ADDENDUM TO
                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: BC-1996-00259

            COUNSEL:  GARY R. MYERS

            HEARING DESIRED:  YES


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APPLICANT REQUESTS THAT:

He receive constructive credit through 20 years of service,  with  back  pay
and allowances, and full retirement, or in the alternative he receive  early
retirement at the date of his separation.

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STATEMENT OF FACTS:

On  16  September  1997,  the  Board  considered  applicant’s  requests  for
reinstatement on active duty in the grade of master sergeant, with back  pay
and allowances;  credit  for  pay  and  retirement  from  the  date  of  his
separation until the  date  of  his  reinstatement;  and  that  all  records
relating to his positive urinalysis  and  discharge  be  expunged  from  his
records.  The  Board  found  insufficient  evidence  of  probable  error  or
injustice and denied the application.  For an accounting of  the  facts  and
circumstances surrounding the application, and the rationale of the  earlier
decision by the Board, see the Record of Proceedings at Exhibit H.

In a letter, dated 8 May 2000, the applicant’s counsel  provided  additional
documentation and requested reconsideration of the application (Exhibit  I).
 Counsel amended applicant’s request, in a letter, dated  10  May  2000,  to
include constructive credit through 20 years of service, with back  pay  and
allowances and full retirement (Exhibit J).

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AIR FORCE EVALUATIONS:

AFPC/DPPRRP, recommends denial of the requested relief and states, in  part,
that  there  were  no  injustices  or  irregularities  that  occurred   with
applicant’s discharge processing.  There  were  provisions  that  allowed  a
member to voluntarily apply for a 15-year retirement  at  the  time  of  his
separation, but applicant was ineligible based on the fact  he  was  pending
court-martial charges.  There are no provisions of law to grant  credit  for
unserved service, nor do they support awarding him  credit  for  over  three
years of  unserved  active  service  to  permit  retirement  for  length  of
service.

A complete copy of the evaluation, with attachments, is at Exhibit M.

AFIERA/SDT,   recommends   denial   of   the   applicant’s    request    for
reconsideration.  AFIERA/SDT states, in part, that prior to  November  1999,
the Air Force policy regarding storage of confirmed positive  specimens  did
not expressly preclude indefinite storage. However, in  November  1999,  Air
Force policy was changed and indefinite  storage  was  precluded,  requiring
the  lab  to  make  an  inquiry  regarding  continued  storage  of  positive
specimens.  Unfortunately, the applicant was not given notice of the  change
and on 8 June 1999, his specimen was destroyed.  The failure to  notify  the
applicant of the change was a good faith mistake.   Notwithstanding,  it  is
their opinion that his request for equitable relief lacks merit  and  should
be denied.  The applicant has not submitted any new or  additional  evidence
to support his allegation that his specimen was tainted.  Five  years  after
storage,  the  applicant’s  specimen  bottle’s   lid   was   corroded,   the
identifying information on the label was  no  longer  legible,  and  only  a
small amount of dried residue  remained.   Considering  that  applicant  had
already conducted DNA analysis that was considered upon the Board’s  initial
review, the usefulness of the deteriorated residue is questionable at best.

A complete copy of the evaluation, with attachments, is at Exhibit N.

The Staff Judge Advocate, AFPC/JA, states that in 1994,  the  applicant  had
an opportunity to review the  laboratory  procedures  and  test  results  in
anticipation of his court-martial; however, after consulting with  both  his
Military Defense Attorney and Circuit Trial Counsel,  he  elected  to  waive
his right to have the government prove its  case  and  was  administratively
discharged.

Applicant was provided an opportunity to have  the  specimen  tested  by  an
independent laboratory; however, the results were  inconclusive.   Applicant
has failed to establish that additional testing  of  the  remainder  of  the
specimen  would  provide  sufficient  evidence  to  overcome  the   original
findings by the laboratories.

A complete copy of the evaluation is at Exhibit O.

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APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

The  applicant’s  counsel  reviewed  the  evaluations  and  states  that   a
perfectly decent laboratory says the specimen is tainted and the  Air  Force
says the results are inconclusive.  The  purported  affidavits  relating  to
the specimen’s destruction are dated months after the  alleged  destruction.
No memorandum contemporaneous with  destruction  exists.   Counsel  contends
this is a cover-up and questions how a frozen  specimen  can  dry-out  in  a
sealed container  as  is  alleged.   On  15  November  1999,  the  screening
technician merely indicated the cap was rusted; where as on 10 August  2000,
14 months after the destruction of the specimen, the technical  director  is
very careful to state the lid had corroded through.   This  is  because  the
technical director knew that to have dry residue he needed contact with  the
air.  He believes these people are lying and  their  motive  is  to  justify
their good faith mistake.

Counsel’s complete response, with attachments, is at Exhibit Q.

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ADDITIONAL AIR FORCE EVALUATIONS:

AFIP-OME-T recommends the application  be  denied.   AFIP-OME-T  states,  in
part, that a review of the Air Force Drug Testing Laboratory’s results on  a
specimen report on 11 May 1994 are accurate and the reported value of  21.77
ng/mL for metabolite of THC is correct.  After  reviewing  the  testing  and
chain of custody documents, they find no irregularities.  The  specimen  was
collected for the purpose of testing for drugs of  abuse.   The  sample  was
not intended  for  DNA  analysis  and  could  have  been  contaminated  with
extraneous DNA at several stages in  the  collection  and  testing  process.
The sample was not collected under sterile conditions and  the  DNA  testing
results  of  “inconclusive”  are  not  surprising.   The  results  did   not
conclusively demonstrate that there was no match between  the  specimen  and
the collected DNA sample from the applicant.

The AFIP-OME-T evaluation is at Exhibit R.

AFIP/CME-DNA, states, in part, that he finds nothing in the  DNA  data  that
would cause him to  doubt  the  integrity  of  a  well-documented  chain  of
custody.  The  Laboratory  of  Pathology  appears  to  have  obtained  three
different results on the same evidence sample.  They only  reported  one  of
those results for reasons that are not entirely clear, but are addressed  in
a letter, dated 14 January 1997.  In their experience,  unconfirmed  results
should be reported as inconclusive.  That interpretation  does  not  support
either the absence or presence of a mixture; it merely  indicates  that  you
cannot draw a reliable conclusion given the data.

The AFIP/CME-DNA evaluation is at Exhibit S.

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APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

The  applicant’s  counsel  states  that  the  DNA  test  results  were   not
inconclusive and demonstrated that the  applicant’s  DNA  was  tainted  with
someone else’s DNA.  The advisory  opinion  suggested  that  the  DNA  taint
could have occurred innocently.  If that is the case,  then  the  system  of
collection must be changed to preclude that  possibility.   However,  it  is
the government’s responsibility to  assure  a  clean  sample,  and  not  the
applicant.  If the sample is tainted it is  the  government’s  problem,  not
the applicant’s.

In further  support  of  the  appeal,  the  applicant’s  counsel  submits  a
statement from the scientist who performed the initial DNA  testing  on  the
applicant’s urine sample, who states the following:

      a.    She  stands  by  her  initial  test  results  that  exclude  the
applicant as the sole donor of the unknown urine sample.  The  results  were
consistent and can  be  attributed  to  the  amount  of  DNA  added  to  the
Polymerase Chain Reaction (PCR).

      b.    AFIP/CME-DNA does not refute any aspect  of  her  letter  of  14
January 1997 that defends her earlier conclusion and clearly spells out  her
methodology.

      c.    It is not a fair characterization to conclude  their  laboratory
results  showed  three  different  results  -  the  results  are  internally
consistent and reflect the inherent sensitivity of  the  testing.   The  PCR
technology employed is extremely dependent on the amount of sample  used  in
the test.  When  too  small  an  amount  of  sample  is  added,  nothing  is
observed.  When a larger amount is added, the major DNA constituents of  the
sample are visualized.  When a still larger volume is added, all of the  DNA
present in the sample can be identified.  As  the  Laboratory  of  Pathology
increased the amount of the sample used in the testing,  they  visualized  a
progressive, yet internally consistent pattern.

      d.    The amount of sample for the  first  two  of  the  three  sample
analyses was insufficient to  accurately  determine  the  comprehensive  DNA
pattern of the sample.  Therefore, by further increasing the  sample  volume
for the third analysis of the  sample,  a  comprehensive  and  accurate  DNA
pattern for the sample was  achieved.   The  final  assessment  of  the  DNA
pattern for the sample was definitely provided by this  third  step  of  the
analysis and the first two analyses served as integral steps in  the  method
development in order to arrive at the correct analysis conditions for  final
assessment.

       e.     Their  analysis  of  the  urine  sample  tested  did   contain
extraneous DNA from a source other than the applicant.  She  cannot  make  a
judgment as to where this contamination occurred in the sample, except  that
the additional DNA pattern found did not match any of  the  technical  staff
that handled the sample in their laboratory.  She  also  cannot  surmise  at
what concentration level the extraneous DNA is present in the urine  sample,
because the testing method is not designed to make such an assessment.

Counsel’s complete response, with attachments, is at Exhibit U.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.    Insufficient relevant evidence has been presented to  demonstrate  the
existence of error or injustice.  After thoroughly  reviewing  the  evidence
of  record  and  the  additional  documentation  submitted  by   applicant’s
counsel, we are still not persuaded that the applicant has been  the  victim
of an error or injustice.  In this respect, we note the following:

      a.    Prior to November 1999,  Air  Force  policy  did  not  expressly
preclude indefinite storage of confirmed positive urine specimens;  however,
in November 1999, Air Force policy was changed  whereby  indefinite  storage
was precluded and  the  lab  was  required  to  make  an  inquiry  regarding
continued storage of positive specimens.  Although  the  applicant  and  his
counsel were not notified  of  this  change  in  policy,  his  specimen  was
destroyed on 8 June 1999.  Considering that the applicant had already had  a
DNA analysis of the sample conducted within the first year of the  five-year
period it was retained, and given the poor condition of  the  sample;  i.e.,
the cap had rusted and deteriorated, the label  faded,  and  little  of  the
sample remained, we find it reasonable to accept that the failure to  notify
the applicant of the policy change was a good faith mistake as indicated  by
the Chief, Drug Testing Division.

      b.    The applicant  had  an  opportunity  to  review  the  laboratory
procedures and test results in anticipation  of  his  court-martial  and  to
prove his innocence at trial.  However, after consulting with  his  civilian
and military defense attorneys, he waived his right to have  the  government
prove its case.  Furthermore, since he had completed at least 16  years  but
less than 20 years of active service creditable towards retirement,  he  was
entitled to lengthy service probation consideration.  However,  he  did  not
request such consideration.  Despite the fact that  the  applicant  had  two
separate opportunities to contest the  charge  against  him  and  prove  his
innocence while on active duty, counsel comes before this  Board,  where  it
is now the applicant’s burden to prove an  error  or  injustice,  contending
the results of the DNA testing prove that the applicant’s urine  sample  was
tainted with the urine of another individual.

      c.    Even accepting the DNA testing on its face  merely  proves  that
his urine sample contained DNA alleles of more than one individual, not  the
urine of more than  one  individual.   As  indicated  by  the  Chief  Deputy
Medical Examiner, Forensic Toxicology, the urine specimen was collected  for
the purpose of  testing  for  drug  abuse  and  was  not  intended  for  DNA
analysis.  Since the sample was not collected under sterile  conditions,  as
is  the  case  in  DNA  analysis,  it  could  have  been  contaminated  with
extraneous DNA at several stages in  the  collection  and  testing  process.
Even the PhD scientist that signed the original DNA results  indicates  that
she cannot make a  judgment  as  to  where  contamination  occurred  in  the
sample, except that the additional DNA pattern found did not  match  any  of
the  technical  staff  that  handled  the  sample   in   their   laboratory.
Noticeably absent from the  evidence  presented  is  any  indication  as  to
whether the additional DNA pattern found in the sample matched  any  of  the
technicians at the Armstrong Laboratory at  Brooks  AFB  that  analyzed  the
urine sample.

      d.    After thoroughly reviewing the evidence before  this  Board,  we
can find  no  showing  that  the  Air  Force’s  collection  procedures  were
improper or that the chain of custody of the  sample  was  compromised.   In
the absence of evidence that the collection  of  the  specimen  was  not  in
accordance with Department of Defense and Air Force  instructions,  we  find
no compelling  basis  to  recommend  granting  the  relief  sought  in  this
application.

2.    The applicant's case is adequately documented  and  it  has  not  been
shown that a personal appearance with or  without  counsel  will  materially
add to our understanding of the issues  involved.   Therefore,  the  request
for a hearing is not favorably considered.

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THE BOARD DETERMINES THAT:

The applicant be notified that the additional  evidence  presented  did  not
demonstrate  the  existence  of  material  error  or  injustice;  that   the
application  was  denied  without  a  personal  appearance;  and  that   the
application  will  only  be  reconsidered  upon  the  submission  of   newly
discovered relevant evidence not considered with this application.

_________________________________________________________________

The following members of the Board considered this  Docket  Number  BC-1996-
00259 in Executive Session on 10 July 2003, under the provisions of AFI  36-
2603:
1
                  Mr. Wayne R. Gracie, Panel Chair
                  Ms. Jean A. Reynolds, Member
                  Ms. Cheryl Jacobson, Member





The following documentary evidence was considered:

      Exhibit H.  Record of Proceedings, dated 24 Jul 98, w/atchs.
      Exhibit I.  Letter, Counsel, dated 8 May 00, w/atchs.
      Exhibit J.  Letter, Counsel, dated 10 May 00, w/atch.
      Exhibit K.  Letter, AFBCMR, dated 16 Jun 00.
      Exhibit L.  Letter, Counsel, dated 23 Jun 00.
      Exhibit M.  Letter, AFPC/DPPRRP, dated 27 Jul 00, w/atchs.
      Exhibit N.  Letter, AFIERA/SDT, dated 18 Aug 00, w/atchs.
      Exhibit O.  Letter, AFPC/JA, dated 5 Sep 00.
      Exhibit P.  Letter, AFBCMR, dated 8 Sep 00.
      Exhibit Q.  Letter, Counsel, dated 13 Oct 00, w/atchs.
      Exhibit R.  Letter, AFIP-OME-T, dated 5 Nov 02.
      Exhibit S.  Letter, AFIP-CME-DNA, dated 19 Dec 02, w/atchs.
      Exhibit T.  Letter, AFBCMR, dated 13 Jan 03.
      Exhibit U.  Letter, Counsel, dated 28 Mar 03, w/atchs.




                                   WAYNE R. GRACIE
                                   Panel Chair