RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 July 2006
      DOCKET NUMBER:  AR20050017250


      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. Joyce A. Wrght                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Ms. Carmen Duncan                 |     |Member               |
|     |Ms. Jeanette McCants              |     |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 removal of his Noncommissioned Officer
Evaluation Report (NCOER) covering the period December 2002 through March
2003 which contains adverse remarks and removal of any and all references
to the positive urinalysis from his Official Military Personnel File
(OMPF), and that all rights, privileges, and benefits denied him as a
result of the adverse NCOER be restored to him.

2.  The applicant has remained silent and has deferred to counsel to
present his request.

3.  The applicant's counsel submits those documents listed as attachments
one through thirty-three, in footnotes to his petition to the Board, in
support of the applicant's request.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests removal of the applicant’s NCOER covering the period
December 2002 through March 2003 which contains adverse remarks and removal
of any and all references to the positive urinalysis from the applicant’s
OMPF, and that all rights, privileges, and benefits denied the applicant as
a result of the adverse NCOER be restored to him.

2.  Counsel states that on 18 February 2003, the applicant's commander
ordered a unit wide urinalysis to be conducted for the 233rd Military
Police (MP) Detachment, Fort Monroe, Virginia.  The Unit Prevention Leader
(UPL) who was appointed as the Unit Drug and Alcohol Coordinator (UDAC) on
14 February 2003 conducted the urinalysis.  In April 2003, the Alcohol and
Drug Control Officer (ADCO) notified the commander that the applicant
tested positive for marijuana during the urinalysis conducted on
18 February 2003.  On 14 April 2003, the applicant received a Relief-for-
Cause NCOER due to this positive urinalysis.  On 17 April 2003, the
applicant was notified and counseled regarding the test results.  On 21
April 2003, he was escorted to the Criminal Investigation Command (CIC) at
Fort Monroe, Virginia.  He was notified that he was suspected of wrongful
use/possession of a controlled substance.  The applicant elected not to
waive his rights.





3.  Counsel states that the applicant was notified by his commander that
action was being initiated to separate him from the Army for a pattern of
misconduct due to testing positive for use of a controlled substance and
recommending that he receive a General Discharge (GD), under honorable
conditions.  The applicant exercised his rights and requested a hearing
before an administrative board and to be represented by counsel.  On 5 May
2003, the applicant’s mental health was evaluated as required.  He was
cleared for any administrative action as deemed fit by the command.

4.  Counsel states that on 7 May 2003, the command requested that the
applicant’s orders to recruiting school be deleted.  On 8 May 2003, a non-
transferable Flag was initiated and placed in the applicant’s record due to
adverse action.  On 10 June 2003, the Commander, 233rd MP Detachment,
notified the Commander, Headquarters, Fort Monroe, Virginia, that he was
recommending that the applicant be separated from the US Army due to the
commission of a serious offense.  On 12 June 2003, disciplinary action was
initiated; however, it was not completed.   

5.  On 16 June 2003, the commander notified the applicant that action was
being initiated to separate him from the service with a GD, under honorable
conditions, based on the positive urinalysis.   On 17 June 2003, the
applicant submitted his response to the separation notification authority,
Commander, Fort Monroe, Virginia.  The applicant requested consideration of
his case by an administrative separation board, appearance before the
board, and representation by civilian counsel.  On 17 July 2003, the
Commander, Fort Monroe, appointed an administrative separation board.  On 6
August 2003, the applicant was notified that his board was scheduled for 14
August 2003.

6.  On 12 August 2003, the applicant, through counsel, received notice from
the recorder that the Government had decided not to pursue an
administrative separation board against him.  The hearing was cancelled
without explanation.

7.  On 25 November 2003, the applicant signed an NCOER submitted for change
of rater purposes.  He was marked as “Among the Best” with all previous
responsibilities and duties restored.  On 9 December 2003, the applicant
was transferred to the 188th MP Company, Taegu, Korea.  In March 2004, the
applicant was selected for promotion to staff sergeant (SSG/E-6).  Upon
removal of the non-transferable Flag by the Personnel Support Battalion
(PSB), Taegu, the applicant was promoted to the rank of SSG with a date of
rank (DOR) of 1 March 2004.


8.  On 25 October 2005, the applicant submitted an Evaluation Report Appeal
to the U.S. Army Human Resources Command (AHRC), requesting the adverse
NCOER for the period December 2002 through March 2003 be removed from his
records.  On 29 November, the applicant was notified that his appeal
request was being returned without action.  The U.S. Army Enlisted Records
and Evaluation Center (EREC) stated that there were no provisions in the
regulatory guidelines allowing removal of a Relief-for-Cause NCOER based on
contentions that the report was unfair due to the command not issuing
additional punishment. They did not address that improper procedures were
followed in conducting the command urinalysis and no action was taken based
on the flawed urinalysis.

9.  Counsel argues, from the beginning, the urinalysis conducted on 18
February 2003, was not in compliance with the standard operating procedures
(SOP) established by Fort Monroe and Department of Defense (DOD) guidance
(DOD Instructions [DODI] 1010.16).

10.  The urinalysis was directed by the commander to be a unit sweep;
however, the commander, even though present that day, did not participate
in the urinalysis.

11.  The UPL advised the applicant’s counsel that the commander wanted his
own sample to be taken by the Installation Biochemical Test Coordinator
(IBTC).

12.  The IBTC was interviewed by applicant’s counsel, and confirmed that
the commander submitted a sample at a later date, but could not provide the
date, or documentation.

13.  According to the SOP, the UPL was responsible to conduct an oral
briefing with observers and have them sign the Responsibilities of
Observers during Drug Testing Memorandum.  The commander conducted the oral
briefing but the written briefing for the observers was not conducted, no
record could be produced to show compliance even though the SOP requires
UPL’s to maintain all records.

14.  The UPL was responsible to select the observers for the unit sweep.
One of the observers she selected was her husband.

15.  The UPL made numerous errors on the official unit urinalysis ledger
and DA Form 2624 (Specimen Custody Document –Drug Testing).  The SOP
required all errors to be corrected by lining through the error and placing
initials and date close to the correction.


16.  Errors included:

      a.  The date on batch 1 ledger reflects year as 2002.  Never
corrected.
       
      b.  All blocks #9’s on the ledger were "one lined" through to change
      the type of test conducted.  None of the corrections were made in
      accordance with (IAW) the SOP, no initial or date.

      c.  Batch 1, Specimen 10, the Soldier’s name was misspelled; Soldier
submitted same as specimen 11.  Corrections not made IAW SOP.

      d.  Batch 4, Specimen 12, has wrong social security number (SSN),
Soldier resubmitted sample as Batch 5, Specimen 1.  Corrections not made
IAW SOP.

      e.  DA Form 2624, Batch 2, Specimen 5, was voided, corrections not
made IAW SOP.

      f.  As per the SOP a separate DA Form 2624 was required to be used for
each observer; this was not done, instead, a separate DA Form 2624 was used
for each batch.

17.  The UPL was required by the SOP and DOD guidance to maintain all
urinalysis records.  Upon request, the Unit Urinalysis Ledger (UUL) for
18 February 2003, Batch 2, could not be produced and has never been found.
The applicant’s specimen sample was a Batch 2 sample.  All other UUL sheets
were provided for that particular urinalysis.

18.  According to DODI 1010.16 which applies to all military departments,
"Specimens from urinalysis coordinators and observers shall not be included
in any collection in which that coordinator or observer participated as an
official.  Urinalysis coordinators and observers must be included in a
random sample testing program, but collections and mailing must be
completed by other qualified individuals."  The UUL shows on the Batch 1
sheet that the UPL’s husband observed another observer and that observer
observed him, as well as other observers who were observers for this
urinalysis with the exception of one.






19.  The command was notified of the applicant’s test as early as 14 April
2003, since the applicant received a Relief-for-Cause NCOER based on the
positive test results; however, the command did not notify the Criminal
Investigation Detachment (CID) within 24 hours as required by the
notification memorandum.  The CID was not notified until 21 April 2003 of
the positive test results.  On 28 April 2003, the CID released the report
of investigation.  The memorandum stated that the investigation established
probable cause to believe that the applicant had committed the offense
based solely on the positive test results.

20.  The official investigation report memorandum was sent to the
Commander, 233rd MP Detachment on 3 May 2003.  The report stated that
Commanders were required to reply to the CID unit initiating the report,
indicating what type of action or non-action was taken against the
person(s) listed in the report.  The memorandum also stated that commanders
must notify all individual(s) against whom no action was taken, that their
name would remain in the subject section of the report and the report would
be indexed and retrievable by their name.  The individual(s) listed in the
report were required to be informed of the purpose the reports were used
and the impact such reports may have on their careers, as well as the
procedures for removing their names from subject reports.  None of these
requirements were ever accomplished and the applicant was never informed.
The memorandum also stated that the DA Form 4833 (Commander’s Report of
Disciplinary or Administrative Action) be used to provide the required
information to CID as soon as disciplinary or administrative action was
completed.  If the DA Form 4833 was not completed within 45 days, a written
memorandum was required to explain the circumstances.  The DA Form 4833 was
never completed or submitted as required.

21.  In conclusion, the applicant maintained that he has never used any
type of illegal drugs.  His record from his initial enlistment in the US
Army to his current assignment in Teagu, Korea, has been marked by
outstanding performance with the exception of the one NCOER that was
submitted due to the urinalysis taken at Fort Monroe.  Even in the face of
possible separation from the Army career he loved, and had worked hard to
advance in, the applicant continued to demonstrate Army values and excel at
any mission given to him as reflected in his NCOERs received during and
after the investigation and subsequent scheduling of an administrative
separation board.






22.  Counsel concludes that the urinalysis was clearly flawed, that the
entire collection process was not in compliance with regulations, and that
records were lost or not maintained as required thus the chain of custody
was broken.  The command made the decision not to separate the applicant
from the service due to their inability to provide concrete evidence to
show that the urinalysis was conducted according to the SOP set forth by
Fort Monroe.  Without clear and positive documentation that the sample that
tested positive was the applicant's, the applicant's record should be
cleared of any and all references to the urinalysis and the adverse NCOER
should be removed.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he is currently serving on active
duty in the rank of staff sergeant (SSG/E-6) with a current expiration of
term of service (ETS) of 11 November 2008.

2.  On 14 February 2003, a UDAC was appointed by the commander for the
233rd MP Activity, Fort Monroe, Virginia, until officially relieved or
released from appointment.

3.  On 18 February 2003, the commander prepared a memorandum, Subject:
Record of Urinalysis Testing.  The memorandum stated that an attached
roster of Soldiers assigned to the organization was tested during the 100%
urinalysis that was conducted on 18 February 2003, IAW Army Regulation 600-
85, paragraph 10-3, and the Fort Monroe Letter of Instruction.  It stated
that the urinalysis testing was conducted on this date and of the
53 Soldiers assigned to the unit, 48 Soldiers tested.  Of the Soldiers who
had still not tested, the reasons were listed.  Of the Soldiers listed,
none would return to duty within 24 hours of commencement of the urinalysis
test.  A copy of the list was attached and a copy of the Commander’s
checklist and UPL Checklist were also attached.

4.  The applicant's records contain a copy of a DD Form 2624 (Specimen
Custody Document-Drug Testing), dated 9 April 2003, which shows that a
urine specimen was obtained from the applicant on 18 February 2003, which
tested positive for THC (Tetrahydrocannabinol).

5.  On 17 April 2003, the applicant was counseled by his platoon sergeant
regarding his positive urinalysis for the use of THC based on a unit
urinalysis conducted on 18 February 2003.  He was informed that he was
relieved of his duties, that separation action would be initiated, and that
disciplinary action may be considered under the Uniform Code of Military
Justice (UCMJ).

6.  The applicant provided a copy of his NCOER, Relief for Cause report,
for the period December 2002 through March 2003, due to his positive
urinalysis.
In Part IVa, under Army Values (Rater), the rater indicated in the bullet
comments block that the applicant "broke trust and faith of subordinates
and superiors by illegal use of drugs" and “tested positive for the use of
THC on unit urinalysis."  In Part IVb, under "Competence," the rater gave
the applicant a "Needs Improvement (Much)" rating.  He indicated that the
applicant's "positive urinalysis resulted in relief of all duties and
responsibilities."  Under "Responsibility and Accountability," the rater
gave the applicant a rating of "Needs Improvement (Much)" and indicated in
the remarks section, "the rated NCO has been notified of the reason for
relief."

7.  In Part V (Overall Performance and Potential), block a (Rater/Overall
potential for promotion and/or service in positions of greater
responsibility), the rater placed an "X" in the "Marginal" block.  In Part
Va (Senior Rater Bullet Comments) the senior rater indicated that "results
of a positive urinalysis broke the trust of superiors and subordinates" and
"actions discredited his position of responsibility."  In Part Vc, the
Senior Rater’s overall rating of the applicant's performance was rated as
"Poor" (with a Numerical Score of "5") and his "Overall potential for
promotion and/or service in positions of greater responsibility" as "Poor"
(with a Numerical Score of "5").

8.  The applicant provides a copy of a memorandum, undated, prepared by the
ADCO for the commander.  The ADCO indicated that the applicant was
confirmed by the Army FTDTL to test positive for drug use.  The ADCO
indicated that the applicant must be referred to the Army Substance Abuse
Program (ASAP) no later than 3 working days from the date of the memorandum
and that IAW Fort Monroe Urinalysis SOP, the CID must be notified within
24 hours upon receipt of notification and the results authorized the
command to initiate the full range of UCMJ/administrative actions as
provided under appropriate regulatory guidelines.

9.  The applicant's records contain a copy of DA Form 3881 (Rights Warning
Procedure/Waiver Certificate), dated 21 April 2003, which indicated that he
was suspected of wrongful use/possession of a controlled substance.  The
applicant indicated he wanted a lawyer and that he did not want to be
questioned or say anything.





10.  On 23 April 2003, the applicant's commander notified the applicant
that he was initiating action to separate him from the service under the
provisions of Army regulation 635-200, chapter 14-12c(2), for a pattern of
misconduct.  He based his reason on the applicant’s urinalysis in which he
tested positive for THC.  He recommended that the applicant receive a GD,
under honorable conditions.  He was advised that he was entitled to a
hearing before an administrative board and that he may request counsel of
his choice.  The applicant acknowledged receipt of this notification on the
same day.

11.  On 5 May 2003, an official investigative report was prepared by the
12th MP Detachment (CID), Fort Eustis, Virginia, for the Commander, 233rd
MP (Det).  The memorandum stated that the attached CID report pertaining to
the applicant, a member of his command, was forwarded for his information
and action deemed appropriate.  Army Regulation 195-2 required that
commanders/supervisors receiving CID reports for action must reply to the
CID unit initiating the report indicating the judicial, non-judicial, or
administrative action or lack thereof taken against individuals listed in
the subject section of the report.  In the event the commanders/supervisors
take action against the Soldier for an offense other than the one(s) listed
in the CID report, the revised charge or offense would be specified in the
REMARKS section (block 15) of the DA Form 4833.  If no action was taken
then the DA Form 4833 must reflect that fact.  Changes resulting from
appellate action must also be reported.

12.  Commanders/supervisors must also notify all persons against whom no
action is taken, that their name will remain in the subject section of the
report, and that the report will be indexed and retrievable by their name.
These individuals would also be informed of the purposes for which the
reports were used (e.g., other criminal investigations, security
clearances, and other purposes as authorized by the Privacy Act and other
regulations) and the fact that such use may have an impact upon their
military careers.  The individuals would also be informed that procedures
for the removal of their names from the subject section or other amendment
of the report were governed by Army Regulation 195-2.

13.  The CID requested that the commander use the attached DA Form 4833 to
provide the required information as soon as disciplinary or administrative
action was complete IAW Army Regulation 190-45, Law Enforcement Reporting.
If the commanders/supervisors could not complete the DA Form 4833 within 45
days, a written memorandum was required to explain the circumstances.  Any
delay would have impact on other reporting requirements.


14.  The applicant underwent a mental status evaluation on 5 May 2003,
which determined that his examination was within normal limits and that he
was psychiatrically cleared for any administrative action deemed
appropriate by command.

15.  On 7 May 2003, the First Sergeant requested that the applicant be
deleted from recruiter school due to the fact the applicant was pending
UCMJ action.

16.  On 13 May 2003, the applicant was "flagged" for adverse action.

17.  On 10 June 2003, the commander submitted his recommendation to
separate the applicant under the provisions of AR 635-200, paragraph 14-
12c, misconduct-commission of a serious offense, prior to his ETS.  He
recommended that rehabilitative transfer requirements be waived and that he
be separated with a GD, under honorable conditions.

18.  On 12 June 2003, a DA Form 4833 was prepared by the Special Agent in
Charge, 12th MP Det, CID, Fort Eustis, Virginia, regarding the applicant
for the offense of wrongful use of marijuana on 18 February 2003.  However,
the form was not completed.

19.  On 16 June 2003, another recommendation for separation was submitted
on the applicant.  He acknowledged receipt on the same day and was advised
of his rights to consult with counsel prior to making any election of
rights.

20.  After consulting with counsel, the applicant requested consideration
of his case by and appearance before an administrative separation board.
He requested civilian counsel at no expense to the Government and elected
not to submit a statement in his own behalf.

21.  On 17 July 2003, a board of officers was appointed.  The applicant was
notified on 6 August 2003 that an administrative board would meet on
14 August 2003 to hear evidence concerning his proposed separation.  He
acknowledged receipt on 7 August 2003.

22.  Counsel provides a copy of an email from the administrative board's
recorder regarding the applicant.  The email stated that the Government had
decided not to pursue an administrative separation board against the
applicant at this time.  The hearing which was scheduled for 14 August 2003
was cancelled.  It also indicated that this did not necessarily mean that
other avenues to reprimand the applicant would not be pursued.  However, it
did mean that an administrative separation board would not be the vehicle
used if disciplinary actions were taken against the applicant.
23.  The applicant was promoted to SSG effective 1 March 2004.

24.  On 25 October 2005, the applicant appealed his NCOER for the period
December 2002 through March 2003 to the Department of the Army, Enlisted
Special Review Board (ESRB).  He based his appeal on substantive
inaccuracies:  the unit wide urinalysis conducted on 18 February 2003; his
notification that he had tested positive for marijuana during the
urinalysis conducted on 18 February 2003; and his notification that action
was being initiated to separate him from the US Army with a GD, under
honorable conditions, based on the positive urinalysis.

25.  On 29 November 2005, the Chief, Personnel Actions Branch, U.S. Army
Enlisted Records and Evaluation Center (EREC) returned the applicant's
appeal without action.  The EREC official stated that there were no
provisions in the regulatory guidelines allowing removal of the Relief for
Cause NCOER based on contentions that the report was unfair due to the
command not issuing additional punishment and that the applicant had failed
to provide evidence of a clear and convincing nature to verify that the
rating officials did not render a fair and objective evaluation of the
applicant's performance during the period of the rating.  The official
further stated that in accordance with Army Regulation
623-205, chapter 6, an appeal must be supported by substantiating evidence.
 However, the burden of proof was upon the Soldier to establish, through
clear and convincing evidence that the contested report was unfair or
unjust.

26.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
prescribes procedures for separating members for misconduct.  Specific
categories include minor
disciplinary infractions, a pattern of misconduct, commission of a serious
offense, and conviction by civil authorities.  Action will be taken to
separate a member for misconduct when it is clearly established that
rehabilitation is impracticable or is unlikely to succeed.  A discharge
under other than honorable conditions is normally appropriate for a Soldier
discharged under this chapter.

27.  Paragraph 14-12c(2) provides for separation for commission of a
serious offense such as abuse of illegal drugs.  

28.  DODI 1010.16 implements technical procedures for the military
personnel drug abuse-testing program.  Section 1010.16 E1.1.3 pertains to
Collection of specimens.  E1.1.3.3 states that specimens from urinalysis
coordinators and observers shall not be included in any collection in which
that coordinator or observer participated as an official.  Urinalysis
coordinators and observers must be included in a random sample testing
program, but collections and mailing must be completed by other qualified
individuals.
29.  Army Regulation 623-205 serves as the authority for the preparation
and submission of the NCOER.  It provides, in pertinent part, that a relief
for cause is defined as the removal of a NCO from a ratable assignment
based on a decision by a member of the NCO's chain of command or
supervisory chain that the NCO's personal or professional characteristics,
conduct, behavior, or performance of duty warrant removal in the best
interest of the Army.  If relief for cause is contemplated on the basis of
an informal investigation conducted under Army Regulation 15-6, the
referral procedures contained in that regulation must be complied with
before the act of initiating or directing relief.  If the relief is
directed by an official other than the rater or SR (Senior Rater), the
official directing the relief will describe the reasons for the relief in
an enclosure to the report.  Regardless of who directs the relief, the
rater will enter the statement "The rated NCO has been notified of the
reasons for the relief."

30.  The above cited regulation also provides, in pertinent part, that
there are no provisions for referring an adverse NCOER to an NCO; however,
the rated NCO has the option to request a commander's inquiry and to submit
an appeal of the NCOER to the Enlisted Special Review Board (ESRB).

31.  Chapter 4, AR 623-205, contains the policy and procedure for appealing
NCOERs and paragraph 4-2 establishes that an NCOER that has been accepted
for filing in the OMPF of a noncommissioned officer is presumed to be
administratively correct, has been prepared by the proper rating officials,
and is deemed to represent the considered opinion and best judgment of
rating officials at the time of its preparation.

32.  Paragraph 4-7, of this same regulation states, in pertinent part, that
the burden of proof rests with the applicant.  Accordingly, to justify
deletion or amendment of a report, the applicant must produce evidence that
establishes clearly and convincingly that the presumption of regularity
referred to in paragraph 4-2 should not apply to the report under
consideration and that action is warranted to correct a material error,
inaccuracy, or injustice.  Clear and convincing evidence must be of a
strong and compelling nature, not merely proof of administrative error or
factual inaccuracy.  Appendix B provides guidance on the submission of
appeals and indicates that active Army Soldiers should address their
appeals to the EREC.

33.  The applicant provides a copy of an SOP for Collections and Submission
of Urine Specimens, from Fort Monroe, Virginia.  Chapter 2, paragraph 2-1,
states, in pertinent part, that the commander has the responsibility for
the ensuring that the company/detachment is briefed and that an oral
briefing is conducted for the UPL and observers.

34.  Paragraph 2-4, of the SOP, states, in pertinent part, the UPL is
responsible for training and orally briefing observers, ensuring that they
follow the procedures in the SOP, have them sign an observer memorandum,
and maintain urinalysis records.

35.  Chapter 9, paragraph 9-1, of the SOP, states, in pertinent part, that
the most common errors made on the DD Form 2624 that resulted in the
specimen being rejected for testing were:  non-matching numbers, incomplete
social security numbers, and improperly making corrections.  Paragraph 9-4
states that the only person making the error, could make the corrections on
the DD Form 2624 or bottle label.  Corrections would be made as followed:
(1) Line (draw a single line) through the faulty information; (2) Write the
correct information directly above the faulty information; and (3) Place
your initials and the date close to the correction.

36.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the Official Military Personnel
File, the Military Personnel Records Jacket, the Career Management
Individual File (CMIF), and Army Personnel Qualification Records.
Paragraph 2-4 of this regulation states that once a document is placed in
the Official Military Personnel File it becomes a permanent part of that
file and will not be removed from that file or moved to another part of the
file unless directed by the Army Board for Correction of Military Records,
DASEB, Army Appeals Board, the Chief of Appeals and Corrections Branch of
the Total Army Personnel Command, or the Official Military Personnel File
custodian when documents have been improperly filed, Total Army Personnel
Command (TAPC-PDO-PO) as an exception, Chief of the Appeals Branch of the
Army Reserve Personnel Center, and Chief of the Appeals Branch of the
National Guard Personnel Center.

37.  Table 2 of the regulation pertains to the composition of the OMPF.  It
states, in pertinent part, that NCOERs will be filed in the Performance
section.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record clearly shows that the applicant tested positive
for marijuana on 18 February 2003, during a unit wide urinalysis conducted
by his unit.  On 14 April 2003, he received a Relief for Cause NCOER due to
his positive urinalysis.  The NCOER contained substantial adverse remarks
and indicated that he was notified of the reason for his relief.




2.  The applicant and counsel were notified regarding his test results on
17 April 2003 and he was informed that he was relieved of his duties, that
separation action would be initiated, and that disciplinary action could be
considered under the UCMJ.

3.  The ADCO informed the applicant's commander by memorandum that the
applicant was confirmed by the Army FTDTL to test positive for drug use and
that he must be referred to the ASAP no later then three working days from
the date of the memorandum.  The ADCO also indicated that IAW with the Fort
Monroe Urinalysis SOP, the CID must be notified within 24 hours upon
receipt of notification, and the results authorized the command to initiate
the full range of UCMJ/administrative actions as provided under appropriate
regulatory guidelines.

4.  The applicant was notified by his commander that he was initiating
action to separate him from the service under the provisions of Army
Regulation 635-200, chapter 14, paragraph 14-12c(2), for a pattern of
misconduct.  He based his reason on the applicant's positive urinalysis for
THC.  The applicant was advised that he was entitled to a hearing before an
administrative board and that he may request counsel of his choice.  He
acknowledged receipt.

5.  An official investigative report was prepared by the CID and was
forwarded for the commander to take action deemed appropriate.  The CID
requested that the commander use the DA Form 4833 to provide the required
information as soon as disciplinary or administrative action was completed
IAW AR 190-45.

6.  The applicant underwent a mental status evaluation and was
psychiatrically cleared for any administrative action deemed appropriate by
command.  He was deleted from recruiter school due to the fact he was
pending UCMJ action and was flagged for adverse action.

7.  The commander submitted his recommendation to separate the applicant
under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-
12c, misconduct-commission of a serious offense, prior to his ETS.  He
recommended that rehabilitative transfer requirements be waived and that
the applicant be separated with a GD, under honorable conditions.

8.  A DA Form 4833 was prepared by the Special Agent in Charge, CID,
regarding the applicant's offense of wrongful use of marijuana; but, the
form was not completed.



9.  Another recommendation for the applicant's separation was submitted.
He acknowledged receipt once again and was advised to consult with counsel.
 He consulted with counsel and requested consideration of his case before
an administrative separation board.  He requested civilian counsel at no
expense to the Government and elected not to submit a statement in his own
behalf.

10.  A board of officers was appointed and the applicant was notified on
6 August 2003 that the board would meet on 14 August 2003.  He acknowledged
receipt of the notice on 7 August 2003.

11.  An email was provided to counsel by the administrative board recorder
informing him that the Government had decided not to purse an
administrative separation board against the applicant at that time and the
hearing was cancelled.  The email also indicated that this did not
necessarily mean that other avenues to reprimand the applicant would not be
the vehicle used if disciplinary actions were taken against the applicant.

12.  The applicant was promoted to SSG/E-6 effective 1 March 2004.

13.  The evidence shows that the applicant appealed his NCOER for the
period December 2002 through March 2003.  The applicant based his appeal on
the contention that the contested reports contained substantive
inaccuracies and the applicant requested that report be removed from his
OMPF.  The Chief, Personnel Actions Branch, returned the applicant's appeal
without action. This official stated that there were no provisions in the
regulatory guidelines allowing removal of the Relief-for-Cause NCOER based
on contentions that the report was unfair due to the command not issuing
additional punishment.  He also indicated that the applicant had failed to
provide evidence of a clear and convincing nature to verify the rating
official did not render a fair rating.  The EREC officials concluded that
in accordance with regulation, an appeal must be supported by
substantiating evidence.

14.  The Chief, Personnel Actions Branch stated the applicant has failed to
provide compelling evidence that his NCOER for the period December 2002
through March 2003 should be removed from the Performance section of his
OMPF.  The applicant, he stated, was counseled and notified about the
reasons for his relief.  The applicant signed the NCOER on 14 April 2003.
The report was properly filed in the Performance section of his OMPF in
accordance with applicable regulation.  Therefore, this official advised,
there is no basis to remove his NCOER from the Performance fiche of his
OMPF.



15.  In his application to this Board, counsel argued that:  the urinalysis
was not in compliance with the SOP established by Fort Monroe and DODI;
that the urinalysis directed by the command was a unit sweep; however, the
commander, even though present that day, did not participate; that the
commander wanted his own sample to be taken by the IBTC; and that the
commander submitted a sample at a later date, but could not provide the
date, or documentation.  Counsel also argued that according to the SOP, the
UPL was responsible for conducting an oral briefing with observers and have
them sign the Responsibilities of Observers during Drug Testing Memorandum.
 The commander conducted the briefing but the written briefing for the
observers was not conducted, and no record could be produced to show
compliance.

16.  Counsel contends that the UPL made numerous errors on the official
unit urinalysis and the DA Form 2624.  The SOP required all errors to be
corrected by lining through the error and placing initials and date close
to the correction.  The SOP, he states, was not followed.  He continued to
elaborate on the numerous errors found that were required to be corrected
by the SOP.  He also elaborated on the UUL, batch 2 sample, which could not
be produced and that had never been found.  The applicant's specimen sample
was a batch sample.  Counsel elaborated on other inconsistencies that
occurred during and after the urinalysis and the actions taken during and
after the test.

17.  The Army designed its drug testing program using urinalyses to
withstand maximum scientific and legal scrutiny.  However, to qualify as a
valid test that can be used as the basis for adverse judicial or
administrative personnel actions, the strict guidelines of the testing
program must be followed to ensure reliability of the test results.  It
appears from the case file, the command did not pursue non-judicial
punishment, administrative elimination, or court-martial because the
procedures used in the testing on this occasion were sorely lacking and
would not have withstood any degree of scrutiny in those forums.

18.  The violations of established procedures found most troubling were the
loss of documentation to establish chain of custody of the particular batch
that allegedly contained the applicant's positive result and the testing of
the observers in the same unit urinalysis.

19.  Two critical aspects of the testing procedures were ensuring proper
chain of custody of the samples and the closely related issue of ensuring
observers and handlers of the sample were reliable and above suspicion.
Observers and handlers are tested on separate occasions to ensure there was
no motive to switch their samples (which they might believe were tainted)
with samples from members of the unit being tested.

20.  In this case it appears the command could not track the chain of
custody of the batch containing the applicant's sample and could not
ensure the observes/handlers had no motive to switch samples with those
being tested.

21.  Based on the foregoing incidents prior to and after the applicant's
urinalysis, and given the unreliability of the unit urinalysis, it was
patently unfair to use the sample as a basis for the Relief-for-Cause
NCOER.  Therefore, the applicant is entitled to full relief from this
Board.

BOARD VOTE:

__JS____  _cd_____  _JM ____  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by:


      a.  removing his NCOER covering the period December 2002 through
March 2003, which contains adverse remarks from the applicant's OMPF;

      b.  by adding a non-prejudicial statement to the OMPF of the
individual concerned that states "the absence of an NCOER for the period
December 2002 through March 2003 is through no fault of the Soldier and
this period is declared non-rated time";

      c.  removing any and all references to the positive urinalysis from
his OMPF; and

      d.  that all rights, privileges, and benefits denied him, as a result
of the adverse NCOER, be restored to him.



                                  ___     John N. Slone_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050017250                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060711                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . ACTIVE DUTY                      |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |123                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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