PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 3 July 2003
         DOCKET NUMBER: AR2002082969


         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. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor		Chairperson
Ms. Kathleen A. Newman		Member
Mr. Patrick H. McGann		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 the separation authority, narrative reason for separation, separation code, and reenlistment code on his DD Form 214 (Certificate of Release or Discharge from Active Duty), with a separation date of 12 January 1984, be changed to support a fully honorable discharge.

3. The applicant states that he was forced to separate from the military due to a faulty urinalysis test conducted by the Fort Meade (Maryland) Testing Laboratory in mid-1983. In December 1983, prior his separation the Department of the Army concluded that the urinalysis testing did not meet legal or scientific standards for use in disciplinary and or administrative actions. During the separation process, he requested that his DD Form 214 not be completed to show that he was separated under the provisions of chapter 13, Army Regulation 635-200, for unsatisfactory performance, with a separation code of "LHJ" and a reenlistment eligibility (RE) codes of RE-3/3C. He states in a letter written to the Board that he did not pursue the correction of his record earlier because it did not impact his military career in the California Army National Guard (CAARNG). However, when he applied for a full-time Army Guard Reserve (AGR) position, his packet was rejected because of the subject discharge. He submits in support of his request: a copy of his DD Form 214; a memorandum from the Office of the Deputy Chief of Staff for Personnel, Washington, DC, undated; a copy of an application for correction of his military record, dated 21 May 1984; and an approved recommendation for award of the Army Commendation Medal, dated 5 January 2002.

4. The applicant also submitted letters of recommendation from the CAARNG that were written by his unit commander, and operations officer, dated 15 and 17 August 2002, to the AGR Selection Board. The applicant's commander states the applicant was instrumental in the success of the unit's mission when he deployed with the unit to Kuwait for 5 months in support of Operations Desert Spring and Enduring Freedom.

5. The applicant’s military records show that prior to the period of service under review the applicant served honorable in the Regular Army (RA) from 28 December 1981 through 26 March 1982 when he was an Army National Guard (ARNG) member assigned to active duty for training. On 9 September 1982, the applicant was separated from the ARNG and he enlisted in the RA for 4 years in his prior military occupational specialty (MOS) 13B (Cannon Crewmember). On 26 September 1982, he was assigned to Germany. The highest rank that he achieved was private first class (PFC), pay grade E-3, effective 1 February 1983.

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6. On 20 September 1983, a urine specimen submitted by the applicant tested positive for tetrahydrocannabinol (a psychoactive compound in marijuana).

7. On 17 October 1983, the applicant was reduced from pay grade E-3 to pay grade E-2. The reason for the reduction is not a matter of record.

8. On 9 December 1983, the applicant's commander notified him that he was being recommended for separation under the provisions of chapter 13, Army Regulation 635-200, for unsatisfactory performance. He was informed that the basis for the contemplated separation action was that he willfully disobeyed the commander's orders not to use marihuana (hashish) on at least two occasions (based upon the 20 September 1983 urinalysis test results) and that this type of behavior would not be tolerated. He was also informed of the rights available to him. On 16 October 1983, he consulted with legal counsel and waived his right to further counsel. He declined to submit a statement in his own behalf.

9. The applicant's DD Form 214 shows that on 12 January 1984, he was separated under the provisions of chapter 13, Army Regulation 635-200, for unsatisfactory performance with an HD. He was assigned a separation code of "LHJ" and RE codes of RE-3, and 3C. He had completed 1 year, 4 months and 4 days of creditable active military service on the enlistment under review and he had 2 months and 29 days of prior active service.

10. RE-3 indicates the person is (not qualified for continued Army service but the disqualification is waivable) and RE-3C identifies (persons who do not meet the reentry grade and service criteria of Army Regulation 601-210).

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 were not scientifically and legally supportable for use in disciplinary or administrative actions.

12. Subsequently, the Deputy Chief of Staff for Personnel (DCSPER) 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. In the applicant’s case, the review team discovered one positive urinalysis which was

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processed on 23 September 1983. The team specifically examined the 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 was reached that, in either instance, the applicant’s positive urine specimen test results would not be legally and/or scientifically supportable.

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

14. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.

15. A DD Form 214 issued on 9 May 1992 shows the applicant served honorably in an active duty status from 1-9 May 1992 while an ARNG member.

16. There is no evidence that the applicant ever applied to the Army Discharge Review Board for review of his discharge under that board's 15-year statute of limitations.

17. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier. Army policy states that a general discharge, under honorable conditions is normally considered appropriate, but an honorable discharge may be granted.

CONCLUSIONS:

1. The urine specimen submitted by the applicant that tested positive for marijuana on 23 September 1983 was unsupportable chemically and/or legally and could not be properly used as a basis for disciplinary or unfavorable administrative action. Therefore, any administrative action taken solely because of that urinalysis should be corrected.

2. Although the applicant has not satisfactorily explained why he failed to timely file an application for correction of his records, the Board finds that it would be in the interest of justice to waive the 3-year statute of limitations. Accordingly, it

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would be appropriate to: delete from his military personnel and medical records, if available, any and all references to the positive urinalysis of 23 September 1983; void the discharge action based upon that positive urinalysis; and issue to him a new DD Form 214 changing the separation authority, narrative reason for separation, separation code, and reenlistment code.

3. In view of the foregoing, the applicant’s records should be corrected 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 personnel and medical records, if available, of the individual concerned any and all references to the positive urinalysis test of 23 September 1983.

2. That the DD Form 214, dated 12 January 1984, now held by the individual concerned, be voided.

3. That the individual concerned be issued a new DD Form 214, dated 12 January 1984, showing: in Item 25 (Separation Authority) Chapter 5, AR 635-200; in Item 26 (Separation Code) "LFF;" in Item 27 (Reenlistment Code) "RE-1" and; in Item 28 (Narrative Reason for Separation) "Secretarial Authority."

4. That following completion of the administrative corrections directed herein, the proceedings of the Board and all documents related to this appeal will be returned to the Board for permanent filing.

BOARD VOTE:

___RVO_ __KAN __ ____PHM GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  _Mr. Raymond V. O'Connor_
                  CHAIRPERSON

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INDEX

CASE ID	AR2002082969
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/07/03
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.