MEMORANDUM OF CONSIDERATION


         IN THE CASE OF


         BOARD DATE: 24 June 2003
         DOCKET NUMBER: AR2002078839

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mrs. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Ms. Margaret K. Patterson		Chairperson
Mr. Ronald E. Blakely		Member
Mr. Frank C. Jones		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: That he be reinstated in the Alabama Army National Guard (ALARNG) and that his reenlistment code be changed to 1.

APPLICANT STATES: The applicant defers to counsel.

COUNSEL CONTENDS: That the applicant was an Officer Cadet nearing completion of the Officer Candidate Course with the ALARNG at the time of the incident. His civilian occupation was an officer with the City of Macon Police Department. On 1 April 2001, as part of his duties as a Macon, GA police officer, the applicant assisted undercover investigators in apprehending and transporting suspects, collecting evidence, and providing backup assistance to undercover agents of the Macon Police Department and Drug Enforcement Agency at a Widespread Panic Concert held that date at the Macon Coliseum. At this concert, he and other law enforcement officers were exposed to marijuana smoke. An investigator with the police department noted that, "undercover and uniformed patrolmen were consistently and constantly breathing marijuana and cigarette smoke."

Counsel states that on 7 April 2001 the applicant's commander directed a urinalysis test be given to 12 individuals assigned to the unit. The applicant submitted to the test and a positive result for marijuana was reported. A subsequent administrative separation board found that the applicant abused drugs and recommended he be discharged with an honorable discharge.

Counsel states that several of the applicant's supervisors, both military and civilian, testified at his board either personally or in writing. Lieutenant W___ of the police department confirmed that the applicant did in fact assist in the 1 April 2001 concert drug arrests. Lieutenant W___ confirmed that the Coliseum "reeked of marijuana smoke" and that several members of the Drug Squad had concerns whether they would pass a random drug test if they had to take one the week after the concert. Sergeant T___ of the police department testified that the department's policy was that officers are not given prior notice to take a drug test and the applicant never failed a random drug test since he had been with the department. Investigator H___ from the department's drug unit testified that the applicant was exposed to smoke from marijuana.

Counsel states that there was no expert, scientific consideration of the impact of the involuntary exposure to marijuana smoke at the applicant's board and the subsequent potential for a positive indication of marijuana use. In light of the applicant's overall good service, factors beyond his control, and the credible statements of his immediate supervisors, both military and civilian, the applicant's discharge and assigned reentry code of 3 were inequitable because his overall period of service was exemplary.

Supporting evidence is as listed on the "List of Exhibits in Support" attached to the application.

EVIDENCE OF RECORD: The applicant's military records (his records from the ALARNG are not available) show:

He enlisted in the Georgia Army National Guard (GAARNG) on 2 November 1983. On 1 May 1994, he was discharged from the GAARNG for misconduct (apparently for unsatisfactory participation) with a general discharge and transferred to the U. S. Army Reserve (USAR) Control Group (Reinforcement). He was given an RE code of 3.

At some point, the applicant was assigned to a troop program unit in the USAR. He reenlisted in the USAR on 15 April 1998. He was promoted to Staff Sergeant, E-6 on 2 November 1998.

On 27 May 1999, the applicant enlisted in the ALARNG.

On 2 June 2001, the applicant appeared before an administrative separation board because a urine sample taken on 7 April 2001 tested positive for marijuana. The board found the applicant did abuse drugs as alleged and recommended he be discharged from the ARNG and the Reserves of the Army with an honorable discharge.

On 16 July 2001, the applicant was discharged, pay grade E-6, with an honorable characterization of service and was given an RE code of 3. He had completed 2 years, 1 month, and 20 days of creditable service for that period and a total of 17 years, 8 months, and 14 days of creditable service for pay.

Army Regulation 135-178 establishes policies governing the administrative separation of enlisted soldiers from the Army National Guard of the United States and the U. S. Army Reserve. Chapter 7 states that discharge action will be initiated against soldiers in grades E5 through E-9 on discovery of a drug offense.

National Guard Regulation 600-200 provides policies and procedures for the management of enlisted personnel. In pertinent part, it states that verification of prior service RE codes from the appropriate agencies will be made and it provides a description of RE codes for all Armed Forces. It states that RE code 3 will be given when the reason for discharge is misconduct –abuse of illegal drugs.

Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge. Army Regulation 601-210 covers eligibility criteria, policies and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve. Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of Armed Forces RE codes, including RA RE codes.

Under both Army Regulation 601-210 and National Guard Regulation 600-200, RE code 3 applies to persons not qualified for continued Army service but the disqualification is waivable.

Recruiting personnel (Regular Army, U. S. Army Reserve, and Army National Guard) have the responsibility for initially determining whether an individual meets current enlistment criteria. They are required to process a request for waiver under the provisions of Army Regulation 601-210 or National Guard Regulation 600-200.

In a previous case considered by the Board (AR2000043313), it was noted that an officer from the Tripler Army Medical Center Forensic Toxicology Drug Testing Laboratory had testified in that applicant's administrative separation board that, to test positive for marijuana from passive inhalation, an individual would have to be in a 4x4 room with no windows and no air and marijuana joints burning for at least 4 to 6 days.

Information obtained from the Army Center for Substance Abuse Programs (ACSAP) indicated that they were aware of only limited studies on passive inhalation given the nature of human trials involving drugs. They were aware of only one study that resulted in a subject testing positive. In that study, the subjects were placed in a room the size of a closet. The smoke from 16 marijuana cigarettes was released in the room over an extended period of time. The smoke that was generated was so thick that the subjects had to be given goggles to protect their eyes. Some of those subjects tested positive on urinalysis for the presence of marijuana. Even so, ACSAP noted that military specimen results are not reported based on the mere presence of marijuana but on a higher criteria – the Department of Defense cutoff. The cutoff is established above the level necessary to detect presence. ACSAP also noted that marijuana, like all drugs, quickly passes through the human body, in one to three days.

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. 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 this requirement.
2. The applicant has provided no evidence to show his positive urinalysis for marijuana was the result of passive inhalation. To the contrary, information available to the Board indicates a positive test as a result of working in a large coliseum filled with marijuana smoke would have been almost impossible, especially considering he was tested 6 days later.

3. The Board concludes the applicant's administrative separation board considered all aspects of his alleged misconduct and made a judiciously considered recommendation, taking into account his overall record of service and the circumstances of his case, to discharge him with an honorable characterization of service. The Board concludes that reinstatement would not be appropriate.

4. Given the reason for the applicant's discharge, he was properly given an RE code of 3. He was not qualified for reenlistment but the disqualification is waivable.

5. 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

__mkp___ __reb___ __fcj___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002078839
SUFFIX
RECON
DATE BOARDED	20030624
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	20010601
DISCHARGE AUTHORITY	AR 135-178
DISCHARGE REASON	A66.00
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	110.03
2.	100.03
3.
4.
5.
6.