RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        3 May 2005
      DOCKET NUMBER:  AR20040001589


      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             |
|     |Mr. Paul Wright                   |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Mr. Patrick H. McGann, Jr.        |     |Member               |
|     |Ms. Diane J. Armstrong            |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that a non-judicial punishment (NJP)
he received for testing positive for marihuana be removed from his record.

2.  The applicant states he was reduced and discharged for testing positive
for marihuana.  He has since learned that there were routine problems with
the test results and there were false positives.  He feels this happened in
his case.

3.  The applicant provides no documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 14 October 1983.  The application submitted in this case
is dated
4 May 2004.

2.  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.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  On 31 August 1973, the applicant enlisted in the Regular Army for a
period 3 years.  He served continuously through a series of reenlistments
with the final reenlistment for a period of 4 years occurring on 17 October
1979.

4.  On 3 September 1981, the applicant accepted NJP under the provisions of
Article 15, Uniform Code of Military Justice for operating a vehicle while
drunk and causing said vehicle to be involved in an accident on 15 August
1981.  Punishment included forfeiture of $200.00 for 2 months (suspended
$100.00 per month until 30 October 1981) and extra duty for 30 days until 2
October 1981.

5.  On 14 April 1983, the applicant accepted NJP for testing positive for
marihuana use during a random urinalysis on 3 March 1983.  Punishment
included reduction to pay grade E-3, forfeiture of $150.00 for one month,
and
extra duty for 14 days.  The reduction became effective on 14 April 1983.
There is no record of this NJP in the applicant's Official Military
Personnel File (OMPF); however, a paper copy is contained in his Military
Personnel Records Jacket (MPRJ).

6.  On 14 October 1983, the applicant was Honorably Discharged for
expiration of his term of service (ETS) in pay grade E-3.  He was credited
with 7 years, 3 months, and 27 days of active Federal service.  He was
assigned Reenlistment (RE) Codes of RE-3 and RE-3C.

7.  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 or legally supportable for use in disciplinary or
administrative actions.

8.  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
processed on a specimen submitted by the applicant on 3 March 1983.  The
team specifically examined the test results and determined that the
scientific test procedures and the supporting chain of custody documents
used were deficient.  Consequently, a conclusion that the applicant’s urine
specimen contained illegal drugs would not be legally and/or scientifically
supportable.

9.  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.

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
nonjudicial punishment 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.

12.  RE-3C applies to persons who have completed more than 4 months service
who do not meet the basic eligibility pay grade requirements of chapter 2,
Army Regulation 601-280, or who have been denied reenlistment under the
Qualitative Retention Process according to chapter 10, Army Regulation 601-
280.

DISCUSSION AND CONCLUSIONS:

1.  The determination of marihuana use based on the specimen submitted by
the applicant on 3 March 1983 was determined to be unsupportable chemically
and/or legally and could not be properly used as a basis for disciplinary
or unfavorable administrative action.  Any and all references to the
urinalysis should have been deleted from his records and any administrative
action taken solely [emphasis added] because of that urinalysis should have
been corrected.

2.  The applicant was reduced from pay grade E-4 to E-3 on 14 April 1983
and was given a $150.00 forfeiture as a result of receiving the NJP for a
faulty positive urinalysis.  It would be in the interest of justice at this
time to remove the NJP from his MPRJ and to restore the rights and
privileges to which he was denied.  He is therefore entitled to the
difference in pay between E-3 and E-4 at the "over 8-year rate" for 4
months and 16 days from 14 April through 30 August 1983, and the difference
between E-3 and E-4 pay at the "over 10-year rate" for 1 month and 13 days
from 31 August through 14 October 1983.

3.  The applicant's DD Form 214 (Certificate of Release or Discharge from
Active Duty) shows RE codes of RE-3 and RE-3C which were assigned as a
result of his receipt of NJP and a reduction in grade.  The applicant had
multiple NJPs during the period of service under review, therefore his code
of RE-3 remains appropriate.  However, because his reduction is voided as a
result of a faulty urinalysis, the RE code of RE-3C should be removed.

4.  In view of the foregoing, the applicant’s records should be corrected
as recommended below.
BOARD VOTE:

__slp___  __phm___  __dja___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for relief and to excuse failure to timely file.
As a result, the Board recommends that all Department of the Army records
of the individual concerned be corrected:

      a.  By voiding the NJP he received for a positive urinalysis and
deleting from his MPRJ the record of NJP dated 14 April 1983;

      b.  By paying to him any and all pay due as a result of voiding the
14 April 1983 NJP.  Such payment to be computed based upon the difference
in pay between E-3 and E-4 at the "over 8-year rate" for 4 months and 16
days from 14 April through 30 August 1983, and the difference between E-3
and E-4 pay at the "over 10-year rate" for 1 month and 13 days from 31
August through 14 October 1983.

      c.  By refunding to him the $150.00 forfeiture of pay imposed by the
voided NJP; and

      d.  By amending his DD Form 214 to remove the RE code of 3C and
changing his rank to SP4/E-4,

2.  Following completion of the administrative corrections directed herein,
the proceedings of the Board and all documents relating to this appeal will
be returned to the Board for permanent filing.



                                  Shirley L. Powell
                            ______________________
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040001589                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050503                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(GRANT)                                 |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |100.0300                                |
|2.                      |133.0300                                |
|3.                      |126.0400                                |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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