2.  The applicant requests that he be reinstated in the Army as a staff sergeant or that his discharge be upgraded to honorable based on errors in his case.

3.  He states that he was reduced and administratively separated with a general discharge based on a fitness for duty urinalysis.  

4.  He states further that his discharge and reduction in rank are erroneous due to the fact that his urinalysis was command directed and a command directed urinalysis cannot be used for UCMJ purposes or characterizing a discharge.  He also contends that there were irregularities with the chain of custody of his urine sample in that there is a missing signature on the local form used to show receipt of his sample.

5.  His military records show that he enlisted in the Regular Army on 6 September 1979 and received a general discharge for misconduct on 7 October 1994 pursuant to the findings of an administrative separation board.  He was separated under the provisions of Army Regulation 635-200, chapter 14, for abuse of illegal drugs.

6.  On 14 March 1994 the applicant was referred for urine testing by his commander as part of the unit’s drug inspection program.  However, the commander signed a memorandum directing that the test was “command directed to determine fitness for duty”.

7.  The urinalysis resulted in the positive indication of cocaine in the applicant’s system.  On the basis of the positive urinalysis, he received nonjudicial punishment (NJP) under Article 15, UCMJ, and was reduced to pay grade E-5.  His subsequent appeal to the general court-martial authority was denied.

8.  On 16 June 1994 his commander initiated separation action against him for the wrongful use of cocaine.  During the proceedings the applicant argued that since he was ordered to undergo urine testing to determine his fitness for duty, he came under the protection of the “limited use” policy that precluded his receiving disciplinary action under the UCMJ, or characterization of his discharge based on the drug test results.  The commander testified that his intention was to conduct an “inspection” type testing of the members of the unit, not a fitness for duty determination, notwithstanding the fact that he signed a memorandum indicating that the urinalysis would be a fitness for duty test.

9.  During the proceedings, the applicant’s counsel also contended that the positive urinalysis was invalid since the local form used to record the chain of custody of urine samples was missing a signature by the NCO responsible for collecting the samples.  Testimony by the chief of the local Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) indicated that the chain of custody form referred to was for local use only, and while the signature of the NCO collecting the sample was indeed missing, a DD Form 2624 (Specimen Custody Document-Drug Testing), the official form for recording chain of custody, was properly completed.

10.  The board determined that the allegation of illegal drug use was supported by a preponderance of the evidence and the soldier was not desirable for further retention because of the commission of a serious offense.  It recommended that he be discharged with a general discharge.  Thereafter, the appropriate commander approved the recommendation and the applicant was separated from the service with a general discharge certificate.

11.  Army Regulation 600-85, ADAPCP, provides that commanders may direct individual soldiers, parts of units, or entire units to submit to urine testing.  When there is reasonable suspicion that a soldier is using a controlled substance a urine test will be directed for the valid medical purpose of determining the soldier’s fitness for duty and the need for counseling, rehabilitation or other medical treatment.  A urine or alcohol test may also be directed as a search or seizure under military rules of evidence.  A urine or alcohol test may be required of all personnel in the unit or part of the unit.  A test may also be directed as an inspection of personnel assigned to certain critical positions.

12.  The same regulation provides that mandatory urine tests to determine fitness for duty and the need for counseling, rehabilitation or other medical treatment are subject to the limited use policy and may not be used for disciplinary action under the UCMJ or the issue of characterization of a discharge. Urine test results obtained as a part of a military inspection on the other hand, do not preclude disciplinary or administrative action.

13.  Army Regulation 635-200, Enlisted Personnel, provides that a soldier is entitled to an honorable discharge if limited use evidence (described in Army Regulation 600-85, chapter 6) is initially introduced by the Government in the discharge proceedings, and the discharge is based on those proceedings.

CONCLUSIONS:

1.  It appears that the chain of custody procedures used in the applicant’s case were legally sufficient.  The local form used to record the custody of samples is not part of the official chain of custody documentation.  Therefore, the fact that it was not signed by the NCO collecting the sample is not considered a fatal error.

2.  The separation board that considered the applicant’s case was conducted in substantial compliance with applicable regulations except in determining the character of his discharge.  Since there exists an unresolved question concerning the commander’s intentions for conducting the drug testing, it appears that the evidence may have been obtained under the limited use policy and was, therefore, improperly used in the characterization of his service.  Accordingly, his service should be characterized as fully honorable.

3.  Likewise, the NJP imposed was based solely on the positive drug urinalysis which under the limited use policy is not supportable for disciplinary actions.  Thus, the subject NJP is unjust and should be set aside.

4.  Notwithstanding the foregoing, drug abuse is considered a serious offense for an NCO and the Board finds no basis to restore the applicant to active duty.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected:

	a.  by showing that the period of service of the individual concerned terminating on 7 October 1994 was characterized as honorable and by issuing him a new Certificate of Release or Discharge from Active Duty (DD Form 214) to show that he was honorably discharged from the Regular Army; and

	b.  by setting aside the NJP that reduced him to grade  E-5, and by restoring to him all rights, privileges and property lost as the result of such nonjudicial punishment.

2.  That the Department issue to the individual concerned an Honorable Discharge Certificate dated 7 October 1994, in lieu of the discharge under honorable conditions of the same date now held by him.

BOARD VOTE:  

                       GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION




		                           
		        CHAIRPERSON