RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-01329
            INDEX CODE:  110.03

      JILL K. BERTINO  COUNSEL:  David P. Price

            HEARING DESIRED: NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

        a.  Her 6 August 2001 discharge from the New York Air National
Guard (NYANG) be vacated.

        b.  She be reinstated to the NYANG.

        c.  She be reinstated to the Reserve grade of staff sergeant.

        d.  She be made eligible to reenlist.

        e.  Her character of service of  under  other  than  honorable
conditions (UOTHC) be removed.

        f.  All service record entries and references of  any  nature,
in any manner, related to the allegation and subsequent misconduct due
to drug abuse be removed.

        g.  Her pay, allowances, entitlement, rights,  and  privileges
affected by the misconduct due to the  allegation  of  drug  abuse  be
restored.

Or, in the alternative, she be granted an honorable discharge  with  a
reenlistment eligibility (RE) code of RE-1, as well  as  repayment  of
any pay, allowances and benefits through the end of her then  existent
enlistment  contract,  that  were  denied  her  as  a  result  of  the
administrative separation on 6 August 2001.

_________________________________________________________________

APPLICANT CONTENDS THAT:

She was selected for a random urinalysis on 8 July  2000  that,  after
testing   on   18   July   2000,    confirmed    the    presence    of
Tetrahydrocannabinol (THC).  On 25 August 2000, her squadron commander
was notified  of  the  results.   On  13 October  2000,  her  squadron
commander issued a notification of  intent  to  recommend  nonjudicial
punishment (NJP) for the applicant as well as her discharge  from  the
NYANG with a characterization of service  as  UOTHC.   On  14  October
2000, she consulted with military counsel  and  requested  a  personal
appearance  before  an  administrative  discharge  board  (ADB).   She
acknowledged receipt of the squadron commander’s  notification  on  15
October 2000 and indicated her intent to consult  counsel  and  submit
statements.  On 19 October 2000,  she  submitted  a  response  to  her
squadron commander’s letter of intent.  She denied knowingly  using  a
controlled substance and offered an explanation as to how her specimen
may  have  tested  positive.   In  response,  her  squadron  commander
requested she obtain a sworn affidavit to support  her  statements  of
unknowingly ingesting marijuana.  On 5 November 2000, she  provided  a
sworn statement that corroborated her earlier explanation  as  to  how
she may have unknowingly ingested marijuana on or about 8  July  2000.
On 3 December 2000, an ADB was ordered convened  and  on  26  December
2000 an ADB was appointed. On 3 February 2001, the ADB  was  held  and
determined the applicant should be discharged from the  NYANG  with  a
UOTHC discharge.  On 28 February 2001, she was demoted to the grade of
senior airman with an effective and date of rank (DOR) of  27 February
2001.  On 6 August 2001, she was discharged  from  the  NYANG  with  a
UOTHC discharge.  As a result of  her  discharge  she  also  lost  her
fulltime military technician position, effective 21 September 2001.

She contends there is no plausible reason that  an  outstanding  staff
sergeant with  20  years  of  honorable  and  faithful  service  would
jeopardize her career by being involved in the  use  of  a  controlled
substance.  From the time  she  was  notified  of  her  positive  test
result, she has steadfastly  denied  any  illegal  use  of  controlled
substances.  She contends knowledge of the presence of the  controlled
substance is a required component of use.  Consequently, she does  not
believe the government  has  satisfied  the  burden  of  proof  as  to
knowledge of  ingestion.   Therefore,  she  contends  the  prosecution
cannot rely solely on the presence in the body  of  the  drug  or  its
constituent elements.  She states the cases that  have  permitted  the
inference of wrongfulness strictly required that the prosecution  also
establish the reliability of the testing methodology and  explain  the
significance of the results of the test to the accused’s sample.   The
prosecution’s expert testimony must show: 1) that  the  metabolite  is
not naturally produced by the body or any substance other the drug  in
question, 2) that the cutoff level and reported concentration are high
enough to reasonably discount the possibility of  unknowing  ingestion
and to indicate a reasonable likelihood that the  user  at  some  time
would have experienced the physical and psychological effects  of  the
drug, and 3)  that  the  testing  methodology  reliably  detected  the
presence and reliably quantified the  concentration  of  the  drug  or
metabolite in the sample.  She contends this  three-part  approach  is
not exclusive and other factors may be considered, that the  trier  of
fact remains obligated to legally analyze the factual basis upon which
the inference of knowing use is predicted.

She admits  the  burden  of  proof  for  Article  15,  UCMJ,  and  ADB
proceedings is  less  stringent  than  for  trial  by  courts-martial.
However,  a  reasonable   standard   for   permitting   inference   of
wrongfulness must be considered.  She contends there was no  sign  any
standard was employed by her squadron  commander  in  imposing  NJP  –
punishment imposed without benefit of  appearing  before  the  officer
imposing it.  Regarding the ADB, the Recorder offered  the  urinalysis
results and expert testimony of a toxicologist from the Air Force Drug
Testing Division at Brooks  Air  Force  Base,  Texas.   The  affidavit
contained information regarding the testing  procedures  at  the  drug
testing facility only, and had no specific information  regarding  her
urinalysis.  There was  no  testimony  on  the  three  factors  to  be
considered in permitting permissive inference – no testimony as to the
cutoff level of 15 ng/ml – and nothing on her  reported  concentration
of 23 ng/ml was high enough to reasonably discount the possibility  of
unknowing ingestion.   She  contends  several  witnesses  were  called
before the ADB that all testified as to her duty performance as  being
“above board” and “outstanding.”   Applicant  submitted  an  affidavit
from a pharmacist  that  included  an  article  from  the  Journal  of
Analytical Toxicology, titled  “Marijuana-laced  Brownies:  Behavioral
Effects, Physiologic  Effects,  and  Urinalysis  in  Humans  Following
Ingestion.”  She contends it is not possible to ascertain if a  person
who submits a urine sample knowingly ingested marijuana.  At most, she
contends the positive result means only that the  THC  metabolite  was
present in the urine.  She contends her  lab  results  are  consistent
with “unknowing ingestion.”  She states whether or not a person eating
food laced with marijuana would notice any  physiological  effects  of
the marijuana is dependant on a  number  of  factors  unique  to  each
individual such as metabolism, whether or not  alcohol  was  involved,
etc.  If the marijuana was orally  ingested  it  would  have  to  pass
through the person’s digestive system, taking  up  to  30  minutes  or
more, before it could have any physiological impact making it possible
there might be no distinguishable impact  upon  a  person  that  would
indicate s/he had just consumed marijuana.

She contends a witness was  called  who  did  not  directly  know  the
applicant but knew her through her neighbor.  This  witness  testified
she attended a 4th of July (2000) party at this neighbor’s  house  and
remembered  seeing  the  applicant  present.   This  witness  admitted
bringing brownies to the party laced  with  marijuana.   The  brownies
were put on top of the refrigerator to be eaten later.   This  witness
stated she put less than a cup of marijuana  in  the  brownies.   When
this witness retrieved the brownies later in the day, she  found  that
several were missing but she did not know by whom.   Applicant  states
after learning of  her  positive  urinalysis,  she  was  told  by  her
neighbor she had  ingested  the  marijuana  in  the  brownies  as  she
testified she had found the brownies and had eaten two of them  during
the party.  The host of the party also testified before  the  ADB  and
firmly substantiated the applicant’s claim  of  unknowingly  ingesting
the marijuana.  As the brownies were originally meant for the neighbor
and the party hosts, they were  not  made  available  for  consumption
during the party.  When they learned  of  the  applicant’s  situation,
they came forward and made every effort to exonerate her.

Regarding the issue of impropriety, on 27 August 2000, after  learning
of her positive test result, the commander of the Air Wing  approached
the  applicant’s  husband,  an  active  duty  senior  non-commissioned
officer (NCO), and led him to believe that he  (the  commander)  would
look out for the applicant’s best interests.   She  was  not  notified
until after  approximately  eight  weeks  after  the  results  of  the
urinalysis that she was being recommended for NJP, and  administrative
separation.    The   applicant’s   squadron   commander    made    the
recommendation  to  the  Air  Wing  commander.   The  ADB   was   held
approximately three and one half months after she had been served with
the squadron commander’s letter of intent and the NJP was not  imposed
until approximately three weeks after the ADB, over four months  after
first being notified of her commander’s intent.  Further, she was  not
discharged until some six months after the ADB and  administration  of
the NJP, and approximately one year after the results of the  positive
urinalysis.  After so much time has passed  after  the  ADB,  she  was
under the impression she would not be discharged but would be  allowed
to retire honorably after having  served  20  faithful  and  dedicated
years of service.  She states the Air Wing commander  had  become  the
State Adjutant General (AG) and consequently  approved  her  discharge
UOTHC and termination of her fulltime military technician employment.

In support of her appeal, the applicant has provided a statement  from
counsel and over 30 attached supporting documents.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant, a former senior airman and fulltime military technician
with the NYANG, began her military career on 15 July 1981 with the  US
Air Force (USAF).  She was honorably discharged from  the  USAF  on  6
August 1990 and enlisted with the NYANG on 7 August 1990  as  a  staff
sergeant.  On 13 October 2000,  her  commander  notified  her  of  his
intent to impose NJP and to discharge her from the NYANG for violating
NY State law by wrongfully using  THC,  a  controlled  substance.   He
intended to recommend she be discharged with an UOTHC discharge.   She
had tested positive for THC during a random urinalysis.  She responded
to the letter of intent (LOI)  on  15  October  2000  by  stating  she
intended to consult counsel, submit statements, and she  requested  an
ADB.  On  19  October  2000,  she  responded  to  her  commanders  LOI
regarding NJP by denying she willfully or  knowingly  used  marijuana.
She explained in  the  response  how  she  had  mistakenly  eaten  two
brownies laced with marijuana at a neighbor’s house while  celebrating
the 4th of July 2000.  On 24 October 2000, her  commander  asked  that
she submit a sworn affidavit from the neighbor corroborating her story
by 5 November 2000.  The neighbor agreed and she gave  the  sworn  and
notarized affidavit to her commander on 5 November 2000. On 3 December
2000, the Wing Commander (WG/CC) wrote a memorandum to the NY Adjutant
General (AG) asking that he officially order an ADB for the  applicant
in accordance with State regulations.  On 26 December  2000,  the  TAG
ordered the convening of an ADB.  On 3 February 2001,  the  ADB  found
that she should be discharged from the NYANG with an UOTHC  discharge.
On 28 February 2001, the NJP was carried out and she was demoted  from
the grade of staff sergeant to the grade  of  senior  airman  with  an
effective and date of  rank  (DOR)  of  27  February  2001.   She  was
discharged effective 6 August  2001  with  an  UOTHC  discharge  after
having served 20 years, 5 months, and 4 days of  satisfactory  service
for pay.  On 15 August 2001, she was notified of her termination  from
her fulltime military technician position  with  the  NYANG  effective
21 September 2001.

_________________________________________________________________

AIR FORCE EVALUATION:

ANG/DPFOC recommends denial.  DPFOC contends she was  discharged  from
the NYANG for Misconduct –  Drug  Abuse.   DPFOC  states  an  ADB  was
convened wherein, after deliberation, she was found to have wrongfully
used marijuana.  The ADB recommended she be discharged with  an  UOTHC
discharge.  DPFOC contends  she  was  assigned  an  experienced  Judge
Advocate (JA) to represent her during the proceedings.  DPFOC contends
both the discharge reason  and  service  characterization  given  were
appropriate for the conditions outlined in an attached statement  from
the NYANG.

DPFOC’s complete evaluation, with attachments, is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel asks the Board to consider the ANG’s contention the  level  of
THC found in her system of 23 ng/ml is not, in fact,  well  above  the
Department of Defense cutoff of 15 ng/ml.  Counsel  contends  the  ANG
has provided no evidence on the applicant’s reported concentration  of
23 ng/ml to show  whether  or  not  that  level  was  high  enough  to
reasonably discount the possibility of unknowing ingestion.

Counsel admits though she did not tell  her  command  of  the  brownie
incident until after she had tested positive was an error in judgment,
failing to tell someone does not  indicate  guilt.   Counsel  contends
when she learned of the ingestion, she felt she did not have a  strong
enough basis to tell  anyone  that  she  could  test  positive  for  a
controlled substance.  Counsel points to the testimony of the neighbor
and neighbor’s friend regarding their responsibility for the  presence
of marijuana in the brownies as  being  significant  and  overwhelming
evidence  of  his  client’s  unknowing  ingestion  of  the  controlled
substance.  Counsel contends the NYANG’s suggestion  that  the  entire
tainted brownies story was a  fabrication  designed  to  cover-up  his
client’s drug use as  absurd.   Counsel  contends  the  NYANG  has  no
evidence to support their theory.

Counsel’s complete response is at Exhibit D.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The  AFBCMR  Medical  Consultant  contends  the   cutoff   level   for
determining a positive test result  of  15  ng/ml  for  the  marijuana
metabolite 9-carboxy-THC when tested  by  gas  chromatography  /  mass
spectroscopy (GC/MS) that is used by the DoD is a nationally  accepted
standard established by the National Institute on drug abuse (now  the
Substance Abuse and Mental Health Services Administration) in 1986 and
reliably demonstrates the presence of the marijuana metabolite due  to
previous ingestion of marijuana (whether oral ingestion  or  smoking).
The ability of any drug test to detect low  levels  of  drugs  has  an
inherent limit.  The concentration of the  drug  in  the  urine  below
which the particular test can no longer be considered reliable is  the
“sensitivity” limit (or “detection” limit).  The cutoff point  is  the
concentration limit that will actually  be  used  when  determining  a
sample is positive for the purpose the test was performed.  The cutoff
value serves as an administrative breakpoint for labeling a urine test
result as positive or negative for purposes of administrative actions.
 Cutoff points are set well above the sensitivity level to  avoid  the
possibility of a false positive test  result.   The  cutoff  point  is
established at a level well above the detection level of the test that
insures that those who have a relatively small quantity  of  the  drug
metabolite in  their  urine  that  could  have  resulted  from  lawful
ingestion  or  passive  inhalation  are  not  identified  as  positive
(studies of passive inhalation have consistently  demonstrated  levels
below the cutoff level).  The scientific and  legal  validity  of  the
cutoff level of 15 ng/ml (for GC / MS) has been verified over years of
scientific and legal experience.  Any level over 15 ng/ml specifically
and reliably demonstrates the presence of the marijuana metabolite  in
the urine.  The metabolite is not naturally produced by the  body  (or
as a result of disease or infection) or any  other  substance  but  by
marijuana.  There are no known  drugs  that  cause  a  false  positive
result either on screening or confirmatory testing (studies  of  daily
ingestion of hemp products in non-users of marijuana have shown levels
well below the confirmatory cutoff level and use of such  products  by
Air Force personnel is prohibited).  A true positive urine test  means
only that the person providing the  specimen  used  marijuana  in  the
recent past, which could be hours, days  or  weeks  depending  on  the
specific use pattern.  The levels of metabolites detected in the urine
vary depending  on  the  amount  of  drug  ingested,  since  the  last
ingestion and whether the user has been a chronic user (which  results
in  positive  tests  for  much  longer  periods  of  time  since  last
ingestion).  The  specific  level  does  not  indicate  the  route  of
ingestion whether oral or by smoking.

The reported level of  23  ng/ml  for  the  applicant’s  urine  sample
significantly exceeds the cutoff value of 15 ng/ml  and  reliably  and
specifically indicates the previous  recent  ingestion  of  marijuana.
The value of the result does not distinguish  between  oral  ingestion
versus inhalational ingestion by smoking.

BCMR Medical Consultant’s complete evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Counsel for the applicant states the applicant is not  contesting  the
fact she had a positive urine test  on  8  July  2000.   However,  she
continues to assert that the reported level of 23 ng/ml for the  urine
sample does not significantly exceed the cutoff value of 15 ng/ml  and
it is not reliable and does not  specifically  indicate  the  previous
knowing ingestion of marijuana.  Further, counsel contends this  is  a
case of an  unknowing  (all  emphasis  is  counsels)  ingestion  of  a
controlled substance, and therefore, not wrongful.

Counsel’s complete response is at Exhibit F.

_________________________________________________________________

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.  We  took  notice  of  applicant's
complete submission in judging the merits of this case.  However, after
a thorough review of the evidence of record  along  with  the  evidence
provided in support of the applicant's appeal, we find no  evidence  of
error in this case and are not persuaded by counsel's contentions  that
the applicant has suffered from an injustice.  It is our  opinion  that
the detailed comments provided by  the  Air  National  Guard  and  BCMR
Medical Consultant adequately address  her  allegations.   We  are  not
persuaded  otherwise  by  counsel's  contentions  that   the   reported
metabolite level contained in the applicant's  urine  sample  does  not
significantly exceed  the  cutoff  value  from  what  he  contends  was
unknowingly ingested marijuana.  We are not persuaded that the  actions
taken against her were improper, contrary  to  the  provisions  to  the
governing regulations, or that she was denied rights to which  she  was
entitled.  Due to the  serious  nature  of  the  offense  committed  we
believe that the discharge  action  and  the  characterization  of  her
discharge was proper and in compliance with the appropriate directives.
 Therefore, we adopt the rationale provided by the ANG and the  Medical
Consultant as basis for our conclusion that the applicant has not  been
the victim of an error or injustice, and in the absence  of  persuasive
evidence to the contrary, we find no  basis  upon  which  to  favorably
consider this application.

_________________________________________________________________

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 BC-
2005-01329 in  Executive  Session  on  6  September  2006,  under  the
provisions of AFI 36-2603:

      Mr. Thomas S. Markiewicz, Chair
      Ms. Patricia J. Zarodkiewicz, Member
      Ms. Dorothy P. Loeb, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 11 Apr 05, w/atchs.
    Exhibit B.  Letter, ANG/DPFOC, dated 15 Nov 05, w/atchs.
    Exhibit C.  Letter, SAF/MRBR, dated 18 Nov 05.
    Exhibit D.  Letter, Counsel, dated 28 Dec 05.
    Exhibit E.  Letter, AFBCMR Medical Consultant, dtd 19 Jan 06.
    Exhibit F.  Letter, Counsel, dated 28 Feb 06.




                                   THOMAS S. MARKIEWICZ
                                   Chair