RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 January 2006
      DOCKET NUMBER:  AR20050004255


      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. Michael J. Fowler             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Thomas H. Ray                 |     |Member               |
|     |Mr. Randolph J. Fleming           |     |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 that his discharge be upgraded from under other
than honorable conditions to a general under honorable conditions or
honorable discharge and, in effect, that his court-martial be overturned.

2.  The applicant states, in effect, that the Army Board for Correction of
Military Records (ABCMR) should investigate whether the urinalysis book
used by his unit was lost prior to his discharge, and contends that, if so,
his positive urinalysis tests were not valid.  The applicant states that
the chain of command covered-up a conspiracy to convict certain individuals
in his unit.

3. The applicant further states that, assuming the urinalysis book was
lost, the positive urinalysis tests should not have been used against him
in his court-martial on charges of breaking and entering.

4.  The applicant provides a DD Form 214 (Certificate of Release or
Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 4 February 1986.  The application submitted in this case is
dated 23 March 2005.

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.  The applicant enlisted in the Regular Army on 8 September 1977 and
successfully completed basic training and advanced individual training.  He
was awarded military occupational specialty 22N (Nike-Hercules Missile
Launcher Repairer).




4.  On 2 May 1983, the applicant submitted a urinalysis specimen that was
positive for THC (marijuana).

5.  On or about June 1983, the applicant was referred to the Alcohol and
Drug Abuse Prevention and Control Program (ADAPCP) as a command referral.
The synopsis of the applicant's ADAPCP record is not available.

6.  On 8 May 1985, the applicant’s commander initiated elimination of the
applicant for separation under the provisions of Army Regulation 635-200,
chapter 14 for misconduct.  The reason cited by the commander was abuse of
illegal drugs for two subsequent positive urinalysis tests that were taken
by the applicant on October 1984 and January 1985 for THC (marijuana).  The
applicant was advised of his rights.

7.  On 16 May 1985, the applicant was advised by consulting counsel of the
basis for the contemplated separation action.  The applicant was advised of
the impact of the discharge action.  He waived consideration of his case by
a board of officers.  The applicant also indicated that he would not
provide statements on his own behalf.

8.  On 3 June 1985, the commander of the applicant recommended that he be
separated under the provisions of chapter 14 of Army Regulation 635-200.

9.  On 13 June 1985, the appropriate authority approved the request and
directed the applicant receive a general discharge.

10.  The applicant's special court-martial charge sheet is unavailable.

11.  On 1 October 1985, the applicant was convicted, contrary to his pleas,
by a special court-martial, of operating a motorcycle while drunk on 15 May
1985 and housebreaking on 15 May 1985.  His sentence consisted of a
forfeiture of $566.00 for three months, restriction for 60 days, and
reduction to the rank of Private First Class/E-3.

12.  A memorandum dated 13 November 1985, from the Miesau Army Depot
commander, shows that the applicant's chapter 14 discharge was erroneously
forwarded on 13 June 1985 and was returned to the initiating command on
7 November 1985.  The memorandum further stated that administrative review
was delayed while the applicant was under investigation of courts-martial
charges.



13.  On 24 December 1985, the appropriate authority directed the applicant
receive a discharge under other than honorable conditions under the
provisions of chapter 14 of Army Regulation 635-200 for misconduct - abuse
of drugs.  On  4 February 1986, he was separated from the service after
completing 8 years,     4 months, and 27 days of creditable active service
with no lost time.

14.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
prescribes procedures for separating members for misconduct.  Paragraph 14-
12d(2) of the version in effect at the time stated that Soldiers are
subject to separation for commission of a serious offense and that abuse of
illegal drugs is serious misconduct.  First-time drug offenders, grades E-5
through E-9 and second-time drug offenders, grades E-1 through E-9 will be
processed for separation.  A discharge under other than honorable
conditions is normally appropriate for a Soldier discharged under this
chapter.  However, the separation authority may direct a general discharge
if such is merited by the Soldier’s overall record.

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.

16.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a Soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the Soldier’s separation specifically allows such
characterization.

17.  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.


18.  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. 
It was processed on the specimen submitted by the applicant on 2 May 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, in this
instance, that the applicant’s urine specimen contained illegal drugs would
not be legally and/or scientifically supportable.

19.  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.

20.  Army Regulation 600-85 (Alcohol and Drug Abuse Prevention and Control
Program), paragraph 3-4 of the regulation in effect at the time stated in
pertinent part, that when a unit commander became aware of a Soldier whose
job performance, social conduct, interpersonal relations, physical fitness,
or health appeared to be adversely affected because of alcohol or other
drugs (apparent or suspected), the Soldier would be interviewed by his or
her unit commander or designated representative.  If appropriate, the
Soldier would be referred to the ADAPCP for an initial screening interview.
 Paragraph 3-5 stated when a Soldier has a positive urinalysis as a result
of drug screen testing, mandatory referral for ADAPCP screening and medical
evaluation is required.

21.  Army Regulation 15-185 (Army Board for Correction of Military
Records), paragraph 2-2c states that the ABCMR is not an investigative
body.  Paragraph 2-9 states that the applicant has the burden of proving an
error or injustice by a preponderance of the evidence.

22.  In accordance with Title 10 of the United States Code, section 1552,
the authority under which this Board acts, the Army Board for Correction of
Military Records is not empowered to set aside a conviction.  Rather it is
only empowered to change the severity of the sentence imposed in the court-
martial process and then only if clemency is determined to be appropriate.






DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his chain of command covered-up a
conspiracy to convict certain individuals in his unit.  There is no
evidence and the applicant has not provided evidence that shows that his
chain of command conspired against individuals.  Therefore, this argument
is without merit.

2.  The applicant contends that his court-martial should be overturned
because his positive urinalysis tests were used against him at his court-
martial.  The applicant's contention relates to evidentiary and procedural
matters which were finally and conclusively adjudicated in the court-
martial process and furnish no basis for granting clemency on his court-
martial sentence.

3.  Evidence of record shows that the urinalysis specimen submitted by the
applicant on 2 May 1983 was unsupportable chemically and/or legally and
could not be properly used as a basis for disciplinary or unfavorable
administrative action.  However, it is presumed that he was notified and
that his command was aware of the fact.  His records do not show him
receiving disciplinary action or other unfavorable action taken against him
for that urinalysis.

4.  The applicant subsequently had two positive urinalyses not tainted by
insupportable legal or scientific issues.  He was later separated for these
two positive urinalysis tests.

5.  The applicant's records show that he was convicted by a special court-
martial of housebreaking and operating a vehicle while drunk, and had two
positive urinalyses.  Based on these facts, the applicant’s service clearly
did not meet the standards of acceptable conduct and performance of duty
for Army personnel that are required for issuance of a general or honorable
discharge.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 4 February 1986; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
3 February 1989.  However, the applicant did not file within the 3-year
statute of limitations and has not provided a compelling explanation or
evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.







BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__RDP __  _THR _ _  __RJF  __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  ____ Mr. William D. Powers ___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050004255                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |5 January 2006                          |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.6800.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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