| Mr. Loren G. Harrell | Director | |
| Ms. Lee Tinsley | Analyst |
| Mr. George D. Paxson | Chairperson | |
| Ms. Sherri V. Ward | Member | |
| Mr. Van B. Cunningham | Member |
2. The applicant requests correction of his military records by setting aside a nonjudicial punishment (NJP) under Article 15, UCMJ, he received on 10 August 1983 and by restoring to him all rights privileges and property he lost as a result of that NJP. The applicant also inquiries about the possibility of continued military service.
3. The applicant’s military records show that he enlisted on 6 August 1980 and was advanced to pay grade E-4 on 1 September 1982.
4. On 10 August 1983 the applicant accepted NJP for the wrongful use of marijuana. The only evidence of his guilt was a positive urinalysis of a specimen submitted by him on or about 7 July 1983. The punishment imposed consisted of reduction from pay grade E-4 to E-3, a forfeiture of $732.00, and correctional custody for 30 days.
5. Thereafter, he once again was advanced to pay grade E-4 on 1 February 1983. He was honorably separated on 3 August 1984, having completed 3 years, 11 months, and 28 days of creditable service. He was assigned a reentry (RE) code of RE-3.
6. In 1983, a “Blue Ribbon” Panel of experts in toxicology and drug testing was established to evaluate the scientific and administrative procedures used by all Army drug testing 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.
7. Subsequently, the Deputy Chief of Staff for Personnel established a team of military chemists and lawyers called the “Urinalysis Records Review Team.” This team reviewed available records of all positive urinalysis results reported from 27 April 1982 through 31 October 1983.
8. The review team specifically examined the applicant’s test results and determined that either the scientific test procedures or the supporting chain of custody documents used, or both, were deficient. Consequently, a conclusion that the applicant’s urine specimen contained illegal drugs would not be legally and/or scientifically supportable.
9. On 3 June 1998 the Board denied the applicant’s request for removal of the subject NJP. However, at that time, the Board was unaware that the applicant’s urinalysis fell within the Board’s Urinalysis Records Correction Program.
10. Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge. Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve. Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of armed forces RE codes, including RA RE codes.
11. RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable. Certain persons who have received NJP are so disqualified, as are persons with bars to reenlistment, and those discharged under the provisions of chapters 9, 10, 13, and 14 of Army Regulation 635-200. RE-1 applies to persons who are fully qualified for reenlistment.
CONCLUSIONS:
1. The urinalysis of the specimen submitted by the applicant on 7 July 1983 did not meet the standards set by the Blue Ribbon Panel and was legally and/or scientifically unsupportable.
2. Any references to the urinalysis of the specimen submitted by the applicant on 7 July 1983 would be prejudicial and improper. Accordingly, it would be in the best interest of justice to remove any such references to the urinalysis from his records.
3. The NJP imposed on 8 August 1983 was based solely on a positive drug urinalysis that cannot be scientifically or legally supported for use in disciplinary actions. Accordingly, the subject NJP is unjust and should be set aside. All rights privileges and property lost as a result of the subject NJP should be restored. Specifically, the applicant’s former grade and original date of rank as an E-4 should be reinstated. Any monies taken, either by forfeiture or as the result of the reduction in grade, should be returned.
4. Since the subject NJP and references to the applicant’s drug abuse are to be removed from the applicant’s records, there appears to be no good reason to continue to assign the applicant an RE code of RE-3. Accordingly, it would be appropriate to assign him a code of RE-l. If the applicant wishes to consider further military service, he should visit a local recruiter.
5. In view of the foregoing, the applicant’s records should be corrected as recommended below.
RECOMMENDATION:
That all of the Department of the Army records related to this case be corrected:
a. by deleting from his military personnel and medical records any and all references to the positive urinalysis of the specimen he submitted on 7 July 1983;
b. by setting aside the NJP imposed on 10 August 1983 and by restoring to the individual concerned all rights, privileges, and property lost as the result of such NJP; and
c. by assigning him an RE code of RE-1.
BOARD VOTE:
GDP _SVW__ _VBC GRANT AS STATED IN RECOMMENDATION
____ _______ ____ GRANT FORMAL HEARING
___ _ _____ ________ DENY APPLICATION
___George D. Paxson__
CHAIRPERSON
| CASE ID | AC97-11137A |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 19981230 |
| TYPE OF DISCHARGE | (HD, GD, UOTHC, UD, BCD, DD) |
| DATE OF DISCHARGE | YYYYMMDD |
| DISCHARGE AUTHORITY | AR . . . . . |
| DISCHARGE REASON | |
| BOARD DECISION | GRANT |
| REVIEW AUTHORITY | |
| ISSUES 1. 126.04 | Expunge Record |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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