RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 OCTOBER 2004
      DOCKET NUMBER:  AR2004100632


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

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Kenneth H. Aucock             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Mr. Curtis Greenway               |     |Member               |
|     |Ms. Eloise Prendergast            |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  In effect, the applicant requests that the record of nonjudicial
punishment under Article 15, Uniform Code of Military Justice (UCMJ), i.e.,
Article 15, be expunged from his Official Military Personnel File (OMPF);
and that his record be changed to show that he was discharged on his ETS
(expiration of term of service) of 7 November 1997, with back pay and
allowances from 1 May 1997 to 7 November 1997.

2.  The applicant states that the 4 December 2003 Board failed to
acknowledge or recognize that the Article 15 was given to him on 31 January
1996 by a different commander than the one who initiated separation
proceedings on him 16 months later.  His separation proceeding had nothing
to do with the fact that he received an Article 15, and the proceedings
were prejudicial to him.  The December Board also failed to discuss
changing his discharge date to the date that he was due to be discharged
(ETS).  The Board also failed to acknowledge that he submitted a rebuttal
to his separation proceedings.  The commander who made the decision to
discharge him did not read his rebuttal, taking less than a minute to sign
his discharge proceedings.  He was misled, given bad advice and was not
afforded an unbiased Army lawyer.  At no time during his Article 15
proceedings did he state that he used cocaine, but stated that he could not
deny or confirm the use of cocaine.  He makes reference to a page from his
dental records, and states that he was taking Dimatap for a cold.  He
states that at the   time of the Article 15 proceedings he was unaware of
the possibility of a false positive on his urine test which occurred in
December 1995.  He was under a doctor's care from November 1995 through
January 1996, in which antibiotics were prescribed.  He had oral surgery in
December 1995, in which he believes carbocaine was used.  The dentist also
prescribed pain medication and some type of antibiotic.  Those medications
can cause a false positive for cocaine on a urine test.  Had he known this
at the time he could have presented matters in his defense.

3.  The applicant provides a copy of a letter on his behalf from a Member
of Congress, a copy of the 4 December 2003 Board proceedings, a copy of a
Department of the Navy examination profile information form, a copy of
pages from a dental record, a copy of a page from a medical record, a copy
of a 3 April 1990 article from a web site titled, "Drug Testing: Shaky
Science May Nullify Good Intentions," a copy of an article about a bicycle
racer who tested positive for cocaine metabolites, and a copy of a 30
November 2000 Board case.



CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in previous considerations of the applicant's case by the Army
Board for Correction of Military Records (ABCMR) in Docket Number
AR2000040921, on 30 November 2000; AR2002079943, on 15 April 2003; and
AR2003090731, on  4 December 2003.  Additionally, on 12 January 2000 the
Army Discharge Review Board upgraded the applicant's discharge to
honorable, determining that the inordinate amount of time, 16 months, that
occurred between the offense of record (Article 15) and the initiation of
separation proceedings was unfair to the applicant.

2.  The 30 November 2000 Board corrected his record in a number of ways,
e.g., promotion to Private First Class, award of the National Defense
Service Medal, etc., and also corrected the separation authority,
separation code, reentry code, and narrative reason for separation on his
DD Form 214 (Certificate of Release or Discharge from Active Duty).  That
Board also directed that the record of his separation board proceedings be
transferred to the restricted portion of his OMPF.  In his request to the
Board, he stated that he accepted the Article 15 only after the chain of
command convinced him that it was impossible that the drugs he had taken
for the oral surgery could be responsible for the positive urinalyses test.


3.  The 15 April 2003 Board considered his request to delete all records
concerning his general court-martial from his OMPF, to change the date of
his release from the service from 30 April 1997 to 8 November 1997, that
the narrative reason for his discharge be changed to show that he was
discharged on his ETS, and that the entry showing that the discharge was
administratively reissued on 7 February 2001 be deleted from item 18 of his
DD Form 214.  The Board denied all of his requests.

4.  The 4 December 2003 Board denied the applicant's request to expunge the
record of his Article 15 proceedings from his military records.

5.  The applicant's dental records show that he was receiving dental
treatment in December 1995, and that he was prescribed medications to
include carbocaine and Tylenol.  An undated medical record shows that he
was treated for a headache, cough, and congestion.  A 3 December 1996
medical record shows that he was seen for a sinus infection and chest
congestion.

DISCUSSION AND CONCLUSIONS:

1.  The articles and the copies of the dental and medical records that the
applicant submits with his request are noted.  None of this information,
however, is reason to overturn the 4 December 2003 Board decision to deny
his request to expunge the record of Article 15 from his OMPF.

2.  On 15 April 2003 the Board denied his request to correct his record to
show that he was discharged on his ETS of 7 November 1997.  The applicant
has not provided any evidence or argument to refute that decision.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JS___  ___CG __  ___EP __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis to amend the decisions of
the ABCMR set forth in Docket Number AR2002079943, dated 15 April 1993 and
Docket Number AR2003090731, dated 4 December 2003.




                                  ______John Slone________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004099915                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20041026                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |126.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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