IN THE CASE OF:	  

		BOARD DATE:	        17 MARCH 2009

		DOCKET NUMBER:  AR20080004113 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant makes his request through counsel.

2.  The applicant makes his statements through counsel.

3.  The applicant provides records through counsel in support of this application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that:

   a.  the applicant's general discharge be upgraded to an honorable discharge; 

   b.  his narrative reason for separation be changed from "Failure to Complete Course of Instruction" to "Secretarial Authority"; and 

   c.  his separation authority for discharge be changed from "Army Regulation (AR) 600-8-24 (Officer Transfers and Discharges), Paragraph 2-37 (Rules for processing involuntary release from active duty [REFRAD] and termination of Reserve appointments of student officers and warrant officers attending branch orientation, familiarization, or Warrant Officer Basic Course (WOBC)" to a regulatory/statutory provision consistent with a narrative reason for separation due to "Secretarial Authority."  


2.  Counsel essentially states that he engaged the services of a nationally recognized forensic toxicologist regarding the drug test data which ultimately led to the applicant's discharge.  He also states, in effect, that after this doctor reviewed the applicant's drug test results, he concluded the applicant's drug test cannot be shown to be either "positive" or "negative" as the test result was not with a reasonable degree of scientific confidence, greater than the reference population of the calibrator results. 

3.  Counsel provides evidence which is indexed in an exhibit list in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he was discharged from the Reserve Officers' Training Corps (ROTC) on 11 May 2003, and was commissioned an Air Defense Artillery second lieutenant in the United States Army Reserve (USAR) on 12 May 2003.  He entered active duty on 3 June 2003 with a 4-year active duty service obligation, and was assigned to Fort Bliss, Texas for the officer basic course.  

2.  On 15 January 2004, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using cocaine, a controlled substance, between on or about 11 October and
16 October 2003.  His punishment consisted of a forfeiture of $1,091.00 pay per month for 1 month, and restriction to the limits of Fort Bliss, place of duty, place of worship, medical and dental facilities, and dining facility for 30 days.  

3.  The applicant's urinalysis specimen was tested twice due to presumptive positive test results and then tested in a highly reliable, state-of-the-art machine to determine the nanogram level of benzoylecgonine (BZE) [a substance produced by the metabolism of cocaine].  This highly reliable test, using gas chromatography/mass spectrometry (GC/MS), is the "gold standard" of forensic toxicology because it provides a "fingerprint" of the drug for identification.  Blank specimens are run before each specimen to insure that no drug or metabolite has carried over from a previous specimen.  This test confirmed the presumptive positive test results and found that the applicant's urine specimen contained 108.75 nanograms per milliliter (ng/mL) of BZE.  The Department of Defense cutoff for testing positive for BZE is 100 ng/mL.




4.  Although the facts and circumstances pertaining to the applicant’s discharge, i.e., his separation packet, are not contained in his official military personnel file [except evidence submitted in his request to the Army Discharge Review Board], the applicant and counsel provided evidence which shows that on 
29 January 2004, the applicant's commanding officer informed the applicant that he was considering him for involuntary REFRAD under the provisions of paragraph 2-37a, Army Regulation 600-8-24.  His commanding officer stated that he was taking this action based on the applicant's misconduct as shown by his cocaine use on or about 16 October 2003.  The applicant was advised of his rights, and informed that if he was REFRAD and discharged from his USAR commission, he would be separated with a general discharge under honorable conditions.  

5.  On 5 February 2004, the applicant acknowledged receipt of notification.  He also acknowledged that he understood the basis for his involuntary separation was misconduct.  He waived his right to have his case considered by a school faculty board, and elected not to submit rebuttal matters prior to the proper separation authority making his final determination.  

6.  On 6 February 2004, the proper separation authority approved the applicant's involuntary REFRAD and discharge from his USAR commission under the provisions of paragraph 2-37a, Army Regulation 600-8-24, and directed that he receive a general discharge.  

7.  On 25 February 2004, the applicant was discharged accordingly.  Item 24 (Character of Service) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was issued a general discharge.  Item 25 (Separation Authority) of this same document shows he was separated under the provisions of "AR 600-8-24, [Paragraph] 2-37," and item 28 (Narrative Reason for Separation) shows "Failure to Complete Course of Instruction."

8.  In a letter, dated 15 September 2006, the Army Discharge Review Board informed the applicant and his counsel that the applicant's petition to change his characterization of service and/or reason for his discharge had been denied.

9.  The applicant and counsel provided information, dated 6 December 2005, from a forensic toxicologist, who will simply be referred to as the doctor throughout the remainder of these proceedings.  The doctor essentially stated that the applicant's urinalysis testing was performed in a manner consistent with appropriate scientific practice and was sufficient to establish a result to a reasonable degree of scientific certainty within the limitations of the test performed.  The doctor also stated, in pertinent part, that three separate sets of statistical tests show the result is not statistically differentiable from the population of calibrator responses recorded as a natural consequence of the inherent analytical variability associated with the measurement.  Additionally, he stated that this variability is sufficiently large that the questioned test result cannot be statistically differentiated from that population and, as a result, the applicant's test result cannot be shown to be either "positive" or "negative" as it was not with a reasonable degree of scientific confidence, greater than the reference population of calibrator results.

10.  The applicant provided eight third-party letters of support to include a letter from his ROTC Professor of Military Science, who is a retired lieutenant colonel; two former ROTC classmates; a former college classmate; a senior pastor; and others who have known him for varying lengths of time.  These letters of support essentially portray the applicant as a decent man with good character and high moral values; and that he has always been a law-abiding citizen with the highest respect for the law.

11.  Department of Defense Instruction 1010.16 (Technical Procedures for the Military Personnel Drug Abuse Testing Program) provides, in pertinent part, that the initial drug test is to identify those samples that are "presumptively positive" to send them on for confirmation testing (i.e., remove negative samples to focus effort and resources on those samples most likely to contain drugs of abuse).  To exclude the possibility of carryover in the screening procedure, a rescreen of positive specimens must be completed with negative controls inserted between the actual personnel specimens.  Following a positive result on an initial test (and any subsequent screening tests), the specimen shall be tested by GC/MS to confirm the result before a positive report is made.

12.  Army Regulation 600-85 (Army Substance Abuse Program), in effect at the time, provided that a Soldier whose urine tested positive for illegal drugs may obtain a retest at a commercial laboratory (National Institute on Drug Abuse) approved outside of the Department of Defense laboratory system at the individual's expense when a sufficient quantity of the same specimen is available for retesting.  Soldiers' requests were to be submitted through the installation/ command to the laboratory which performed the initial test.  

13.  Paragraph 4-1 of Army Regulation 600-8-24, in effect at the time, provided, in pertinent part, that an officer is permitted to serve in the Army because of the special trust and confidence the President and the Nation have placed in the officer’s patriotism, valor, fidelity and competence.  An officer is expected to display responsibility commensurate to this special trust and confidence and to act with the highest integrity at all times.  However, an officer who will not or cannot maintain those standards will be separated.  Paragraph 2-37a of this same regulation provided that a Reserve Component officer with less than 
3 years commissioned service would be REFRAD and discharged from his or her USAR commission when the officer fails to meet the standards of service schools due to misconduct, moral or professional dereliction, academic or leadership deficiencies, or resigning from a course.  Additionally, this regulation provided that elimination action would be initiated against an officer who is medically diagnosed as drug dependent or identified as having committed an act of personal misconduct involving drugs.

14.  Paragraph 1-21 of this same regulation provided that an officer would normally receive an honorable characterization of service when the quality of the officer’s service has met the standards of acceptable conduct and performance of duty.  It also provided, in pertinent part, that an officer would normally receive an under honorable conditions characterization of service when the officer's military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A separation under honorable conditions was normally appropriate when an officer was separated based on misconduct, including misconduct for which punishment was imposed, which rendered the officer unsuitable for further service, unless an under other than honorable conditions separation was appropriate.

15.  Department of the Army Pamphlet 27-9 (Military Judges’ Benchbook) provides, in pertinent part, that by “reasonable doubt” is intended not a fanciful or ingenious doubt or conjecture, but an honest, conscientious doubt suggested by the material evidence or lack of it in the case.  It is an honest misgiving generated by insufficiency of proof of guilt.  Proof beyond a reasonable doubt means proof to an evidentiary certainty although not necessarily to an absolute or mathematical certainty (emphasis added).  The proof must be such as to exclude not every hypothesis or possibility of innocence, but every fair and rational hypothesis except that of guilt. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant and counsel contend that the applicant's general discharge should be upgraded to an honorable discharge, his narrative reason for separation should be changed from "Failure to Complete Course of Instruction" to "Secretarial Authority," and that the separation authority for his discharge should be changed from "AR 600-8-24, Paragraph 2-37" to a regulatory/statutory provision consistent with a change of narrative reason for separation to "Secretarial Authority."  



2.  The evidence of record shows that at no point during the applicant's NJP or separation proceedings did he contest the fact that he wrongfully used cocaine. There is also no evidence that he requested to obtain a retest at a commercial laboratory (National Institute on Drug Abuse) approved outside the Department of Defense laboratory system at his own expense, which he had the right to do provided there was a sufficient quantity of the same specimen available for retesting.  The fact that the applicant's counsel located and obtained a doctor's interpretation that the applicant's test results cannot be shown to be either "positive" or "negative" was considered.  

3.  By the doctor's own admission, the applicant's urinalysis testing was performed in a manner consistent with appropriate scientific practice.  His urine specimen was tested according to regulatory guidance in effect at the time, and this urine specimen after testing presumptive positive for BZE twice was confirmed positive for 108.75 ng/mL of BZE which exceeded the Department of Defense cutoff for BZE, by GC/MS – the "gold standard" of forensic toxicology because it provides a "fingerprint" of the drug for identification.  As a result, he was appropriately discharged under the provisions of Army Regulation 600-8-24, and his characterization of service of under honorable conditions was equitable given the facts and circumstances in this case.  

4.  By wrongfully using cocaine, the applicant knowingly risked a military career and violated the trust and confidence placed in him as an officer and Soldier.  As such, the applicant’s command acted appropriately in initiating action to separate him for misconduct due to abuse of illegal drugs.  Given the severity of his offense, the applicant failed to provide evidence which proves that his discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.  

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.

6.  The applicant's record of service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.  Additionally, he is not entitled to a change in his narrative reason for separation or authority for separation.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ___X_____  ___X_____  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.




      _______ _XXX   _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080004113



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ABCMR Record of Proceedings (cont)                                         AR20080004113



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