RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 April 2008
	DOCKET NUMBER:  AR20080001389 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 under honorable conditions discharge be upgraded to an honorable discharge and that his narrative reason for separation, Drug Abuse Rehabilitation Failure, be removed from his record.  

2.  The applicant states that his acting company commander was quick to impose an Article 15 upon him for one isolated incident for a positive urinalysis test for cannabis.  He states that his clearance was revoked and he could no longer perform his duties as an intelligence analyst.  He alleges that he was not properly informed or counseled regarding the consequences of a general discharge.  

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

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 25 June 1980 for a period of four years.  At the completion of basic training and advanced individual training, he was awarded military occupational specialty 98C (electronic warfare/signal
intelligence analyst).  He was promoted to specialist five on 21 January 1983.

3.  On 16 February 1983, the applicant tested positive for marijuana.  He was enrolled in Track II of the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) on 17 February 1983.  

4.  The applicant tested positive for marijuana again on 22 April 1983.  

5.  On 3 May 1983, the unit commander in consultation with the Clinical Director of the ADAPCP declared the applicant a rehabilitation failure.

6.  On 9 May 1983, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for wrongfully using marijuana on or about 6 April 1983.  His punishment consisted of a reduction to pay grade E-4; a forfeiture of $200.00 pay for 2 months; and extra duty for 45 days.  

7.  On 10 May 1983, the unit commander notified the applicant of pending separation action under the provisions of Army Regulation 635-200, chapter 9 based on drug abuse rehabilitation failure.  He was advised of his rights.  The applicant did not consult with legal counsel, did not submit statements in his own behalf and did not request treatment in a Veterans Administration Medical Center.  

8.  On 13 May 1983, the separation authority approved discharge under the provisions of Army Regulation 635-200, chapter 9 with issuance of a General Discharge Certificate.

9.  On 25 May 1983, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 9 for drug abuse rehabilitation failure.  He had served 2 years, 11 months, and 1 day of total active service.  He was given a Separation Program Designator (SPD) code of "JPC" (Drug Rehabilitation Failure).

10.  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 adverse administrative actions.

11.  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.

12.  The review team specifically examined the applicant's test results of the specimen submitted by the applicant on 21 January 1983 and determined that the scientific test procedures or the supporting chain of custody documents used, or both, were sufficient for that specimen.

13.  The review team also specifically examined the applicant's test results of the specimen submitted by the applicant on 6 April 1983 and determined that either the scientific test procedures or the supporting chain of custody documents used, or both, were deficient.  Consequently, a conclusion that the applicant's urine specimen contained illegal drugs would not be legally and/or scientifically supportable.

14.  On 28 April 1987, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 9 contains the authority and outlines the procedures for discharging individuals because of alcohol or other drug abuse.  A member who has been referred to the Alcohol and Drug Abuse Prevention and Control Program for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant provided two urine specimens, on 21 January 1983 and 6 April 1983.  

2.  The positive urinalysis of the specimen submitted by the applicant on 6 April 1983 was determined to be chemically and/or legally unsupportable by the Urinalysis Records Review Team and could not rightfully serve as the basis for adverse administrative or disciplinary actions.  

3.  Continued reference to the unsupportable urinalysis would be prejudicial and improper.  Accordingly, it would be in the best interest of justice to delete from the applicant's military personnel and medical records any and all references to the positive urinalysis of the specimen he submitted on 6 April 1983.

4.  The applicant was declared a rehabilitation failure solely on the basis of unsupportable urinalysis.  Accordingly, that declaration, and the discharge that was based upon it, were improper and should be voided.


BOARD VOTE:

PM______  JH______  KJ______  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.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting from the military personnel and medical records of the individual concerned any and all references to the urinalysis of the specimen which he submitted and which was tested on 6 April 1983.

2.  That all references to the applicant’s separation under the provisions of Army Regulation 635-200, chapter 9 be deleted from his military personnel records.

3.  That the applicant’s discharge of 25 May 1983 be voided and the records be corrected to reflect that he remained on active duty until his normal expiration term of service of 24 June 1984.

4.  That the applicant’s Certificate of Release or Discharge from Active Duty, DD Form 214, be corrected to show he separated on 24 June 1984 after completing 4 years of net active service with an honorable discharge under the provisions of Army Regulation 635-200, chapter 5-3, Secretarial Authority, with separation code JFF.

5.  That the applicant be paid any and all due pay and allowances as a result of the above correction.

6.  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.  



                         PM________
                CHAIRPERSON
ABCMR Record of Proceedings (cont)                                         AR20080001389


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508