incident marring it; however, 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

__jlp___  __tap___  __ewl___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-11074/AR1999015271	
SUFFIX		
RECON		
DATE BOARDED	19990617	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	136.06	
2.		
3.		
4.		
5.		
6.