RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  02-02685
            INDEX CODE:  A60.00

            COUNSEL:  NONE

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

His general discharge be upgraded to honorable.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Human error may have been the cause of his positive drug test.

There was a problem with his original specimen bottle that resulted in
the use of another specimen bottle.   The  problem  arose  because  he
mistakenly washed his hands and caused some excess water to be on  the
outside of the bottle.  This caused smearing  on  the  label  and  the
urinalysis program personnel to use another bottle and  to  create  by
hand a new label for his bottle.

His urine sample may have been  contaminated  during  the  Brooks  Air
Force Base (AFB) Laboratory testing procedures.

His positive urine test may have been an unintentional mistake  caused
by the Brooks AFB Laboratory recording procedures or transcription  of
the testing results.

In  support  of  his  appeal,  the  applicant  provided  an   expanded
statement, extracts from his military personnel records, documentation
pertaining to his urinalysis testing and results, and  copies  of  the
unit urinalysis ledgers.

Applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant’s available military  personnel  records  indicate  that  he
enlisted in the New York Air National Guard and as a  Reserve  of  the
Air Force on 14 Jun 97.

On 21 Apr 01, the applicant submitted to a random urinalysis drug test
at the 107th Air Refueling Wing (107 ARW), Niagara Falls  Air  Reserve
Station.  The results of the applicant’s urinalysis evidenced positive
marijuana use.

On 11 Aug 01, the applicant’s  commander  notified  him  that  he  was
recommending that the applicant be separated  from  the  Air  National
Guard and as a Reserve of the Air Force.  The reason  for  the  action
was drug abuse, as evidenced by a  positive  urinalysis  result.   The
applicant was advised of his rights in the matter and that  a  general
discharge would be recommended.  The applicant acknowledged receipt of
the notification, consulted military counsel, and submitted statements
for consideration.

On 9 Feb 02, the Staff Judge Advocate, 107 ARW,  found  the  discharge
case file to be legally sufficient and recommended that the  discharge
package be forwarded to Headquarters, New York Air National Guard  (HQ
NYANG) for further action.

On 8 Mar  02,  the  Staff  Judge  Advocate,  HQ  NYANG,  reviewed  the
discharge case file and found it to be legally sufficient.

The applicant was discharged from the Air  National  Guard  and  as  a
Reserve of the Air Force on 21 Mar 02 under the provisions of AFI  36-
3209 (Misconduct) and furnished a general discharge.  He was  credited
with 4 years, 9 months, and 8 days of service.

_________________________________________________________________

AIR FORCE EVALUATION:

ANG/DPFP recommended denial indicating that they contacted  the  state
of New York and the National Guard  Bureau’s  Counterdrug  Office  for
information regarding the applicant’s discharge, and  for  information
regarding standard urinalysis processing procedures at the Brooks  AFB
Laboratory.  The state of New York provided  information  relevant  to
the chain of custody issue.  In a statement  made  on  AF  Form  1168,
Statement of Suspect/Witness/Complainant, the member who served as the
urinalysis  monitor  on  21  Apr  01  made  reference  to  applicant’s
scenario.  The monitor’s account of what took place on 21 Apr 2001  is
contrary to the applicant’s statement.  The monitor  stated  that  the
person providing the specimen urinated on the  label.   The  applicant
stated that he spilled water on the label while washing his hands.

According to ANG/DPFP, the National Guard Bureau’s Counterdrug  Office
commented on the chain of custody issue and stated that  the  practice
of switching specimen bottles “is not a  typical  practice,”  however,
given the set of circumstances, it  was  reasonable  as  long  as  the
member providing the specimen witnessed the transfer and the chain  of
custody was maintained.  In his statement, the applicant  acknowledged
that this was handled appropriately.

AFPC/DPFP noted that in his statement, the  applicant  questioned  the
procedures at the Air Force Drug Testing Laboratory.  He alleged  that
a problem at the lab  might  have  accounted  for  his  positive  drug
result.  The National Guard Bureau’s Counterdrug Office indicated that
this was not likely.   The  applicant  also  raised  the  question  of
whether a drug in the specimen processed directly ahead of  his  could
have been carried over and transferred to his specimen.  According  to
the National Guard Bureau's Counterdrug Office, a positive test result
is only reported after a  member’s  original  urine  sample  has  been
tested and resulted in  a  positive  test  on  three  separate  tests:
screen, re-screen, and confirmation testing.   During  the  re-screen,
water blanks are inserted between samples to eliminate any  chance  of
carryover.

Additionally, the National Guard Bureau’s Counterdrug Office made  the
following statements concerning the applicant’s case. “M---’s  testing
results were typical for an occasional/recreational user of  marijuana
rather than a chronic or heavy user.  The confirmed level of  use  was
relatively low.  Negative results on 25 Apr 01 and 5 May 01  were  not
surprising since the member had recently been subjected to  urinalysis
testing and had several days to continue flushing the drug out of  his
body  by  drinking  fluids.   Testing  conducted   by   the   civilian
laboratory, Associated Pathologists Laboratory (APL) with hair, urine,
and blood specimens were not  relevant.   It  was  unlikely  that  the
laboratory followed chain of custody procedures and  did  not  collect
the specimens in accordance with standard forensic  procedures.   Hair
testing was not a significant indicator of drug use for an  occasional
user, but a better predictor for the heavy  or  regular  user.   Urine
testing is the only  established  and  recognized  method  of  testing
military members at this time.”

In ANG/DPFP's view, it  was  unfortunate  that  the  applicant  tested
positive for marijuana  use.   However,  after  testing  positive,  he
received a letter of notification from his commander,  which  outlined
all information, and notification  rights  required  by  AFI  36-3209,
including that the commander’s recommendation would result in  general
discharge (under honorable conditions) for drug  abuse  in  accordance
with AFI 36-3209, paragraph 3.21.3.2.  The applicant submitted written
acknowledgement of receipt of  the  letter  of  notification  and  his
specific understanding that approval of the commander’s recommendation
would result in a general (under honorable conditions) discharge.

A complete copy of the ANG/DPFP evaluation is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to  applicant  on  31
Jan 03 for review and response.  As of this date, no response has been
received by this office (Exhibit C).

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing  law
or regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented  to  demonstrate
the  existence  of  error  or  injustice.   The  applicant's  complete
submission was thoroughly reviewed,  and  his  contentions  were  duly
noted.  However, we do not find the  applicant’s  assertions  and  the
documentation  presented  in  support  of  his   appeal   sufficiently
persuasive to override the rationale provided by the Air Force  office
of primary responsibility (OPR).  The evidence of record reveals  that
the applicant was involuntarily discharged from the Air National Guard
and as a Reserve of the  Air  Force  for  misconduct  as  a  result  a
positive urinalysis test for marijuana.   No  evidence  has  presented
which has shown to our satisfaction that  the  applicant’s  separation
was improper or contrary to  the  prevailing  Air  Force  instruction.
Therefore, in the absence of sufficient evidence that the  applicant’s
substantial rights were violated, the information used as a basis  for
his discharge was  erroneous,  or  that  his  superiors  abused  their
discretionary authority, we adopt the Air Force rationale and conclude
that no basis exists to recommend granting the relief sought  in  this
application.

4.  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.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  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 AFBCMR Docket Number 02-
02685 in Executive Session on 25 Mar 03, under the provisions  of  AFI
36-2603:

      Mr. Robert S. Boyd, Panel Chair
      Ms. Ann-Cecile McDermott, Member
      Mr. James A. Wolffe, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 17 Aug 02, w/atchs.
    Exhibit B.  Letter, ANG/DPFP, dated 10 Jan 03, w/atchs.
    Exhibit C.  Letter, SAF/MRBR, dated 31 Jan 03.




                                   ROBERT S. BOYD
                                   Panel Chair