PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 10 September 2002
         DOCKET NUMBER: AR2002069847


         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. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Barbara J. Ellis		Member
Mr. William D. Barr		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 requests that his general discharge be upgraded to honorable.

3. The applicant states, in effect, that he was discharged because of an urinalysis that tested positive for illegal drugs. He claims that the urinalysis has since been deemed unconstitutional.

4. The applicant’s military records show that he enlisted in the Regular Army on 20 August 1979 for a period of 4 years. He successfully completed basic combat training and advanced individual training in military occupational specialty 63B (wheel vehicle mechanic) and was transferred to Fort Devens, Massachusetts, on 20 December 1979. His highest grade held was specialist four/pay grade E-4.
5. On 11 May 1982, the applicant was referred for treatment in the local Alcohol and Drug Abuse prevention and Control Program (ADAPCP) for abuse of marijuana. He entered Track II of the program, which required individual and group counseling. At the time of his enrollment 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. On 23 January 1983, he successfully completed the program.

6. Subsequently, the applicant participated in the Army’s drug testing program. The specimen he submitted on 1 February 1983 was tested by urinalysis and was found to contain evidence of illegal drugs. There is no evidence that the applicant received any punishment for the aforementioned positive urinalysis.

7. On 2 May 1983, the applicant again was referred to the ADAPCP because he assaulted a military policeman and for wrongful possession of marijuana and drug paraphernalia. The intake evaluation was terminated early due to the applicant’s being under the influence of marijuana and his poor attitude. The applicant was declared a rehabilitation failure.

8. On 4 May 1983, nonjudicial punishment was imposed against the applicant for assault upon a military policeman and wrongful possession of marijuana. His punishment consisted of a reduction to E-3, a forfeiture of pay and extra duty.

9. On 26 July 1983, the applicant was recommended for discharge under the provisions of Army Regulation 635-200, chapter 9, for drug abuse rehabilitation failure. The unit commander based his recommendation for separation on the applicant’s record of illegal drug offenses, assault upon a military policeman and for a charge of driving while intoxicated.

10. The separation authority approved the recommendation on 1 August 1983 and directed the issuance of a General Discharge Certificate. The applicant was discharged on 5 August 1983.

11. 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 adverse administrative actions.

12. 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.

13. 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.

14. 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.

15. Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual.

CONCLUSIONS:

1. The positive urinalysis of the specimen submitted by the applicant on 1 February 1983 was 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 urinalysis 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 urinalysis of the specimen he submitted on 1 February 1983.

3. The applicant was properly referred to the ADAPCP for treatment and rehabilitation. He was declared a rehabilitation failure on the basis of continued illegal drug offenses, unrelated to the unsupportable urinalysis, on his general misconduct, and on his lack of potential for rehabilitation. Accordingly, that declaration and the discharge that was based upon it, were proper. His overall military record does not warrant upgrading his discharge to fully honorable.

4. In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records, but only as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by deleting from the military and personnel records of the individual concerned any and all references to the urinalysis of the specimen he submitted on 1 February 1983.

2. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

FNE____ BJE____ WDB____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  __Fred N. Eichorn_____
                  CHAIRPERSON

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INDEX

CASE ID	AR2002069847
SUFFIX
RECON
DATE BOARDED	20020910
TYPE OF DISCHARGE	(GD)
DATE OF DISCHARGE	19830805
DISCHARGE AUTHORITY	AR 635-200, Chapter 9
DISCHARGE REASON	Drug Abuse Rehabilitation Failure
BOARD DECISION	(GRANT)
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.	126.0400
3.
4.
5.
6.