PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 29 January 2002
         DOCKET NUMBER: AR2001060476


         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
Ms. Maria C. Sanchez		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Karen A. Heinz		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

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

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant was formerly on active duty and was honorably discharged on 26 August 1983 as a drug abuse rehabilitation failure, prior to the normal expiration of his term of service (ETS), which would have been 13 January 1985.

3. While on active duty the applicant participated in the Army’s drug testing program. The specimen he submitted on 14 April 1983 was tested by urinalysis and found to contain evidence of illegal drugs.

4. On 6 May 1983, the applicant was referred for treatment in the local Alcohol and Drug Abuse Prevention and Control Program (ADAPCP). As such, he was informed that he must abstain from further use of illegal drugs, that he must not abuse alcohol, and that he must cooperate in counseling and education programs.

5. On 7 May 1983, the applicant submitted a urine specimen, which tested positive for illegal drugs. As a result, he was declared a rehabilitation failure. Thereafter, he was recommended for discharge under the provisions of Army Regulation 635-200, chapter 9, as a drug abuse rehabilitation failure. The discharge authority approved the recommendation on 4 August 1983 and directed that an Honorable Discharge Certificate be issued.

6. On 3 June 1983, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, solely on the basis of the previously mentioned drug urinalysis.

7. On 16 June 1983, a bar to reenlistment was imposed against him based solely on the previously mentioned drug urinalysis.

8. The applicant requests, in effect, correction of his military records by voiding his discharge and by showing that he served until his scheduled ETS. He further requests that any disciplinary or adverse administrative actions taken as a result of the positive urinalysis be set aside, and that all rights, privileges and property he lost as a result of such actions be restored.

9. 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.

10. 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.

11. The review team specifically examined the test results of the specimens submitted by the applicant 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 specimens contained illegal drugs would not be legally and/or scientifically supportable.

12. Army Regulation 635-200 sets forth the basic authority for 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.

CONCLUSIONS:

1. The positive urinalyses of the specimens submitted by the applicant on the dates indicated were either legally or scientifically unsupportable and could not rightfully serve as the basis for adverse administrative or disciplinary actions.

2. Continued reference to the unsupportable urinalyses would be prejudicial and improper. Accordingly, it would be in the best interest of justice to delete from his military personnel and medical records, any and all references to the positive urinalyses of the specimens he submitted on 14 April and 7 May 1983.

3. That NJP imposed upon the applicant on the date indicated 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.

4. Likewise the bar to reenlistment was imposed solely on the basis of an unsupportable urinalysis. Accordingly, it should be lifted and removed from his records.

5. The applicant was properly referred to the ADAPCP for treatment and rehabilitation. He was declared a rehabilitation failure solely on the basis of an unsupportable urinalysis. Accordingly, that declaration, and the discharge which was based upon it, were improper and should be voided. Any other actions based solely on the unsupportable urinalysis should also be corrected.
6. Since the applicant’s enlistment would not have expired until 13 January 1985, and since there is good reason to conclude that, but for the unsupportable urinalysis, and the declaration that he was a rehabilitation failure, he would have remained on active duty to complete that enlistment, it appears appropriate and proper to void his current discharge, to grant his full active duty credit through his scheduled ETS and to issue him an Honorable Discharge Certificate, effective the date of his scheduled ETS.

7. 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 voiding the honorable discharge which was issued to the individual concerned on 26 August 1983, and by showing that he continued to serve on active duty until 13 January 1985, when he was separated from the service with an Honorable Discharge Certificate, by reason of expiration of term of service, under the provisions of chapter 4, Army Regulation 635-200;

         b. by returning to him all benefits and property he lost as the result of his discharge under honorable conditions;

         c. by setting aside the nonjudicial punishment under Article 15, Uniform Code of Military Justice, which was imposed on 3 June 1983, and by restoring to him all rights, privileges, and property lost as the result of such nonjudicial punishment;

         d. by removing from his Official Military Personnel File the record of proceedings of nonjudicial punishment under Article 15, Uniform Code of Military Justice, administered on 3 June 1983, and all documents related thereto;

         e. by lifting and removing the bar to reenlistment imposed upon him on 16 June 1983; and

         f. by deleting from his military personnel and medical records any and all references to the urinalyses of the specimens he submitted on 14 April and 18 August 1983.

BOARD VOTE:

__mm___ ___ao___ __kah___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ____Arthur A. Omartian____
                  CHAIRPERSON

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INDEX

CASE ID	AR2001060476
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/01/29
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1983/08/26
DISCHARGE AUTHORITY	AR 635-200
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 680	A69.00/144.6900
2.
3.
4.
5.
6.