RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           28 September 2004
      DOCKET NUMBER:   AR2004100659


      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. Klaus P. Schumann             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Ms. Karen Y. Fletcher             |     |Member               |
|     |Mr. Ron Blakely                   |     |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.  The applicant requests, in effect, the following corrections:  removal
of a general officer memorandum of reprimand (GOMOR), administrative
separation board (ASB) proceedings and promotion flagging orders from his
official military personnel file (OMPF); a change to the narrative reason
for his discharge; promotion to lieutenant colonel with a date of rank of
15 August 2000 and back pay for 20 years; and issue of a Twenty-Year
Letter, dated on or about 5 March 1999.

2.  The applicant states, in effect, that he has received partial relief to
his request based on the Army Discharge Review Board (ADRB) decision to
upgrade his discharge to honorable.  However, he states that the ADRB did
not change the narrative reason for his discharge.  He further states that
the Department of the Army Suitability Evaluation Board (DASEB) erred when
it did not approve his request for removal of his GOMOR from his OMPF.  He
states the DASEB disregarded evidence provided by a medical review officer
and the laboratory certifying official, which indicated the evidence did
not support a conclusion that the presence of the chemical compound
Tetrahydrocannabinol (THC) in his urine specimen was due to marijuana use.
He states that the case was not proved against him and he believes his due
process rights were violated.  He further argues that when the actions
against him started he was a promotable major and as a result of the lack
of evidence proving the case against him, he should be promoted to LTC.

3.  The applicant provides a self-authored memorandum with the sixteen tabs
identified as enclosures in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military record shows that he received a Reserve
Officer Training Corps (ROTC) commission and entered active duty on
23 August 1982. On 1 August 1993, he elected to participate in the Army
Early Release Program with a Special Separation Benefit (SSB) and was
honorably separated.  He was subsequently transferred to the Ready Reserve
and ultimately assigned to the 12th Battalion, 108th Regiment, Concorde,
North Carolina, as a Combined Arms Service Staff School (CAS3) instructor.
2.  The separation document (DD Form 214) provided to the applicant at the
time of his separation from the active component showed that he had
completed
10 years, 11 months, and 8 days of creditable active service and received
the following awards and decorations:  Army Service Ribbon, National
Defense Service Medal, Overseas Service Ribbon, Army Superior Unit Award,
Army Achievement Medal, Army Commendation Medal (3rd Award), Armed Forces
Reserve Medal, and the Senior Parachutist Badge.

3.  On 25 March 2000, the applicant participated in a command directed
urinalysis conducted by his unit in Concord, North Carolina.  The urine
sample collected from him was tested by the Forensic Toxicology Drug
Testing Laboratory (FTDTL) at Fort Meade, Maryland and was determined to be
positive for THC.

4.  The applicant provides a 22 June 2000 letter from a medical doctor,
which essentially states that hemp seed oil use can cause a positive urine
drug test for marijuana, and the doses taken by the applicant were more
than enough to cause a positive drug test that is indistinguishable from
actual marijuana use.

5.  On 3 December 2000, an ASB convened at Headquarters, 108th Division
(Institutional Training), to determine if the allegations in the
applicant's proposed separation were supported by a preponderance of the
evidence, if his alleged misconduct warranted separation, and if so the
characterization of service he should receive.  Based on the evidence
presented, the ASB determined that the applicant committed an act of
personal misconduct by wrongfully ingesting marijuana and recommended that
the applicant be discharged from the service with a general, under
honorable conditions discharge (GD).

6.  On 13 August 2001, as a result of the findings of the ASB, the
applicant’s commanding general issued him a GOMOR.  The GOMOR stated that
he was being reprimanded for misconduct based on testing positive for the
use of illegal drugs (marijuana) during a command directed urinalysis.

7.  On 17 December 2001, the applicant was discharged form the Army with a
GD.  general, under honorable conditions discharge (GD) under the
provisions of chapter 2, Army Regulation 135-178, by reason of professional
or moral dereliction.
8.  On 13 August 2003, the DASEB considered the applicant's request to
remove his 13 August 2001 GOMOR from his OMPF.  However, after a thorough
evaluation of his entire record, it voted to deny his request.  In its
decision summary, the DASEB opined that although the evidence supported the
applicant’s contention that it is possible to receive a positive reading
due to ingesting hemp seed oil in food supplements, the Board of Officers
that reviewed his case and the GOMOR issuing authority were not convinced
by the evidence that this was the cause/explanation of the applicant's
urinalysis failure.  The DASEB further determined that the applicant failed
to provide sufficient substantive evidence to show the GOMOR was untrue or
unjust.

9.  On 26 September 2003, ADRB reviewed the applicant's case and, after
full consideration of all faithful and honorable service as well as the
infraction of discipline, it voted to upgrade his characterization of
service to fully honorable.  However, the ADRB concluded the reason for the
applicant’s discharge was both proper and equitable and voted not to change
it.

10.  Army Regulation 600-37 (Unfavorable Information) sets forth policies
and procedures to authorize placement of unfavorable information about Army
members in individual official personnel files, to ensure that unfavorable
information that is unsubstantiated, irrelevant, untimely, or incomplete is
not filed in individual official personnel files, and to ensure that the
best interests of both the Army and the soldiers are served by authorizing
unfavorable information to be placed in and, when appropriate, removed from
official personnel files.

11.  Chapter 7 of the unfavorable information regulation provides guidance
on appeals and petitions for the removal of unfavorable information from
official personnel files.  Paragraph 7-2 contains guidance on appeals for
removal of OMPF entries.  It states that once an official document has been
properly filed in the OMPF, it is presumed to be administratively correct
and to have been filed pursuant to an objective decision by competent
authority. Thereafter, the burden of proof rests with the individual
concerned to provide evidence of a clear and convincing nature that the
document is untrue or unjust, in whole or in part, thereby warranting its
alteration or removal from the OMPF.
DISCUSSION AND CONCLUSIONS:

1.  By regulation, in order to support removal of a document properly filed
in the OMPF there must be clear and convincing evidence presented that
shows that the document is untrue or unjust, in whole or in part, thereby
warranting its alteration or removal from the OMPF.

2.  Although the evidence provided indicates its possible that a positive
urinalysis can be the result of ingesting dietary supplements containing
hemp seed oil, lacking independent evidence to corroborate and confirm that
the applicant was actually using dietary supplements containing hemp seed
or hemp seed oil for his health at the time of his unit's command directed
urinalysis, the evidence in this case is insufficient to grant the
requested relief.

3.  It is noted that the applicant had several opportunities to present
conclusive independent evidence or witnesses with first hand knowledge of
his use of supplements containing hemp seed or hemp seed oil for his health
prior to the command directed urinalysis.  Further, the evidence he now
provides to this Board was available and considered by the ASB, the
separation authority and DASEB.  During each review, it was determined the
preponderance of evidence did not support the applicant's claim.  As a
result, the evidence the applicant now provides does not provide a
sufficient basis to call into question the judgment of these properly
constituted boards and the separation authority.

4.  The record confirms that the applicant’s discharge processing was
accomplished in accordance with the applicable regulation in effect at the
time.  All requirements of law and regulation were met and the rights of
the applicant were fully protected throughout the separation process.
Further, the reason for the applicant’s discharge was found both proper and
equitable by the ADRB and the evidence provided is insufficient to change
this determination.  Thus, there is an insufficient evidence to support a
change to the authority and reason for the applicant’s discharge.  As a
result, there is an insufficient evidentiary basis to support any of the
relief requested by the applicant.

5.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___fe___  __kyf____  __rb____  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 for correction of the
records of the individual concerned.




            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100659                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2004/09/28                              |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |20011217                                |
|DISCHARGE AUTHORITY     |AR 135- . . . . .                       |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1. 189   |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]