RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 September 2007
      DOCKET NUMBER:  AR20070005722


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Frank C. Jones                |     |Member               |
|     |Ms. Carmen Duncan                 |     |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 his general discharge under
honorable conditions be upgraded to fully honorable.

2.  The applicant states that he requests an opportunity to correct a
mistake he made because he was extremely upset.  He used a situation to
immediately end his time in the Army.  He requested a chapter 14 separation
through an inaccurate urinalysis test.  False positives were very common.
He could have accepted a re-test.  He had been passed over for promotion.
He wanted to advance, and his military occupational specialty looked like a
dead end road.  His attitude was adversely affected.  He did not do drugs
at that time and he does not do drugs now.  He has regretted his decision
for 23 years.

3.  The applicant provides a DD Form 293 (Application for the Review of
Discharge from the Armed Forces of the United States).

CONSIDERATION OF EVIDENCE:

1.  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 also allows the
Army Board for Correction of Military Records (ABCMR) to excuse an
applicant’s failure to timely file within the 3-year statute of limitations
if the ABCMR determines it would be in the interest of justice to do so.
While it appears the applicant did not file within the time frame provided
in the statute of limitations, the ABCMR has elected to conduct a
substantive review of this case and, only to the extent relief, if any, is
granted, has determined it is in the interest of justice to excuse the
applicant’s failure to timely file.  In all other respects, there are
insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 12 November 1974.  He
completed basic training and advanced individual training and was awarded
military occupational specialty 31M (Multichannel Communications Equipment
Operator).  He was honorably discharged on 29 August 1977 and immediately
reenlisted on 30 August 1977.  He was promoted to Staff Sergeant, E-6 on
     6 October 1983.

3.  Between July 1983 and September 1984, the applicant was counseled
numerous times for various infractions of discipline/duty performance.

4.  On 2 November 1984, the applicant was reduced to the rank and grade of
Sergeant, E-5 for inefficiency.  He did contest the reduction action.
5.  On 9 January 1985, the applicant tested positive for marijuana on a
urinalysis test.

6.  On 15 March 1985, the applicant completed a separation physical and was
found to be qualified for separation.

7.  On 2 April 1985, the applicant underwent a mental status evaluation.
He was found to have the mental capacity to understand and participate in
proceedings and to be mentally responsible.  He was psychiatrically cleared
for any action deemed appropriate by his command.

8.  On 10 May 1985, the applicant’s commander advised him he was being
considered for elimination under the provisions of Army Regulation 635-200,
chapter 14 for misconduct.  The reason cited by the commander was the
applicant’s testing positive for marijuana on a urinalysis test.  The
commander recommended the applicant receive a general discharge.

9.  The applicant was advised by consulting counsel of the basis for the
contemplated separation action.  He waived consideration of his case by a
board of officers and waived appearance before such a board.  He elected
not to submit a statement on his behalf.

10.  On 15 May 1985, the applicant’s commander formally recommended he be
discharged due to possession of illegal drugs.  The commander noted the
applicant had two rehabilitative transfers.

11.  On 29 May 1985, the appropriate authority approved the recommendation
and directed the applicant receive a General Discharge Certificate.

12.  On 7 June 1985, the applicant was discharged, with a general
discharge, in pay grade E-5, under the provisions of Army Regulation 635-
200, chapter 14, for misconduct – drug abuse.  He had completed a total of
10 years, 8 months, and 26 days of creditable active service and had no
lost time.

13.  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.  Specific
categories include minor disciplinary infractions, a pattern of misconduct,
commission of a serious offense, convictions by civil authorities,
desertion or absence without leave.  Action will be taken to separate a
member for misconduct when it is clearly established that rehabilitation is
impracticable or is unlikely to succeed and an unfit medical condition is
not the direct or substantial contributing cause of his misconduct.  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.

14.  Army Regulation 635-200, paragraph 3-7a, 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, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.

15.  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
administrative actions.  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 to determine which were or were not scientifically or legally
supportable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been carefully considered.

2.  A study had previously identified problems with drug urinalyses
conducted from 27 April 1982 through 31 October 1983, not that significant
evidence of false positive urinalysis reports was found but that a
percentage of reported positive urinalysis results was not scientifically
or legally supportable for use in disciplinary or administrative actions.
However, the applicant’s positive urinalysis was given in January 1985.

3.  The applicant’s administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.  He provides no evidence
to show his January 1985 positive urinalysis for marijuana was a false
positive, and no test at this late date could prove that the sample he gave
in 1985 was a false positive.  Therefore, there is insufficient evidence
that would warrant granting the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__lds___  __fcj___  __cd____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




                                  __Linda D. Simmons____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070005722                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070906                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19850607                                |
|DISCHARGE AUTHORITY     |AR 635-200, ch 14                       |
|DISCHARGE REASON        |A66.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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