RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-00128
            INDEX CODE: 104.00
      XXXXXXX    COUNSEL:  Fred Skinner

            HEARING DESIRED:  No

MANDATORY CASE COMPLETION DATE:  14 Jul 07

_________________________________________________________________

APPLICANT REQUESTS THAT:

All references to misconduct as the basis for his separation from  the
USAF  Academy  (USAFA),  general   discharge   characterization,   and
requirement to reimburse the government $108,254 be removed  from  all
Air Force records.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Counsel asserts the decision to discharge the  applicant  was  unjust,
capricious and unreasonable in light of the fact that an agent of  the
AF Office of Special Investigations (AFOSI)  fraudulently  obtained  a
forensic analysis of the applicant’s hair by forging his initials on a
certification in the hair sample collection documents.   Further,  the
laboratory reporting the positive outcome for illegal drugs failed  to
follow proper forensic  protocols  in  conducting  and  reporting  the
analysis, making  the  results  of  the  testing  suspect.   The  only
effective and just way to insure the Air Force does  not  repeat  this
fraudulent conduct is by clearing the applicant’s record.

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

_________________________________________________________________

STATEMENT OF FACTS:

The  following  information  was  extracted  from  official  documents
provided by counsel  (Exhibit  A);  and  from  the  AFOSI  Reports  of
Investigation  (ROIs)  with  exhibits,   the   disenrollment   hearing
transcript, the Hearing Officer’s (HO)  Hearing  Report,  and  related
documents (Exhibit B).

During the period in question, the applicant was  a  Cadet  2nd  Class
(C2C) at the USAFA.

On 19 Feb 02, Cadet 1st Class (C1C) B--, who was eventually  convicted
by a  general  court-martial  (GCM)  on  other  charges,  was  granted
testimonial immunity by  the  Academy  Superintendent  (USAFA/CC)  and
ordered to answer any questions by investigators and  counsel  and  to
testify at any administrative/Uniform Code of Military Justice  (UCMJ)
proceedings concerning any  offenses  “allegedly  committed  by  other
USAFA cadets” (including the applicant).

In a 20 Feb 02 signed, sworn statement to the AFOSI, C1C B--  reported
that the applicant had  used  illegal  narcotics  approximately  30-40
times; he had personally seen the applicant use Ketamine, Ecstasy, and
LSD on 5-10 occasions; and had last used Cocaine  with  the  applicant
during the week of finals     (16-20 Dec 01).

On 22 Feb 02, a C2C T-- stated that sometime between Feb and  May  01,
the applicant had mentioned using Ecstasy; that between Nov-Dec 01, he
had seen the applicant with a white pill in their dormitory room;  and
that the applicant confided to him that it was a Codeine pill.  At the
time, the applicant had been injured playing football.

A former cadet and the applicant’s girlfriend also were interviewed by
AFOSI but indicated  they  were  not  aware  of  the  applicant  being
involved with illegal narcotics.

On 25 Feb 02, the applicant requested legal counsel,  did  not  answer
questions but did consent to search and seizure of his dormitory room,
vehicle, urine, and hair for controlled substance use.   No  items  of
evidentiary value were found in his room or car.  He was  escorted  to
the USAFA Emergency Room for collection of  his  urine  (which  tested
negative) and hair samples, which were released to the AFOSI  evidence
custodian.  [The circumstances of the hair collection  procedure  used
were not clear.]

On 26 Feb 02, AFOSI contacted  the  US  Army  Criminal  Investigations
Laboratory (USACIL) to analyze the applicant’s hair  sample;  however,
USACIL would not be able to process the hair sample.  From 4-8 Mar 02,
the AFOSI contacted several laboratories regarding hair  analysis  for
drug screening  and  Psychemedics  (a  leading  private  hair  testing
laboratory used by  corporations,  police,  schools,  Federal  Reserve
Banks)  was  considered  the  most   reputable   and   cost-efficient.
Psychemedics requested a new sample be  obtained  from  the  applicant
according to their procedures.

On 11 Mar 02, the applicant was escorted by his Air Officer Commanding
(AOC) to the USAFA Cadet Clinic, where a hair sample was obtained by a
doctor, who placed the sample in an envelope  and sealed  the  plastic
bag (both provided by Psychemedics).  The sealed bag was  provided  to
AFOSI Special Agent (SA) C--, who attached  an  evidence  tag  to  the
plastic bag.  The sample was stored in the AFOSI’s evidence room.  The
doctor had advised that the applicant had shaved his head,  arms,  and
legs so he obtained the hair from the applicant’s underarms and  chest
area.  The doctor was concerned he may not have collected enough for a
hair sample.  The doctor related the applicant had told him he  shaved
all of his body hair because he  used  a  lot  of  tape  to  tape  his
baseball injuries, and that he had sent a sample  to  Psychemedics  on
his own (after 25 Feb 02).  [Several witnesses would testify that  the
applicant routinely  shaved  his  body  hair  for  both  football  and
baseball.]  On 12 Mar 02,  the  applicant’s  hair  sample  was  double
wrapped and sent via registered mail to Psychemedics.

On 14 Mar 02, Psychemedics contacted AFOSI, relating that the  “March”
hair sample tested negative and that there  was  not  enough  hair  to
provide  conclusive  results.   [It  appears   one   or   more   phone
conversations occurred between the AFOSI and Psychemedics during which
the AFOSI informed Psychemedics that they had credible evidence of the
applicant’s drug use and requested the lab to test another hair sample
down to their limits of detection, below their administrative cutoff.]


On 2 Apr 02, under the direction and observation of AFOSI SA M--, SA C-
- placed a portion of the applicant’s hair  sample  [from  25 Feb  02]
into the envelope provided by Psychemedics and initialed the  envelope
[with the applicant’s first and last initials--the applicant  did  not
initial  any  of  this  paperwork].    [The   obscured   certification
represented to Psychemedics that the applicant had agreed  the  sample
was his, he had witnessed the sample being placed in the envelope,  he
had consented to the testing, and he had  released  the  company  from
liability arising from the results.  Further, SA C-- did not sign  her
own name as the “collector” on the Chain of Custody (COC) form.]

The sample was mailed to the lab on 3 Apr  02  and  arrived  there  on
9 Apr 02.  On 16 Apr 02, Psychemedics’ results reported  that  Cocaine
was found to be present at the  level  of  0.8ng/10mg.   Psychemedics’
cutoff for positive Cocaine samples was 5ng/10mg.  Although  the  drug
was confirmed as present in the sample, Psychemedics indicated such  a
low level could not  be  definitively  established  as  use.   Further
results were negative for Opiates, Phencyclidine (PCP),  Amphetamines,
and Marijuana (Psychemedics’ cutoff for this drug  was  2ng/gm).   The
sample had a .34ng/10mg level of  Ecstasy;  Psychemedics’  cutoff  for
this drug was 5ng/10mg.

On  22 Apr  02,  the  applicant’s  current  counsel  was  retained  to
represent him.  Around this time period, an HO was  appointed  in  the
applicant’s case to ensure evidence  was  thoroughly  and  impartially
examined, a full and fair disenrollment hearing was held, and adequate
safeguards for the truth were applied.  The  HO  was  to  conduct  the
hearing in a non-adversarial way.

On 4 Jun 02, the Commandant of  Cadets  notified  the  applicant  that
action was being taken to discharge  him  from  cadet  status  with  a
general characterization of service  for:   wrongful  use  of  Ecstasy
between, on or about 1 Feb 01 and 25 Feb 02;  wrongful  possession  of
Codeine between, on or about 1 Nov 01 and  1 Jan  01  [sic];  wrongful
possession of Codeine between, on or about 1 Dec  01  and  25 Feb  02.
The applicant was advised he was entitled to use military counsel,  as
well as civilian counsel at his own expense; however, neither  counsel
would  be  permitted  to  attend  the  disenrollment  hearing.   After
consulting counsel, the applicant did not waive his rights to counsel,
to a hearing before an HO,  or  to  submit  statements.   He  did  not
request a medical exam.

On  12 Jun  02,  the  applicant  signed  his  understanding  that  the
government had the option of requiring him to serve on active duty for
the period specified in his agreement or electing  him  to  repay  the
government the total monetary cost of his advanced education.

On 24 Jun 02, the HO notified  the  applicant  that  the  hearing  was
scheduled for 19 Jul 02, and advised him of his rights.   However,  in
order to allow the applicant’s counsel sufficient time to  obtain  his
own experts’ review, the hearing was rescheduled to 26 Jul 02.

An affidavit regarding the hair sample analysis was provided from  the
senior scientist at Psychemedics on 11 Jul 02.  The  scientist  opined
that with regard to the Cocaine, the confirmed levels of  drugs  could
be reflective of either a low  level  or  one-time  ingestion  of  the
drugs, ingestion just prior to the time or at  the  end  of  the  time
encompassed by  the  length  of  the  hair,  or  passive  exposure  or
environmental contamination of the hair.  He drew the same conclusions
as to the Ecstasy, except with regard to passive  exposure.   He  also
opined that the hair analysis results were  forensically  unsound  and
indefensible  as  stand-alone  evidence,  but   could   be   used   as
“corroboration” if there was  other  “credible”  evidence  to  support
wrongful and knowing use of illicit drugs.

According to her 24 Jul 02 affidavit, SA  C--  indicated  that,  since
this was the first time she had used the COC form, she  understood  it
would be the applicant’s initials because that  was  from  whom  AFOSI
obtained it.  This envelope was placed inside a plastic  bag  provided
by Psychemedics, which was sealed,  initialed  [with  the  applicant’s
initials],  and  dated  2 Apr  02.   SA  C--  contended  it  was   her
understanding that the applicant’s initials were placed because he was
the “Test Subject.”  The plastic bag and  accompanying  paperwork  was
double sealed and placed in the AFOSI evidence room until it could  be
mailed.  According  to  SA C--, an evidence tag was made to show  that
a portion of the original hair sample was separated from it to send to
the lab.  Finally, on 3 Apr 02, the applicant’s hair sample was double
wrapped and  sent  via  registered  mail  to  Psychemedics  per  AFOSI
instructions to Psychemedics.

On 26 Jul 02, the applicant’s counsel advised the HO  that,  based  on
the discovery that an AFOSI agent had apparently forged  his  client’s
initials on the COC documents that are part of the litigation  package
given him the week before, more investigative work was  required.   He
asserted his client was not capable of cross-examining AFOSI agents on
COC issues, and he would be interviewing the AFOSI agent who  provided
the affidavit as well as possible witnesses at Psychemedics.

On 2 Aug 02, the HO advised the applicant that the  hearing  would  be
rescheduled to 7 Aug 02 because his counsel’s expert witness would not
be available until then.

In a 6 Aug 02 letter to the HO, counsel contended that due process was
being denied because the applicant  was  required  to  defend  himself
without an attorney present.  Therefore, counsel wanted to point out a
number of  issues  for  the  HO  to  consider  before  making  factual
findings.  The AFOSI  never  interviewed  the  doctor  who  prescribed
Codeine for the applicant in Sep, Oct, and Nov 01 during the  football
season.  The AFOSI agent’s admission that  she  illegally  forged  his
client’s initials on the Psychemedics  COC  documents,  certifying  he
provided the hair sample, and falsely signed her name  as  the  sample
collector undermines the  credibility  of  the  entire  COC.   Counsel
contended a close reading of the AFOSI file suggested there  may  have
been   collusion   with   Psychemedics   “. . . to   perpetuate   this
fraud. . . . It was only after the second sample  came  back  negative
that someone devised a scheme  to  send  the  first  sample  in  using
falsified Psychemedics forms.  In light of the fact that  the  results
were not reported as strictly negative because the  cutoffs  were  not
met, it is reasonable to conclude that discussions were  taking  place
about  how  to  ‘report’  the  results  in   apparent   violation   of
Psychemedics own policies.”  There was no  assurance  the  applicant’s
hair was  that  hair  that  was  tested.   Cadet  B--’s  immunity  and
conviction make his allegations suspect and  witnesses  would  testify
that  he  made  statements  reflecting  a  desire  to  discredit   the
applicant.   Counsel  opined  that,  given  the   poor   investigation
conducted by AFOSI agents and their illegal actions, the  case  should
be withdrawn and further disenrollment action terminated.

The disenrollment hearing was held 7 and 8 Aug 02.  On 23 Aug 02,  the
HO rendered her Hearing  Report.  She  agreed  with  the  Psychemedics
scientist that the hair analysis test results could not  stand  alone,
that they were below the cutoff, and the government  failed  miserably
to comply with  any  aspects  of  Psychemedics’  procedures  or  other
relevant standards in the industry regarding how hair analysis samples
are to be  collected  and  transmitted.   Psychemedics  also  deviated
significantly from the standard of care in the industry and  from  its
own norms.  Accordingly, she gave the hair results  little  weight  in
her analysis, but did not dismiss them out of hand.   She  gave  great
weight to Cadet B--’s testimony but little weight to Cadet T--’s.  The
applicant  was  legitimately  prescribed  Codeine  for  his   football
injuries; therefore, his possession of this  drug  was  not  wrongful.
With regard to Cocaine, again the hair analysis could not stand  alone
but she found Cadet B-- credible.  The HO noted counsel’s objection to
the administrative disenrollment process with regard to denial of  due
process for the  applicant  to  defend  himself  without  an  attorney
present.  She did not address the substantive merits of this  argument
as it was beyond the scope of her duties  as  HO.   She  found,  by  a
preponderance of the evidence,  that  the  applicant  wrongfully  used
Cocaine and Ecstasy during the charged timeframes.

HQ USAFA/JA rendered a legal review on  6 Sep  02,  finding  that  the
applicant received all the due process afforded by AFI  36-2020.   The
Staff Judge  Advocate  (SJA)  indicated  that,  although  the  AFOSI’s
handling of the hair sample was woefully  deficient,  the  applicant’s
own  expert  witness  stated  that  the  analysis  could  be  used  to
corroborate other credible evidence.  The SJA was satisfied  that  the
evidence supported the HO’s  findings  and  recommended  the  USAFA/CC
forward the case to the Secretary  of  the  Air  Force  (SAF)  with  a
recommendation for disenrollment, a general discharge, and recoupment.

On 18 Dec 02, the SAF Designee  (Director,  Air  Force  Review  Boards
Agency) directed the applicant’s separation from cadet status  with  a
general discharge.

On 31 Dec 02,  HQ  USAFA/JA  advised  the  applicant  that  they  were
proceeding to establish his debt ($108,254) with the  Defense  Finance
and Accounting Service (DFAS).  The notification also indicated  that,
on 16 Sep 02, the  applicant  had  agreed  with  the  Superintendent’s
recommendation that he be ordered to reimburse the government for  the
cost of his Academy education.

The  applicant  was  discharged  from  the  USAFA   with   a   general
characterization on 10 Jan 03.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ USAFA/JA recommends denial and notes that all of the issues  raised
in this appeal were raised and addressed prior to the Superintendent’s
original consideration of the HO’s findings and his recommendations to
the SAF.  No new issues were presented in support of  the  applicant’s
request.   AFOSI’s  failures  were  not  caused  by  any   intentional
wrongdoing,  but  rather  because  they  were  unfamiliar   with   the
collection procedure established by Psychemedics, a  private  company.
The HO  gave  little  weight  to  the  test  results  because  of  the
irregularities in the sample collection; however, she did properly use
the results of the hair sample tests to corroborate the testimony of a
witness.   The  HO  found  Cadet  B--’s  testimony  credible   without
referring to the test results.  Cadet B-- was on  appellate  leave  at
the time of his testimony and it would  not  have  been  in  his  best
interests to lie at the hearing.  HQ USAFA/JA contends that,  contrary
to counsel’s  assertions,  the  applicant  received  all  due  process
afforded him.  The preponderance of the evidence supported  the  basis
for the disenrollment.  The applicant acknowledged  his  reimbursement
obligation should he choose to resign or fail to complete  educational
requirements.  The applicant’s  drug  use  was,  without  question,  a
significant departure from the expected conduct of members of the  Air
Force.  His negative behavior clearly outweighed any positive  aspects
of his military record.

A complete copy of the evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel contends the USAFA/JA advisory  attempts  to  whitewash  AFOSI
misconduct and justify  the  actions  of  the  Academy  in  using  the
illegally and forensically unsound fruits of  AFOSI  misconduct.   The
applicant is obligated to repay over $100,000 without having  had  the
benefit  of  a  lawyer  who  could  cross-examine  the  witnesses  who
presented the evidence against him.  The HO’s  findings  are  somewhat
suspect in that she served  on  the  faculty  of  the  Academy,  whose
improper actions are being challenged.  An independent judge would not
have excused the AFOSI agent’s misconduct.  Cadet B-- was  not  cross-
examined by  an  experienced  lawyer  and,  if  this  convict  was  so
believable,  why  did  the  HO  need  to  use  the  lab  results   for
corroboration?  This Board is the conscience  of  the  Air  Force  and
should honestly and  carefully  apply  forensic  standards  where  the
stakes involve holding an Air Force member for such a huge debt.

A complete copy of counsel’s response is at Exhibit E.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

HQ USAF/JAA recommends denial.  They do not dispute the  COC  for  the
hair sample collected from the applicant  contained  numerous  errors,
including collection of the  sample  by  personnel  not  certified  by
Psychemedics, the absence of evidence that decontamination and  sample
collection procedures specified by the lab were  used,  and  an  AFOSI
agent’s completion of entries in the COC documents  that  should  have
been completed by the applicant himself and the  person  who  actually
collected the hair sample.  It is also  undisputed  that  Psychemedics
detected Cocaine and Ecstasy at levels well below the cutoff  required
to report  the  sample  as  positive,  that  it  did  not  detect  the
metabolite of either drug in the hair sample, and that  it  used  only
one testing methodology, as opposed to two, to test the  hair  sample.
These different procedures were apparently the result of a request  by
AFOSI.  HQ USAF/JAA contends  the  HO  properly  analyzed  the  issues
regarding the validity of the hair analysis results and properly  gave
those results only the  limited  weight  the  applicant’s  own  expert
witness testified they could be given.  Her conclusion was  consistent
with the wide latitude  HOs  are  given  with  regard  to  evidentiary
issues.  Further, the HO’s  report  evinces  a  careful  and  balanced
assessment of the various factors bearing on the  credibility  of  the
witness.   Counsel’s  conflict-of-interest  allegations  are   without
merit.  As a faculty member, the HO was not otherwise involved in  the
preparation/processing of the applicant’s case.  Counsel’s  allegation
is firmly rebutted by the HO’s frank assessment  of  the  government’s
failings with respect to the hair analysis, and her finding  that  the
applicant  did  not,  as  was  alleged,  wrongfully  possess  Codeine.
Similarly, USAFA/JA is tasked by the governing  instruction  (AFI  36-
2020,  para.  25.8)  with  reviewing  such  cases  and  advising   the
Superintendent thereon.  The USAFA/JA advisory opinion  is  consistent
with that responsibility and, like the HO’s report,  acknowledges  the
government’s failings with respect to the hair analysis.

A complete copy of the additional evaluation is at Exhibit F.

______________________________________________________________

COUNSEL’S RESPONSE TO ADDITIONAL AIR FORCE EVALUATION:

A complete copy of the additional Air Force evaluation  was  forwarded
to counsel on 20 Apr 06 for review and comment within 30 days (Exhibit
G).  As of this date, this office has received no response.

_____________________________________________________________

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.  After a thorough review  of  the
evidence of record and the applicant’s submission, a majority  of  the
Board is not persuaded the requested relief  is  warranted.  Counsel’s
contentions are duly noted; however, these issues were raised prior to
the USAFA Superintendent’s original consideration of the HO’s findings
and recommendations to the SAF.  The numerous errors involved  in  the
COC for the hair samples were acknowledged by the HO  and  both  legal
advisories.  Also noted is  that  Psychemedics  detected  Cocaine  and
Ecstasy at levels well below the cutoff required to report the  sample
as positive, did not detect the metabolite of either drug in the  hair
sample, and used only one methodology, rather than two,  to  test  the
hair sample.  As a result of these irregularities, the HO gave the lab
results only the limited weight the  applicant’s  own  expert  witness
testified they should be given.  The HO found  Cadet  B--’s  testimony
credible and her report demonstrates a careful and balanced assessment
of the various factors bearing on the credibility of the witness.  Her
conclusion that  a  preponderance  of  the  evidence  established  the
applicant wrongfully used Cocaine and Ecstasy is apparently consistent
with the wide latitude HOs are afforded in these procedures  regarding
evidentiary issues.  Counsel has not persuaded the Board majority that
the applicant was denied due process or that a  conflict  of  interest
impacted the findings of the HO.  The majority of the Board  therefore
adopts the rationale expressed in the  HQ  USAF/JAA  advisory  as  the
basis for our decision that the applicant has not sustained his burden
of having suffered either an error or an injustice.  In  view  of  the
above and absent  persuasive  evidence  to  the  contrary,  the  Board
majority concludes the applicant  has  not  sustained  his  burden  of
having suffered either an error or an injustice.  Therefore, the Board
majority finds no compelling basis to recommend  granting  the  relief
sought.
_________________________________________________________________

RECOMMENDATION OF THE BOARD:

A majority of the  panel  finds  insufficient  evidence  of  error  or
injustice and recommends the application be denied.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 13 June 2006 under the provisions of AFI 36-2603:

                 Ms. Kathleen F. Graham, Panel Chair
                 Mr. Wallace F. Beard, Jr., Member
                 Ms. Karen A. Holloman, Member

By a majority vote, the Board recommended denial of  the  application.
Ms. Graham voted to grant the appeal, but does not wish  to  submit  a
Minority Report.   The  following  documentary  evidence  relating  to
AFBCMR Docket Number BC-2006-00128 was considered:

   Exhibit A.  DD Form 149, dated 9 Jan 06, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, USAFA/JA, dated 2 Feb 06.
   Exhibit D.  Letter, SAF/MRBR, dated 24 Feb 06.
   Exhibit E.  Letter, Counsel, dated 27 Mar 06.
   Exhibit F.  Letter, HQ USAF/JAA, dated 14 Apr 96.
   Exhibit G.  Letter, AFBCMR, dated 20 Apr 06.



                                   KATHLEEN F. GRAHAM
                                   Panel Chair


AFBCMR  BC-2006-00128





MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD
                                        FOR CORRECTION OF MILITARY
RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application of XXXXXXX

      I have carefully reviewed the evidence of record and the
recommendation of the Board members.  A majority found that applicant
had not provided sufficient evidence of error or injustice and
recommended the case be denied.  I concur with that finding and their
conclusion that relief is not warranted.  Accordingly, I accept their
recommendation that the application be denied.

      Please advise the applicant accordingly.




                                  JOE G. LINEBERGER
                                  Director
                                  Air Force Review Boards Agency