APPLICANT REQUESTS:  Reinstatement to the 71L Advanced NCO Course (ANCOC) and the Sergeant First Class (SFC) Promotion Selection List.

APPLICANT STATES:  That she was disenrolled from the ANCOC and subsequently removed from the SFC Promotion Selection List because of a positive drug urinalysis which indicated the presence of cocaine in her system.  She further states that she took a polygraph test and that two urinalyses conducted by independent laboratories all prove she did not use cocaine.  She goes on to state that her commander investigated the matter and concluded that she was not guilty of the allegations.  She claims that after a thorough investigation she was completely exonerated of all alleged charges of any illegal drug use, which she believes means all adverse actions taken against her should be reversed.  Furthermore, she was informed by the school commandant that she would be reinstated if she was exonerated of the charges.  However, she has been unjustly denied reenrollment in the ANCOC and promotion to the pay grade of E-7.  She continues by stating that she does not now nor has she ever used illegal drugs and will pursue the correction of the injustice until her name is cleared.

COUNSEL CONTENDS:  In effect, that the applicant made every effort to prove her innocence and in the final analysis, the results of her efforts, not to mention the expense to her, were not even considered in connection with her removal from the ANCOC.  Her counsel contends that the applicant has done everything to prove her innocence and yet the evidence was disregarded. 

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant, while serving as a promotable staff sergeant, enrolled in the 71L ANCOC at Fort Jackson, South Carolina, beginning 20 May 1996.  

At the time she reported to the ANCOC (20 May 1996) she provided a urine sample as part of the Army’s drug testing program.  That specimen when tested by urinalysis resulted in the positive indication of cocaine in her system.  On 7 June 1996 she was advised of her legal rights and she chose to invoke her rights and seek counsel.

Her military counsel suggested that she seek independent biomedical tests to determine if any traces of drugs could be found in her system after 3 weeks.  However, she was informed that there was no test that could detect whether or not there were drugs in her system on 20 May 1996.

The applicant took a polygraph examination (15 June 1996) and two urinalyses tests (13 June 1996) from separate independent laboratories, all resulting in the negative indication of drug use. 

Meanwhile, the applicant’s commander submitted a request to have the applicant retained in the ANCOC until such time as he (the commander) could complete his investigation.  He also indicated that he believed that the positive urinalysis was the result of her taking the prescription drug Tylenol III (with codeine) that had previously been prescribed by competent medical authorities.

On 18 June 1996 the request to retain the applicant in the ANCOC was disapproved by the commandant of the school.  The commandant indicated that the applicant had claimed that the positive urinalysis was the result of her taking prescription medication.  However, a review of her medical records revealed that she had not been prescribed Tylenol III since 1993.  Thereafter, she claimed that it was her husband’s medication she was taking.  She requested a memorandum from a military doctor indicating that the reason her test was positive was due to her taking Tylenol III.  The doctor refused to provide such a statement but later provided a statement to the effect that Tylenol III will not produce a positive reading for cocaine, as the applicant had received.  Rather, Tylenol III would produce a positive reading for opium.  

The commandant further indicated that the applicant was being returned to her command for action deemed appropriate by her command and that if she were exonerated of the positive cocaine allegation, she could petition the Total Army Personnel Command (PERSCOM) for reinstatement to the ANCOC.

On 18 June 1996 she was dismissed from the ANCOC and was returned to her unit.  A Service School Academic Evaluation Report (DA Form 1059) was prepared at that time indicating that she had failed to achieve course standards and was eliminated due to a positive drug urinalysis.

The applicant submitted a request for reinstatement to the ANCOC to the PERSCOM on 7 August 1996 through her chain of command.  The applicant’s chain of command supported her request and indicated that an investigation was conducted and that the chain of command concluded that she was not guilty of the allegations against her.  Thus, the applicant received no punishment.

The PERSCOM concluded that she was properly removed from the ANCOC for disciplinary reasons and disapproved her request for reinstatement.  Consequently, the applicant was also removed from the SFC Promotion Standing List.

Army Regulation 600-85 prescribes policies and procedures needed to implement, operate, and evaluate the Army’s Alcohol and Drug Abuse Prevention and Control Program.  Chapter 10 of that regulation deals with biochemical testing and states that urine specimens may be retested, providing a sufficient quantity of the specimen is available to permit retesting.  Retesting may be accomplished upon the request of the submitting installation/command, the soldier, or the attorney representing the service member.  

The Physicians’ Desk Reference, published by Medical Economics Company, contains product information on prescription drugs, including Tylenol III (with codeine, a narcotic obtained from opium).  Tylenol III is a Schedule III controlled substance, so classified since there is low-to-moderate physical dependence or high psychological dependence associated with its use.  It is prescribed for the management of pain.  Cocaine is obtained from the coca leaves.  Its chemical makeup does not include opium.

In similar cases the Board heard expert testimony on various topics concerning the Army’s drug testing program.  Among the subjects covered were testing procedures, levels of drugs in one’s system that produce a positive result, and the time a particular drug will remain in an individual’s system.  Cocaine is rapidly excreted from the body because it is water soluble.  Cocaine remains in one’s system 24 to 72 hours depending on the concentration of the drug in the system (the amount ingested).  When testing for cocaine the laboratory searches for the metabolite (the enzyme the body produces to excrete a particular toxin), in the case of cocaine metabolite is benzoecgonine.  Since Tylenol III contains codeine (an opiate), its presence in the body would not result in a false positive reading for cocaine.  

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The urinalysis of the specimen submitted by the applicant on 20 May 1996 is presumed to be legally and scientifically supportable to prove that she had unlawfully used illegal drugs.  The applicant has not submitted any evidence to overcome that presumption.  It is noted that she did not request a retest of her specimen.

2.  A positive drug urinalysis indicates that illegal drugs are in an individual’s system on the day the specimen is submitted.  Subsequent negative urinalyses do not invalidate earlier positive results.  

3.  The applicant’s contention that she was unjustly dismissed and denied reinstatement to the ANCOC after she claims she was exonerated of the charges against her is without merit.  The applicant was eliminated from the ANCOC as a result of a positive urinalysis which indicated the presence of cocaine in her system.  Contrary to her contention, she has not shown that the results of that positive urinalysis is flawed or that she is not guilty of the use of illegal drugs.

4.  The applicant’s contention that she has been exonerated of the charges against her is also without merit.  While the applicant’s chain of command chose not to punish her for her illegal drug use, that in itself does not invalidate the results of the positive urinalysis.  Furthermore, the independent urinalyses produced by the applicant have no validity in connection with the 20 May 1996 positive urinalysis administered by the Army because the specimens were provided long after the initial urinalysis.  While the applicant’s chain of command chose not punish her, but instead give her the benefit of the doubt, there has been no proof submitted with her application that would support her contention that the urinalysis was flawed.

5.  The Board also notes that the applicant’s contention that her urinalysis tested positive due to her taking prescription medication is also without merit.  Although she was not on any prescribed medication at the time, the type of medication she claims to have been taking would not have produced a false positive reading for cocaine.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.
7.  In view of the foregoing, there is no basis for granting the applicant’s request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

                       GRANT          

                       GRANT FORMAL HEARING

                       DENY APPLICATION




						Karl F. Schneider
						Acting Director