RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:                  NOVEMBER 9, 2004
      DOCKET NUMBER:            AR2004105491


      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             |
|     |Ms. Deyon D. Battle               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Mark D. Manning               |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Leonard G. Hassell            |     |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, that her discharge be voided, that
she be restored to active duty in the Virginia Army National Guard
(VAARNG).

2.  The applicant states, in effect, that she has never used drugs in her
life and that the test was poorly conducted.

3.  The applicant provides a notarized copy of an Individual Specimen
Report from the United States Drug Testing Laboratories, Inc. dated 9
October 2002; a notarized copy of laboratory results from the American
Medical Laboratories dated 17 October 2002; seemingly a picture of herself;
a copy of a letter to her company commander dated 28 September 2002; a copy
of a memorandum from her company commander to the 29th Infantry Division
(Light), Chief of Staff dated 4 November 2002; a letter from the Deputy
Legal Advisor, Office of the Inspector General, addressed to her attorney;
four statements from individuals who also participated in the urinalysis
testing, regarding the procedures used during the testing; and a copy of a
memorandum for record prepared by the company first sergeant dated 14
October 2002, regarding the discrepancies in and issues of the testing
process and procedures.

4.  She also submits a copy of a certificate awarding her a Bachelor of
Science Degree; a letter of recommendation from the former Dean of the
Visual and Performing Arts and Public Services dated 10 November 2003; a
letter of recommendation from the Commander, 29th Infantry Division (Light)
dated 6 December 2003; a letter of recommendation from the J2 Director,
Joint Special Operations Task Force dated 12 November 2003; a letter of
recommendation from a VAARNG staff sergeant dated 20 November 2003; a
letter of commendation from what appears to be one of her former classmates
dated 16 July 1998; a letter of recommendation from the Artistic Director
of the Northern Virginia Community College dated 3 February 1998; a copy of
her recommendation for award of the Army Commendation Medal (ARCOM); and a
copy of her ARCOM Certificate.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that his client’s General Discharge
Certificate be withdrawn and that she be immediately restored to service as
a member of the VAARNG.



2.  Counsel states that his client was unlawfully discharged from the
VAARNG.  Counsel states that the two laboratory analysis prepared by the
United States Drug Testing Laboratories and American medical Laboratories
conclude that neither cocaine nor its metabolite was found in hair samples
collected from his client.  Counsel states that it is incontrovertible that
if his client used cocaine her hair would have tested positive when the
test were conducted and that the only exception would have been if she had
shaved her head after the result of the urinalysis became known and then
had new growth hair tested by the laboratories following a period not using
drugs.  Counsel goes on to state that the applicant’s picture shows the
current length of her hair, which conclusively establishes that, no hair
shaving occurred.  He states that after his client’s company commander
investigated her situation and reviewed the subsequent laboratory reports,
he recommended that she be retained in the service.  Counsel contends that
after his client was advised of the result of the urinalysis procedure, she
made an Inspector General complaint about the procedures used in conducting
the urine sample collection because she knew that she had done nothing
wrong.  Counsel states that, pursuant to a Freedom of Information Act
(FOIA), he was able to obtain two statements from individuals who out rank
his client and that the statements document in compelling terms the fact
that the collection procedures were seriously flawed and that the proper
chain of custody was not maintained.  Counsel concludes by stating that
because the scientific evidence in the form of hair sample analysis
conclusively establishes that his client did not use cocaine, and because
of the documented irregularities in the procedures used to gather urine
samples, the only reasonable inference is that his client is innocent as a
result of her urine sample being contaminated after it was submitted.
Counsel contends that the applicant was wrongfully discharged without an
adequate factual or legal basis.

3.  Counsel provides no additional documentation in support of his client’s
request.

CONSIDERATION OF EVIDENCE:

1.  On 20 November 1998, she enlisted in the VAARNG for 8 years in the pay
grade of E-3.  She successfully completed her training as an administrative
specialist.  She was promoted to the pay grade of E-4 on 17 July 2000.

2.  The applicant was ordered to active duty in Bosnia, in support of
Operation Joint Forge, effective 29 August 2001, for a period of 270 days.
She was released from active duty on 29 April 2002 and she returned to Fort
Belvoir, VA.

3.  On 13 August 2002, the applicant’s commanding officer (CO) was notified
by the Assistant Chief of Staff, Personnel, that results of a urinalysis
test that was conducted on 14 July 2002, showed that she tested positive
for cocaine.  The CO was informed that he must initiate a flag to
immediately suspend all favorable actions and that the Soldier must be
immediately notified.

4.  On 7 September 2002, the applicant was counseled regarding the results
of her urinalysis test.  She was informed that action to eliminate her from
the Army under the provisions of Army Regulation 135-178 may be initiated
as a result of her testing positive for cocaine use.  During the counseling
session she completed and signed the Soldier Election of Rights and she
submitted a sworn statement in her own behalf indicating that she never
used any type of drugs.  She stated that she did not smoke or drink and she
requested that the matter be immediately investigated.  In a memorandum to
the Office of the Adjutant General, the applicant’s CO recommended that the
she be retained in the VAARNG.  The CO stated that she was a model soldier
and an asset to the VAARNG.

5.  In a letter to her CO dated 28 September 2002, the applicant stated
that she was notified on 7 September 2002, that a specimen collected on 14
July 2002, with her name on it tested positive for cocaine.  She stated
that she was shocked since she had never used drugs in her life.  She went
on to state that the test was poorly conducted, as only one person was
responsible for administering the test.  She stated that on the table where
the samples had been placed after collection, there were boxes along with
both full and empty jars and that she remembered wondering who was
responsible for the samples when she had to take a lunch or restroom break.
 She stated that according to the research that she had done, none of the
urinalysis tests are 100 percent accurate, not to mention other factors
such as a carry-over following a preceding sample that tested positive,
human errors, contamination from other equipment, or failure to clean
glassware, poorly trained personnel, reactive presence of other chemicals,
or endogenous human urinary enzymes that imitate the effects of the
detector enzymes.  She stated that she wished that she knew what happened
after she turned in her sample of urine; however, she did not know.

6.  In the letter to her CO she stated that her life had been destroyed for
no reason; that she was personally hurt and offended of the charge against
her; and that she may have to file bankruptcy and risk losing her home.
She stated that no price could be placed on the stigma and embarrassment an
innocent person



has to pay for being falsely accused and that the false accusation had
caused an enormous amount of distress in her life.  In the letter to her CO
she stated that human errors do occur at military facilities and she
requested that her CO use everything in his power to make sure justice was
done.  She concluded her letter by stating that an investigation into the
matter could verify whether the sample was hers; if the chain of custody
was broken; and if human or technical errors occurred at the lab.  She
requested that her case be reviewed and that she be allowed to remain in
the VAARNG.

7.  On behalf of the applicant, her CO forwarded to the Chief of Staff,
29th Infantry Division (Light), a supplemental packet to be included with
her original separation packet, which was dated 4 November 2002.  Documents
contained in the supplemental packet included a hairscreen test completed
by Chemical Detection Service, Inc. dated 9 October 2002 and a hairscreen
test American Medial Laboratories dated 17 October 2002, both of which show
negative results for amphetamines, cocaine/metabolites, opiates,
phencyclidine and cannabinoids.

8.  Also included in the supplemental packet was a memorandum for record
completed by the applicant’s first sergeant expressing his observations of
the urinalysis that was conducted.  The company first sergeant stated that
while the urinalysis was being conducted, issues arose that raised his
concerns and that in light of the recent events it was necessary to
document his observations.  He stated that the unit first sergeant was not
given prior notification of the urinalysis, which resulted in a loss of
command and control for the conduct of the event.  The first sergeant went
on to state that the noncommissioned officer in charge (NCOIC) that
administered the urinalysis arrived after 10:00am, which was not normal
conduct; the NCOIC was dressed in a uniform different than that of the
Soldiers that were being tested; the roster that was used to identify
testers was not accurate; the testing process took a long time; individuals
who were conducting the testing left the area to eat chow and/or take
breaks; that it was unclear how the chain of custody was maintained; and
the area where the testing was conducted had no doors that could be
properly secured.  The first sergeant concluded his memorandum for record
by stating that his intent was to bring to light discrepancies and issues
of the process and procedures used for testing, as any errors in the
process have dire consequences and impact on the individual soldiers
involved and on the unit as a whole.





9.  As part of her supplemental packet the applicant included a statement
from a captain dated 3 November 2002, which indicates that she (the
captain) participated in the urinalysis.  She stated that her urinalysis
was conducted after lunch and that while she was waiting to provide a urine
sample, she noticed that Soldiers were coming in and out of the staffing
area room continuously, when they had not provided a sample.  The captain
stated that she was lead to believe through her past experiences with
urinalysis that once you entered the staging area room, you could only
leave when escorted by an observer to give a sample. The captain stated
that she also noted that the female Soldier that was conducting the testing
left the staging area room a few times, leaving the vials unattended and
that she also noted that once an observer escorted someone to the restroom,
there was not another assistant to replace the observer that left the
table.  The captain stated it was her past experience that someone had to
observe the plastic vials until the urinalysis testing was completed.

10.  The applicant’s supplemental packet also included a statement from a
major who stated that he too was surprised by the way the urinalysis was
being conducted.  The major stated that his urine sample was collected
after lunch and that he observed that the NCOIC had many assistants giving
out and collecting and securing the sample bottles.  The major stated that
while each assistant was assigned a group of bottles, the bottles were on
the table that separated the test individuals from the soldiers conducting
the urinalysis and that the bottles could have been accessible to anyone
who was in the room.  He stated that the security of the sample bottles
depended on the observation and oversight of the Soldiers conducting the
test.  The major stated that he did not notice anything that he considered
to be out of the ordinary regarding the actual taking of the urine sample
and the procedures for the sample collection did not seem unreasonable.

11.  In a memorandum for record dated 21 November 2002, the Army Substance
Abuse Program (ASAP) Manager addressed the issues raised by the applicant
and the individuals that submitted statements in her behalf.  The ASAP
manager stated that since cocaine only stays in a person’s urine for 2-3
days, any test indicating a negative result for cocaine had absolutely no
bearing on a positive result from a test conducted several months earlier.
The ASAP manager stated that the applicant tested positive for cocaine on
14 July 2002 and that tests conducted 3 months later had no relation
whatsoever to the test taken in July 2002.  The ASAP manager stated that if
the applicant wanted her to contact Tripler Army Medical Center in Hawaii
to have them forward portions of the



original sample to other labs to be tested by them, she would be happy to
arrange it, as the soldier would get an honest look at the specimen that
she gave in July, which is the only one that matters in this case.  The
ASAP manager went on to state that urinalysis screenings, by their very
nature, are unannounced training events and that only the full time points
of contact for the unit and the commander are normally aware of the test
beforehand.  She stated that although it is normally true that testing is
conduct following formation, it is not always the case as Army Regulation
600-85 does not state anywhere that a urinalysis must be done in
conjunction with a formation.

12.  In her memorandum for record, the ASAP manager stated that whether or
not a formation was held and the attire that was worn during the testing
had no bearing on the applicant positive test result and that whenever you
test a large number of personnel, the process does take a long time.  She
continued by stating that she was told to test as many personnel she could
on Saturday and to test the remainder on Sunday and that all specimens
collected on Saturday were secured and chains of custody for all batches
tested were closed out at the end of that test day.  She stated that the
same process was followed on Sunday and that no batches were left open; no
chains of custody were left undone; and no specimens for any batch were
left unsecured at any time.  In her memorandum, the ASAP manager went on to
explain how the testing room was set up and the events that took place
during the testing.  She concluded her memorandum by stating that the
Office of the Inspector General (IG) conducted a thorough investigation of
the applicant’s case and that she had not seen the conclusions of the
investigation.  The ASAP manager stated that, according to the IG’s office
the applicant paid to have a polygraph and a Deoxyribo Nucleic Acid (DNA)
test conducted and that the results of both are unavailable.  The ASAP
manager stated that the applicant’s CO recommended that the positive result
be dismissed and that there is absolutely no evidence submitted in any of
the documentation submitted to justify such a recommendation.  She stated
that, to her knowledge, the IG did not find any discrepancies with the way
the test was conducted or with the way the specimen was tested by the lab.

13.  Through a Freedom of Information Act (FOIA) request to the office of
the IG, the applicant’s counsel was able to obtain a statement from a major
that indicates that she was concerned by the way that the testing was set
up and that she was uncomfortable with the access to the room; seeing the
multiple open boxes with both filled and empty bottles just sitting on the
tables; and the forms that had been completed prior to testing.  The major
stated that it was her belief



that when the Soldier conducting the test was at the far end of the room,
she really did not have control of the boxes at the other end of the room.
Counsel was also able to obtain a statement from a staff sergeant who
stated that during the testing he observed two different male observers
going through their assigned boxes and that one observer went behind the
tables and to write on paperwork that was laying beside one of the boxes
without the ASAP manager being present.

14.  In his statement, the sergeant opined that the urinalysis that was
conducted was poorly run and had many opportunities for improprieties.  He
stated that there is no way that the program manager would have complete
control of all the bottles and paperwork the way that the process was laid
out and that it was impossible for even an experienced manager to have
complete control of the bottles 12 feet away from you while running up and
down the tables and trying to concentrate on doing the paperwork correctly
at the other end of the table.  The sergeant stated that an ASAP manager
has every person’s career in their hands when conducting a urinalysis and
is responsible to have complete and undivided control of all paperwork,
bottles and personnel, which in is opinion, was not the situation.

15.  On 20 March 2003, the appropriate authority approved the
recommendation for discharge.  Accordingly, on 6 April 2003, the applicant
was discharged, under honorable conditions, under the provisions of
National Guard Regulation
600-200, based on acts or patterns of misconduct.  She had completed 4
years, 4 months and 17 days of net service.

16.  National Guard Regulation 600-200 establishes the standards, policies,
and procedures for the management of Army National Guard (ARNG) enlisted
soldiers.  Chapter 8 contains the policy for the separation of enlisted
ARNG soldiers.  Paragraph 8-26 contains guidance on discharging soldiers
from the ARNG and from the Reserve of the Army.  Paragraph 2-26e provides
the authority to separate soldiers for misconduct, which includes the abuse
of illegal drugs.  It states, in pertinent part, that first time drug
offenders in the rank of sergeant or above or those who have completed 3 or
more years of service must be processed for discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was properly discharged in accordance with applicable
regulations with no indication of procedural errors that would tend to
jeopardize her rights.

2.  The type of discharge directed and the reasons therefore appear to be
appropriate considering all of the facts of this case.

3.  The Board has noted the contentions made by the applicant and her
counsel. However, counsel’s contention that she was unlawfully discharged
for use of illegal drugs based on a urine test is not supported by the
available evidence of record.  The evidence of record shows that she was
afforded the opportunity to submit documentation for consideration by her
chain of command to include two hairscreens performed by outside sources,
and she did so.  Her statements from others who were tested that day and
the sworn statement and recommendations that she submitted in her own
behalf were also considered prior to her discharge. Nonetheless, neither
the evidence that she submitted nor the contentions made by her counsel is
sufficient to void her discharge and restore her to duty in the VAARNG as
the available records fail to show that she was unlawfully discharged.

4.  The applicant was informed that if she believed that an error was made
during the laboratory testing, she could request that part of her sample be
sent to another facility for testing and she has failed to do so.  She has
provided no evidence that her urine sample was tampered with either prior
to or during the testing and the hairscreens conducted by outside sources
that she submitted in her behalf are insufficient as they are inconclusive
in regard to the method of collection.  She and her counsel make reference
to a positive IG investigation that neither submitted for this Board’s
review.  Therefore, absent a much stronger showing than has been made, the
Board must presume regularity and rely on the determination made by the
commanding general after his review of the facts and circumstances
surrounding this case.

5.  After a thorough review of the evidence and records presented to the
Board, it appears that the applicant was properly discharged for misconduct
as a result of a urinalysis screening that tested positive for cocaine.
Absent evidence to the contrary, it is concluded that all requirements of
law and regulation were met and that the rights of the applicant were fully
protected throughout the separation process.

6.  In order to justify correction of a military record the applicant must
show 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.

7.  In view of the foregoing, there is no basis for granting the
applicant’s request.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

mdm____  ldh _____  lgh  _____  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.





                                  ___  _Mark D. Manning___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004105491                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |YYYYMMDD                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |20041109                                |
|DISCHARGE AUTHORITY     |NGR 600-200                             |
|DISCHARGE REASON        |661/ACTS OR PATTERNS OF MISCONDUCT      |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  673  |144.6770.0000/ILLEGAL USE OF DRUGS      |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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