IN THE CASE OF:	   

		BOARD DATE:	        21 October 2008

		DOCKET NUMBER:  AR20080011781 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

The applicant, in effect, defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of an earlier request that the applicant's general discharge be upgraded and that all records relating to the positive urinalysis be deleted from his records.  

2.  Counsel also requests, as new issues, that the applicant's narrative reason for separation and separation code be changed and that he receive constructive credit for time in service to equal a 20-year retirement.   

3.  Counsel states, in effect, that the August 1985 drug test report from CompuChem Laboratories was forensically and scientifically inadequate and not supportable.  He also contends that the initial issue addressed by the Army Board for Correction of Military Records (ABCMR) had to do with the applicant's original contention that the second drug test negated the first drug test, a fact which was addressed by the ABCMR in its initial consideration of his case, even though factually incorrect.

4.  Counsel points out that the applicant provided a random urinalysis specimen on 12 August 1985, that he was informed his urine specimen had screened positive for marijuana, and that he was instructed to report back to the unit on the same date, 12 August 1985, to provide a second urine sample.  The applicant contends that he took both tests on 12 August 1985 and that first specimen tested positive for marijuana and his second specimen tested negative.  The applicant also points out that the ABCMR incorrectly concluded that his first specimen was submitted on 12 August 1985 and his second specimen was submitted on 13 August 1985 which led to the conclusion that the urine specimen submitted on 12 August 1985 was both legally and scientifically supportable.  On 20 July 1988, the applicant was notified that the ABCMR had denied his application.  

5.  Counsel contends that the applicant subsequently retained the services of a North Carolina attorney to assist him in filing a request for reconsideration based on new evidence (that both urine specimens were collected on 12 August 1985 rather than on two separate dates as discussed by the ABCMR).  He claims that his request for reconsideration was not transmitted or was not followed through by his civilian counsel.

6.  Counsel now submits the applicant's request for reconsideration with new argument and new evidence.  He states that a licensed and practicing forensic toxicologist provides his expert opinion that the scientific methodology utilized by the drug testing laboratory substantially deviated from “accepted forensic practice” and cannot be supported as “scientifically reliable.”  

7.  Counsel provides 10 attachments outlined in the application in support of this application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AC86-02618, on 8 June 1988.

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 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.

3.  The applicant’s new request that his narrative reason for separation and separation code be changed and that he receive constructive credit for time in service to equal a 20-year retirement will be considered by the Board. 

4.  Having prior service, the applicant enlisted on 29 January 1982.  His highest rank attained was staff sergeant.   

5.  On 3 October 1985, nonjudicial punishment was imposed against the applicant for using marijuana.  His punishment consisted of a reduction to E-5, a forfeiture of pay, and extra duty.  This was based on a positive urinalysis sample provided by the applicant on 12 August 1985.  

6.  On 12 August 1985, an initial screen of the applicant’s urinalysis came back positive for marijuana.  The applicant’s command, upon learning of this result, directed the applicant to provide another urinalysis sample that same day.  The applicant provided this record sample approximately six hours after the first sample.  The second sample showed the presence of marijuana, when initially tested, although below the level required for a presumptive positive test.  In accordance with Army practice and regulation, the sample was therefore reported as negative.   

7.  At his discharge board, the applicant presented the negative results of the second urinalysis test to the Board members.  In addition, he provided a letter from Mr. M__, referenced in his current application, that questioned the accuracy of the first urinalysis test and procedures used in the testing.  Despite having considered this evidence, along with the other evidence presented by the defense, the Board nonetheless concluded by a preponderance of the evidence that the applicant did engage in misconduct by wrongfully using marijuana. 

8.  On 24 October 1985, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 14, for misconduct (drug abuse).  A board of officers convened on 15 January 1986 and found that the applicant had used illegal drugs and recommended that he be separated from the service and issued a general discharge.  On 6 March 1986, the separation authority approved the findings and recommendation of the board. 

9.  Accordingly, the applicant was discharged on 2 April 1986 with a general discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct (drug abuse).  He had served a total of 17 years and 7 months of creditable active service.

10.  Item 25 (Separation Authority) on the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 2 April 1986 shows the entry, "AR [Army Regulation] 635-200, Chap [chapter] Para [paragraph] 12c Section III.”  Item 26 (Separation Code) on his DD Form 214 shows the entry, "JKK."  Item 28 on his DD Form 214 shows the entry, "MISCONDUCT – DRUG ABUSE.”

11.  There is no evidence of record which shows the applicant completed 
20 years of active duty. 

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.  Section III of Chapter 14, in effect at the time, established policy and prescribes procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense.  The regulation states, in pertinent part, that abuse of illegal drugs is serious misconduct.  It also states, in pertinent part, that first-time drug offenders, Soldiers in grades E-5 to E-9, will be processed for separation upon discovery of a drug offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.  However, the separation authority may direct a general discharge if such is merited by the member's overall record.

13.  Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation states the reason for discharge based on separation code “JKK” is “Misconduct – Drug Abuse” and the regulatory authority is Army Regulation
635-200, paragraph 12c(2).  

DISCUSSION AND CONCLUSIONS:

1.  The narrative reason for separation and separation code used in the applicant’s case are correct and were applied in accordance with the applicable regulations.

2.  The applicant has failed to show that his urinalysis and subsequent discharge were flawed.  The ABCMR will not intrude into the decision of the discharge board which considered, and rejected, the same essential evidence and arguments he has placed before the ABCMR. 




3.  Evidence of record shows the applicant completed 17 years and 7 months of creditable active service when he was discharged.  There is no evidence of record which shows the applicant completed 20 years of active duty.  Therefore, there is no basis for granting the applicant’s request for constructive credit for time in service to equal a 20-year retirement.   

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XX______  ____XX____  ____XX____  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.



      _______XXXX_______________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080011781



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ABCMR Record of Proceedings (cont)                                         AR20080011781



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