IN THE CASE OF:	  

		BOARD DATE:	   31 May 2012

		DOCKET NUMBER:  AR20110023069 


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 requests his general discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states he did not take any illegal drugs and he has website information on false positives.  No one took the time to look at these facts before his discharge.  

3.  The applicant provides:

* his statement for retention, dated 25 February 2010
* a statement, dated 15 March 2010, from Staff Sergeant G____n

CONSIDERATION OF EVIDENCE:

1.  He enlisted in the Regular Army on 7 August 2006.  He immediately reenlisted on 2 March 2009.  He was awarded the military occupational specialty 88K (Watercraft Operator).

2.  His records of disciplinary actions and his discharge processing package were not available for review.  The exact facts and circumstances leading to his discharge are not available.

3.  On 19 May 2010, he was discharged by reason of misconduct - drug abuse under the provisions of Chapter 14, paragraph 14-12c of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations).  He had completed 
3 years, 9 months, and 13 days of active service that was characterized as under honorable conditions.

4.  He submitted a statement, dated 25 February 2010.  This statement was submitted to his company commander prior to his discharge and to the Army Discharge Review Board (ADRB) at the time of his request for an upgrade to his discharge.

	a.  He stated that on or about the first of August 2008 he tested positive for marijuana on a unit urinalysis.  He was reduced in grade, forfeited pay, and served 45 days of extra duty.  He then received monthly counseling sessions and received no negative remarks concerning his performance as a Soldier.  He was promoted back to specialist within eight months of his nonjudicial punishment (NJP).

	b.  On or about the first of August 2009 a detachment urinalysis was held and he tested positive for ecstasy.  He did not take ecstasy and in the days prior to taking the urinalysis he was at home awaiting the birth of his son.  He was in constant company of the mother of his son and he had a sworn statement from her stating he was never around any illegal substance.  He never took any illegal drugs at any time after his initial offense.  

	c.  He was taking specific medications to treat his asthma condition, prescribed Advair and Albuterol, and continues to take them.  His grandmother, who also has severe asthma and is a registered nurse in Virginia, recommended he take an over-the-counter medication called Bronkaid to treat his continued chest congestion.

	d.  According to two websites, www.askdoc.com\falsepositives.html, and www.medicalassistedtreatment.com\24576\index.html, Bronkaid is known to cause false positives for methamphetamines and ecstasy.  He tried to see a Medical Review Officer (MRO) twice regarding his case but was told he could not request to speak to an MRO, the MRO must request to speak to him.

5.  He submitted a sworn statement from Staff Sergeant G____n, dated 15 March 2010.  This statement was submitted to his company commander prior to his discharge and to the ADRB at the time of his request for an upgrade to his discharge.

	a.  Staff Sergeant G____n described his counseling of the applicant after he tested positive for ecstasy.  The applicant denied taking the drug and didn't know how this could happen.

	b.  After a few hours of research, he found that Advair and Bronkaid had both been shown to test falsely positive for amphetamines.  Bronkaid specifically had case precedents where people had tested falsely positive for ecstasy.  He informed the first mate and vessel master of the information he had found online. He also informed the primary Unit Prevention Leader and was told he would contact the MRO and ask if it was possible these medications had caused a false positive.

	c.  Staff Sergeant G____n was on leave at the time the applicant was given nonjudicial punishment, which included a reduction to private/pay grade E-2.

	d.  He stated the applicant had maintained that he did not use ecstasy and he kept his attitude positive, his work ethic above his peers, and his physical fitness outstanding.  He believed the applicant was one of the truly outstanding Soldiers who, by serving, was valuable to their mission accomplishment and the Army as a whole.  He truly believed the applicant did not use ecstasy and losing such a valuable Soldier would be a great detriment to their vessel, company, and the Army.

6.  On 25 July 2011, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB presumed, in the absence of the facts and circumstances leading to his discharge, government regularity and determined his discharge was proper and equitable and that the discharge was properly characterized.

7.  Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct.  Paragraph 14-12c provides for the separation of a Soldier by reason of the commission of a serious offense, which includes drug abuse.  The issuance of a discharge under other than honorable conditions is normally considered appropriate for separations under the provisions of Chapter 14.

8.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The statements he submitted were reviewed.  There is no evidence of any review by an MRO that was mentioned in Staff Sergeant G____n's statement.  The facts and circumstances leading up to his discharge are not available for review.  In the absence of his disciplinary records, NJP proceedings, and his separation package, it is not possible to determine if the information contained in these statements was considered prior to his discharge.  

2.  It appears there may have been some mitigating factors considered in the processing of his separation as he was issued a general discharge instead of a discharge under other than honorable conditions which is normally considered appropriate for separations under the provisions of Chapter 14.

3.  In the absence of evidence to the contrary, it must be presumed that all requirements of law and regulation were met and the rights of the individual were fully protected throughout the separation process.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

4.  In view of the above, there is an insufficient basis to upgrade his discharge.

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.




      _______ _   _X______   ___
               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)                                         AR20110023069



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ABCMR Record of Proceedings (cont)                                         AR20110023069



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