APPLICANT REQUESTS:  That restitution be made to him in the form of compensation for lost service time, veterans  benefits, educational savings, personal property, and for the many agonizing years of mental anguish and suffering that was the result of the wrongful and improper discharge given him by the Department in June 1983. 

APPLICANT STATES:  In effect, that he has tried for over 10 years to be compensated for all of his losses, which include his privately owned vehicle which he was forced to leave in Germany, his educational savings which he spent to support his family, his lost service time, and all of the pain and suffering he experienced over the years as a result of his being denied jobs based on his wrongful and improper discharge.  He goes on to state that he previously requested compensation when he applied for an upgrade of his discharge.  However, it was not until 1993 when he received an upgraded discharge and letter of apology that he discovered that his case had been closed without even the slightest bit of consideration of restitution of benefits.  

COUNSEL CONTENDS:  That the applicant did suffer losses as a result of his erroneous discharge and that as much favorable consideration should be granted to the applicant as is within the purview of the Board.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant enlisted on 11 October 1979 for a period of 4 years.  He was promoted to the pay grade of E-4 on 5 May 1981.

On 3 December 1982, while stationed in Germany as a motor transport operator, the applicant was tested by urinalysis and found to contain evidence of illegal drugs.  He was subsequently referred for treatment to the local Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).  On 17 March 1983, when directed to produce a urine specimen for testing, the applicant presented a urine specimen which appeared too cold to have been freshly collected.  After presenting the false sample he continued to try to sabotage the test.  He was then ordered to provide another specimen which tested positive for illegal drugs.  As a result, he was declared a rehabilitative failure and subsequently discharged under honorable conditions under the provisions of Army Regulation 635-200, chapter 9, as a drug abuse rehabilitative failure on 8 June 1983.  The applicant was single at the time of his discharge.

In 1983, a “Blue Ribbon” Panel of experts in toxicology and drug testing was established to evaluate the scientific and administrative procedures used by Army laboratories where urine specimens were tested.  The panel’s report, entitled “Review of Urinalysis Drug Testing Program”, dated 12 December 1983, concluded that the testing procedures used by all laboratories were adequate to identify drug abuse and found no significant evidence of false positive urinalysis reports.  However, the panel did find that a percentage of previously reported positive urinalysis results was not scientifically or legally supportable for use in disciplinary or administrative actions.  

Subsequently, the Deputy Chief of Staff for Personnel established a team of military chemist and lawyers called the “Urinalysis Records Review Team.”  The team reviewed
available records of all positive urinalysis results reported from 27 April 1982 through 31 October 1983 and determined that either the scientific test procedures or the supporting chain of custody documents used, or both, in the applicant’s case were deficient and not legally or scientifically supportable.

The applicant previously applied to this Board under the Urinalysis Records Correction Program, requesting an upgrade of his discharge, credit for continuous service to his scheduled expiration of term of service (ETS), and entitlement to all benefits he would have accrued had he not been prematurely discharged.  The Board determined at that time that although the urinalyses were unsupportable, the submission of a false urine specimen indicated that he was unwilling to cooperate in the ADAPCP and stop using illegal drugs.  It was further determined that the declaration that he was a rehabilitation failure and the discharge upon which it was based was proper and there was no good reason for reversing either action.  Nonetheless, the Board did direct deletion of all references to any positive urinalyses from his records.  The remainder of his request was denied on 10 December 1986.  However, the Board directed, as it did in similar cases, that the proceedings of the case be returned to the Board for permanent filing and that no copies be filed in his Official Military Personnel File, as the Board considered references to the urinalyses prejudicial.

On 10 March 1989 the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge, a change in the narrative reason for separation, and compensation for time lost.  On 9 April 1992 the ADRB considered the applicant’s case without the benefit of this Board’s proceedings.  The ADRB determined that the characterization of his discharge was improper because limited use evidence was used in characterizing his service. Accordingly, the ADRB upgraded his general discharge to fully honorable.  The ADRB further determined that after removal of the positive urinalyses by this Board, there remained no basis for his discharge and changed the reason for his discharge to Secretarial authority.  The ADRB did not address the issue of compensation as it was not within the authority of that board to do so.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 9 contains the authority and outlines the procedures for discharging individuals because of alcohol or other drug abuse.  A member who has been referred to ADAPCP for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The applicant’s contention that he was unjustly discharged before his scheduled ETS and that he has been wrongfully denied compensation for his losses is without merit.  When this Board first considered his case it determined that he was properly discharged as a rehabilitative failure.  Although the Board opted to remove all references to his positive urinalyses, it opted to deny the remainder of his requests.

2.  The bottom line in this case is that the applicant was discharged for trying to sabotage the efforts of the ADAPCP, which made him a rehabilitative failure.  Regardless of whether there were any valid urinalyses attributable to him, his failure of the ADAPCP was the basis for his discharge and he has failed to show otherwise.  Accordingly, the applicant should not be granted compensation for his own misconduct or his failure to provide evidence of error or injustice.

3.  The ADRB considered the applicant’s case without the benefit of reviewing this Board’s proceedings.  Consequently, that decision was based on incomplete information.  Nonetheless, the upgrade of the applicant’s discharge by the ADRB was within its purview.  However, this Board remains convinced that the applicant’s original discharge was appropriate and proper.  Further relief is not warranted.

4.  The applicant’s claim of compensation owed to him by the Department is not supported by the evidence submitted with his application or the evidence of record.

5.  In view of the foregoing, there is no basis to approve the applicant’s request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

                       GRANT          

                       GRANT FORMAL HEARING

                       DENY APPLICATION




						Karl F. Schneider
						Acting Director