IN THE CASE OF:	  

		BOARD DATE:	  17 March 2015

		DOCKET NUMBER:  AR20140007240 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests:

* reversal of the administrative separation board's determination that the applicant engaged in misconduct by using cocaine
* removal of a letter of reprimand (LOR)
* reinstatement of the applicant to his position in the New Jersey Army National Guard (NJARNG)

2.  Counsel states a hearing was held on 22 April 2012, at which time the board found misconduct had occurred and recommended the applicant's separation with a general discharge.  

	a.  The applicant is a family man, a career Soldier, and law enforcement officer.  In his civilian capacity, working for the Passaic County Sheriff's Department (PCSD), his career and conduct had been unquestioned until the NJARNG informed the Sheriff's department of the applicant's failed drug test several days before the hearing.  However, from the moment the applicant was notified of the results he has consistently asserted his innocent.  Furthermore, he is a remarkable Soldier with an outstanding service record.

	b.  There are two central issues in this case.  The first issue is whether or not the test results were forensically valid and admissible in the proceedings against him.  The second issue concerned whether or not the ingestion of cocaine was knowing and intentional or accidental.

		(1)  As to the admissibility of the test results, there was a clear and substantial violation of the chain of custody.  Army Regulation 600-85 (The Army Substance Abuse Program) sets strict requirements for storage of the urine samples at the unit level before they are shipped out to a laboratory for testing.  

		(2)  Army Regulation 600-85, appendix E–11 (Temporary storage of urine specimens at the unit level (by the Unit Prevention Leader (UPL)) states a safe, secure filing cabinet, or metal wall locker will be used to store specimens.  This container must be in a lockable room or office.  The safe, filing cabinet, or metal wall locker must weigh at least 500 pounds or be attached to the structure of the building with a chain or heavy duty bolts.  If a filing cabinet is used, then a metal bar hasp will be attached to run the entire height of the cabinet.  A hasp may be welded to the top drawer, but then only the top drawer may be utilized for temporary storage.  The safe or filing cabinet will have a 200 series padlock (with only 2 keys, no combination lock), which is used to secure the hasp.  One key will be issued to the primary UPL, the other key will be secured in a sealed envelope (signed by the UPL across the seal) and issued to the commander’s safe.  Both keys will be issued in accordance with paragraph E–10d of this regulation and key control standard operating procedure.  All opening/closing of the safe/cabinet will be annotated on a Standard Form (SF) 72 (Security Container Check Sheet).  Each event involving temporary storage of specimens must be written on the chain of custody (back of DD Form 2624 (Specimen Custody Document)).  Commanders in deployed areas where facilities are not available to fully comply with the preceding temporary storage guidelines will make every attempt to ensure that specimens requiring temporary storage are properly secured to avoid any tampering or perception thereof.  This may include locking them in a foot locker or similar container using a padlock to which the primary UPL has the only key and storing that foot looker in the unit’s tactical operations center or other area under constant surveillance.

		(3)  During the hearing it was determined that the procedures listed in appendix E–11 were clearly violated.  The DD Form 2624 clearly indicated that the sample was drawn on Saturday, 10 December 2011 and observed by Hxxxxx Bxxxx.  On that same day Hxxxxx Bxxxx signed the bottles over to Cxxxxxxx Hxxxxxx, an Air Force noncommissioned officer (NCO).  On the form Cxxxxxxx Hxxxxxx indicated that she placed them in safe storage on 10 December 2011 and then released them from safe storage on 16 December 2011 to Lxxx Dxxxx, who subsequently sent the specimens by Federal Express to the laboratory.
		(4)  At the hearing, before the legal advisor, outside the presence of the board, the parties agreed that Cxxxxxxx Hxxxxxx would testify that she picked up the bottles at the unit in Teaneck on Saturday, 10 December 2011 and drove back to Fort Dix, NJ, where she parked the van containing the bottles in a locked parking lot with a blanket over them.  She returned on Monday, 13 December 2011, and gave the bottles to Lxxx Dxxxx, even though the form was marked     16 December 2011 and not 13 December 2011.  She did not notice any break in to the van.

		(5)  During the hearing and before the legal advisor, counsel asserted that the violations of the mandatory requirements of Army Regulation 600-85, appendix E-11 were so substantial that the lab results should not be admitted.  Counsel informed the legal advisor that leaving the bottles in a van in a parking lot was not equivalent to having them in a locked safe with only two keys.  The legal advisor overruled counsel's objections and admitted the lab results despite these clear violations.

		(6)  This was a substantial injustice that violated the applicant's rights and deprived him of a fair hearing.  The applicant has consistently asserted his innocence.  His exceptional record supports his innocence and the Army should not have violated its own regulations to use this evidence against him.

	c.  The second aspect of the case resulting in a substantial injustice was the determination that the applicant engaged in misconduct by intentionally using cocaine.  At the proceedings there was evidence presented that the applicant had a nanogram (ng) reading of approximately 3500 ng for the cocaine metabolite benzoylecgonine (BZE).  There was undisputed evidence presented that he had consumed a tea brewed from "Mate de coca" for several days prior to, and on the morning of the urinalysis.

		(1)  His sister testified that she brought this tea back from Peru.  However, on the advice of counsel, he did not retain the tea bag to present at the hearing since he learned from counsel that possessing these leaves is illegal.  The bag was scanned in counsel's office and the image was presented to the board and supported by the testimony of the applicant's sister.

		(2)  The applicant testified that he did not realize that he was doing anything wrong.  He had a cold for days prior to the urinalysis test.  This was documented by medical records from his doctor.  The doctor's notes reflect a statement by the applicant that he had been ingesting tea to treat the cold.  Those statements were made to the doctor before the applicant was aware of the test results.  The applicant's wife also testified that he had been sick at that time.

		(3)  The government's own expert witness testified that consuming two cups of tea could cause the ng reading in this case.  This is supported by various technical articles that were part of the record of proceedings.  Nevertheless, the board concluded that based upon this evidence, a separation was warranted.

	d.  The only reasonable conclusion from all the evidence is that the ingestion of the tea caused the test result and that this was innocent ingestion.  Under all the circumstances of this case, his separation from the ARNG and the LOR he received were substantial injustices that should be corrected.  

3.  Counsel provides:

* letters from counsel to the Army Board for Correction of Military Records (ABCMR), dated 25 October 2012 and 22 April 2014
* letter from counsel, requesting reconsideration of the NJARNG's separation action, dated 25 July 2013
* memorandum/appeal determination from the NJARNG, dated 1 December 2013
* U.S. Marine Corps (USMC) DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending on 7 November 1998, 31 December 2002, 5 January 2004, and 26 January 2007
* DD Form 215 (Correction to DD Form 214), applicable to the DD Form 214 for the period ending on 26 January 2007, dated 6 June 2008
* letter of appreciation, USMC, dated 8 October 2000
* Meritorious Mast, USMC, dated 18 November 2002
* Assembly Commendation with citation and summary of action, USMC, dated 6 September 2003
* USMC Fitness Report, sections I to L, dated 30 September 2004, 
7 October 2005, 10 July 2006
* Certificate of Achievement, USMC, dated 16 August 2002
* Meritorious Mast, USMC, dated 13 November 2004
* Certificate for Meritorious Service, PCSD, dated 10 November 2005
* Certificate of Appreciation, PCSD, dated 2005
* summary of action/recommendation for award of the Navy and USMC Achievement Medal/Citation, USMC, for the period 5 December 2005 to 20 September 2006
* Diploma, Sergeants Course, USMC, dated 11 May 2002
* Certificate of training, Sergeants Distance Education Program, USMC, dated 30 June 2006
* Certificate of training, Staff NCO Career Distance Education Program, USMC, dated 31 July 2006
* two Certificates of Training, dated 5 January 2008
* citation for award of the Distinguished Service Medal, undated
* letter of appreciation, dated 17 January 2007
* certificate of training for military occupational specialty (MOS) 31B (Military Police) phase I, dated 22 March 2008
* Certificate of Achievement, Distinguished Honor Graduate, MOS 31B, dated 7 November 2008
* Certificate of completion, Basic Military Police Course, dated 8 November 2008
* Diploma, Basic NCO Course (BNCOC), dated 24 January 2009
* Certificate for Award of the Army Commendation Medal (ARCOM), dated 18 April 2008
* DA Forms 1059 (Service School Academic Evaluation Report (AER), dated 22 March 2008, 8 November 2008, 24 January 2009, 2 May 2009, and 16 May 2009
* DA Forms 2166-8 (NCO Evaluation Report (NCOER), for the rating periods ending on 31 October 2008, 31 October 2009, 9 April 2010, 
31 October 2010, and 31 October 2011
* 21-page Summary of Proceedings, dated 22 April 2011
* DD Form 2624, dated from 10 to 28 December 2011 and 13 January 2012
* Air Force Drug Testing Laboratory (AFDTL) Form 1 (AFDTL Intralaboratory Chain of Custody – Immunossay Screen), dated from        4 to 9 January 2012
* 2 Immunoassy Testing Reports, dated 5 and 9 January 2012 
* AFDTL Form 12 (Pull List), dated 5 January 2012
* AFDTL Form 13 (Presumptive List), dated from 5 to 9 January 2012
* Batch Lan Status, dated 9 January 2012
* AFDTL Form 2 (AFDTL Intralaboratory Chain of Custody – Immunossay Re-Screen), dated 9 January 2012
* AFDTL Reults Summary Sheet – Immunossay Re-Screen, undated
* 2 AFDTL Forms 4 (AFDTL Intralaboratory Chain of Custody – GS/MS Confirmation), dated from 6 to 11 January 2012 and from 10 to 12 January 2012  
* 2 AFDTL Results Summary Sheet GS/MS Confirmation Assays, dated 
10 January and 12 January 2012
* 2 AFDTL Confirmation Intervention Logs, dated 10 and 12 January 2012 
* Memorandum for record/confirmation of training, dated 6 January 2012
* 2 Autotune Documents, dated 9 and 11 January 2012 
* 2 Quantitation Reports for Benzoylecgonine, dated from 9 to 10 January 2012 and 11 January 2012 
* 2 Batch Summary Reports, dated 9 and 11 January 2012 
* AFDTL Form 15 (AFDTL Intralaboratory Chain of Custody-Long Term Storage), dated 17 January 2012
* Affidavit, dated 12 July 2011
* Curriculum Vitae Rxxxx Hxxxx Mxxxx, undated
* letter from the applicant's physician, dated 31 January 2012
* Physician Progress Note and therapeutic record, dated from 1 to 
26 December 2012
* Memorandum, request for drug testing report, dated 7 February 2012
* Memorandum, drug testing report, dated 22 February 2012
* Letter from Counsel to the ARNG Separation Board, dated 5 May 2012
* ARNG Points History Statement, dated 7 November 2012
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* State of New Jersey Office of Administrative Law, Docket Number CSR 10456-12, decided on 21 December 2012
* Letter from Counsel, response to Advisory Opinion, dated 5 January 2015
* Article/publication from the National Institute of Health (NIH) titled "Identification and quantitation of Alkaloids in coca tea"

CONSIDERATION OF EVIDENCE:

1.  After having previous enlisted service in the USMC, the applicant enlisted in the NJARNG on 27 November 2007.

2.  He was promoted the rank/grade of sergeant first class (SFC)/E-7 on 1 April 2010.  Additionally, he held the primary MOS (PMOS) 31B and secondary MOS (SMOS) 11B (Infantryman).

3.  Counsel provided a DD Form 2624, dated 13 January 2012, which shows the applicant provided a urine sample on 10 December 2011.  

4.  Counsel provided a letter from the applicant's doctor, dated 31 January 2012, which states the applicant was seen by his physician on 26 December 2012.  The applicant complained of upper respiratory discomfort, a sore throat, and cold-like symptoms.  When asked if he had taken any medications, the applicant responded that for the past three weeks he had been taking over-the-counter cold and flu medication and drinking herbal tea from his country.  After diagnosing the applicant, his doctor noticed his throat was very red and irritated with flu-like symptoms.  He was prescribed a medication with codeine and an antibiotic.  His doctor also stated he has been treating the applicant for the past 
7 years and the applicant had undergone yearly physical examinations along with individual visits with valid concerns for his present health.  In the physician's professional opinion, he had never witnessed nor had a suspicion of the applicant's integrity of character, nor had the applicant ever exhibited any signs of abusing or experimenting with any drugs.  
5.  Counsel provided a memorandum, issued by the Air Force Medical Operations Agency, Lackland Air Force Base, TX on 22 February 2012.  This memorandum, entitled "Drug Testing Report" states the applicant's urine specimen tested positive for cocaine.  This memorandum also stated the cocaine metabolite BZE concentration detected was 3501 ng/milliliter (mL) and that the Department of Defense cut off level is 100 ng/mL.

6.  Counsel provided a Summary of Proceedings of an NJARNG Administrative Separation Board conducted on 22 April 2012.  This document shows:

	a.  The applicant's first sergeant (1SG) testified that he has known the applicant since 2008.  The applicant is an outstanding and squared away NCO who meets deadlines ahead of time.  He is very detailed oriented, with good character and great judgment.  He also works for the PCSD as a police officer.  The unit conducted a urinalysis on 10 December 2011 and the applicant tested positive for cocaine.  He and the company commander, a first lieutenant (1LT), notified the applicant of the test results in February 2012.  When he was notified he listened to the commander, sat down, and let him finish.  His demeanor did not change.  He went on to let the commander know that he does not do drugs, and that there would be a time when he would be able to stand before the commander and tell him he did not do drugs.  The tone in his voice did not fluctuate at all.  He just made his point.  He did not seem agitated; he was relatively calm and professional.  He suggested that he was sick around that time and that he had been prescribed medication.  He may have mentioned that there was a possibility the prescription caused his positive urinalysis.  He also mentioned he received tea from a family member.  However, this conversation took place after the notification.  The 1SG spoke to him about herbal tea approximately three times.  He consumed the tea he received from an in-law; the tea was called "coca tea"; and he was using it for a period of time in December.  The tea made him feel better from being sick.  The 1SG stated he had no reason to question the applicant's word.  He's been sick and showed signs of illness, and based upon his performance he would not let being sick interfere with his work.  The 1SG was surprised by his test results.  The 1SG had rated the applicant on his NCOER.  He would rate him as having a high level of integrity.  The applicant was tested again in January and did not test positive.  

	b.  The 1LT, his company commander (CO), testified that he was currently employed as an investigator with the division of youth and family services.  As an investigator, there are times when the CO goes out to homes where there is an indication of child abuse.  Some of the situations involve drugs in the household. The CO has been trained in identifying drugs in households and nothing about the applicant indicated he used drugs.  

		(1)  The CO stated the applicant had been in the unit for as long as he could remember, had a high degree of attention to detail, and was reliable.  There had been no previous issues with the applicant's judgment.  The applicant is a PCSD officer and used to be a corrections officer.  In December 2011, there was a urinalysis at the unit.  The unit does random urinalysis; 10 percent (%) monthly.  The drug testing is random.  The unit members anticipate a test every month.  There is always a good chance they could be selected; it is a good prevention tool.  

		(2)  When the applicant tested positive for cocaine, he and the 1SG reached out to him as soon as possible.  During the notification, the CO observed the applicant's demeanor.  There was not much of a reaction during the notification, there was no outburst and there was no questioning.  He sat there and listened to the information as it was presented.  Essentially, he just told the CO, "we're going to have this discussion again; I don't do drugs.  We are going to get past this."  As an investigator, the CO has interviewed, investigated, and confronted many individuals with allegations against them, and he has observed their actions, reactions, and demeanor.  The applicant's reaction to the notification was not consistent with his experience.  If he has results, there is normally more of a reaction one way or the other.  A normal response would be immediate denial, or they might just come out and admit to using drugs.  

		(3)  Sometime after the notification, the 1SG informed the CO about the coca leaf tea.  The 1SG states the applicant would be moving forward with the process; his reasoning for testing positive was that he had gotten tea as a gift that contained coca leaves.  

	c.  Dr.  Rxxxx Hxxxx-Mxxxx, Chief, Forensic Sciences, Brooks, Toxicology Drug Testing Laboratory, testified as an expert witness for the Government.  She stated she was familiar with the litigation support packet for the applicant and that his urine specimen contained the cocaine metabolite BZE.  When the Department of Defense established cutoffs to determine whether or not a member tested positive or negative for the drug, the cutoffs were set at the lowest concentrations that the instruments could detect.  For cocaine, the cutoff is 100 ng.  The established cutoffs are efficient enough to exclude positives for passive contact with the drug.  

		(1)  There are two main ways people ingest cocaine.  A user might ingest it internally.  Cocaine can be detected in the urine for approximately 3 to 4 days after use.  This is a very short window.  It would not be possible for a person who used cocaine in the beginning of December to test positive in January.  The cocaine would metabolize out within 3 or 4 days and would not be able to be detected through urinalysis.  The applicant's urine specimen contained the cocaine metabolite at 3500 ng.  

		(2)  The Dr. stated she was familiar with coca leaf tea.  The leaves contain cocaine.  If someone ingests coca leaves they can test positive for cocaine.  Coca leaf tea is illegal in the United States.  She knows this based on her training and experience.  She further stated, "It was determined "Inca tea" was supposed to be de-cocanized, but it still contained small amounts of cocaine, approximately 1-3 mg.  Because it contained cocaine, it was banned in the United States… There have been at least three journal articles published on the different brands of coca tea…Coca tea can cause a positive test result.  It does contain low amounts of cocaine."  

		(3)  "3000 ng is not an extreme amount of cocaine/BZE.  Typically, if a member takes one dose internasally, it would not be uncommon to test for 100,000 ng.  It will metabolize relatively quickly; every five hours or so the amount will decrease by half.  3500 ng would correspond to 7 or 8 mg of cocaine. The ingestion would have occurred 4 to 5 hours prior to the urinalysis.  Based on the coca tea studies I have read previously, depending on the type of tea bag, each bag contains 1-3 mg of cocaine.  The service member would've had to drink five cups of tea prior to the urinalysis…He would have had to drink five cups or more the previous day…For Soldiers who snorted a line of cocaine…100 mg of cocaine would need to be ingested approximately 24 hours prior to the urinalysis; this would equate to drinking five cups of coca tea.  It would not make sense to me professionally that someone would test positive today after drinking coca leaf tea days ago."

		(4)  "Coca leaf tea bags have between one and three mg of cocaine in them.  The reading of 3500mg would equate to ingestion of 7 to 8 mg of cocaine.  It would be possible to test positive immediately after consuming coca tea…I am familiar with the publication by Jenkins, et al., "Identification and quantitation of alkaloids in coca tea."  In that study, they indicate that consumption of Bolivian coca tea resulted in a result of 4900 ng after ingestion."

	d.  The G1 sergeant major (SGM) testifies that the applicant worked numerous Saturdays and Sundays.  He performed many funerals without compensation.  The applicant is a top-notch, stand-out Soldier and leader.  He has a command presence.  The Soldiers have respect for him; they like him, they like his style of leadership.  The Inspector General NCO said that "every unit should have a Soldier like [Applicant]."  The applicant had indicated a dislike for drug use based on something that happened with his family when he was younger and what they had gone through.  He swore he would never go that way.  The applicant is known for his attention to detail.  He is squared away and exercises sound judgment.  He has a good head on his shoulders, he is smart; the SGM has always observed and known him to have good common sense.  The SGM first found out he tested positive in January.  He did mention the coca tea.  He was clearly upset; he was in tears.  He said it was impossible that he could have come up positive because he doesn't do drugs.  

	e.  His sister testified that she was a teacher, married to a major (MAJ), and had three children.  She stated her family is from Peru and she visited there for approximately 2 and a half weeks in June 2010.  When they got to the hotel they were offered coca tea to help with altitude sickness.  They all consumed the tea, even the children.  When they returned to the United States they brought the tea back as gifts.  She was presented a copy of the tea bag/tea box and appears to have been asked to read the label.  She stated the box read, "Mate de coca, quality."  There was an address listed, a license number, and it said, "open here," and "recyclable," but it did not say content: coca leaves.  She also stated that "Mate de coca" does not mean "made of coca," it means "coca tea."  She did not have any tea bags to present.  Those bags that had not already been consumed were disposed of when she discovered the tea was illegal.  

	f.  The applicant's wife testified that they had two children, ages 18 and 12.  The oldest was a senior in high school and the youngest was in the 6th grade.  She indicated that she worked outside the home as a social worker and that she was from Puerto Rico.  She stated in the beginning of December 2011 the applicant had a lot of nasal discharge.  He complained a lot of headaches and pain.  She thought he was experiencing the flu; he had flu-like symptoms.  She stated that he is very stubborn when he is sick but eventually he went to the doctor.  He had been taking generic Nyquil and drinking tea.  He said the coca tea helped him feel better.  She said she has also taken the coca tea and it has always helped her feel better.  Prior to December they had the coca tea in the house for a couple of months.  It was given to them by the applicant's sister.  She got it in Peru.  Her sister-in-law said the tea was used for ailments and for menstrual cramps.  She was not sure who told her sister-in-law what the tea was used for.  They drank the tea during the cold and flu season.  She stated that the applicant is a tea drinker.  He brings tea to work in a travel cup.  She believes he brought the coca tea with him to work at the PCSD and to his NJARNG unit.  She stated he could have to drink five cups in five hours.  He would drink tea right before drill.  He might drink two or three cups before drill.

	g.  The applicant testified that in December 2011 he felt ill and had frequent head and body aches.  While he was sick he was taking Nyquil and coca leaf tea every night and in the morning.  Sometimes he would use one bag and sometimes he would use two.  He drank the coca tea the night before; and the morning of drill he conducted personal hygiene and drank two bags of tea.  He took the cup of coca tea with him to drill.  He went to the doctor after Christmas because his wife was on his case.  He went to drill in January and found out he tested positive in February (2012).  He does not do cocaine but he did use the coca tea.  He did have a conversation with his 1SG about the failed test and what could have caused the failed test because he had been to the doctor on 26 December (2011) and had been given medication.  At that time he thought he had failed the urinalysis he took at the January (2012) drill because he was on a medication that contained codeine.  He stated he was not the only one in his house to use the tea.  He stated his wife also used the tea.  He further stated that after he tested positive his wife did some research and discovered that the coca tea could cause a person to test positive for cocaine.  

		(1)  The applicant provided a doctor's note from the physician he visited on 
26 December 2011.  The note from the doctor indicated that at the time of the appointment the applicant stated, "for the past three weeks I have been taking herbal tea from my country and a decongestant, night-time over the counter flu medication."

		(2)  The applicant stated that the cover or the tea bag came from his house.  The image was on the box, which was scanned in counsel's office, is on every tea bag.  The tea was given to him by his sister.  He had no hesitation about taking the tea.  It did not send up any red flags.  He might have consumed about 40 bags of tea.  He took the tea to work with him to the PCSD and the NJARNG in a travel mug.  He did not know the tea contained cocaine.  He disposed of the tea because counsel told him it was illegal and that he should dispose of the tea.  However, counsel first made a copy of the box for evidence.  

		(3)  He was also suspended from his position as a police officer with the PCSD after the NJARNG informed them of his positive drug test.  

	h.  The President of the Board stated the Administrative Separation Board found the applicant did commit misconduct and that misconduct warranted separation.  The board recommended the applicant be discharged for misconduct and receive a general discharge.  

7.  His record does not contain an LOR.

8.  Orders Number 288-037, issued by the NJARNG on 14 October 2012, show he was discharged from the ARNG and as a Reserve of the Army effective 
29 May 2012.  He was issued a General Discharge Certificate.

9.  His NGB Form 22 shows he was discharged from the NJARNG on 29 May 2012.  His character of service is listed as honorable.
10.  Counsel provided State of New Jersey, Office of Administrative Law, Docket Number CSR 10456-12, decided on 21 December 2012, which shows:

	a.  During his service in the NJARNG, the applicant had never been disciplined or reprimanded.  In 2011, he learned that his unit was being deployed to Afghanistan in approximately 6 months.  Shortly thereafter, and based upon his rank of sergeant first class (SFC), he received approximately 30 days notice that his unit was being randomly tested for drugs on 10 December 2011.  On the date of the drug test he had a great deal of paperwork to complete regarding the Soldiers he supervised, so he volunteered to test first so he would be free to attend to his paperwork.  A few months after he was tested the NJARNG informed the applicant he tested positive for cocaine.  The applicant, who stated he never took cocaine, disputed the determination and requested a hearing.

	b.  On 18 April 2012, a staff sergeant (SSG) assigned to the Staff Judge Advocate's office of the NJARNG informed the PCSD that the applicant had tested positive for cocaine during a random drug test with the NJARNG.  

	c.  On 19 April 2012, the PCSD suspended the applicant and issued him a preliminary notice of disciplinary action for "conduct unbecoming a public employee."  The applicant disputed the charges and offered to provide/take a drug test, and his employer told him he could take an independent test at a reputable local facility.  Approximately 4 days later, the PCSD advised the Central Drug Registry maintained by the Division of State Police that the applicant had tested positive for cocaine.  However, this information was forwarded before the applicant had had a fair hearing, and more than 2 months prior to formal/final disciplinary action. 

	d.  The applicant appeared at a hearing.  The purpose of the hearing was to substantiate the charges.  However, he was not permitted to testify, nobody had interviewed or questioned him about the incident, and there was not any independent evidence collected by PCSD investigators that related to the NJARNG drug test.  There was no evidence pertaining to the circumstance under which the specimen was collected, how the specimen was handled prior to reaching the facility where it was tested, or regarding the facility that did the testing and their methods or analysis.  Additionally, the department never requested the applicant take a urinalysis nor did they accept an independent test he attempted to provide.  The judge at the hearing based his decision solely on the 51 page test results and telephone conversation with the SSG assigned to the Staff Judge Advocate's Office of the NJARNG.  The applicant did not have any history of disciplinary infractions within the PCSD, he never stated he took cocaine, and there were no witnesses to him taking cocaine or acting in a manner that indicated he was under the influence of any illegal substance.  Nevertheless, the judge at that hearing found he was guilty of "conduct unbecoming a public employee" due to cocaine use and he was subsequently fired from his position.  The applicant appealed the decision.

	e.  The judge presiding over Docket Number CSR 10456-12 stated/found/concluded/ordered:

        (1) The applicant, an 8-year veteran of the PCSD, had been randomly drug tested on various occasions throughout his employment with the PCSD and had always tested clean.  The applicant had advance notice and was aware that his unit in the NJARNG would be conducting random drug testing on 
10 December 2011.  On that day, he volunteered to go first for the testing.  Months after the test he was advised by the NJARNG that he tested positive for cocaine.  Soon thereafter, the NJARNG advised the PCSD of the applicant's positive urinalysis and he was suspended.  The PCSD did not request that he submit to a drug test or consider the voluntary independent negative test he took at a LabCorp site in New Jersey.  The judge found "the Department took no action to verify the accuracy of the NJARNG testing or determine its reliability" and that "the Department took no action to drug test [Applicant] to determine if he tested positive for any controlled substance."

		(2)  No evidence was presented as to the accuracy of the alleged positive test.  The written report of the NJARNG was not offered or admitted into evidence.  No evidence was presented as to the reliability of the laboratory performing the analysis, the type of analysis conducted, or the amount of substance that had to be found in the specimen for a positive report as to a certain substance to be issued.  No evidence was presented as to the treatment of the specimen after the applicant provided the specimen.  No evidence was provided as to what period of time passed from the time the specimen was given to the date it was tested in the laboratory.  No information was provided to ensure the specimen was preserved at the appropriate temperature.  The applicant was not given the opportunity to provide a second specimen for testing in the event the first specimen tested positive.  The judge found "no evidence was presented to ensure the applicant was tested by the NJARNG through the use of an accurate and reliable drug-test process."

		(3)  The PCSD suspended the applicant after the NJARNG made notification of his positive drug test and began seeking his termination.  A notification to the Central Drug Registry was made 3 days later even though no final notice of disciplinary action or date of final dismissal or separation for the department had been issued.  The department notified the Registry without waiting for the conclusion of the applicant's due process rights.  The Judge found "the notification to the Central Drug Registry in April 2012 was inappropriate."
		(4)  Based upon the foregoing facts and applicable law, the judge concluded "that the Department failed, by a preponderance of evidence, to prove that [applicant] is guilty of conduct unbecoming a public employee."  

		(5)  The judge ordered that the charges of conduct unbecoming an employee be reversed, the PCSD advise the Central Drug Registry that the applicant's termination, which was pending at the time it forwarded the notification to the Central Drug Registry had been reversed, and that the applicant be reinstated into his position as Sherriff's Officer with the PCSD, and that back pay and other benefits be issued.

11.  On 25 July 2013, counsel appealed to the New Jersey State Adjutant General, requesting reconsideration and reversal of the separation board's findings and determinations.

12.  On 1 December 2013, the New Jersey State Adjutant General denied the appeal.

13.  In the processing of this case, an advisory opinion, dated 10 December 2014, was received from the Chief, Personnel Policy Division, NGB.  The advisory official recommended disapproval of the applicant's request and stated, in effect:

	a.  The applicant tested positive for cocaine in a urinalysis administered on 
10 December 2011.  He was separated from the NJARNG due to this positive test.  The applicant appealed to the Adjutant General of the NJARNG to change his discharge from general to honorable.  The NJARNG Adjutant General denied the appeal on 1 December 2013.

	b.  The applicant attributes the positive test to drinking tea from Peru that his sister gave him, which she brought back from traveling.  The tea was made from cocoa leaves, containing cocaine, causing the positive results for cocaine.  He said he did not know the tea contained cocaine and would not have consumed the tea if he had been aware at the time.  After testing positive and learning the tea is illegal in the United States, the applicant threw the tea and packaging away.

	c.  At the applicant's administrative separation board, a doctor from the drug testing lab states that for the level of cocaine in the applicant's specimen, he would have had to drink five cups of tea within four to five hours of the urinalysis, based on the rate at which it metabolizes.  

   d.  The applicant stated he provided the specimen at approximately 0845 (in the morning) and he was drinking the tea the night before and the morning the specimen was taken.
   
	e.  In correspondence to the ABCMR, the applicant's counsel referenced the requirements from Army Regulation 600-85, appendix E, paragraph E-11, and stated the proper procedure was not followed because the batch of specimens had been left in a vehicle and there were errors in the chain of custody and administrative errors in the chain of custody paperwork.  However, paragraph 
E-13 states, "In no case will failure to comply with the provisions of this appendix be used to invalidate an otherwise valid and legally sufficient adverse administrative or disciplinary action."

	f.  The NJARNG concurred with the NGB's recommendation for disapproval of the applicant's request.  

14.  Counsel responded to the advisory opinion in a letter, dated 5 January 2015, and stated he objected to the proposed determination suggested by the NGB.  The proposed disposition takes one comment, by one witness out of context, ignores other evidence, and does so in a fashion that is unfair to the applicant.

	a.  The proposed disposition from the NGB inaccurately summarizes the testimony of the Government's witness, Dr.  Rxxxx Hxxxx-Mxxxx, of the testing laboratory.  The NGB states that according to her testimony, he would have had to drink five cups of tea within four hours of the test to reach the 3500 ng level of metabolite found in his urine.  

	b.  However, she further testified that 3500 ng would correspond to 7 to 8 mg of cocaine.  She also testified that tea bags contain 1 to 3 mg of cocaine.  At       3 mg of cocaine per bag, this works out to a little more than 2 and a half cups of tea, not five.
	
	c.  In addition, she recognized the Jenkins study on positive test results caused by taking tea, the study "Identification and quantitiation of alkaloids in coca tea."  She acknowledged that the study produced results of 4900 ng, which is substantially higher than the applicant's results.

	d.  The Jenkins study found:

		(1)  "an average of 5.11 milligrams (mg) of cocaine was found in coca tea from Peru."  This is almost double the amount set forth by the Government's witness.  

		(2)  The amount of the metabolite in the urine peaks about 10 hours after ingestion; this is about the time that the applicant provided his sample.

		(3)  For one cup of tea, the reading peaked at 10 hours at just 3368 ng of BZE.  This is consistent with the reading produced by the applicant in his test, having consumed tea the night before the test.  If he had a large cup of tea, or more than one cup of tea, the reading would have been higher.  

	e.  The applicant provided the following testimony about the consumption of tea:
In December 2011, I felt ill.  I frequently had headaches and body aches.  I went to the doctor after Christmas because my wife was on my case.  I've never missed drill for being sick.  I live 20 or 25 minutes from the Armory, in Clifton.  While I was sick, I was taking Nyquil and coca leaf tea.  I was taking this every night and in the morning.  Sometimes I used two bags; sometimes I would use only one tea bag.  I drank the tea the night before; the morning of drill, I conducted personal hygiene and drank two bags of tea.  I took the cup with me to drill.  

	f.  There was documentary evidence presented showing he saw a doctor during this time frame because of a cold.  The evidence of his consumption of coca tea is fully consistent with the testimony of the Government's own expert witness and the article she acknowledged as establishing innocent ingestion.

	g.  A full and fair reading of the expert testimony clearly establishes that the applicant's test results are quite consistent with innocent, unknowing ingestion of cocaine.  

	h.  The NGB recommendation also completely, and unfairly, ignores the applicant's overwhelming character evidence and his extensive record of exceptional military service.  The technical evidence supports the applicant's testimony of innocent ingestion.  When his character is added to the equation it tilts the scales in his favor.

	i.  At no point did the Administration Separation Board make a specific finding that he had knowingly and intentionally used cocaine.  It may be that they used a negligence standard to conclude that he should have been more careful.  However, such a standard would not be sufficient to establish misconduct.  Only knowing and intentional ingestion would do that.  

15.  Counsel provided the following documents, which all attest to the applicant's good character, and honorable service in the military or as a police officer and show he was a U.S. Marine, a Soldier, and a Police Officer who was considered a high achiever, and was well thought of by his peers, his superiors, and the community:

* DD Forms 214/215 for the period of service in the USMC ending on 
7 November 1998, 31 December 2002, 5 January 2004, and 26 January 2007
* letter of appreciation, USMC, dated 8 October 2000
* two Meritorious Masts (USMC), dated 18 November 2002 and 
13 November 2004
* Assembly Commendation with citation and summary of action (USMC), dated 6 September 2003
* three USMC Fitness Reports (evaluation reports), dated 30 September 2004, 7 October 2005, and 10 July 2006
* Certificate of Achievement (USMC), dated 16 August 2002
* Certificate for Meritorious Service, PCSD, dated 10 November 2005
* Certificate of Appreciation, PCSD, dated, 2005
* summary of action/recommendation for award of the Navy and USMC Achievement Medal/Citation, USMC, for the period 5 December 2005 to 20 September 2006
* citation for award of the Distinguished Service Medal, undated
* letter of appreciation, dated 17 January 2007
* five AERs , dated 22 March 2008, 8 November 2008, 24 January 2009, 
2 May 2009, and 16 May 2009
* five NCOERs for the rating periods ending on 31 October 2008, 
31 October 2009, 9 April 2010, 31 October 2010, and 31 October 2011

16.  The US National Library of Medicine - National Institutes of Health, contains a study entitled, "Identification and quantitation of alkaloids in coca tea."  This study, also known as the Jenkins study, stated the ingestion of herbal teas is a common occurrence in South America, where herbal teas frequently consist of pure coca leaf or coca leaf mixed with herbs.  The tea is often packaged in individual servings as tea bags which contain approximately 1 g of plant material. 
Typically, one or two “tea bags”, consisting of approximately 1 g of plant material per bag, is steeped in hot water for a few minutes and then consumed.  The consumption of coca tea leads to ingestion of cocaine and other alkaloids.  The Jenkins study noted that despite previous studies, there was still only a limited amount of information available on the alkaloidal content of these “tea bags”, the amount of cocaine that is extracted during the “tea-making” process, or the amount of cocaine metabolite subsequently excreted as a result of drinking coca tea.  


	a.  The Jenkins et. al performed a study utilizing coca tea bags obtained from commercial sources in Peru (Mate de Coca produced by the National Enterprise of Coca, Inc. ((ENACO), Cuzco, Peru) and Bolivia (Mate de Coca, ‘Lupi,’ Bolivia), with the following three objectives: (1) to identify and measure the major coca alkaloids in coca tea bags; (2) to determine the amounts of cocaine and cocaine analogs that are transferred to the aqueous phase during the tea making process; and (3) to determine the urinary excretion profile of cocaine and BZE following the consumption of coca tea.

	b.  Coca tea prepared from Peruvian and Bolivian coca tea bags was also analyzed by SPE-GC/MS assay.  In addition, urine specimens were analyzed from an individual who consumed one cup of Peruvian coca tea and one cup of Bolivian coca tea on separate occasions.  Urine samples were analyzed by using the ABBOTT (TDxR system) Fluorescence Polarization Immunoassay (TDxR) system and SPE (Solid Phase Extraction)-GC/MS (Chromatography/mass spectrometry).

	c.  Coca tea bags were randomly selected from each source, weighed, and the tea was prepared by the addition of a single bag to 180 ml of deionized water at 94°C.  The tea bag was maintained in the hot water for 3 minutes, and removed.  To study the effects of infusion time, tea bags were also immersed in hot water for 6, 9, 12, and 15 minutes.  Aliquots of tea were assayed for cocaine and cocaine-related compounds by SPE-GC/MS.

	d.  An individual consumed one cup of coca tea prepared with one Peruvian coca tea bag.  On a separate occasion, the same individual ingested one cup of tea prepared with one Bolivian tea bag.  All urine samples were collected for a minimum of 48 hours.  Urine samples were analyzed for the presence of cocaine metabolites and by SPE-GC/MS for cocaine-related alkaloids.  The average Peruvian coca tea bag contained 1.09 g of coca leaf.  The average Bolivian coca tea bag contained 0.82 g of coca leaf. 

	e.  Cocaine and BZE were present in both Peruvian and Bolivian tea.  An average concentration of 4.14 mg of cocaine was transferred to coca tea from one Peruvian coca tea bag.  This indicated that 81% of the available cocaine was extracted from the tea bag during coca tea preparation.  In addition, 0.50 mg of BZE was found in the coca tea infusion.  This was approximately ten times the amount of BZE measured in one coca tea bag.  Additionally, the amount of cocaine in the Bolivian coca tea infusion was similar to that measured in Peruvian coca tea.  However, less BZE, an average of 0.26 mg/180 ml tea were present in the Bolivian coca tea.

	f.  Increasing the steeping time during tea preparation produced an increase in the amount of cocaine in the coca tea.  For example, 3.94 mg of cocaine was present in Peruvian coca tea at 3 minutes; this amount increased to 5.88 mg of cocaine when the coca tea bag was steeped for 15 minutes.  An increase in the amount of cocaine present in Bolivian coca tea was also observed as the steeping time was increased from 3 to 12 minutes.  The amount of BZE extracted remained essentially unchanged.

	g.  Urine samples were periodically collected from a single individual following consumption of one cup of Peruvian and one cup of Bolivian coca tea on separate occasions.  Urine samples collected prior to ingestion of tea were negative for cocaine and metabolites.  The first sample collected after ingestion of coca tea from Peru and Bolivia was highly positive for cocaine metabolites.  The concentration of BZE equivalents remained above 1000 ng/ml for approximately 17 hours.  Thereafter, the concentration of cocaine metabolites decreased to below 100 ng/ml by approximately 45 hours after coca tea consumption.  

	h.  The first sample obtained after Peruvian coca tea consumption contained 794 ng/ml of BZE and 91 ng/ml of cocaine.  Concentrations of all analytes continued to increase and peaked at 3368 ng/ml of BZE at 10 hours and 
196 ng/ml of cocaine at 5 hours.  Thereafter, concentrations declined, but BZE consistently remained above 300 ng/ml for 20 hours.  At 48 hours, the BZE concentration in urine was 23 ng/ml and, cocaine was negative.  The cumulative urinary excretion of BZE after 47.75 hours was 3.11 mg.  After consumption of one cup of Bolivian coca tea, the first urine sample obtained after 2 hours contained 719 ng/ml of BZE and  97 ng/ml of cocaine.  The concentrations of each analyte peaked at 3.5 hours at 4155 ng/ml of BZE and 587 ng/ml of cocaine.  Concentrations of BZE remained consistently above 300 ng/ml for approximately 19 hours.  After 52.5 hours, the last collection time, the urine BZE concentration was 21 ng/ml and cocaine was negative.  The cumulative urinary excretion of BZE after 47 hours was 2.69 mg.

	i.  Analysis of coca tea bags and coca tea indicated that cocaine and BZE were present in varying quantities.  An average of 5.11 mg, and 4.86 mg of cocaine per tea bag were found in coca leaf from Peru and Bolivia.  The average amounts of BZE in Peruvian coca leaf was 0.11 and in Bolivian coca leaf was 0.12 mg per tea bag.  When tea was prepared, an average of 4.14 mg of cocaine was present in a cup of Peruvian coca tea and 4.29 mg of cocaine was present in Bolivian tea.  

	j.  Following the consumption of a cup of Peruvian tea by one individual, a peak urine BZE concentration of 3940 ng/ml occurred 10 hours after ingestion.  Consumption of Bolivian coca tea resulted in a peak BZE concentration of 4979 ng/ml at 3.5 hours.  The cumulative urinary excretion of BZE after approximately 48 hours, determined by GC/MS, was 3.11 mg and 2.69 mg after consumption of Peruvian and Bolivian coca tea.  This study demonstrated that coca tea bags and coca tea contain a significant amount of cocaine and cocaine-related alkaloids and the consumption of a single cup of Peruvian or Bolivian coca tea produces positive drug test results for cocaine metabolites.

17.  Army Regulation 600-85, appendix E, paragraph E-13, states the provisions of this appendix are not intended to, and do not, provide any rights or privileges' as the relevancy or admissibility of laboratory documents that are not otherwise afforded by the Uniform Code of Military Justice (UCMJ), the Manual of Courts-Martial, or regulations governing adverse administrative and disciplinary actions. In no case will failure to comply with the provisions of this appendix be used to invalidate an otherwise valid and legally sufficient adverse administrative or disciplinary action.

18.  National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 6-35 (Separation/Discharge from State ARNG and/or Reserve of the Army), contains guidance pertaining to the reasons, applicability, codes and board requirements for administrative separation or discharge from the Reserve of the Army, the State ARNG only, or both.  These reasons may be used for separation from the State ARNG only.  Required administrative separation boards are indicated.  All Soldiers will be notified of a commander's recommendation for their involuntary discharge.  If the characterization is other than honorable or under honorable conditions the Soldier will be informed of the specific factors in the service record that warrant such characterization.  

19.  National Guard Regulation 600-200, paragraph 6-35i(1) applies to acts or patterns of misconduct under the UCMJ, State Military Code or similar laws.  This includes abuse of illegal drugs.  All Soldiers identified as abusers of illegal drugs will be referred for treatment as appropriate regardless of the commander's intent to take administrative, nonjudicial or judicial actions.  Commanders must initiate separation action within 45 days of the act or referral, regardless of the commander’s recommendation and forward their recommendations for retention or separation through command channels to the separation authority

20.  Army Regulation 135-178, chapter 12 (Misconduct), states a Soldier may be discharged for misconduct when it is determined that the Soldier is unqualified for further military service by reason of one or more of the following circumstances:  Commission of a serious offense.  Commission of a serious military or civilian offense, if the specific circumstances of the offense warrant discharge and a punitive discharge would be authorized for the same or a closely-related offense under UCMJ; and/or abuse of illegal drugs or alcohol.  Illegal drug use is serious misconduct.  Discharge action normally will be based upon commission of a serious offense.  However, relevant facts may mitigate the nature of the offense.  Therefore, a single drug offense may be combined with one or more disciplinary infractions or incidents or other misconduct and processed for discharge as appropriate.  Commanders will process for separation all Soldiers who test positive for illegal drug use and/or are involved in illegal trafficking, distribution, possession, use, or sale of illegal drugs.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records do not contain the LOR indicated in counsel's request. As such, no action is required to remove this document.  

2.  Counsel argued that, with respect to the applicant's urine specimen and in accordance with Army Regulation 600-85, appendix E–11, there was a clear and substantial violation of the chain of custody.  Counsel also stated that during the hearing he asserted that the violations of Army Regulation 600-85, appendix 
E-11, were so substantial that the lab results should not be admitted; however, the legal advisor overruled counsel's objections and admitted the lab results despite these clear violations.

	a.  Counsel was most likely advised by the legal advisor at the hearing, and was certainly advised in the advisory opinion from the NGB that while appendix E-11 addresses the procedures for the chain of custody, the subsequent paragraph E-13 states, in effect, that the provisions in appendix E do not have any impact on the relevancy or admissibility of laboratory documents.  Furthermore, failure to follow the provisions of appendix E, which included paragraph E-11, does not, in any case, invalidate an otherwise valid and legally sufficient adverse administrative or disciplinary action.  

	b.  Counsel's argument about the fairness or admissibility of the test results being used in the applicant's board proceedings lacks merit.  First, because he had the opportunity to address the issue of admissibility at the hearing, and based on his own statements, it is clear he did address the issue.  Second, because he bases his argument entirely on the contents of paragraph E-11, by implying that the requirements set forth in this paragraph were intended to be used as a whole, standalone, absolute, and binding policy.  However, based on the contents of paragraph E-13, this is clearly not the case.  

3.  Counsel argued that whether or not the ingestion of the cocaine was intentional or accidental should have been a factor in the decision making process during the applicant's hearing and that since the applicant unknowingly ingested cocaine by drinking coca tea, the board unjustly discharged him for misconduct.

   a.  There are several facts that must be addressed.  First, the applicant did drink the coca tea, which contained cocaine.  Second, his urine tested positive for cocaine.  Third, the Army has a zero tolerance policy for drug use. 

	b.  The applicant's military record is stellar; however, this cannot be used as the basis to determine whether or not he knowingly consumed cocaine.  It is simply another fact.  He performed well; nevertheless, it is clear that the separation board did consider his outstanding record in that an under honorable conditions (general) discharge was directed instead of an under other than honorable conditions discharge.  

	c.  The entire case and argument hinges on whether or not there is sufficient evidence to show the applicant's ingestion of cocaine was unintentional.  However, counsel has not provided sufficient evidence or argument to show the applicant was totally ignorant to the fact that the tea he consumed contained cocaine.

4.  The applicant was assigned to the NJARNG in a title 32 status, meaning his separation occurred within the laws of the State of New Jersey.  The State conducted an administrative separation hearing, concluded the applicant committed misconduct by ingesting cocaine, and was issued discharge orders and an NGB Form 22.  The New Jersey State Adjutant General has already disapproved the applicant's request for reconsideration.  Furthermore, the ABCMR does not have the authority to direct States to correct a document they issued.  The ABCMR can only make recommendations based on the evidence presented.

5.  Based on the forgoing, there is insufficient evidence and argument to recommend granting the requested relief.  

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)                                         AR20140007240



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ABCMR Record of Proceedings (cont)                                         AR20140007240



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