RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 April 2007
	DOCKET NUMBER:  AR20060013699 


	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. Gerard W. Schwartz

Acting Director

Mr. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Mr. James E. Vick

Chairperson

Mr. Patrick H. McGann Jr.

Member

Mr. Gerald J. Purcell

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 non-judicial punishment (NPJ) under Article 15, Uniform Code of Military Justice (UCMJ) be overturned and, that it be expunged from his records.   Also, he requests a meritorious promotion to E-5.

2.  The applicant states, in effect, that based on the results of the Department of Army and a special review panel, all urinalysis tests taken between 27 April  
1982 through 31 October 1983 were unsupportable.

3.  The applicant provides a copy of DA Form 2627 (Records of Proceedings Under Article 15), dated 16 June 1983 and a copy of DA Form 268 (Report for Suspension of Favorable Personnel Actions).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 19 March 1985.  The application submitted in this case is dated 16 September 2006.

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's records show that he entered active duty 5 April 1979.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty 12B1O (Combat Engineer).

4.  He served a tour in Germany from 25 July 1979 to 19 August 1982.  On  
13 September 1982, he was reassigned to Fort Ord, California.

5.  On 16 June 1983, the applicant accepted NJP under the provisions of Article 15, UCMJ for knowingly and wrongfully using marijuana, a violation of Article  
134.  His punishment included reduction to private first class/pay grade E-3 (suspended to be automatically remitted if not vacated before 16 December  
1983), a forfeiture of $155.00 per month for one month, 14 days extra duty, and  
14 days restriction.

6.  On 19 March 1985, the applicant was honorably discharged for expiration of his term of service as a specialist/pay grade E-4.  He had completed a total of 
5 years, 9 months, and 15 days of active service. 

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 6 April 1982.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The determination of marijuana 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 punished with a forfeiture of $155.00 per month for one month as a result of receiving the NJP for a faulty positive urinalysis on 27 April 1982.  It is noted since the applicant's claim for the $155.00 wasn't perfected until ABCMR set aside the NJP, the Barring Act, 31 U.S.C. 3702, does not bar his claim for the $155.00.  It would be in the interest of justice at this time to remove the NJP from his OMPF and refund the amount of $155.00.

3.  As for the applicant's request for a meritorious promotion to pay grade E-5, there is no evidence that the applicant would have been promoted to sergeant/ pay grade E-5 before he separated from active duty if it had not been for the NJP. Therefore, he is not entitled to correction of his records to show meritorious promotion to pay grade E-5.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 19 March 1985; therefore, the time for the applicant to file a request for correction of any error or injustice expired on  
18 March 1988.  The applicant did not file within the 3-year statute of limitations; however, based on the available evidence, it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____jev__  ___phm_  ____gjp__  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 partial 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 expunge from his OMPF the record of NJP dated 16 June 1983; and

     b.  by refunding to him the $155.00 forfeiture of pay imposed by the voided NJP.

2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the meritorious promotion to pay grade E-5.

3.  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.




__________James E. Vick_______
          CHAIRPERSON




INDEX

CASE ID
AR20060013699
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070424
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
PARTIAL GRANT
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.