RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 April 2006
      DOCKET NUMBER:  AR20050007649


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. Patrick H. McGann             |     |Member               |
|     |Mr. David K. Haasenritter         |     |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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's 6 March 2000 discharge be voided,
with constructive credit for pay and allowances and time in service from
the date of discharge; that his characterization of service be changed to
honorable; and that he be allowed to retire for length of service.  In the
alternative, counsel requests that the applicant's characterization of
service be upgraded to general under honorable conditions.

2.  Counsel states the applicant was assigned to Fort Bragg, NC when he
allegedly failed to show up for work until 3:00 p.m.  At that time, Captain
O___ noted the applicant's appearance was sloppy, his eyes were bloodshot,
and he looked hung over.  The applicant's first sergeant referred, in a
counseling statement, to the applicant's being directed to take a urine and
blood test.  The test returned positive for cocaine.

3.  Counsel states that, based on the urinalysis test results, the
applicant was offered nonjudicial punishment (NJP) under Article 15,
Uniform Code of Military Justice (UCMJ), alleging a single specification of
wrongful use of cocaine.  The applicant declined NJP, and court-martial
charges were preferred against him for one specification of failure to
repair, one specification of violation of a lawful general regulation, and
one specification of wrongful use of cocaine.  Upon consulting with
counsel, the applicant submitted a request for discharge for the good of
the service in lieu of trial by court-martial.  He requested a general
discharge.  His request was approved on 16 February 2000, and the
appropriate authority directed the applicant be discharged with a
characterization of service of under other than honorable conditions
(UOTHC).

4.  Counsel states that, on 24 February 2000, the applicant requested
withdrawal of his request for the discharge in lieu of court-martial.  The
basis for the request for withdrawal concerned the fact that the drug tests
in this case were command directed and that, as such, probable cause to
believe a crime had been committed was necessary to proceed with the drug
test.  The facts of this case show that the taking of the applicant's
bodily fluids for the purpose of drug testing constituted a violation of
the Fourth Amendment to the Constitution prohibiting unreasonable searches
and seizures.  Notwithstanding, the convening authority inappropriately
declined to allow the applicant to withdraw his request for discharge.

5.  Counsel states several court cases support the applicant's position.
In one case factually similar to the one involving the applicant, United
States v. Shepherd, 24 M.J. 596 (AFCMR), 1987, review denied, 25 M.J. 238,
the United States Air Force Court of Military Review held that, although a
base commander was acting within his authority in directing seizure of an
accused's urine when the accused was found in a deep sleep with the odor of
alcohol while on duty as a fire alarm operator, the facts did not present a
probability of drug ingestion, so the drug test results were inadmissible
at trial.

6.  Counsel states that chapter 10, Army Regulation 635-200 provides that a
request for discharge in lieu of court-martial may be withdrawn upon the
showing of "good cause."  The applicant did just that by showing he had a
valid defense to the charged offenses.  Neither the convening authority nor
his legal advisor addressed the merits of the legal basis for the
applicant's request to withdraw and thus the denial was arbitrary,
capricious, and without rational basis.

7.  Counsel provides 15 exhibits as listed on an attached Exhibit Index.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 6 March 2000.  The application submitted in this case is dated
14 September 2004.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in the Regular Army on 25 February 1982.  He was
honorably discharged on 6 February 1992 to accept a commission.  He entered
active duty as a second lieutenant on 7 February 1992.  He was honorably
discharged on 20 July 1994 and enlisted in the Regular Army on 21 July 1994
in pay grade E-6.  He was assigned to Headquarters and Headquarters
Company, XVIII Airborne Corps, Fort Bragg, NC as an infantry squad leader.

4.  Captain O___ stated, in a sworn statement, that on 13 September 1999 (a
Monday), the applicant failed to report at 6:30 a.m. for an alert
formation. He failed to show up for normal work call at 9:00 a.m.  After
numerous attempts at contacting the applicant, he was finally reached at
about 11:00 a.m.  The applicant stated he was outside the city of Raleigh,
NC and would take about an hour to report to work.  He reported for work at
about 3:00 p.m.  When he arrived, Captain O___ observed the applicant's
appearance as sloppy, his eyes were blood shot, and he looked hung over.
The applicant told Captain O___ he had been drinking the night before at a
birthday party, which then moved to a house in the woods.  He did not have
his cell phone with him, and he was stranded without his car and cell phone
and had to arrange a ride to his vehicle.

5.  In a DA Form 4856 (General Counseling Form) dated 5 October 1999, the
applicant's first sergeant noted in part, "…escorted you to the company
area…The commander then asked, and you submitted to a urin (sic) test; you
also was (sic) directed to Womack for blood alcohol verification…"

6.  A 28 September 1999 Armed Forces Institute of Pathology toxicology
report indicated the applicant's blood contained 16 mg/dL of ethanol, his
urine showed a high level of alcohol, and his urine was positive for
cocaine.

7.  A U. S. Army Criminal Investigation Command (CID) Report of
Investigation (ROI) dated 27 October 1999 indicated there was probable
cause to believe the applicant committed the offenses of wrongful use and
possession of cocaine.  The agent's investigation report noted the
applicant's commander stated the applicant's urinalysis was command
directed because of the applicant's lateness to formation and a smell of
alcohol.

8.  On 27 October 1999, the applicant was offered NJP under Article 15,
UCMJ for wrongful use of cocaine.  The applicant did not accept this NJP.

9.  On 4 January 2000, charges were preferred against the applicant
charging him with failing to go at the time prescribed to his appointed
place of duty; violating a lawful general regulation by wrongfully having a
blood alcohol level of .05 percent or above while on duty; and wrongfully
using cocaine.

10.  On 27 January 2000, after consulting with his appointed military legal
counsel, the applicant voluntarily requested a discharge under the
provisions of Army Regulation 635-200, chapter 10 for the good of the
service in lieu of trial by court-martial.  The applicant was advised of
the effects of a discharge under other than honorable conditions and that
he might be deprived of many or all Army and Department of Veterans Affairs
benefits.  On 10 February 2000, he submitted a statement in his own behalf
in which he requested a general discharge based on his previous 18 years of
good service.

11.  On 16 February 2000, the appropriate authority approved the
applicant’s request but directed he receive a discharge UOTHC.

12.  On 24 February 2000, the applicant and his new civilian counsel (the
same as his current counsel) requested the applicant's request for
discharge be withdrawn.  Counsel stated that one of the charges was the
applicant wrongfully used cocaine.  Counsel stated it was clear from the
CID ROI that the urinalysis was command directed due to the applicant's
lateness to formation and a smell of alcohol upon his breath.  However,
probable cause must exist in order for the positive drug test results to be
admissible as evidence at trial.

13.  On 2 March 2000, the Commanding General, XVIII Airborne Corps and Fort
Bragg denied the applicant's request as it would not be in the interests of
good order and discipline for the applicant to continue to serve in the
Army.

14.  On 6 March 2000, the applicant was discharged, in pay grade E-1, under
the provisions of Army Regulation 635-200, chapter 10, for the good of the
service with a discharge UOTHC.  He had completed 18 years and 12 days of
creditable active service and had no lost time.

15.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of that regulation provides,
in pertinent part, that a member who has committed an offense or offenses
for which the authorized punishment includes a punitive discharge may
submit a request for discharge for the good of the service in lieu of trial
by court-martial.  The request may be submitted at any time after charges
have been preferred and must include the individual’s admission of guilt.
A discharge UOTHC is normally considered appropriate.  Unless trial results
in an acquittal or the sentence does not include a punitive discharge, even
though one could have been adjudged by the court, a request for discharge
submitted per this chapter may be withdrawn only with the consent of the
commander exercising general court-martial jurisdiction.

16.  Army Regulation 635-200, chapter 14 establishes policy and prescribes
procedures for separating members for misconduct.  Paragraph 14-12c(2)
states Soldiers are subject to separation for commission of a serious
offense and that abuse of illegal drugs is serious misconduct.  First-time
drug offenders in grades  E-5 through E-9 will be processed for separation.


17.  Army Regulation 600-85 (currently entitled, Army Substance Abuse
Program (ASAP)), paragraph 6-3 of the version in effect at the time, stated
the objective of the limited use policy was to facilitate the
identification of alcohol and drug abusers through self-referral, and the
treatment and rehabilitation of those abusers who demonstrated the
potential for rehabilitation and retention.  Paragraph 6-4a(1) stated
limited use prohibited the use of mandatory urine or alcohol breath test
results taken to determine a Soldier's fitness for duty in actions under
the UCMJ or on the issue of characterization of service in separation
proceedings.  Paragraph 6-4c stated limited use was automatic.  Paragraph 6-
4d stated an order from competent authority to submit to a urinalysis or
breath test was a lawful order. Failure to obey such an order could be the
subject of appropriate disciplinary action under the UCMJ.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant reported late to work on
        13 September 1999 with a sloppy appearance, bloodshot eyes, and
looking hung over.  He was escorted to the company area where the commander
asked the applicant to submit to a urinalysis test.  The applicant was also
directed to the local hospital for blood alcohol verification.  His blood
and urine tested for a high level of alcohol.  In addition, his urine
tested positive for cocaine.

2.  The preponderance of the evidence of record shows the applicant's
urinalysis test was command directed as a result of some evidence of
alcohol overindulgence and presumably to determine the applicant's fitness
for duty.  However, apparently there was no evidence or only conflicting
evidence for a probable cause search.  The discovery he had wrongfully used
cocaine was incidental.  As a result, the limited use policy should have
applied.

3.  The limited use policy prohibits the use of mandatory urine or alcohol
breath test results taken to determine a Soldier's fitness for duty in
actions under the UCMJ or on the issue of characterization of service in
separation proceedings.

4.  Three court-martial charges were preferred against the applicant:
failing to go at the time prescribed to his appointed place of duty;
violating a lawful general regulation by wrongfully having a blood alcohol
level of .05 percent or above while on duty; and wrongfully using cocaine.
However, when the applicant was offered NJP under Article 15, UCMJ, only
the specification of wrongful use of cocaine was charged.

5.  The charges of failing to go at the time prescribed to his appointed
place of duty and violating a lawful general regulation by wrongfully
having a blood alcohol level of .05 percent or above while on duty are
court-martial offenses; however, it is unlikely those charges would have
been brought against the applicant had the wrongful use of cocaine not also
been a charge.

6.  Since the charge of wrongful use of cocaine and violation of a lawful
general regulation by wrongfully having a blood alcohol level of .05
percent or above while on duty should not have been a subject for action
under the UCMJ in accordance with the limited use policy, there were no
grounds for the applicant to have requested discharge under Army Regulation
635-200, chapter 10 based solely on the remaining charge.  Because the
applicant's submission of a chapter 10 waived any court-martial defenses,
he is not entitled to relief as a matter of law.  However, separation under
those provisions appears to have been inequitable.

7.  Nevertheless, as the applicant was also a first-time drug offender in
the grade of E-6, he would have been processed for separation for
misconduct under the provisions of Army Regulation 635-200, chapter 14.  It
appears unlikely, as he was a noncommissioned officer and had two other
instances of misconduct in conjunction with the drug offense, that he would
have been recommended for retention.  It also appears likely that he would
have been separated under the provisions of chapter 14 for misconduct,
albeit with an honorable characterization of service based upon the limited
use policy.

8.  While voiding the applicant's 6 March 2000 discharge and allowing him
to retire for length of service would not be an equitable resolution, it
would be equitable to change the characterization of the applicant's
discharge to fully honorable and to change the reason for his discharge to
Secretarial Authority.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__rtd___  ___dkh___  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ___pm___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief and to excuse failure to timely
file.  As a result, the Board recommends that all Department of the Army
records of the individual concerned be corrected by showing he was
honorably discharged on 6 March 2000 in the rank and grade of Staff
Sergeant, E-6 with a narrative reason for separation of Secretarial
Authority; and that any back pay and allowances that might be due as a
result of this correction be paid to him.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
voiding his 6 March 2000 discharge, awarding him constructive credit for
pay and allowances and time in service from the date of discharge, and
allowing him to retire for length of service.




                            __Richard T. Dunbar___
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050007649                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060413                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |20000306                                |
|DISCHARGE AUTHORITY     |AR 635-200, ch 10 . . . .               |
|DISCHARGE REASON        |A70.00                                  |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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