MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 16 August 2001
         DOCKET NUMBER: AR2001058680

         I certify that hereinafter is recorded the record of consideration 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 Amos		Analyst

The following members, a quorum, were present:

Ms. June Hajjar		Chairperson
Mr. Thomas F. Baxter		Member
Mr. John T. Meixell		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: That he be reinstated, receive back pay and have all rights and privileges restored. In the alternative, he requests that his discharge under other than honorable conditions (UOTHC) be upgraded to honorable.

APPLICANT STATES: That he was discharged with the impression that he was being released due to a urinalysis test given around 1 June 1983. The Army determined that thousands of their urinalysis tests given between April 1982 and November 1983 were not scientifically supportable for use in disciplinary or administrative actions. Notices were sent to all individuals who had positive urinalysis test results during this period. He was clearly given his urinalysis test during this time period but he was never sent any letter advising him to apply to the Board for relief. He provides a copy of his military records as supporting evidence.

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

He enlisted in the Regular Army on 12 September 1979. He completed basic training and advanced individual training and was awarded military occupational specialty 36C (Wire System Installer/Operator). He was promoted to Specialist Four, E-4 on 1 April 1981. He was awarded the Army Good Conduct Medal on 11 September 1982.

On 24 March 1983, the applicant was enrolled in Track I of the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP). An ADAPCP Client Progress Report, DA Form 4466, indicates this was for a military police blotter alcohol-related incident.

On 17 May 1983, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for resisting lawful arrest and operating a privately owned vehicle (POV) without a valid POV operators license.

A DA Form 4466 dated 23 June 1983 indicates that the applicant was changed from Track I to Track II after he came up positive for THC on a urinalysis.

The court-martial charge sheet is not available.

On 4 August 1983, after consulting with 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 Veterans Administration benefits. He submitted no statement in his own behalf.

On 12 August 1983, the appropriate authority approved the applicant’s request and directed he receive a discharge UOTHC.
The applicant completed a mental status evaluation and was found to be mentally responsible. The remarks section of the Report of Mental Status Evaluation, DA Form 3822-R, indicates that he was being “discharged for criminal activity.”

On 13 September 1983, 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 4 years and 2 days of creditable active service and had no lost time.

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 at any time after the charges have been preferred, 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 under other than honorable conditions is normally considered appropriate.

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 (DCSPER) established a team of military chemists and lawyers called the “Urinalysis Records Review Team (URRT).” This team reviewed available records of all positive urinalysis results reported from 27 April 1982 through 31 October 1983. A urinalysis for the applicant is not listed on the URRT report prepared by this team.

Beginning in July 1984, a program was instituted whereby DCSPER notified all persons whose test results had been reviewed by the review team that they had the right to apply to this Board to request correction of any error or injustice which may have resulted.

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. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

2. The applicant was discharged under the provisions of Army Regulation 635-200, chapter 10 for the good of the service in lieu of court-martial. The applicant had to have requested this discharge and his request must have included the individual’s admission of guilt. Without the court-martial charge sheet available, the Board cannot determine if his discharge was or was not related to his urinalysis test.

3. The applicant’s urinalysis is not listed on the URRT report prepared by the Blue Ribbon Panel; therefore, he would not have been sent the DCSPER letter. Unless the applicant can provide evidence to support his contention, preferably his court-martial charge sheet, the Board will not presume that his discharge was related to his positive urinalysis test. Even so, since his urinalysis test was not listed on the URRT report there is no evidence to show it was not scientifically or legally supportable for use in disciplinary or administrative actions.

4. In view of the foregoing, there is no basis for granting 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

__jh____ __tfb___ __jtm___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001058680
SUFFIX
RECON
DATE BOARDED	20010816
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19830913
DISCHARGE AUTHORITY	AR 635-200, ch 10
DISCHARGE REASON	A70.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.00
2.	110.03
3.
4.
5.
6.